People v. Smith CA4/2

Opinion

Filed 2/24/14 P. v. Smith CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E055780

v. (Super.Ct.Nos. RIF144557 & 144586) DANIEL LEE SMITH, OPINION Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Ronald L. Johnson,

Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Affirmed.

Julie Schumer and Patrick Clancy for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel and Kathryn

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

1 I. INTRODUCTION

Defendant Daniel Lee Smith appeals from his conviction of eight counts of child

molestation (Pen. Code, § 288, subd. (a)) and one count of evading a police officer (Veh.

Code, § 2800.1(a)), with true findings on a multiple victim enhancement allegation (Pen.

Code, § 667.61, subd. (e)(5)) and a prior strike allegation (Pen. Code, §§ 667, subds. (c)

& (e)(1), 1170.12, subd. (c)(1).).1

Defendant contends: (1) the trial court’s order precluding him from having eye

contact with two of the victims during their testimony deprived him of his constitutional

rights to confrontation and a fair trial, or, in the alternative, he was deprived of effective

assistance of counsel in this regard; (2) the admission of evidence of uncharged sexual

offenses under Evidence Code section 1108 deprived him of due process; (3) evidence of

the uncharged sexual offenses should have been excluded under Evidence Code section

352; (4) the trial court erred in denying his motion for mistrial after a witness testified

defendant “had been found guilty” in dependency court, or, in the alternative, defendant

was deprived of effective assistance of counsel in this regard; (5) the trial court erred in

allowing a prosecution witness to testify as an expert on Child Sexual Abuse

Accommodation Syndrome (CSAAS) because it deprived him of his right to notice and

exceeded the witness’s expertise, or, in the alternative, he was denied effective assistance

of counsel in this regard; (6) the trial court erred in admitting evidence of the number of

Child Protective Services (CPS) contacts with defendant’s household in the year before

1 Defendant has also filed a petition for writ of habeas corpus (case No. E058032). We deny that petition in a separate order.

2 his arrest; (7) the prosecutor committed error during cross-examination of the mother of

the victims and during argument to the jury, or, in the alternative, defendant was denied

effective assistance of counsel in this regard; and (8} the cumulative error doctrine

requires reversal. We find no prejudicial error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. Jane Doe 1’s Testimony

Jane Doe 1, the victim of counts 3 through 5, was 17 years old at the time of trial.

When she was six years old, defendant moved in with Doe 1, her mother, and her

younger sister, Jane Doe 2. Doe 1 called defendant “dad” and loved him like a father.

Defendant began molesting Doe 1 when she was six years old by touching her

vaginal area when she was in bed. Doe 1 slept in the lower bunk in a bedroom she shared

with Doe 2, who slept in the top bunk. Sometimes the molestation occurred when

defendant put Doe 1 to bed; other times, he entered the room later. Doe 1 did not

remember how many times it happened, but it seemed like it was “almost every night.”

At first, defendant rubbed around outside Doe 1’s vagina, but later, he took her

underwear off and touched inside her vagina about five times. It hurt, but she did not tell

him to stop. When Doe 1 was in fourth through sixth grade, defendant orally copulated

her about 15 times after removing her underwear. The acts occurred while Doe 2 was

asleep in the top bunk.

Doe 1 told her mother about the touching, and as she got older, she brought up the

subject when arguing with her mother because she felt her mother was not protecting her.

3 She believed Doe 2 had heard the arguments, but Doe 1 did not think she had told Doe 2

directly about the abuse.

The family lived in Orange County until Doe 1 was 12, and Doe 1 was friends

with Natalie M., who lived in their apartment complex. Doe 1 told Natalie M. that

defendant had molested her.

Doe 1 talked to a CPS worker when she was between six and 10 years old. The

worker asked if anyone had tried to touch her private parts, but Doe 1 did not tell about

the abuse. Doe 1 did not remember talking to a social worker on a second occasion in

2007 and telling the worker that nothing had happened.

The molestations of Doe 1 stopped when the family moved to Corona. Doe 1 and

Doe 2 no longer shared a room. They had a new half sister, Jane Doe 3. After the family

moved to Corona, Doe 1 had heated arguments with her mother during which they fought

physically.

When Doe 1 was 12, she met J.B. at school, and they began dating when she was

13. After six months, J.B. guessed that Doe 1 had been molested, and she confirmed to

him that she had been. Defendant and Doe 1’s mother approved of J.B. and got along

with him. She was not allowed to talk to him when she was grounded or got bad grades,

but she would then sneak phone calls with him. She denied her parents had told her she

could not be with him unsupervised.

Once, Doe 1 had a conversation with Doe 2 about why Doe 1 made such a big deal

out of everything with their parents. Doe 1 brought up the abuse, and Doe 2 said

defendant had French kissed her. Doe 1 was angry and asked Doe 2 if anything had

4 happened, but Doe 2 “clammed up” and did not disclose anything else. Doe 1 raised the

subject later, and Doe 2 told her to “leave it alone.” Doe 1 eventually told her counselor

and the police what Doe 2 had said.

On the weekend of June 21, 2008, Doe 1 got into a day-long fight with her parents

because they refused to allow her to go to a friend’s party. They said they were kicking

her out, and she started packing, but they then yelled at her and told her not to.

Defendant tried to drag her to her room, which caused rug burns on her elbows, and he

grabbed her by the hair and hit her on the side of her head. Photographs of Doe 1’s

elbow were admitted into evidence. Her mother threw her shoe in the toilet so she could

not leave. Doe 1 left through the window and went to the friend’s house where she had

previously been forbidden to go. After two days, she returned home to find all her

belongings in a trash can. At school, she was pulled out of her class by a counselor. She

told the counselor she had been molested, and she disclosed the molestation to a police

officer out of concern for her little sisters. She did not return home, but was placed in

foster care.

Detective Damon Devine interviewed Doe 1 on July 7, 2008. Doe 1 denied that

her mother had tried to control her or had given her a hard time about contacting the

police. She told the detective that Doe 2 was still denying being abused. She believed

Doe 2 would say anything to get out of foster care.

At Detective Devine’s request, Doe 1 surreptitiously recorded a conversation with

Doe 2. Doe 1 testified that Doe 2 confirmed abuse but did not give many specifics. Doe

2 denied being French kissed by defendant but admitted “‘just a really long, regular kiss,

5 not even really long.’” Doe 1 helped Doe 2 write something about the abuse while in

foster care; Doe 1 did not tell Doe 2 what to say but helped her with wording and spelling

and told her to be more specific. She never told Doe 2 to lie or to exaggerate. She denied

writing the document herself.

B. Doe 2’s Testimony

Doe 2, the victim of counts 6 through 10, was 14 at the time of the trial. She

called defendant “Dad” and saw him as a father figure. When she was eight or nine years

old, the family was living in Anaheim. Defendant French kissed her, which she

described as “[o]pen mouth with tongue,” when he said good night. She saw defendant

lean into Doe 1’s bottom bunk, but she did not remember ever seeing defendant put his

hands on Doe 1’s private parts. When Doe 2 was 10 or 11, she heard Doe 1 and their

mother at least five times talking about defendant touching Doe 1.

The family moved to Corona when Doe 2 was eight and a half or nine, and she

then shared a bedroom with Doe 3 instead of Doe 1. Defendant began touching her

vaginal area both over and under her clothing almost every night while she was in bed.

She felt scared and helpless, and she sometimes pushed him away and told him no.

Defendant then kept going and told her it was okay and it was supposed to be happening.

Defendant put his finger inside her vagina, and it hurt.

Doe 2 did not remember telling her mother about the abuse until she was in foster

care. Her mother “called [her] a liar, and she freaked out and started bawling and told

[Doe 2] that she didn’t believe [her]. And [Doe 2] kept talking to her about it, and by the

end she said that maybe she did believe [her].” The mother told Doe 2 not to tell the

6 police or CPS anything. Doe 2 did not say anything to CPS for months because she

wanted the family to get back together. Doe 2 did not remember whether she had told

Doe 1 about defendant’s French kissing her. After they were placed in foster care, Doe 2

was really angry at Doe 1 because she did not want the family to break apart. She was no

longer angry at Doe 1.

When Doe 2 first disclosed the abuse, she wrote it in a notebook and gave it to the

interviewer at Doe 1’s suggestion. Doe 1 was present when Doe 2 wrote her statement,

and Doe 1 checked the statement and made suggestions. Doe 2 confirmed that her

disclosures in the statement about defendant French kissing her and touching her breasts

and vagina were true.

At the time of trial, Doe 2 was living with her biological father in another state.

She and Doe 1 communicated through texts and Facebook about every week, but they

only visited each other once or twice a year. They were “kind of like best friends now.”

Doe 1 had not pressured Doe 2 to testify to anything or to say anything untrue, and Doe 2

would not do so even if asked. She conceded she had lied at least 12 different times to

law enforcement. She had lied because her mother had told her not to say anything.

C. Doe 3’s Testimony

Jane Doe 3 was six years old at time of trial. She testified that defendant had

touched her “pee pee” “[a] lot” when she was in her bed sleeping. That had happened “a

long time ago” when she shared a bedroom and bed with Doe 2. When defendant

touched her, it made her feel scared, and she did not like it. She did not know if it had

been a dream, and she had not asked him to stop because she “was asleep.” She had

7 talked about the touching “a lot” and “[m]aybe more than ten times” with her foster

mother. She was mad at defendant for what he had done. She did not remember telling

anyone when she was three years old that no one had ever touched her body. She said

she still told lies sometimes.

Transcripts of Doe 3’s Riverside Child Assessment Team (RCAT) interviews were

provided to the jury. In the first interview, Doe 3 denied that anything had happened to

her on her body or to her sister. In the second interview, Doe 3 said she did not think

anything had happened to her in any part of her body, including her private spot and her

bottom. If something happened, she would say, “[N]o, don’t do that!” and she would tell

someone she trusted. She said she used to live with her “real daddy”; he was nice, and

she was not scared of anything or anyone.

D. Other Prosecution Evidence

1. Tami V.

Doe 3’s foster mother, Tami V., testified that Doe 3 had lived with her since May

2009. Doe 3 had extensive eczema that “comes and goes mostly under stress.” Doe 3

scratched herself, mostly when she went to bed, and picked at her skin, which inflamed

the eczema. Doe 3 became anxious before visits with defendant. After the visits ceased

in March 2010, Doe 3’s behavior improved. Tami V. noticed unusual behavior in Doe 3,

including sleeping with her clothes removed from the waist down and masturbating in

front of Tami V. while taking a bath. Doe 3 never had eczema around her vagina. Doe 3

told Tami V. that when she was rubbing herself, she thought about “‘little boys touching

me and then touching themselves, and it ma[de her] feel like the food in [her] stomach

8 [was] fighting.’” Tami V. had seen Doe 3 “humping on a stuffed animal,” looking at

herself in the mirror with her legs spread, rubbing herself on Tami V.’s leg, and humping

a chair leg, among other things. Tami V. talked to her about keeping her private parts

covered and not touching anyone else or showing her body. When she visited her sister,

she would say, “‘Well none of my family likes [Doe 1]. [Doe 1] lied.’” Doe 3 had been

in therapy since she was placed with Tami V. Doe 3 told Tami V. that “she would lay

[sic] in bed at night and feel sick, feel gross because she would think about men touching

her.” At first, Doe 3 denied that anyone had done anything to her, but after visits with

defendant were terminated, she said she had not slept well. Tami V. testified: “I said,

‘Why not?’ She goes, ‘You know how I think about men touching me? I kept having

those thoughts last night, and I felt yucky.’ At that point, that’s the first time she was

doing this. She kept saying, ‘Maybe it was a dream, maybe it wasn’t. Maybe it was a

dream, maybe it wasn’t.” She later said (to Tami V.): “‘I need to tell you something. I

think it was my dad who touched me.’” She repeated that conversation about five times.

When Tami V. asked how she knew it was her dad, she said, “Because I went like this,

and I opened my eyes, and I saw him walk out of the room.”

Tami V. testified that she wanted to adopt Doe 3, and the adoption would finalize

the next month. Doe 3 had not lived with Doe 1 or Doe 2 since she was three years old.

2. Dr. Susan Horowitz

Dr. Susan Horowitz testified that she had examined Doe 3 in October 2009 for

sexual abuse. In her report, she noted “‘abnormal anal/genital’ exam” because Doe 3 had

extensive labial fusion that could be caused by sexual abuse or other mechanisms. She

9 did not see eczema in Doe 3’s vaginal area. She also checked a box on the report that

stated “‘limited insufficient history’” because Doe 3 had not disclosed abuse. Dr.

Horowitz testified that Doe 3’s “sexualized behavior is . . . consistent with a history of

being sexually abused.” Dr. Horowitz also testified Doe 3 had denied being abused. On

cross-examination, she testified that labial fusion is common in young girls, and she

could not say it was caused by sexual abuse; it could have been congenital or it could

have been caused by rubbing.

3. Natalie M.

Natalie M. testified that she had been 11 years old when she met Doe 1; Doe 1 was

then about eight. They lived in the same apartment building, and for several years,

Natalie M., Doe 1, and Doe 2 saw each other daily, and they were very close. When Doe

1 was about 11, she told Natalie M. a secret of a sexual nature, specifically, that

defendant touched her “[d]own where she goes to the bathroom.” Natalie M. told Doe 1

she should tell her mother, and Doe 1 said she had already done so, but her mother did

not do anything.2 Natalie M. did not tell anyone of Doe 1’s disclosure.

2 Before Natalie M. testified in front of the jury, she testified at an Evidence Code section 1360 hearing that Doe 1 had told her that defendant had touched her. She testified she did not remember any more specifics about what Doe 1 had said about the touching or its frequency. On cross-examination, she confirmed that “[o]ther than saying, ‘[Defendant] touched me’ or ‘Dad touched me,’ that’s the extent of what [she] recall[ed] [Doe 1] telling [her].” Natalie M. agreed with the prosecutor’s question on direct examination that Doe 1 had disclosed a “secret of a sexual nature,” specifically that defendant had touched her and that Doe 1 had said defendant had touched her “[d]own where she goes to the bathroom.” On cross-examination, Natalie M. testified she had never before told anyone that Doe 1 had said she was touched “down there.”

10 4. Sheri McCluskey

Sheri McCluskey, an Orange County CPS employee, testified that in February

2002, an anonymous report of sexual abuse and general neglect in defendant’s household

had been received. McCluskey interviewed Does 1 and 2, then eight and five years old

respectively, and both denied sexual abuse. McCluskey testified it was not uncommon

for a child to deny abuse. The investigation was deemed inconclusive. Doe 2 told

McCluskey that her mother had also asked her whether defendant had touched her

because he had touched Doe 1.

5. Deputy Jeremy Dortch

Riverside County Deputy Sheriff Jeremy Dortch testified he was dispatched to

defendant’s house at about 4:00 p.m. on July 9, 2008. He and his partner knocked on the

front door, but there was no response. They continued to knock on the door and rang the

doorbell for five minutes to 10 minutes. They then drove down the street out of sight of

the house and parked. At about 7:00 p.m., they saw a car pass by. It was the same color,

year and make, and license tag as the car that had been parked in defendant’s driveway; a

man was driving, and a woman was the passenger. The deputy attempted to pull the car

over after seeing it run three stop signs, fail to yield, and change lanes without signaling.

The car entered a freeway, and the deputy turned the pursuit over to the California

Highway Patrol. After defendant was pulled over, he told Deputy Dortch that he did not

pull over earlier because he believed he was going to be arrested on an open child

molestation case. The woman passenger, defendant’s wife, was crying and upset. She

11 said she had wanted to get out of the car many times during the pursuit, and she had

actually tried to do so. Defendant had screamed at her to stop and sped up.

E. Defense Evidence

1. Tricia Hoyle

Tricia Hoyle, a supervisor at Riverside County CPS, testified that in July 2008, she

learned that Doe 1’s boyfriend had come for a visit at Doe 1’s foster home. Hoyle had

spoken to Doe 1 and told her there would be no more contact with her boyfriend. Doe 1

denied that he was her boyfriend and said he was her best friend, but she admitted they

had kissed. Hoyle said she might consider phone calls between the two. Hoyle had

information that Doe 1 and her boyfriend had been discussing ways to kill defendant.

Hoyle told Doe 1’s primary social worker that the calls had to be monitored and timed.

2. Sean W.

Sean W., defendant’s cousin and a police officer in Orange County, testified that

defendant had been involved in property crimes and drug use from his late teens through

his 30’s, but in the last 10 years, his character had changed, and defendant had been clean

and sober. Sean and his wife had been foster parents for Doe 3 from about August 2008

until May 2009. Sean had seen once Doe 3 masturbating, and he reported it to the social

worker. Sean did not believe defendant had molested the girls. However, Sean had never

visited defendant’s home and had never met Doe 1. While she lived in his home, Doe 3

never mentioned being molested.

12 3. Mindi W.

Mindi W., Sean’s wife, testified that she never observed any hypersexual

behaviors on the part of Doe 3. Doe 3 had scratched her inner thighs because of her

eczema, but she was not touching herself sexually. Doe 3 frequently took off her

pajamas and underwear at night because she said her eczema itched. Doe 3 told Mindi

that no one had touched her private area. Mindi testified that she would find it unusual

for a five-year-old child to “hump” stuffed animals and chair legs and to have nightmares

about men touching her; however, she had never observed such behaviors when Doe 3

was living with her.

4. T.S.

Defendant’s wife, T.S., testified they had been together 12 years. Doe 1 had never

reported being sexually abused by defendant. After the 2002 CPS interviews, T.S. talked

to Does 1 and 2, and both denied being touched. She believed Doe 1 and Doe 2 were

lying about the abuse. The girls again denied abuse during the CPS investigation in

2007. T.S. never told the girls to lie to CPS and the police.

Starting in about June 2007, Doe 1 began to obsess about J.B., and she became

unattached from the family. Doe 1 got into arguments and physical fights with T.S.,

including fights about Doe 1 wanting to get “on the pill.” Doe 1 ran away “out the

window” in March 2008 and went to the house of a friend she had been forbidden to visit.

Defendant went there to pick her up. Doe 1 was late coming home from school one day

in April 2008, and again defendant found her and brought her home.

13 In June 2008, Doe 1 begged to be allowed to go to a party at her friend’s house,

but T.S. refused permission. On the day of the party, defendant told Does 1 and 2 to

clean the backyard. Doe 2 came inside crying and said Doe 1 had punched her five times

on the head. T.S. heard what sounded like a loud slap and went to Doe 1’s room. Doe 1

was sitting on the bed crying and holding her ear and arguing with defendant. Doe 1

accused defendant of making her deaf in her ear, and she “looked up at him and said, ‘I

will do whatever I can to send you to prison for the rest of your life.’” T.S. left the room

and she saw Doe 1 “[s]torming towards the front door.” Defendant came out and grabbed

Doe 1, who “threw herself to the ground and turned around and started kicking him.”

She fought and yelled while defendant pulled her to the bedroom. Defendant told her to

stay in her room and closed the door. When he checked on her 10 minutes later, she was

gone; the window was open and the screen was removed.

T.S. confirmed that Doe 1 had gone to the party so she did not report Doe 1

missing. Doe 1 called the next day, and T.S. told her that if she returned home she would

have to live by her parents’ rules. Late Monday afternoon, CPS workers came to the

house. Defendant told them they could not come in without a warrant, but he eventually

opened the door to them.

T.S. denied that Doe 1 had packed her suitcases. She admitted that on a previous

occasion she had thrown one of Doe 1’s shoes in the toilet to prevent Doe 1 from running

away. T.S. denied that Doe 1’s belongings had been put in the trash.

On July 9, 2008, the day defendant was arrested, T.S. had visitation with Doe 2

and Doe 3. Doe 2 said she was sorry and that the foster parents had told her if her story

14 did not match Doe 1’s, “then she would never see her parents again,” but if her story did

match, “we would all go to family counseling, and we would be able to come home.”

Doe 2 said she had told the social workers “‘it happened to [her] too.’” T.S. went home

and told defendant what had happened at the visit. Later that evening, they left the house

to go to defendant’s mother’s house. T.S. saw police lights behind them, and she asked

defendant to pull over. She did not try to get out of the car. Defendant was not speeding

during the pursuit.

In 2002, a CPS worker asked Doe 2 if she knew anything about Doe 1 being

abused. Doe 2 responded, “‘Well, I knew—I think I knew it happened to [Doe 1].’” T.S.

testified she and defendant went together into the girls’ room to kiss them good night.

She did not think he went in without her.

5. Lisa Austin

Lisa Austin, a CPS employee, testified that a 2007 referral was deemed

unfounded. Doe 1 had said her family was very close, there was no drug or alcohol use

in the home, and although her parents argued, she had never seen them hit each other.

She stated no one had touched her private areas.

6. Defendant’s Testimony

Defendant testified on his own behalf. He denied that he had ever molested Doe

1, 2, or 3, or had ever French kissed Doe 2.

On Saturday, June 21, 2008, there had been a big blowup with Doe 1 because they

denied her permission to go to a party at her friend Jackie’s house. A few months earlier,

15 defendant had gone to Jackie’s house and had found Doe 1 and J.B. in a tree house there.

Doe 1 was on her back, and J.B. was on top of her; they were kissing.

The first time Doe 1 ran away, defendant went to Jackie’s house to pick her up.

No one came out, but a large dog came toward the car “in attack mode.” Defendant got a

crowbar out of the trunk to protect himself, but he did not swing it because Doe 1 came

out to the car. He did not try to kill the dog.

Doe 1 was obsessed with J.B. She talked about him all the time, and her grades

started dropping. She became more disrespectful to defendant and her mother. On

June 21, defendant told Doe 1 and Doe 2 to clean up the yard and play with their dog.

Doe 2 came in crying, saying that Doe 1 had hit her five times in the face. Defendant

went outside, and Doe 1 said she had hit her sister because “she felt like it.” Defendant

sent her to her room, and he started pulling out the cords for her television and stereo.

Defendant and Doe 1 called each other “bitch,” and defendant slapped her on the cheek.

Doe 1 fell to the floor and said she was going to call social services. She said she was

deaf in her ear, and she said, “‘I’m going to do whatever I can to send your fucking ass to

prison for the rest of your life.’” Defendant left the room. A few minutes later, Doe 1

walked to the front door to leave the house, and defendant jumped up and grabbed the

back of her shirt to stop her. She fell down and started kicking him. He grabbed her

ankles and took her back to her room. He looked in her room a few minutes later, and

she was gone. He drove up and down the street but could not find her. T.S. called

Jackie’s house and learned that Doe 1 had gone to the party. He spoke to Doe 1 and told

her they wanted her to come home, but she did not.

16 Defendant testified he and T.S. had not kicked Doe 1 out of the house that day.

She was not packing a suitcase. He did not see T.S. throw Doe 1’s shoe into the toilet.

They did not put Doe 1’s things outside by the curb.

On June 23, Monday, police officers came to the house. He was in the bathroom

and did not answer the door for a few minutes.

7. James Blanco

James Blanco, a forensic document examiner testified he had examined various

writings by Does 1 and 2 and, in his opinion, Doe 1 wrote the notes that Doe 2 claimed to

have written.

8. Detective Devine

Detective Devine testified that he interviewed Doe 1 three times in June and July

2008. She never told him she had been kicked out of her house, that she had gone to

school Monday morning after staying away all weekend, that her clothes had been placed

in the trash, or that her mother had thrown her shoe in the toilet.

In the first interview, Doe 1 told him that whether it was better to tell the truth or

to lie depended on the situation. She said her parents were mad because she hit her sister

and talked back, after which defendant slapped her. She had run away before, but she did

not remember why. She felt safe at home.

In the second interview, Doe 1 said that Doe 2 had never admitted anything other

than defendant had French kissed her; Doe 1 said that Doe 2 just wanted to go home and

was just saying anything to get out of foster care.

17 In the third interview, Doe 1’s foster mother gave the detective a poem that Doe 1

said she had written with a friend.

Detective Devine interviewed Doe 2 twice. In the first interview, she denied that

defendant had French kissed her; rather, he had just given her a longer kiss when saying

good night. She did not fear him, and she did not think he would hurt her. She said her

memories went back no further than the current year (2008). She felt safe at home; both

parents had good qualities; the only thing she would change about defendant was that he

worked too hard. Doe 2 told the detective that Doe 1 had run away at least five times.

She repeated that she was telling the truth. If defendant had touched her, she would tell a

close friend or Doe 1.

In the second interview, Doe 2 denied that she felt intimidated. She said that all

Doe 1 cared about was her friends and boyfriend. In her RCAT interview, Doe 2 had

denied being molested. Devine told Doe 2 that “contradicting everything [Doe 1] said”

would not get her home sooner, and the process would speed up if she stopped

contradicting Doe 1. Doe 2 continued to deny being molested, but the detective thought

she was lying. Doe 2 never told Detective Devine that her mother had told her to deny

being molested.

Detective Devine set up a second RCAT interview for Doe 2, which he watched

from a separate room. Doe 2 handed the RCAT interviewer a diary3 and said, “‘I don’t

3 Only pages from the diary were introduced into evidence. Detective Devine testified he obtained the diary from the RCAT interviewer and booked it into evidence. He did not know where the remainder of the diary currently was. It was stipulated that Doe 2 had given the RCAT interviewer the diary book during an interview. The [footnote continued on next page] 18 want to answer any questions. It’s all right here.’” She said her handwriting had changed

and she did not want the interviewer to think anyone else had signed the book for her.

When the interviewer asked her specific questions, she said she did not remember despite

the statements in her diary.

Eventually, Doe 2 told the RCAT interviewer that defendant laid her down on her

bed and mattress in the family room and rubbed her stomach down to her genital area on

top of an underneath her clothes. He sometimes put his finger in her vagina, touched her

breasts, and pressed his penis against her buttocks. He also French kissed her twice.

F. Verdicts and Sentence

The jury found defendant guilty of eight counts of child molestation (Pen. Code,

§ 288, subd. (a)) and one count of evading a police officer (Veh. Code, § 2800.1(a)) and

found true a multiple victim enhancement allegation (Pen. Code, § 667.61, subd. (e)(5).)

The trial court found true a prior strike allegation (Pen. Code, §§ 667, subds. (c) & (e)(1),

1170.12, subd. (c)(1)).) The trial court sentenced defendant to a total term of 70 years to

life plus a concurrent term of 180 days for count 2.

III. DISCUSSION

A. Order Precluding Eye Contact with Victims

Defendant contends the trial court’s order precluding him from having eye contact

with Does 2 and 3 during their testimony deprived him of his constitutional rights to

confrontation and a fair trial, or, in the alternative, he was deprived of effective assistance

[footnote continued from previous page] interviewer’s practice was to give such an item to law enforcement, and she believed she had done so in this case. She did not have the book.

19 of counsel because his trial counsel did not raise an objection on constitutional due

process grounds.

1. Additional Background

The prosecutor requested before trial that defendant’s seat be moved farther from

the witness stand during the testimony of Does 2 and 3, who were then 14 and six years

old, respectively. The prosecutor suggested that defendant sit to defense counsel’s right

rather than left. The court stated defendant could remain where he was, but other

arrangements would be made “if there is any visual contact between the defendant and

the witness when she is testifying . . . .” The court clarified, “There can’t be any kind of

stare down or any kind of effort to intimidate or influence. I’m sure [defendant]

understands that he is going to have [to] keep his eyes on me or forward when the witness

testifies.”

Defense counsel inquired, “He can’t look at the witness?” The court responded, “I

don’t want any visual contact between he [sic] and witness, especially with the seven

year old. That is just too—there is too much possibility that it will influence the

testimony in some fashion.” Defense counsel objected that the jury might infer

defendant’s guilt from his failure to look at the witnesses and that she relied on her clients

to note their observations. The trial court disagreed and offered to explain its order to the

jury, but defense counsel declined.

The trial court stated that although defendant had a right to face his accuser, “he

doesn’t get an opportunity to intimidate.” The court later clarified its order: “[I]t does

not have to be like blinders [or] staring straight at me. What I want to avoid is any

20 intense eye contact so that there is no perception on their part or your part or my part or

anybody’s part that in any way their testimony is being influenced.” The court continued,

“It’s not to not allow you to confront your witnesses, because you are entitled to do that,

but because of their ages, I think it’s important. We can send signals unintentionally,

even to our children. My mother could give me a dirty look that would stunt my growth.

She didn’t have to say word one. And children are very perceptive of those kinds of

visual contact and visual communication. I want to make sure that that does not occur in

this case. If you will just honor that, I would appreciate it.” Defense counsel again

objected.

2. Standard of Review

We apply the deferential abuse of discretion standard to review a trial court’s

order concerning alternate procedures for witness testimony. (See People v. Lujan (2012)

211 Cal.App.4th 1499, 1507.)

3. Analysis

In People v. Herrera (2010) 49 Cal.4th 613, the court explained the purpose of the

Confrontation Clause: “The right of confrontation ‘seeks “to ensure that the defendant is

able to conduct a ‘personal examination and cross-examination of the witness, in which

[the defendant] has an opportunity, not only of testing the recollection and sifting the

conscience of the witness, but of compelling him to stand face to face with the jury in

order that they may look at him, and judge by his demeanor upon the stand and the

manner in which he gives his testimony whether he is worthy of belief.’” [Citation.] To

deny or significantly diminish this right deprives a defendant of the essential means of

21 testing the credibility of the prosecution’s witnesses, thus calling “into question the

ultimate ‘“integrity of the fact-finding process.”’” [Citation.]’ [Citation.]” (Herrera,

supra, at pp. 620-621.)

As a general rule, a criminal defendant is entitled under the Confrontation Clause

to a “face-to-face meeting with witnesses appearing before the trier of fact.” (Coy v.

Iowa (1988) 487 U.S. 1012, 1015-1016 (Coy) [holding that the defendant was deprived of

his right to confront the witnesses against him when the witnesses testified behind a

screen, though which the defendant could “dimly” perceive the witnesses, but they could

not see the defendant].) The Supreme Court also recognized that the general rule is not

absolute, and alternate procedures are permissible when necessary to further an important

public policy. (Coy, supra, at pp. 1020-1021.) Thus, in Maryland v. Craig (1990) 497

U.S. 836 (Craig), the Court upheld a state statute that permitted child abuse victims to

testify outside the courtroom over one-way, closed-circuit television when a showing was

made that face-to-face testimony would be traumatic to the child. The Court held that

protecting the minor victim from further trauma was a compelling state interest. (Id. at p.

852.)

Unlike in Coy and Craig, the instant case does not involve the physical separation

of the witness from the defendant and/or the jury. Those cases instead “set forth the

appropriate test where the witness is physically separated from the defendant” but did not

address what test would apply when the witness testified in the presence of the defendant

and jury under conditions that prevented the defendant and the jury from seeing the

witness’s eyes. (Morales v. Artuz (2d Cir. 2002) 281 F.3d 55, 58.)

22 In People v. Sharp (1994) 29 Cal.App.4th 1772 (Sharp), disapproved on another

ground in People v. Martinez (1995) 11 Cal.4th 434, 452, the court held that the

defendant was not deprived of his right to confront witnesses when the prosecutor stood

next to the witness stand so that a child victim did not have to look at the defendant when

she was testifying about acts of sexual molestation, and the defendant was unable to see a

portion of her face. The court stated: “A contrary holding would border on the absurd.

Surely, appellant cannot be claiming a constitutional right to stare down or otherwise

subtly intimidate a young child who would dare to testify against him. Nor can he claim

a right to a particular seating arrangement in the courtroom. A witness who avoids the

gaze of the defendant may be exhibiting fear, embarrassment, shyness, nervousness,

indifference, mendacity, evasiveness, or a variety of other emotional states or character

traits, some or all of which might bear on the witness’s credibility. [¶] It is, however, the

function of the jury to assess such demeanor evidence and ‘draw its own conclusions’

about the credibility of the witness and her testimony. [Citation.] There was no

interference with the jury’s ability to perform that function in this case.” (Sharp, supra,

at p. 1782.) In Sharp, the trial court had not made explicit findings as to the necessity of

protecting the child victim from unnecessary emotional trauma, but the appellate court

noted that before the prosecutor stood next to the child, it was “apparent from the record

of her testimony that [she] was experiencing considerable distress and suffering

inexplicable memory lapses about sex acts she had theretofore consistently reported.”

(Id. at p. 1783, fn. omitted.)

23 Courts in other states have held, as did the court in Sharp, that the Confrontation

Clause is not violated when a child witness testifies in the witness chair that faces outside

the defendant’s line of sight. (E.g., Stanger v. State (Ind.Ct.App. 1989) 545 N.E.2d 1105,

1112 [no constitutional violation when the witness chair was angled slightly toward the

jury and away from the defendant during child witnesses’ testimony]; Price v. State

(1996) 223 Ga. App. 185, 188 [477 S.E.2d 353, 358] [no constitutional violation when

the defense table was positioned so that the defendant was unable to see the witnesses

when they testified]; State v. Hoyt (Utah Ct.App. 1991) 806 P.2d 204, 209-210 [no

constitutional violation when the defendant and his counsel were seated so as to remove a

child victim from the defendant’s direct line of sight]; State v. Miller (2001) 2001 ND

132 [631 N.W.2d 587, 593] [no error when a child witness did not face the defendant but

faced the jury and the prosecutor during her testimony]; Morales v. Artuz, supra, 281

F.3d at pp. 60-61 [allowing a witness to wear sunglasses while testifying “resulted in only

a minimal impairment of the jurors’ opportunity to assess her credibility,” and did not

impair at all the “opportunity for the witness to see the defendant . . . .”]

In a case presenting facts analogous to those before us, the defendants, who

operated a group home for the mentally ill, were charged with violating involuntary

servitude law, among other crimes, based on their treatment of the residents. (United

States v. Kaufman (10th Cir. 2008) 546 F.3d 1242, 1246.) At trial, the court ordered,

“‘Defendants will not have contact with the victims in any fashion during the trial

without my permission. To the extent possible, defendants will avoid eye contact with the

victims when they are in court. I don’t want to deal with complaints that defendants are

24 trying to influence or intimidate victims through eye contact.’” (Id. at p. 1251, original

italics.) On appeal, the defendants contended that order violated their Confrontation

Clause rights (Kaufman, supra, at p. 1252) and further argued that the trial court did not

make sufficient findings under Craig as to the necessity for such an order (Kaufman,

supra, at p. 1255). The court assumed that the trial court had erred in its order because it

“heard no evidence regarding the justification for the order and made no particularized

findings.” (Id. at p. 1257.) The court nonetheless found that the error was harmless. The

court distinguished cases, such as Coy, in which a screen prevented the defendant and the

witness from seeing each other and prevented the jury from seeing the witness.

(Kaufman, supra, at p. 1257.)

Here, likewise, even if we assume the trial court erred by failing to make

particularized findings as to the justification for its order under Craig, we find the error

harmless. The defendant could see the witnesses and they could see him. Likewise, the

jury could see the witnesses, and they could see the jury. The important principles

underlying the Confrontation Clause were therefore satisfied.

In People v. Gonzales (2012) 54 Cal.4th 1234, the defendant contended his right to

confront witnesses was violated when a child victim’s videotaped testimony from the

preliminary hearing was introduced into evidence after the court found the child was

incompetent to testify at trial. At the preliminary hearing, the court had ordered that the

child witnesses be seated at an angle, not directly facing the defendants, although the

lawyers had eye contact with the children and the children could look around the

courtroom and make eye contact with the defendant if they wished. (Id. at p. 1265.) The

25 court first noted that the defendant had no right to confront witnesses at the preliminary

hearing and the court conducting that hearing had no reason to make Craig findings.

(Gonzales, supra, at p. 1267.) The court cited Sharp with approval and noted that

“[o]ther state courts have approved the use of similar seating arrangements, without the

findings required by Craig.” (Gonzales, supra, at p. 1267, fn. 17 [collecting cases].) We

conclude, as did the court in Gonzales, that the trial court’s order “satisfied the central

concerns of the confrontation clause: ‘physical presence, oath, cross-examination, and

observation of demeanor by the trier of fact.’” (Id. at p. 1268.)

4. Assistance of Counsel

Defendant argues, in the alternative, that he was deprived of effective assistance of

counsel because his trial attorney failed to object on the basis of the 14th Amendment due

process rights and right to a fair trial. “An ineffective assistance claim has two

components: A petitioner must show that counsel’s performance was deficient, and that

the deficiency prejudiced the defense. [Citation.] To establish deficient performance, a

petitioner must demonstrate that counsel’s representation ‘fell below an objective

standard of reasonableness.’ [Citation.].” (Wiggins v. Smith (2003) 539 U.S. 510, 521.)

Because we have concluded that any error in the trial court’s ruling was harmless,

defendant has failed to establish that his counsel provided ineffective assistance.

B. Admission of Evidence of Uncharged Sexual Offenses

Defendant contends the admission of evidence of the uncharged sexual offenses

against Doe 3 under Evidence Code section 1108 deprived him of due process. He

26 further argues that evidence of the uncharged sexual offenses should have been excluded

under Evidence Code section 352.

Defense counsel moved in limine to exclude the testimony of Doe 3 under

Evidence Code sections 1101, 1108, and 352. The trial court denied the motion, stating it

had weighed the prejudicial effect of the evidence, “as well as considering Evidence

Code Section 1108, [and] it appears . . . that on balance the evidence is appropriate before

the trier of fact . . . .”

2. Evidence Code Section 1108

Defendant acknowledges that our Supreme Court has found Evidence Code

section 1108 constitutional and that we are bound by that decision, but he raises the issue

to preserve a future challenge. We reject his contention for the reasons stated in People

v. Falsetta (1999) 21 Cal.4th 903, 907.)

3. Evidence Code Section 352

We review the trial court’s rulings as to the prejudicial effect of evidence under

the deferential abuse of discretion standard. (People v. Hernandez (2011) 200

Cal.App.4th 953, 966.) The prejudice referred to in Evidence Code section 352 “‘applies

to evidence which uniquely tends to evoke an emotional bias against the defendant as an

individual and which has very little effect on the issues.’” (People v. Karis (1988) 46

Cal.3d 612, 638.)

In People v. Harris (1998) 60 Cal.App.4th 727, the court listed factors to apply

under the balancing test of Evidence Code section 352 when evidence of other uncharged

27 sex crimes is offered under Evidence Code section 1108. Those factors include: (1) the

inflammatory nature of the evidence; (2) the probability of confusion if the other crimes

did not result in a conviction; (3) the remoteness of the other crimes; (4) the consumption

of time to present the other crimes evidence; and (5) the probative value of the evidence.

(People v.Harris, supra, at pp. 737-740.) The probative value of the evidence can

include “consideration [of] the degree of similarity of the prior and current offenses, as

similarity would tend to bolster the probative force of the evidence. (Id. at p. 740.)

(a) Inflammatoriness

Defendant argues the evidence of uncharged crimes involving Doe 3 was highly

inflammatory, because Doe 3 was far younger when the crimes occurred and could have

been viewed as more helpless than Does 1 and 2. Doe 3 was no more than three years old

when the uncharged crimes took place. However, Doe 1 testified she was only six when

the molestations began; thus, the age difference was not particularly dramatic. Moreover,

the types of acts committed against each child were similar; those acts included lewd

touching and rubbing of the children’s vaginal areas. The fact that the charged and

uncharged acts were similar made the evidence of the uncharged acts more probative, but

not more prejudicial.

(b) Possibility of confusion

Defendant argues that the fact that he was not convicted of the uncharged crimes

weighed against admissibility of the evidence. (People v. Branch (2001) 91 Cal.App.4th

274, 284 (Branch).) In that case, the court stated: “If the prior offense did not result in a

conviction, that fact increases the danger that the jury may wish to punish the defendant

28 for the uncharged offenses and increases the likelihood of confusing the issues ‘because

the jury [has] to determine whether the uncharged offenses [in fact] occurred,’” and “the

jury may have wanted to punish [the defendant] for committing the prior uncharged

offenses, rather than assessing his guilt or innocence of the charged offenses. [Citation.]”

(Ibid.)

In the present case, we perceive no likelihood the jury convicted defendant solely

to punish him for his abuse of Doe 3 because there was nothing markedly different about

Doe 3’s testimony such that the jury would likely have believed her but not Does 1 and 2.

(See Branch, supra, 91 Cal.App.4th at p. 284.)

(c) Remoteness

The uncharged crimes against Doe 3 were not remote in time. The uncharged

conduct against Doe 3 took place at the same time as the abuse of Doe 2 and only a few

years after the abuse of Doe 1 stopped or diminished. Courts have not found excessive

remoteness when far longer periods have elapsed since the uncharged offenses. (E.g.,

People v. Soto (1998) 64 Cal.App.4th 966, 991 [evidence of uncharged acts that had

taken place between 21 and 30 years before was admissible]; Branch, supra, 91

Cal.App.4th at p. 284 [30-year gap between charged and uncharged offenses]; People v.

Waples (2000) 79 Cal.App.4th 1389, 1393-1395 [Fourth Dist., Div. Two] [similarities

between charged offenses and uncharged offenses 15 to 22 years earlier “balanced out the

remoteness”].)

29 (d) Consumption of time

Defendant argues the presentation of evidence of the uncharged crimes involved

an undue consumption of time because Doe 3’s testimony also required the presentation

of the testimony of Dr. Horowitz and Tami V. Doe 1’s testimony covered about 200

pages of the reporter’s transcript and Doe 2’s testimony covered about 120 pages.

Testimonies of other prosecution witnesses covered approximately 66 more pages. In

contrast, Doe 3’s testimony covered only about 25 pages; Dr. Horowitz’s testimony

covered less than 30 pages, and Tami V.’s testimony covered about 62 pages. In People

v. Escudero (2010) 183 Cal.App.4th 302, 312, the court held that the fact that testimony

about prior sexual offenses constituted more than half of the witness testimony at the

defendant’s trial did not require the trial court to exclude it on the ground of undue

consumption of time. Here, the challenged evidence encompassed a far smaller portion

of the trial.

Considering all the relevant factors, we conclude the trial court did not abuse its

discretion in finding the evidence of uncharged offenses more probative than prejudicial.

C. Motion for Mistrial

Defendant contends the trial court erred in denying his motion for mistrial after a

witness testified defendant “had been found guilty” in dependency court, or, in the

alternative, defendant was deprived of effective assistance of counsel in this regard.

The prosecution called Tami V., Doe 3’s foster mother, to testify about behaviors

she had observed in Doe 3 and about Doe 3’s disclosure of the abuse. During cross-

30 examination, defense counsel elicited Tami V.’s testimony that she was Doe 3’s

prospective adoptive parent, and a hearing to finalize the adoption was scheduled for the

following month. Tami V. testified it had always been her wish to adopt the child. In

discussing the time of Doe 3’s disclosure in relation to events in dependency court,

defense counsel asked Tami V. “not to share” what those events have been. Defense

counsel then elicited that Doe 3 had disclosed the abuse to Tami V. and Tami V. had told

the social workers of the disclosure “right after something important happened in

dependency court.” Defense counsel later inquired when Tami V. had sent a certain

email to the social worker, and Tami V. responded, “That was before the parents’ rights

were terminated.” Defense counsel moved to strike the answer, but the trial court denied

the motion.

Defense counsel continued to question Tami V. as to when Doe 3 had made

certain statements to her about the abuse, and Tami V. responded that a second statement

had been made “[f]our or five days after parents’ rights were terminated . . . .” Defense

counsel did not object, but instead continued, “Parents’ rights were terminated. You

know that . . . it is the time that you have the green light for adoption; correct?

During redirect examination, Tami V. stated she wanted to say something, and the

prosecutor asked what she wanted to say. She responded: “That I was told from the

beginning that [defendant] was already found guilty in the juvenile court system.”

Defense counsel objected and moved to strike the statement. The trial court ordered the

statement stricken. Defense counsel stated she had a motion to make, and the trial court

stated it would hear the motion later.

31 During the morning recess, defense counsel moved for a mistrial. She stated she

had “specifically asked the witness not to talk about what the hearing was in dependency

court,” but the witness had “blurted out numerous times that parental rights [were]

terminated.” Counsel argued the testimony was so prejudicial a mistrial should be

declared. The prosecutor responded there had been no pretrial hearing on the issue, and

the witness had not been instructed to avoid the topic during her testimony. She further

argued there had been no prejudice because defense counsel used the timing of the

termination of parental rights as part of her strategy, in order to argue that Tami V. had a

motive to lie.

The trial court denied the motion for mistrial. The court found no prejudice

because the context in which the statement was made involved the timing of the

disclosure, not the nature of the dependency proceeding. The court further pointed out

that defense counsel had used the statement to cross-examine Tami V. about her motive.

We review the denial of a motion for mistrial under the deferential abuse of

discretion standard. (People v. Cox (2003) 30 Cal.4th 916, 953.)

“‘A mistrial should be granted if the court is apprised of prejudice that it judges

incurable by admonition or instruction. [Citation.] Whether a particular incident is

incurably prejudicial is by its nature a speculative matter, and the trial court is vested with

considerable discretion in ruling on mistrial motions. [Citation.]’ [Citation.] A motion

for a mistrial should be granted when ‘“‘a [defendant’s] chances of receiving a fair trial

32 have been irreparably damaged.’”’ [Citation.]” (People v. Collins (2010) 49 Cal.4th 175,

198-199.) In that case, our Supreme Court held that the trial court did not abuse its

discretion in denying a motion for mistrial when it concluded any prejudicial effect of a

witness’s volunteered testimony that the defendant had been in prison could be cured by

an admonition to the jury. (Id. at p. 199.)

Here, the trial court struck Tami V.’s statement about defendant having been

found guilty in dependency court. The trial court instructed the jury that it could not

consider stricken testimony for any purpose. We find no abuse of discretion in the trial

court’s conclusion that striking the statement and admonishing the jury that it could not

consider stricken testimony was sufficient to cure any harm. Moreover, as the trial court

pointed out in denying the motion for mistrial, defense counsel used the statement to

cross-examine Tami V. about her motives.

Defendant argues, in the alternative, that he was deprived of effective assistance of

counsel because his trial attorney failed to move to exclude evidence that defendant’s

parental rights had been terminated through dependency proceedings and failed to request

that Tami V. be ordered not to refer to such evidence.

When a defendant claims ineffective assistance of counsel, we presume counsel’s

conduct falls within the wide range of professional reasonableness, and we give great

deference to counsel’s tactical decisions. (Strickland v. Washington (1984) 466 U.S. 668,

681.) Thus, we do not reverse a conviction for ineffective assistance of counsel unless

the record discloses there was no rational tactical purpose for counsel’s act or omission.

33 (People v. Frye (1998) 18 Cal.4th 894, 979-980, overruled on another ground by People

v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Here, as noted, defense counsel cross-examined Tami V. on her desire to adopt

Doe 3 in an attempt to show Tami V.’s motive and bias. Defense counsel thus could

have had a rational tactical purpose in allowing evidence of the termination of

defendant’s parental rights to come before the jury to bolster its impression of Tami V.’s

bias. For that reason, we reject defendant’s claim of ineffective assistance.

D. Expert Testimony on CSAAS

Defendant contends the trial court erred in allowing a prosecution witness to

testify as an expert on CSAAS because it deprived him of his right to notice and

exceeded the witness’s expertise, or, in the alternative, he was denied effective assistance

of counsel in this regard.

Defense counsel moved before trial to exclude expert witness testimony on

CSAAS. The prosecutor stated he did not intend to call a CSAAS expert witness, and the

trial court granted the motion.

In direct examination, Dr. Horowitz testified that she had performed a physical

examination of Doe 3. She stated her information was that Doe 3 had not disclosed being

abused. However, on cross-examination, she testified Doe 3 had actually denied being

abused, and she wrote in her report that Doe 3 had denied being abused.

On redirect, the prosecutor asked Dr. Horowitz, based on her training and

experience, if it was uncommon for young victims to initially deny being abused by their

34 father. Defense counsel objected on the ground of lack of expertise and stated she wished

to make another objection outside the presence of the jury. The trial court overruled the

objections. Dr. Horowitz testified that initial denial of abuse was not uncommon, and

disclosures often come piecemeal or not at all. The prosecutor asked, “Are there certain

factors that may make it more or less difficult for a child to disclose that they are being

sexually molested?” Dr. Horowitz responded, “Yes.” Defense counsel objected “as to

expertise” and on the ground that the witness had not been listed as a CSAAS expert.

The trial court overruled the objections.

Dr. Horowitz then testified that many studies showed that victims of sexual abuse

do not tell, that it was the norm for victims not to tell, and nondisclosure was common.

She listed as among the “many good reasons” for failure to disclose; that the victims did

not want to upset their mother, get anyone in trouble, or lose their family; and they feared

not being believed. She agreed it was not uncommon for a child molestation victim to

wait 10 or 20 years to tell.

On recross-examination, Dr. Horowitz stated she had qualified as a CSAAS expert

in military court, had gone to “many trainings” on the subject, had talked to victims about

it, and was familiar with Dr. Roland Summit’s article on the subject. She had taught

CSAAS to students, and she thought that she was “as much an expert on what happens

with accommodation syndrome as most people.” She testified as to the general concepts

of CSAAS. On redirect, Dr. Horowitz testified she did not base her opinion in this case

on CSAAS, but rather, on Doe 3’s behaviors despite her denial of abuse.

35 After Dr. Horowitz’s testimony, defense counsel moved for a mistrial “on the

grounds that we were not given any prior notice that this doctor was going to testify about

the myths surrounding why children do not disclose sexual abuse earlier,” and that the

defense had not been provided discovery as to Dr. Horowitz’s background. The

prosecutor argued that defense counsel had opened the door to such testimony by

establishing on cross-examination that Doe 3 had initially denied abuse and on recross by

bringing in “this whole concept of child abuse accommodation syndrome.” Defense

counsel replied she had brought up the subject of Doe 3’s denial of abuse to impeach Dr.

Horowitz’s direct testimony that abuse had not been disclosed.

The trial court denied the motion for mistrial, explaining, “The report does

indicate that she took into consideration the history; that is, the apparent denial of the

alleged victim in reaching her decision. And in her 5,000-plus examinations, she has—

she indicated she has encountered denials on many occasions. And she opined on the

research and her own training and experience regarding reasons for those denials. [¶] So

I don’t think the defense was blind-sided, in that that was a natural consequence of her

testimony. And obviously counsel was aware of the studies, was able to raise the issue

she wanted regarding the accommodation syndrome. And so I don’t believe any

prejudice has occurred to the defense.”

2. Lack of Notice

As noted, the prosecutor represented to the court that it did not intend to call a

CSAAS expert witness, and defendant argues the discovery provided by the prosecutor

did not indicate that Dr. Horowitz would be called as a CSAAS expert. Defendant

36 argues, in the alternative, that he received ineffective assistance of counsel to the extent

his counsel failed to assert a federal constitutional basis for objecting to Dr. Horowitz’s

testimony. Specifically, he argues the lack of notice violated his right to due process.

The purpose of the discovery statute is to prevent trial by ambush. (People v.

Cabral (2004) 121 Cal.App.4th 748, 752.) However, as we discuss below, even if timely

discovery was not provided, the CSAAS testimony was not prejudicial.

3. Scope of Expertise

Defendant contends there was no foundational showing that Dr. Horowitz was

qualified as an expert in CSAAS because, among other things, she had never before

qualified as such in judicial court, and her work as a physician focused on the physical

aspects of abuse.

“A person is qualified to testify as an expert if he has special knowledge, skill,

experience, training, or education sufficient to qualify him as an expert on the subject to

which his testimony relates.” (Evid. Code, § 720, subd. (a).) “‘“We are required to

uphold the trial judge’s ruling on the question of an expert’s qualifications absent an

abuse of discretion. [Citation.] Such abuse of discretion will be found only where ‘“the

evidence shows that a witness clearly lacks qualification as an expert . . . .”’ [Citation.]”’

[Citation.]” (People v. Pearson (2013) 56 Cal.4th 393, 445.)

As recounted above, Dr. Horowitz had qualified as a CSAAS expert in military

court, had gone to “many trainings” on the subject, had talked to victims about it, and

was familiar with the seminal article on the subject, and had even taught CSAAS to

students. Dr. Horowitz was amply qualified to testify on CSAAS.

37 4. Opening the Door to CSAAS Testimony

Defendant argues the defense did not open the door to CSAAS testimony. On

direct examination, Dr. Horowitz testified that her information when she examined Doe 3

was that Doe 3 had not disclosed abuse. On cross-examination, defense counsel

established that Doe 3 had in fact denied being abused. Based on that denial, the

prosecutor argued that the defense had opened the door to an explanation for Doe 3’s

conduct.

CSAAS testimony is admissible “for the limited purpose of disabusing a jury of

misconceptions it might hold about how a child reacts to a molestation. [Citations.]”

(People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) When defense counsel elicited

testimony that Doe 3 had not failed to disclose molestation but had in fact denied it had

occurred, CSAAS testimony became relevant to explain to the jury the reasons a child

might deny abuse.

5. Prejudice

Defendant argues the error in allowing Dr. Horowitz to testify as a CSAAS expert

was prejudicial. He contends the case was close, and Doe 3 was an important witness

used to shore up the weak credibility of Does 1 and 2. In context, even if we assume

error, we find the error was harmless.

Dr. Horowitz’s testimony relating to CSAAS covered only two pages of testimony

on the prosecutor’s redirect, and her testimony covered only general concepts in broad

outline without reference to the facts of the case. On recross, defense counsel elicited

another four pages on the topic, most of which related to how the syndrome had been

38 developed and used. On further redirect, Dr. Horowitz confirmed she had not based any

of her opinions and conclusions on the syndrome.

Here, the trial was lengthy, and both sides presented extensive evidence. The

CSAAS testimony, such as it was, arose in the context of Dr. Horowitz’s examination of

Doe 3, not one of the charged victims. Moreover, defense counsel established through

cross-examination of Dr. Horowitz that Doe 3’s denial did not mean she was or was not

touched. We conclude that defendant has failed to show any reasonable probability that

the outcome of his trial would have been different had the evidence been excluded.

E. Evidence of CPS Contacts

Defendant contends the trial court erred in admitting evidence of the number of

CPS contacts with defendant’s household in the year before his arrest.

During pretrial discussions, defense counsel objected on hearsay and

Confrontation Clause grounds to the introduction of evidence of prior CPS contacts with

defendant’s family. Defense counsel later stated she would be putting into evidence the

victims’ denials of abuse made during CPS investigations in 2002 and 2007.

During cross-examination, defense counsel asked Doe 1 about her conversation in

2007 with a CPS worker and asked Doe 1 if she “had a lot of contact with CPS,” and Doe

1 responded, “Yes, I did.” Defense counsel also asked about the 2002 CPS contact.

Defense counsel questioned Doe 2 about CPS contacts in Orange County and clarified

that Doe 2 had been interviewed by “numerous CPS agents over the years.” Defense

counsel elicited from Deputy Devine that he had learned of CPS referrals of the family in

39 2002 and 2007, and Doe 1 had denied sexual abuse each time. Defense counsel also

called CPS social worker Tricia Hoyle to testify about statements Doe 1 had made after

being placed in foster care. During cross-examination, the prosecutor asked Hoyle about

the standard process and procedure when CPS contacts a household and asked how many

times CPS had contacted defendant’s household. Defense counsel objected on the

grounds the evidence was not relevant and was outside the scope of direct examination.

She further argued she had had no notice of the evidence, and it would be inflammatory

and unduly prejudicial under Evidence Code section 352.

The trial court ruled that Hoyle could testify as to the number of CPS contacts in

the year before defendant’s arrest but not as to the nature of those contacts. The trial

court stated the evidence was relevant to show that “they were in the watchful eye of CPS

. . . during that 12-month period.” Hoyle then testified that CPS contacted the household

five times in the 12 months before August 2008.

Thereafter, defense counsel questioned T.S. about the 2002 and 2007 contacts with

CPS agents. }

2. Analysis

Defendant argues the number of CPS contacts with his family was irrelevant and

therefore inadmissible. (Evid. Code, § 210.)

Even assuming for purposes of argument that evidence of the number of CPS

contacts was not relevant, defendant suffered no prejudice from the admission of that

evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.) Defense counsel elicited

evidence of CPS involvement with the family, as recounted above, and used that

40 evidence to highlight the number of occasions on which the victims had denied abuse.

Counsel argued, “Numerous denials of child abuse by the witnesses. Not just in one

county, but two counties over a period of five years. Numerous denials and with respect

to [Doe 2], countless denials.”

F. Prosecutorial Misconduct

Defendant contends the prosecutor committed misconduct during cross-

examination of T.S. and during argument to the jury, or, in the alternative, defendant was

denied effective assistance of counsel in this regard. Specifically, defendant claims the

prosecutor (1) improperly questioned T.S. about her failure to cooperate with police

based on the advice of her attorney and then improperly commented on the same during

closing argument; (2) improperly questioned T.S. about defendant’s desire to see a

warrant before allowing the police into their home and then improperly commented on

the same during closing argument; (3) improperly questioned T.S. about whether

defendant did not want to allow the police to enter because there were drugs inside the

house; (4) improperly began closing argument by retelling the facts from the perspective

of Doe 1; and (5) improperly arguing during closing argument that child molesters “don’t

get rehabilitated” and they continue to molest children, as evidenced by the abuse of

Does 1, 2, and 3.

1. Forfeiture

Although defendant claims five instances of prosecutorial misconduct, his counsel

failed to raise timely objections. With respect to defendant’s first, second, fourth, and

fifth claims, his trial counsel raised no objections at trial and requested no admonitions to

41 the jury. “‘A defendant may not complain on appeal of prosecutorial misconduct unless

in a timely fashion, and on the same ground, the defendant objected to the action and also

requested that the jury be admonished to disregard the perceived impropriety.’

[Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 965-966.)

With respect to defendant’s third claim, the trial court sustained a defense

objection to the prosecutor’s question to T.S. as to whether defendant did not want to

open the door to police because there were drugs in the house. T.S. had testified she did

not answer the door when the police came because she was asleep and did not hear them

knocking. Defense counsel later moved for mistrial, arguing the prosecutor did not have

a good faith belief in the truth of the evidence he was trying to elicit. The trial court

denied the motion for mistrial on the ground the witness had stated there had been no

drugs in the house and no prejudice had occurred to defendant. However, defense

counsel failed to request an admonition. We therefore deem that claim forfeited as well.

(People v. Hill (1998) 17 Cal.4th 800, 820 [the failure to request an admonition forfeits a

claim of prosecutorial misconduct if an admonition would have cured the harm caused by

the misconduct].)

An exception to the general rule of forfeiture applies when “misconduct was

pervasive, defense counsel repeatedly but vainly objected to try to curb the misconduct,

and the courtroom atmosphere was so poisonous that further objections would have been

futile . . . .” (People v. Hillhouse (2002) 27 Cal.4th 469, 501-502.) Defendant has not

shown that the exception applies in his case. Instead, the trial court sustained numerous

defense objections throughout the trial.

42 2. Ineffective Assistance of Counsel

Defendant argues, in the alternative, that his counsel provided ineffective

assistance by failing to object or to request an admonition. A decision whether to object

to prosecutorial misconduct is “inherently tactical” and “the failure to object will rarely

establish ineffective assistance. [Citations.]” (People v. Maury (2003) 30 Cal.4th 342,

419.) A legitimate tactical purpose for failing to object is counsel’s desire to not draw

further attention to the comments or testimony. (People v. Ghent (1987) 43 Cal.3d 739,

773 [“Counsel may well have tactically assumed that an objection or request for

admonition would simply draw closer attention to the prosecutor’s isolated comments”].)

G. Cumulative Error Doctrine

Defendant contends the cumulative error doctrine requires reversal. We conclude

that any errors, whether considered singly or cumulatively, were not prejudicial.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST J. We concur:

RAMIREZ P.J.

MCKINSTER J.