People v. Stoll CA3

Opinion

Filed 8/26/26 P. v. Stoll CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT

(Placer)

THE PEOPLE, C102350 Plaintiff and Respondent, (Super. Ct. No. 62173659)

v.

MATTHEW STOLL, Defendant and Appellant.

A jury found defendant Matthew Stoll guilty of 10 counts of molesting his adopted daughter (victim) when she was under 14 and when she was 14 or 15. The court sentenced him to 16 years in prison. Defendant appeals, contending: (1) there was insufficient evidence of victim’s age for certain counts; (2) the trial court committed instructional and evidentiary errors; and (3) the trial court improperly used an aggravating factor in sentencing. We disagree and affirm. Undesignated statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged with committing 10 lewd acts on victim: four acts when she was under 14 (§ 288, subd. (a)) and six acts when she was 14 or 15 (§ 288, subd. (c)(1)). The charges included kissing her (count 1), touching her buttocks (count 2), and touching her vagina (count 3) at a community pool when she was under 14; putting his head on her breast also when she was under 14 (count 4); and kissing her in the kitchen

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when she was 14 or 15 (count 10). Defendant was also charged with committing three lewd acts on victim’s sister (sister) when she was under 14. As to all charges, the prosecution alleged three aggravating circumstances: (1) victim and sister were particularly vulnerable; (2) the manner in which defendant carried out the crimes indicated planning, sophistication, or professionalism; and (3) defendant took advantage of a position of trust or confidence. (Cal. Rules of Court, rule 4.421(a)(3), (8) & (11).)

I. Preinstructions

Before opening statements, the trial court read preinstructions to the jury. The court stated it would be giving instructions on the law after the jury heard all the evidence in the case and told jurors not to make up their minds until they heard all the evidence, received the instructions, and were deliberating. It also instructed the jury to disregard any testimony the court ordered stricken from the record.

II. Police Officer Testimony A police officer testified that he conducted a welfare check at victim’s home (the police visit) after receiving a report that defendant had been molesting her. Victim was 16 years old and told the officer that defendant had “kissed her on the lips and touched her boobs.” This all started when she was 13, and there had been multiple incidents.

The officer then interviewed defendant, and the jury heard the recorded interview.

Defendant denied touching victim inappropriately but admitted he had kissed victim on the lips by the pool. He offered the following justifications: (1) victim started walking around the house wearing “very low bathing suits” when she was “about” 13, and he and victim started developing an attraction toward each other; (2) he was seeking counseling; (3) his wife (mother) was aware of the issue; (4) “it’s not uncommon for an adopted daughter and a father to look at each other not as biological”; (5) victim had been sexualized; and (6) victim had a “way about her where she [was] just sort of seductive.” When asked why victim would claim there was inappropriate touching, he admitted: (1) he kissed victim two years ago; (2) six months later, he gave victim mouth to mouth

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and kissed her on the cheeks; and (3) about a year ago, he got close to victim on the couch and started touching her chest because he had an attraction towards her.

The officer then interviewed sister. She stated there was no inappropriate touching with her, but she had witnessed defendant kiss victim twice and overheard them talking about being attracted to each other.

III. Victim’s Testimony

Victim testified that an incident occurred at the community pool near her house when she was “either 12 or 13.” She was swimming in the pool with defendant, and defendant “was touching [her] down there,” specifically rubbing her vagina. Defendant also touched her buttocks. On the car ride home, defendant told her he was in love with her and “leaned over and kissed” her on the lips.

Defendant kissed victim on the lips several times besides the pool incident. One time occurred in the kitchen when she was also under age 14. And she was “maybe 15 or in high school” when the other kisses occurred. Another time, victim and defendant were home alone when defendant touched her breast. She walked up to him when he was sitting in a chair, and he held her waist, touched her breasts with his hands, and put his head on her breast. She believed she “was 12, 13” when this happened.

Victim told sister and mother about defendant being attracted to her, and they had family meetings about it. Victim was told not to tell anyone because “we didn’t want anything happening to [defendant].” Victim was also afraid she would “go back into the system” if she said anything. She felt depressed, wanted to sleep with sister at night, and started harming herself by plucking at her skin with a nail filer. She also kept a journal in which she mentioned her discomfort with what defendant was doing to her.

The prosecution presented an exhibit appearing to be a hand-written contract between victim and sister (the contract). According to the contract, the girls agreed to get out of their family, “[m]ake up shit” about mother and defendant, and send defendant to jail. Victim testified she did not write or recognize the contract and denied ever agreeing

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with sister to make something up about defendant to get him in trouble. On cross- examination, victim repeated that the contract did not contain her handwriting or her signature and denied wanting to get out of her family or send defendant to jail.

Defense counsel also asked victim about her journal. Victim admitted she wrote some things in the journal, but not everything. One entry expressed hatred of mother and a desire to get rid of her. Another stated the author could be a better wife to defendant than mother. Victim denied having those feelings or writing those entries.

Defense counsel asked victim about a multidisciplinary interview she participated in when she was 16. The interviewer asked victim how old she was at the pool, and victim said, “about 15.” When asked about this exchange, victim told defense counsel she was actually trying to refer to the year 2015 because she knew she was 13 when the incident occurred. When defense counsel pressed about the same and similar statements from the interview, victim insisted she was talking about the year, not her age. On recross examination, defense counsel again asked victim about her timing statements to the interviewer. Victim explained she got confused during the interview but insisted she was kissed coming back from the pool when she was 12 or 13 and again in the kitchen when she was 15.

IV. Sister’s Testimony

Sister testified she observed defendant and victim kiss multiple times, sometimes “like almost making out kissing.” Defendant and victim also wrestled with each other and “it kind of got physical where they were touching … each other.” At the pool, defendant and victim had a “wedgie game” where defendant “put his hand down her swimsuit” and there “was a time where they kissed at the pool.” Defendant and victim talked “about running away together; having a kid together; getting married.” Sister denied writing or signing the contract.

Sister participated in two multidisciplinary interviews. At the first interview, she was 13 and did not accuse defendant of any inappropriate conduct. By the time of the

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second interview, she was 15 or 16 and “ready to disclose.” She disclosed that defendant had touched her arm, legs, and stomach, and vagina with his hands.

After the police visit, victim and sister were removed from defendant’s home and taken to mother’s relatives (aunt and uncle). Sister lived with aunt and uncle for about two and a half years but ran away due to inappropriate touching. During cross examination, defense counsel asked about uncle, but sister refused to discuss the topic and left the courtroom. The court took a recess, during which the prosecution represented that sister would be returning to testify and had been advised of defendant’s right to cross-examine her. After the recess, sister returned to the witness stand and testified that uncle had been abusing her for a year and a half. Defense counsel asked for details, but sister said she did not want to talk about it. After additional questioning, sister stated that uncle touched her whole body in a sexual way, specifically her legs, chest, vagina, and “everything.” Defense counsel asked sister if she remembered a day when uncle pushed her on the bed. Sister reluctantly answer the question and then refused to answer “any more questions like this.” The court took another recess. When trial resumed, sister continued to challenge defense counsel’s questions about uncle’s conduct. She denied defense counsel’s suggestion that her accusations of uncle were lies.

Defense counsel turned to the police visit and asked sister if she told the officer that she saw defendant kissing victim on the lips. As defense counsel showed her a transcript of the visit, sister stated, “He admitted to kissing his own daughter on this paper.” The court then granted defense counsel’s motion to strike sister’s statement because there was no question posed. Defense counsel proceeded to question sister regarding statements she made to the officer that were inconsistent with her earlier testimony. Sister admitted she “did not tell [the officer] the full truth with a lot of things.” The following dialogue then ensued:

“[DEFENSE COUNSEL]: And what you described to [the police officer] were – was two kisses – one of which you saw and the other you didn’t see.

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“[SISTER]: I have a question. “[DEFENSE COUNSEL]: Your Honor, can you direct the – the witness to answer the questions?

“THE COURT: Did you say you have a question? “[SISTER]: Yes. “THE COURT: For – for the Court or for what? “[SISTER]: Kind of about this. Yeah. Yeah. For the Court. “THE COURT: What is your question? “[SISTER]: How are you gonna deny that he said -- “[DEFENSE COUNSEL]: Your Honor, I’m gonna ask her to stop -- “[SISTER]: No. He – no. He admitted in this paper that he kissed her. “THE COURT: Hold on. Hold on. Hold on. “[DEFENSE COUNSEL]: Your Honor, I’m gonna -- “[SISTER]: Are we all blind now? “THE COURT: Hold on. “[SISTER]: Hold up. ‘He told me that he has kissed her sister and you.’ “THE COURT: Hold on. Please stop, [sister] – [sister]. Please stop. Thank you.

Okay. Members of the jury, we’re going to break for the day.”

Before the jury left, defense counsel asked the court to instruct the jury that it could not consider what sister said. Defense counsel urged the court to immediately give the instruction before they left and had “a chance to think about it.” The court refused to decide whether such an instruction was warranted until the next day.

The next day, defense counsel stated he received additional information that sister had been bragging to a potential witness about “how she made a big scene and flipped off the [c]ourt yesterday” and that “she can … say anything she wants in the courtroom and nothing will happen to her.” He requested “that the jury be instructed to completely ignore [sister’s] last outburst and that it’s not evidence” and that sister “be instructed in

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the strongest possible terms to knock this off.” He asked that the instruction be given sooner rather than later, arguing it was “misleading to this whole process for this jury to – to go home and not be told that what just happened here was inappropriate, stricken, to be disregarded.” The court declined to instruct the jury “right now,” opting to proceed with the next witness.

After that witness was excused, defense counsel asked for a jury instruction that “what happened yesterday at the end of the day was not to be considered by them as part of any evidence.” The court asked for clarification on what specifically defense counsel wanted the jury to disregard, and defense counsel identified the “last outburst that resulted in [sister] talking about” defendant’s admission of kissing victim. Defense counsel clarified that he was “not asking her to be directed to do anything.” The court acknowledged that sister, a “teenage witness,” had “been very defiant to the defense attorney and even to the [c]ourt. She has walked off the witness stand and out of the courtroom without permission of the [c]ourt twice. At the end of the day yesterday, she became very defiant on the witness stand in the presence of the jury causing the [c]ourt to adjourn the day early.” But the court also noted its limited “ability to compel this type of witness to answer questions or to curtail or correct defiant behavior.” The court stated it could tell sister to change her “conduct and be more respectful,” but was not sure what defendant wanted beyond that. Defense counsel stated he was not requesting the court to “do anything with [sister] except be mindful of the fact that she may become more defiant.” He also wanted the court to tell the jury “what [sister] said was not in response to any question and cannot be considered,” arguing this should have been done immediately. The court responded that it would “take a careful step-by-step process” and require defense counsel to identify specifically what statement he wanted stricken. Defense counsel stated he did not have the transcript, and the issue should have been addressed when the statement was made. The court again stated it would consider an instruction to strike a specific statement if defense counsel identified it.

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When sister retook the stand, defense counsel continued his cross-examination.

Sister admitted she had just talked to her cousin about what happened at trial the day before. Sister told cousin she had refused to answer questions and left the courtroom twice without permission. She also told cousin she “could do anything [she] wanted in the courtroom and nothing would happen to [her].”

The next trial day, defense counsel brought a transcript of sister’s testimony from five days before and moved for a mistrial. He argued the jury should have been instructed immediately regarding her non-responsive testimony. The court denied the mistrial motion but granted defense counsel’s earlier request to instruct the jury to disregard specific statements. But defense counsel withdrew that request. He argued that the instructional delay was “highly prejudicial” and sister’s “prejudicial approach to these proceedings designed to not answer questions and to provide information [had] infected these proceedings so much that a mistrial should be granted.” He also argued the court should not have allowed sister to ask a question. The court restated its denial of the motion, noting that the information sister “blurted out, which she shouldn’t have done, [related] to statements that were already in front of the [c]ourt.” The court also commented that it did not know what sister, a 17-year-old witness, was going to ask: “I don’t know if she’s gonna ask if she can take a break; if she’s not feeling well. I don’t know. So I allowed her to do that to see what her issue was.”

The court later admonished sister for discussing her testimony with other witnesses in violation of a pretrial court order.

V. Child Sexual Abuse Accommodation Syndrome Evidence The prosecution moved to admit expert testimony on child sexual abuse accommodation syndrome (CSAAS). Defense counsel objected, arguing the prosecution had failed to explain how the expert’s testimony could help a jury understand anyone’s behavior. The court granted the motion because there was a delay in reporting the alleged abuse and victim’s and sister’s credibility were at issue. Defense counsel then

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offered a new reason to exclude the CSAAS testimony: he argued the testimony was no longer necessary because every person on the jury was “aware of the principles that are being asserted here as some kind of … junk science.” The court rejected that argument.

A clinical psychologist testified as an expert in CSAAS. According to his testimony (which spans 69 pages): (1) he did not know anything about this particular case; (2) CSAAS is not a diagnostic tool, so he could not determine whether someone had been abused; (3) CSAAS can help laypeople understand common myths and misperceptions of child sexual abuse; and (4) CSAAS consists of five components – secrecy, helplessness, coping, disclosure, and retraction – but each component is not necessarily present in every case. The psychologist rejected the idea that the lay public knows everything about child sexual abuse because “there are still things that people either overestimate or kind of overlook,” including expecting that a child will appear sad or distressed when talking about sexual abuse or thinking “no one else can be around for abuse to occur.” Also, a lot of people “still remain surprised that the victim of sexual abuse seeks out the attention of their perpetrator.”

As to the secrecy component, the psychologist explained that the perpetrator is often a “known, trusting person in the kids’ life” who is “motivated to make sure other people do not know what is happening.” The secrecy can be attributed to various influences, including the following: (1) the perpetrator threatens to hurt someone if anyone finds out; (2) the perpetrator normalizes sexual talk and touch; (3) the child often looks up to and cares about the perpetrator; and (4) “most sexual abuse on kids is not done in a painful way.”

The psychologist explained that the helplessness component concerns the power dynamic between the adult and child. When the adult serves an authoritative role, like a parent or coach, that adult is the gatekeeper for privileges. And if the child tells someone and nothing happens, the child can have a harder time dealing with the abuse and be “in it for longer.”

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As to the coping component, the psychologist testified that kids of abuse can find ways to cope behaviorally, cognitively, and emotionally. Some kids engage in self-harm, drinking, and feeling depressed. Others immerse themselves in school or sports and stay away from home longer or try to be in public spaces, but abuse can still occur out in the open. Journaling is also a way to cope and try to make sense of what’s going on. The psychologist affirmed there is “no behavioral marker” or “specific way a kid will appear when they’re being abused.” Also, a parent may not realize the other parent is abusing their child because “child sexual abuse is typically not based on sex or sexual gratification.” In fact, most people who sexually abuse kids are not pedophiles.

As to the disclosure component, the psychologist testified that some people think an abuse reporting delay makes the abuse allegation unconvincing, but he explained that “the closer the relationship the child has with their perpetrator,” the longer the delay, and “the majority of kids are not telling for months, years, even till after they turn 18.” Also, kids may initially deny abuse and then disclose it later, or the initial disclosure can be incremental, tentative, or piecemeal. The psychologist also explained that it is possible for a child to be removed from a home where they are being abused and then placed in another home where they are also abused. He explained this is because the child’s vulnerabilities stay “pretty consistent.”

When asked if sexual abuse can have an emotional effect on the victim, including anger issues, the psychologist responded in the affirmative. He explained that feeling unprotected or out of control “can cause agitation, irritability, maybe even behavioral outbursts,” but some kids can be very composed. He also affirmed that going through the court process can trigger a reaction.

As to the retraction or recanting component, the psychologist testified that a sizable minority of kids who disclose abuse will later say the abuse did not happen even though it did. These kids may do this because of the negative consequences of telling, not wanting to deal with another change, and trusting promises that the abuser will stop.

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At the close of his direct testimony, the psychologist reiterated that the CSAAS components are not in every child sexual abuse case and CSAAS is really about “helping people understand why those things … can happen.”

On cross-examination, the psychologist affirmed the following: (1) he had not reviewed any reports concerning this case; (2) he did not know what questions would be asked during his testimony; (3) CSAAS is not a diagnostic tool; (4) there are no bright line symptoms indicating a person had been abused; (5) “you can’t attribute a behavior to saying this person has definitely been sexually abused”; (6) CSAAS is “used to help people understand why kids react certain ways that may not be expected”; and (7) an abused child can be angry or not, can display outward emotion or not, can remember a lot of details about being abused or not, and can appear normal and happy or not.

VI. Closing Arguments, Verdict, and Sentencing In closing argument, the prosecution argued defendant’s statements at the police visit showed he was guilty of the charged offenses. Also, victim testified to the offenses charged and told the jury she was the requisite age when the offenses occurred. As to sister’s behavior on the stand, the prosecution admitted “[i]t as a rough couple of days,” but urged the jury to think about “how hard it is for a 17-year-old girl” to answer questions about a private and probably shameful part of her life.

Defense counsel argued both victim and sister were lying and any contact defendant admitted at the police visit lacked sexual intent. As to sister, he argued her conduct as a witness was consistent with her lack of credibility.

The jury found defendant guilty of all 10 counts as to victim. As to sister, the trial court dismissed one count, and the jury found defendant not guilty of the two remaining counts. In a separate trial on three aggravating factors, the jury found true as to all 10 guilty counts the factor that defendant took advantage of a position of trust or confidence. The jury found another factor untrue and could not reach a verdict on the remaining factor.

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The court considered defendant’s probation eligibility and found various factors listed in California Rules of Court, rule 4.414, applicable. In particular, the court found victim was particularly vulnerable, defendant inflicted physical or emotional harm, and defendant took advantage of a position of trust or confidence. (Cal. Rules of Court, rule 4.414(a)(3), (4), (9).) Based on those factors and the totality of the circumstances, the court denied probation.

Turning to the prison sentence, the court noted the single aggravating factor the jury found true and found two mitigating factors applicable. The court then found that the aggravating circumstances outweighed the mitigating circumstances and imposition of the lower term would be contrary to the interests of justice. The court imposed the middle term of six years for count 1. After finding that each count reflected a distinct and separate crime, the court imposed consecutive, fractional middle terms on the remaining counts. The court imposed an aggregate sentence of 16 years in state prison.

Defendant timely appeals.

DISCUSSION

I. Sufficient Evidence of Victim’s Age Section 288 makes it a crime for a person to commit a lewd act on the body of a child under age 16. (§ 288, subds. (a) & (c)(1).) If the child is under 14 years of age, the offender is punished by imprisonment for three, six, or eight years. (§ 288, subd. (a).) If the child is 14 or 15, and the offender is at least 10 years older, the offender is punished by imprisonment for one, two, or three years. (§ 288, subd. (c)(1).) Defendant contends counts 1, 2, 3, 4, and 10 must be reversed because there was insufficient evidence that victim was the requisite age at the time the acts occurred. We disagree.

“To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a

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reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) “We need not be convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether ‘ “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” (Ibid., italics omitted.) And we do not resolve credibility issues or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Resolution of those issues and conflicts is “the exclusive province of the trier of fact” (ibid.), so all conflicting evidence must be resolved in favor of the jury’s decision (People v. Kurey (2001) 88 Cal.App.4th 840, 849).

Specific to counts 1 through 4, defendant contends the acts were not “placed in a time frame of other events such as a birthday or first day of school.” And specific to counts 1 through 3, defendant contends victim told the multidisciplinary interviewer she was 15, not under 14. These contentions are unpersuasive. A victim “must be able to describe the general time period in which [the] acts occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each Sunday morning after he came to live with us’), to assure the acts were committed within the applicable limitation period.” (People v. Jones (1990) 51 Cal.3d 294, 316.) Victim satisfied this requirement when she testified she was 12 or 13 years old when counts one through four occurred. Her testimony specifically identified her age, so it did not require additional details to constitute substantial evidence of when the acts occurred. And her statements to the multidisciplinary interviewer merely raised a credibility issue that the jury resolved in her favor. (See People v. Crabtree (2009) 169 Cal.App.4th 1293, 1323-1324.) We cannot reweigh this evidence or disturb the jury’s credibility finding.

Specific to count 10, defendant contends the conviction must be reversed because victim testified she was under 14 when defendant kissed her in the kitchen, not 14 or 15 as required under the charged offense. (§ 288, subd. (c)(1).) Again, defendant highlights a mere conflict in the evidence. Victim testified she was under 14 when defendant kissed her in the kitchen, but she also testified on recross examination that she was 15 when this

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happened. Both statements constitute substantial evidence. (People v. Young, supra, 34 Cal.4th at p. 1181 [testimony of a single witness is sufficient to support a conviction].) A reasonable trier of fact could have resolved this conflict in favor of victim being 15, so we cannot disturb the jury’s resolution. (See People v. Smith (2011) 198 Cal.App.4th 415, 427 [“While Doe’s testimony was internally inconsistent, it constituted substantial evidence that defendant’s molestation of Doe when she was eight years old involved substantial sexual conduct”].)

II. CALCRIM No. 207

Defendant contends counts 1 through 4 must be reversed because the trial court relieved the prosecution of its burden of proof regarding victim’s age by giving CALCRIM No. 207. We disagree.

A. Additional Background

As to counts 1 through 4, the trial court instructed the jury with CALCRIM No.

207 as follows: “It is alleged that the crimes charges in this case occurred between the following dates: Counts 1 through 4, April 2nd, 2017, through April 1st, 2018.” Those dates correspond with the time when victim was 13 years old. The instruction continued: “The People are not required to prove that the crimes took place exactly on those days but only that they happened reasonably close to those days.” The trial court discussed this instruction with the parties, and defendant did not object. The court also instructed the jury on the elements of the charged offenses, specifically the element that victim was under the age of 14 when the acts underlying counts 1 through 4 occurred. The court repeated that age element in its unanimity instruction and instructed the jury to consider the instructions together. In closing argument, the prosecutor argued he had proved the age element for each of these counts because victim testified she was 13 when they occurred.

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B. Analysis We review a claim of instructional error de novo. (People v. Cole (2004)

33 Cal.4th 1158, 1208.) “In assessing a claim of instructional error or ambiguity, we consider the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled.” (People v. Tate (2010) 49 Cal.4th 635, 696.) We also consider the evidence and the arguments of counsel. (People v. Huggins (2006) 38 Cal.4th 175, 193.) We interpret an instruction to support the judgment if the instruction is reasonably susceptible to such interpretation. (People v. Young, supra, 34 Cal.4th at p. 1202; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) A defendant who argues the jury erroneously interpreted an instruction must demonstrate a reasonable likelihood that the jury understood the instruction in an erroneous way. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.) We presume jurors are “intelligent persons capable of understanding and correlating” jury instructions. (People v. Martin (1983) 150 Cal.App.3d 148, 158.)

CALCRIM No. 207 accurately states the general rule that when a crime is alleged to have occurred “on or about” a certain date, it is not necessary for the prosecution to prove the offense was committed on that precise date, but only reasonably close to that date. (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304.) An exception to that general rule exists when the time of the offense is material. (§ 955.) On that point, the jury was also instructed with CALCRIM No. 1110 and specifically that the prosecution needed to prove victim was under the age of 14 when counts 1 through 4 occurred. We presume the jury was able to correlate these two instructions and understand that CALCRIM No. 207 reflects a general rule while CALCRIM No. 1110 sets forth a specific time limit and the prosecution was required to prove that victim was under 14 when counts 1 through 4 occurred. Indeed, the prosecution emphasized this element and victim’s testimony that she was 14 when these counts occurred. Because we resolve this contention on the merits and find no error, there is no need to address whether defendant forfeited the contention,

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whether his trial counsel rendered ineffective assistance, or whether the error was prejudicial.

III. Sister’s Behavior

Defendant contends he was denied a fair trial because the trial court failed to immediately instruct the jury to disregard sister’s disruptive behavior. We review the trial court’s evidentiary and courtroom control decisions for abuse of discretion (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Miller (1960) 185 Cal.App.2d 59, 77) and conclude the trial court acted within its discretion.

According to defendant, victim was disruptive when she “stormed” out of the courtroom without permission. Although defense counsel requested the court to instruct sister to “knock this off” and the court offered to tell sister to “change her conduct and be more respectful,” defense counsel later clarified he was not requesting the court to “do anything with [sister] except be mindful of the fact that she may become more defiant.” This means defendant abandoned his request for an instruction regarding sister’s unpermitted departures, thereby forfeiting the issue on appeal. (See People v. Ramirez (2006) 39 Cal.4th 398, 472.)

According to defendant, victim’s disruptive behavior also included her questions about defendant’s statements at the police visit. The court ultimately granted defendant’s motion to instruct the jury to disregard those questions, but defendant again withdrew his request. Nevertheless, defendant contends the trial court erred because the instruction should have been given immediately. We are not persuaded. Trial courts are vested with wide discretion as to when to instruct the jury (People v. Chung (1997) 57 Cal.App.4th 755, 758), and this jury knew instructions would be provided after all evidence had been presented and knew what they had to do if the court ordered testimony stricken. Because we presume the jury would have followed those instructions (People v. Buenrostro (2018) 6 Cal.5th 367, 431), we cannot conclude the trial court abused its discretion by declining to immediately instruct the jury to disregard victim’s questions.

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IV. Review of Subpoenaed Documents Defendant subpoenaed various records from health facilities and a school district concerning victim and sister. After the prosecution moved to quash the subpoena, defendant agreed the court needed to review the records in camera to determine which records could be released. The court reviewed eight sets of records, released limited redacted documents, and found the remaining documents “protected by the right to privacy and the psychotherapist-patient privilege.” Defendant now requests that we review the non-released documents for relevance and admissibility.

Although the People do not oppose that review, the non-released documents were never filed with this court. Defendant filed a motion to augment the appellate record to include a “copy of flash drive including documents provided on return of defense subpoena duces tecum.” We granted that motion, but the trial court clerk could not locate any flash drives in the court’s record. We informed defense counsel of this issue and advised him to “immediately proceed in accordance with California Rules of Court, rule 8.340(c)” if there was a discrepancy in the augmented record. Defense counsel did not take any action to correct or augment the record. Because there are no records for us to review, we treat this contention as forfeited. (See People v. Barton (1978) 21 Cal.3d 513, 519-520 [appellant’s duty to provide adequate record for review and to correct missing or incomplete record].)

V. CSAAS Testimony

Defendant challenges the psychologist’s testimony on the following topics (the challenged testimony): (1) journaling serves as a form of coping with abuse; (2) the abused person can present anger issues; (3) abuse can occur in the open; (4) abuse can occur in successive placements; (5) most abusers are not pedophiles; and (6) the abuser may not be motivated by sexual gratification. Defendant contends the challenged testimony exceeded the allowable scope of CSAAS testimony in three ways. We take each in turn, rejecting all three on the merits below.

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First, he contends the challenged testimony improperly tracked aspects of the prosecution’s case. But defendant did not raise this contention in the trial court, so he failed to preserve it for appeal. (People v. Williams (2008) 43 Cal.4th 584, 620.) The contention also fails on the merits.

Expert testimony on the common reactions of child molestation victims may be admitted in appropriate cases to disabuse jurors of commonly held misconceptions about child abuse. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin).) A jury can use CSAAS evidence to decide whether the alleged victim’s conduct was consistent with the conduct of someone who has been molested. (People v. Page (2025) 114 Cal.App.5th 1022, 1030-1031.) The evidence must “must be targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence,” but it cannot be so case-specific as to “allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused.” (People v. Bowker (1988) 203 Cal.App.3d 385, 393-394.)

Here, we conclude the CSAAS testimony did not cross the line into improper case-

specific testimony. Defendant picks out isolated topics from the psychologist’s 69-page testimony. While those topics happened to correspond with victim’s or sister’s behavior, they were broadly applicable to many abuse victims. The psychologist also expressly stated he was not familiar with the facts of the case, and he repeatedly cautioned that he and CSAAS cannot diagnose child abuse. Under these circumstances, the psychologist’s testimony was proper.

Second, defendant contends the challenged testimony was improper because it did not contradict any commonly held misconceptions about victims of child sexual abuse. We disagree. Defendant cites no authority to support this contention and no evidence indicating the challenged testimony was common knowledge to the jurors. In any event, we agree with People v. Sedano (2023) 88 Cal.App.5th 474 (Sedano) that “[d]espite continuing advancement in the understanding of how children commonly react to sexual abuse, CSAAS evidence remains ‘a valid and necessary component of the prosecution

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case in matters involving child abuse.’ ” (Id. at p. 479, fn. 5, quoting People v. Munch (2020) 52 Cal.App.5th 464, 466 [concluding reasoning in McAlpin “is as valid today as it was in 1991”]).) The jury “need not be wholly ignorant of the subject matter of the opinion in order to justify its admission.” (McAlpin, supra, 53 Cal.3d at p. 1299.) Expert testimony is admissible “ ‘whenever it would “assist” the jury.’ ” (Id. at p. 1300.) Here, the psychologist’s testimony aided the jury in assessing sister’s and victim’s credibility.

And third, defendant contends the psychologist’s testimony that abusers are usually not pedophiles and may not be motivated by sexual gratification was improper because it concerned the abuser rather than the victim. Defendant did not raise this contention in the trial court, so he failed to preserve it for appeal. (People v. Williams, supra, 43 Cal.4th at p. 620.) The contention also fails on the merits. Although CSAAS testimony cannot be used to suggest that a defendant fits the profile of an abuser (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084), the psychologist did not make these statements to create an abuser profile. He made them in the context of explaining why a child may not show signs of being abused and why a non-abusing parent might not realize the other parent is abusing their child. That explanation served the proper purpose of dispelling a common misconception regarding child sexual abuse and showing there is no profile for a typical child molester. (See Sedano, supra, 88 Cal.App.5th at p. 483; McAlpin, supra, 53 Cal.3d at pp. 1302-1304.)

Because we reject defendant’s contentions regarding the CSAAS testimony on the merits, there is no need to address his ineffective assistance of counsel claim.

VI. Aggravating Factor

A. Additional Background Just before the bifurcated jury trial on aggravating factors, defense counsel argued that determining what would constitute an ordinary violation of a criminal statute might create a constitutional vagueness problem. The trial court rejected the argument and proceeded with trial.

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The court instructed the jury that it could not find the position of trust aggravating factor true unless it agreed the prosecution had proved that: (1) “the defendant took advantage of a position of trust or confidence with the victim to commit the crime”; and (2) “the defendant’s conduct was distinctively worse than an ordinary commission of the underlying crime.” The prosecution argued this factor applied because defendant was the victim’s adopted father and “[t]here [are] no more defined position of trust than a parent.” Defense counsel argued the jury had “been presented with zero evidence relating to what is the ordinary commission of the underlying crime” because the prosecution had not given them anything to compare defendant’s conduct with. In rebuttal, the prosecution argued that “a father has a position of trust over his child” and “that alone … is more than [] normal.”

During deliberations, the jury asked for clarification on “what the distinction is between what an ordinary commission of the crime is as opposed to worse than ordinary, as we are having issues in determining what is considered ordinary when committing these crimes.” In response, the trial court instructed the jury to read all instructions carefully and to read CALCRIM No. 200, specifically the following instruction: “Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.” After further deliberation, the jury found the position of trust aggravating factor true.

B. Analysis Defendant contends the trial court improperly relied on the position of trust aggravating factor for purposes of sentencing because the jury was unable to assess whether defendant’s conduct was distinctively worse than an ordinary commission of the

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underlying crime.1 In defendant’s view, the phrase “ordinary commission of the underlying crime” does not have a plain, unambiguous meaning so the jury was unable to apply this phrase. In his reply brief, defendant also contends that phrase is unconstitutionally vague. We reject defendant’s contentions.

The “distinctively worse” standard requires the fact finder to consider “whether the manner of the crime’s commission was distinctively worse ‘when compared to [the] other ways in which such a crime could be committed.’ ” (Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 89.) We agree with Chavez Zepeda that this standard is within a jury’s competence and is not unconstitutionally vague. (Id. at p. 91.)2 We also hold that this standard does not have a special legal meaning that departs from common usage or requires additional clarification via instruction. (See People v. Kimbrel (1981) 120 Cal.App.3d 869, 872 [no duty to give clarifying instruction where terms are commonly understood].) Here, the court instructed the jury it could not find the position of trust aggravating factor true unless it concluded that “the defendant’s conduct was distinctively worse than an ordinary commission of the underlying crime.” This instruction conveyed the applicable standard and did not require further clarification.

1 Defendant also contends the trial court improperly used this factor to deny probation. Defendant is mistaken. The trial court considered the factors specific to probation in California Rules of Court, rule 4.414. No jury finding is needed to find those factors applicable. (See Cal. Rules of Court, rule 4.414(c).) And defendant provides no basis for us to conclude that the trial court “must have been influenced” by the jury’s finding on the position of trust aggravating factor. (See People v. Hardy (1992) 2 Cal.4th 86, 150.) 2 For the first time in his reply brief, defendant addresses Chavez Zepeda and contends he is trying to fall into the opening Chavez Zepeda left for “a conclusion that a particular aggravating circumstance may be unconstitutionally vague.” (Chavez Zepeda, supra, 97 Cal.App.5th at p. 92.) In fairness to the People, we do not address this new contention. (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 559.)

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DISPOSITION

The judgment is affirmed.

/s/ MESIWALA, J.

We concur:

/s/ MAURO, Acting P. J.

/s/ WISEMAN, J.*

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.