Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. YA071686, Victor L. Wright, Judge.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Severiano Medina Gomez appeals from a judgment of conviction entered after a jury found him guilty on one count of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)) and two counts of lewd act upon a child (id., § 288, subd. (c)(1)). The trial court sentenced defendant to 13 years and 4 months in state prison.
On appeal, defendant claims numerous errors, including evidentiary and instructional error, violated his rights to due process and a fair trial, requiring reversal of his convictions. We affirm.
FACTS
A. Prosecution
Defendant and Reyna are the parents of Julia, and her younger siblings Yadira, Abigail, Adrian and N. Reyna also has one older son, Danny.
In 1994, the family was living in Inglewood. Julia was 8 or 9 years old and shared a room and a bed with Abigail, who was a year younger than she was. A number of times while Julia was sleeping, she would feel her hand being pulled back and forth. One night, Julia was awakened by her hand being pulled back and forth. She opened her eyes and saw defendant standing by the bed. His pants were pulled down, his penis was erect, and he was moving her hand back and forth on his penis. Julia was scared and did not know what to do. Defendant then pulled up his pants and left the room.
When Julia thought defendant and her mother had gone to sleep, she snuck out of the house and went to the house of an older cousin, Ray, who lived down the street. Julia was crying and told Ray what had happened. Ray told her to go home and talk to her mother.
Julia did not want to go home, so she went to a nearby park. From there, she went to the home of a friend, Janet, who lived across the street from the park. She told Janet what happened and that she did not want to go home.
Janet, who was 22 at the time of trial, testified that she did not know Julia when Julia was eight or nine years old but met her when the two were in middle school. One morning, Julia came to her house. Julia said her father had touched her and asked if she could stay with Janet. She stayed in Janet’s room for a few hours.
Julia went to another park and eventually called her mother. When her mother came for her, Julia told her that she saw defendant by the side of her bed with his pants down, and he had her hand on his penis. Her mother asked whether she was crazy or dreaming. Julia replied that she “wasn’t dreaming, that [she] saw him and [she knew] what he was doing, that [she] was scared and [she] didn’t want to go home.” Her mother drove her home.
Two weeks later, defendant came into Julia’s room and did the same thing. When she woke up and moved, he left the room. Defendant continued coming into Julia’s room at night and moving her hand up and down on his penis. She estimated it happened 10 to 15 times through age 13 and more than 5 times when she was 14 and 15. The last time it happened was when she was 16 years old. Julia told her mother about these occurrences, but her mother did nothing. Julia never reported the occurrences to the police because she thought that if her mother did not believe her, they would not believe her.
When Julia was 16 years old, her mother put a “slide lock” on the inside of Julia’s door. Defendant stopped coming into the room at night. However, he would look at her through the bathroom window when she took a shower and made her feel uncomfortable.
In 2005 or 2006, Julia met a boy named Jose at a party. She told him she needed “easy money” so she could move out of her house. He told her that if she gave him her bank card, he could get her “easy money.” She gave him her bank card. About a month later, she got a call from the bank asking her to repay it. She called Jose, who told her he would give her money to repay the bank, but he never did. The bank closed Julia’s account. When defendant learned about this, he took her to the police station to file a police report. Julia falsely reported to the police that her bank card had been stolen because she did not want defendant to know what had happened.
In 2006, Julia and Yadira leased an apartment together, although they ultimately did not move into the apartment. Julia told Yadira what defendant had done to her. She also told a neighbor, Linda, that she did not like what defendant was doing to her and she worried that defendant would bother her younger sisters.
About March 2008, when Julia was 21 years old, Abigail told Julia that defendant had been doing the same thing to her. Julia told her mother what Abigail said, but her mother did nothing. Julia called her aunt, Maria, who lived in Las Vegas. Julia told Maria what had happened with defendant and that she wanted to come live with Maria. Maria came and got Julia and took her back to Las Vegas.
Maria had lived with her sister, Reyna, defendant, her other sister, Martha, and Martha’s husband, Mario, for a period of time when she was 12 or 13 years old. Reyna and defendant shared one bedroom, Martha and Mario shared the other, and Maria slept in the living room. Late one night, she was awakened by someone rubbing her vagina. She screamed, and the person ran into the room Reyna shared with defendant. Maria did not see the person’s face, but she saw the silhouette of a man wearing shorts. Defendant wore shorts around the house; Mario did not. Reyna suggested that Mario had touched Maria.
On another occasion, when Maria was about 19 years old, Maria was at Reyna and defendant’s house, playing pool with her nephew. Defendant offered to show Maria how to play pool. She refused his offer, but he bent her over, handed her a pool cue, then proceeded to touch her vagina over her clothing. She elbowed him and walked away. She later told her sister what happened, but Reyna just sighed and looked upward.
At trial, Maria indicated that she owed Reyna $3000, and Reyna had not asked for repayment. She also acknowledged that she resented defendant because he had an affair with her sister-in-law.
At the time of trial, Julia was living with her boyfriend. She acknowledged that before she went to Las Vegas, her parents told her they did not approve of her relationships with her boyfriend and others, and they prohibited her from seeing them. She lied to her parents and saw those friends without her parents’ approval.
On March 15, 2008, Reyna and Danny came to Las Vegas to get Julia to return home. Julia said she did not want to go home because of defendant. Reyna began screaming at Julia, and Julia’s 15-year-old cousin called the police.
North Las Vegas Police Officer Daryl Reitz responded to a domestic disturbance call at Maria’s home. Julia was crying hysterically and could not answer the officer’s questions, so her cousin told the officer what was happening. Eventually, Julia was able to tell Officer Reitz that her mother and brother were trying to get her to return to Inglewood with them, but she did not want to go because she was afraid of defendant. Officer Reitz told her she was an adult and did not have to go with them. A short time later, Julia revealed that defendant had abused her and she was worried about her siblings, especially Abigail. Officer Reitz referred the matter to the Inglewood Police Department.
Inglewood Police Detective Sherry Rumsey interviewed Julia on March 28, 2008. She then spoke to Abigail when Abigail was at school. Abigail said that Julia was a liar and only reported defendant to the police because he and Reyna did not like her boyfriend.
On April 24, 2008, Detective Rumsey had Reyna bring Abigail, Adrian and N. to the police station for interviews. Abigail again denied that defendant did anything to her.
Detective Rumsey interviewed N. in her office, while Reyna, Abigail and Adrian waited in another room. N. told Detective Rumsey she knew the difference between the truth and a lie. She identified various body parts on a drawing of a gingerbread man, including his “peepee.” N. told Detective Rumsey that defendant made her touch his “peepee, ” and she demonstrated how she did it by moving her hand, palm up, back and forth. She said that when she did this, something came out of defendant’s “peepee.” She said this happened about 10 times, when they were in the bathroom.
At that point, Detective Rumsey notified the Department of Children and Family Services (DCFS) to have the three children removed from the home. N. began crying. Detective Rumsey told her that she did not have to cry but just be honest. N. indicated that Abigail told her to lie, because if she said what had happened, the children would be taken from home and she would not see her mother again. N. also said that her mother told her not to tell the police anything but to lie. She added that she did not like it when defendant made her touch his “peepee.”
At the time of trial, N. was five years old. She testified that she loved her parents. She acknowledged having seen Detective Rumsey before but said she had not talked to her. She denied that her mother ever took her to the police station. She also denied having seen or touched defendant’s “peepee.”
Detective Rumsey spoke to Ray on April 30, 2008. He remembered Julia coming to his house early in the morning, but he thought she was about 12 years old when it happened. He remembered Julia telling him that defendant touched her and slept next to her. Detective Rumsey could tell that Ray did not really want to talk to her.
At trial, Ray testified that he could not remember what Julia told him. He did not want to testify, because he did not “want to be involved.”
Dr. Jayme Jones, a clinical psychologist, testified as an expert regarding the child sexual abuse accommodation syndrome. This is a model to help understand the behavior of sexually abused children, because their behavior can be counter to adult expectation that a victim of abuse will report the abuse immediately. The model cannot be used to tell whether a child has been abused, however. Dr. Jones specified that she was not applying the model to any of the individuals involved in this case.
Dr. Jones testified that there are five components to the child sexual abuse accommodation syndrome model: secrecy, hopelessness, accommodation, delayed or no disclosure, and retraction. It is possible for a child to experience some of these components and not others.
B. Defense
According to Reyna, defendant was a good husband and father. He was loving and respectful toward his children. He was not capable of doing the things Julia accused him of.
Reyna explained that Julia had discipline problems and was capable of lying about defendant. Julia ran away from home when she was almost 14 years old. When Reyna picked her up at a park, Julia said she ran away because Reyna and defendant were demeaning her and treating her sister better than her. She also said that defendant scared her when he mistakenly opened her door instead of the bathroom door.
When Julia was 16 years old, Julia had a love affair with another girl. Reyna and defendant confronted her, and Julia was very angry about the discipline they imposed.
Reyna and defendant also had problems with Julia when she committed credit card fraud. At first she told them her card had been stolen. Reyna loaned Julia $4000 to pay her debt to the bank. Then Julia confessed she had committed fraud with her friends. Reyna was angry because she would not have loaned the money to Julia if she had known of Julia’s participation in the fraud. Julia paid Reyna back only $2500, causing additional conflict.
Reyna and defendant also had conflict over Julia’s boyfriend, whom they had prohibited her from seeing. Despite this prohibition, she continued to see him. On March 9, 2008, Julia left home, saying she was going to work. Reyna then received a text message from Julia, saying she was still seeing her boyfriend and was making a life for herself. She asked that her parents not call the police.
Reyna denied that Julia ever told her that defendant was disrespectful to her or was touching her. She also denied that any of the conflict with Julia was caused by defendant’s behavior toward her. She added that neither Yadira nor Abigail ever complained that defendant touched her in an offensive manner.
Yadira testified that she was close to Julia. The two shared a bedroom at home and much of the time they shared a queen-sized bed. Yadira never observed defendant come into their room and touch Julia. Prior to March 2008, Julia never mentioned that defendant touched her in a sexual manner.
Yadira described Julia as someone who lied a lot and was capable of making up these accusations against defendant. Yadira described defendant as lovable and caring toward his family.
Abigail similarly testified that defendant was a great father and that Julia was dishonest and always got caught lying. Julia never told Abigail that defendant did anything sexual to her.
Abigail denied telling the police that defendant had done anything sexual to her. She said that when Detective Rumsey confronted her at school, she said that defendant had not acted inappropriately toward her. At the police station, Abigail told Detective Rumsey the same thing, even though the detective pressured her by saying she knew Abigail had been abused. Abigail added that she had not been pressured to lie for defendant.
Danny testified that although defendant was his stepfather, he viewed him as his father. Defendant was a good father and always there for Danny and his siblings.
According to Danny, Julia had always been a liar. When she was caught in one lie, she would tell more to cover up the earlier one. Julia never told Danny that she was uncomfortable with defendant, and he never witnessed any tension between the two. He shared a bedroom with Julia and Yadira for several years, and he never saw defendant in the room in the middle of the night.
Jose lived in the back house on defendant’s property for about eight years. Jose installed the lock on Julia’s door as well as locks on defendant and Reyna’s door and on the outside door. Jose described defendant and Julia’s relationship as loving and affectionate. Julia never complained to him about defendant’s behavior until after she went to Las Vegas. She said she left home because defendant was sexually harassing her. Jose did not believe her accusations.
Erica Trejo (Trejo) was a marriage and family therapist intern. She had been counseling N. for about five months, since receiving a court referral because of changes in N.’s eating and sleeping patterns. When Trejo asked what N. was afraid of, N. said she was afraid of soldiers.
C. Rebuttal
Inglewood Police Officer Brigette Yerenas acted as a translator during Detective Rumsey’s interview of Reyna. In the interview, Reyna said that she had received a telephone call at work from Julia, who was crying. Julia said defendant had gotten into her bed naked. Reyna questioned defendant, who said he thought he was getting into their bed. Reyna did not believe defendant and asked Jose to install a lock on Julia’s door.
D. Surrebuttal
Reyna never received or told Detective Rumsey about a call like Officer Yerenas described.
DISCUSSION
A. Exclusion of Spectators from the Courtroom during N.’s Testimony
At the time of trial, N. was five years old. Prior to opening statements, the trial court held a hearing to determine her competency to testify. In the course of the hearing, she testified she never saw or touched defendant’s “peepee.” The court found N. competent to testify. It subsequently found her testimony admissible.
Before N. was called to testify, the People moved to have the public excluded from the courtroom pursuant to Penal Code section 868.7. The trial court offered defense counsel the opportunity to make an objection. Defense counsel renewed his previous objection to N.’s testimony. He also renewed his motion to allow N. to have a support person present. The trial court allowed N. to have a support person present and, over the People’s objection, allowed her mother to be present in the courtroom while she testified. The court instructed the jury as to the presence of the support persons.
Penal Code section 868.7, subdivision (a)(1), provides: “Notwithstanding any other provision of law, the magistrate may, upon motion of the prosecutor, close the examination in the manner described in Section 868 during the testimony of a witness... [w]ho is a minor... where testimony before the general public would be likely to cause serious psychological harm to the witness and where no alternative procedures, including, but not limited to, video recorded deposition or contemporaneous examination in another place communicated to the courtroom by means of closed-circuit television, are available to avoid the perceived harm.” This section applies to preliminary hearings only. (People v. Baldwin (2006) 142 Cal.App.4th 1416, 1422.)
Defendant contends the exclusion of the public from the courtroom during N.’s testimony violated his constitutional right to a public trial. The People claim this contention has been forfeited by defendant’s failure to object below. We agree defendant’s claim of error has been forfeited.
As a general rule, the failure to challenge a ruling of the trial court in that court forfeits the right to challenge that ruling on appeal. (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) This general rule applies to rulings affecting the right to a public trial. (Peretz v. United States (1991) 501 U.S. 923, 936 [111 S.Ct. 2661, 115 L.Ed.2d 808]; People v. Catlin (2001) 26 Cal.4th 81, 161-162.)
Defendant first asserts that he did object to the trial court’s ruling. He acknowledges that “there was some ambiguity as to the grounds of the objection” but claims that “it is clear that counsel was objecting to the court’s ruling.” He relies on the principle that an objection is sufficient “if it fairly apprises the trial court of the issue it is being called upon to decide. [Citations.] In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented.” (People v. Scott (1978) 21 Cal.3d 284, 290.)
The record here clearly shows that defense counsel was renewing a previous object to N.’s testimony, not making a new objection to the exclusion of spectators from the courtroom. The trial court understood it as such, as can be seen from its failure to request argument on the issue of exclusion.
Defendant next asserts that any failure to object was excused on the ground an objection “would almost certainly have been overruled.” (People v. Pitts (1990) 223 Cal.App.3d 606, 692; accord, People v. Hill (1998) 17 Cal.4th 800, 820 [objection excused if it would be futile].) He relies on the court’s comment that it was “going to make the order anyway.” This comment followed the court’s offer to allow the defense to make an objection for the record. Defense counsel thereafter renewed an objection that previously had been overruled. On this record, it is clear that the failure to object to exclusion of spectators from the courtroom was not due to a belief that the objection would have been futile. (Ibid.) The failure to object therefore is not excused.
Defendant also claims that courts have examined constitutional issues raised for the first time on appeal where “‘the asserted error fundamentally affects the validity of the judgment [citation], or important issues of public policy are at issue [citation].’” (People v. Brown (1996) 42 Cal.App.4th 461, 471.) We are not persuaded by this general claim absent any specification as to why this principle should apply here. (People v. Catlin, supra, 26 Cal.4th at p. 162.)
Defendant contends that if his claim of error is forfeited, then he was denied the effective assistance of counsel by his trial counsel’s failure to object to the exclusion order. We disagree.
When defendant raises a claim of ineffectiveness of counsel, he must establish that either: “‘(1) As a result of counsel’s performance, the prosecution’s case was not subjected to meaningful adversarial testing, in which case there is a presumption that the result is unreliable and prejudice need not be affirmatively shown [citations]; or (2) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel’s unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome.’” (In re Cudjo (1999) 20 Cal.4th 673, 687.) In establishing prejudice, defendant must show that as a result of his counsel’s failures, his trial was unreliable or fundamentally unfair. (Ibid.) “‘“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”’” (Ibid., accord, Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
As the People point out, the exclusion of spectators from the trial may have a minimal effect on a defendant’s right to a public trial and therefore constitute harmless error. “‘The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.... [Citations.] [Fn.] [¶] In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury. [Citations.]’ [Citations.]” (People v. Woodward (1992) 4 Cal.4th 376, 385.) The determination whether a defendant has been denied his right to a public trial must be determined with reference to the facts of each particular case. (People v. Esquibel (2008) 166 Cal.App.4th 539, 553.)
Here, spectators were excluded only during N.’s testimony, a very small portion of the trial. (See People v. Woodward, supra, 4 Cal.4th at pp. 385-386.) Both a support person and Reyna were allowed to remain in the courtroom during her testimony. (See People v. Esquibel, supra, 166 Cal.App.4th at p. 554.) Despite the brief exclusion of the general public, a presence of interested spectators, albeit a small one, was maintained in the courtroom during N.’s testimony. We believe the temporary closure of the courtroom under the circumstances in this case does not implicate any of the relevant factors. (Woodward, supra, at p. 385.)
B. Detective Rumsey’s Testimony Regarding Removal of Julia’s Siblings from the Home
Detective Rumsey testified that after she interviewed N., she notified DCFS to have N., Abigail and Adrian removed from the home. The prosecutor asked her why, and she answered, “I have one child who at that time was 21 alleging her father made her touch... his penis, and now I had a four-year old pretty much telling me the same thing, saying daddy made me touch his peepee.” At this point, defense counsel objected on the grounds of hearsay, lacking foundation, and Evidence Code section 352. The trial court overruled the objection.
Later, when the prosecutor was cross-examining Reyna about Detective Rumsey’s interview with N., the prosecutor asked her, “And after that interview, your children were taken away from you; right?” Defense counsel objected on the grounds of relevance and beyond the scope of the direct examination. The trial court sustained the objection.
The prosecutor made an offer of proof as to relevancy. Following a discussion of the matter the trial court ruled that evidence of DCFS involvement in the case was irrelevant and prejudicial. “With respect to the children being at the home or removed from the home, while that may be some motivation for witnesses to testify regardless of what positions they might take, I think it’s unduly prejudicial to raise those issues in front of a jury with—with a specter that a government agency investigation somehow overrides or is given too much weight for this process. I think the court’s duty is to make sure the process is fair. [¶] And for there to be some additional reliance on the investigation of a government agency would unduly prejudice Mr. Gomez’s right to a fair trial. [¶] So for that reason, the court is going to preclude counsel for the prosecution from addressing those issues.
“However, counsel for the prosecution may address whatever issues are necessary in terms of motivation of the witnesses based on the defendant being the family bread winner or [Reyna’s] desire to not disrupt her family life in a general sense.”
During the People’s rebuttal, the prosecutor again questioned Detective Rumsey about contacting DCFS and having the three children removed from the home. Defense counsel’s only objection was “narrative.” The trial court sustained this objection.
Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Relevant evidence is that which has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.) The trial court has the duty to determine the relevance and thus the admissibility of evidence before it can be admitted. (Id., §§ 400, 402.) The trial court is vested with wide discretion in performing this duty. (People v. Babbitt (1988) 45 Cal.3d 660, 681.) However, it has no discretion to admit irrelevant evidence. (Ibid.) We review the trial court’s determination as to admissibility that turns on relevance for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.)
Evidence Code section 353, subdivision (a), provides a judgment cannot be reversed based on the erroneous admission of evidence unless “[t]here appears of record an objection to... the evidence that was timely made and so stated as to make clear the specific ground of the objection” and the evidence should have been excluded on the ground stated. Thus, a contention on appeal that evidence erroneously was admitted will be deemed waived “‘“in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.”’” (People v. Pinholster (1992) 1 Cal.4th 865, 935, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 458-459; People v. Mattson (1990) 50 Cal.3d 826, 853-854.)
Defendant first suggests that Detective Rumsey’s testimony constituted inadmissible opinion testimony. Defendant never objected on this ground, so this claim is waived. (Evid. Code, § 353, subd. (a); People v. Pinholster, supra, 1 Cal.4th at p. 935.) Moreover, Detective Rumsey did not give an opinion on whether defendant committed the charged offenses. Her testimony was that based on the allegations of abuse, she called DCFS to remove the children from the home.
Defendant next suggests the detective’s testimony constituted inadmissible hearsay. He argues that “there was no exception to the hearsay rule allowing into evidence the actions of the DCFS statement as the evidence of the action was offered to prove exactly what [Detective] Rumsey testified it was about—that the children had been removed from the house because of allegations made to [her] by Julia and [N.].”
Defendant appears to be arguing that the action of the DCFS in removing the children from the home constituted inadmissible hearsay. “‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a), italics added.) Detective Rumsey did not testify regarding any statement made by a DCFS representative. Accordingly, the hearsay rule was not implicated.
Defendant finally argues that “the reasons behind [Detective] Rumsey’s conduct are irrelevant.” The only objection based on relevance defense counsel made was to the prosecutor’s question to Reyna, “And after that interview, your children were taken away from you; right?” The trial court sustained that objection. It thereafter ruled that any evidence regarding official actions taken with respect to the children was inadmissible.
Defendant did not challenge Detective Rumsey’s testimony as to her reasons for contacting DCFS on the ground of irrelevance. Accordingly, any such claim on appeal is waived. (Evid. Code, § 353, subd. (a); People v. Pinholster, supra, 1 Cal.4th at p. 935.)
Moreover, we disagree with defendant’s claim that the challenged evidence “so infected the trial with unfairness as to render the convictions a denial of due process of law.” There were only three references to the removal of the children from the home. Detective Rumsey made it clear she called DCFS based on allegations—not proof—of sexual abuse. The prosecutor’s references to this evidence during her argument focused on motives the children had for lying on the witness stand; she did not imply that the DCFS’s action indicated defendant was guilty of the charged crimes. In discussing why Yadira testified that Julia never told her about the abuse, the prosecutor pointed out, “There are consequences to what she says up on that stand. If she implicates her father, what would happen. Well, they’ve already seen what could happen. Abigail had been taken away from the mom. Detective Rumsey had called DCFS and had the children placed after [N.] told her what her father had had her do. [¶] The family’s going to get broken apart. And who wants to go to foster care? Nobody.”
“‘“Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’ [Citations.]”’” (People v. Garcia (2008) 168 Cal.App.4th 261, 275.) The evidence here falls far short of a violation of due process. Moreover, this case boiled down to a credibility contest with Julia on one side and her mother and sisters on the other. The jury clearly believed Julia. There is no reasonable probability the result would have been any different had the references to the DCFS not been made. Accordingly, any error would have been harmless. (Evid. Code, § 353, subd. (b).)
C. Evidence of Uncharged Sexual Conduct Against Maria and N.
Evidence Code section 1108, subdivision (a), (section 1108) provides that “[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Evidence Code section 352 (section 352) gives the trial court the discretion to exclude evidence if the probative value of the evidence is substantially outweighed by the probability its admission will create a substantial danger of undue prejudice, confusing the issues, or misleading the jury.
Section 1101, subdivision (a), prohibits, with specified exceptions, admission of “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct)... when offered to prove his or her conduct on a specified occasion.”
In overruling defendant’s section 352 objection to N.’s testimony, the trial court found the testimony was relevant, not misleading, would not cause confusion for the jury, and would not cause undue prejudice. It stated its belief “that this is exactly the type of information that the Legislature and the People and the State carved out in creating section 1108, which allows the presentation of certain type of evidence or acts—prior acts in these types of cases.”
As to Maria’s testimony, the trial court again overruled defendant’s section 352 objection. It found the incidents with Maria and Julia were “similar in nature based upon the age of the complaining witnesses, the fact they are both female, the fact they are relatives, nighttime that it happens, a person is sleeping and that the Court believes that it is similar enough in nature that it would not confuse a jury, the type of circumstances that are issues in this case.” The trial court also found the incident with Maria was not too remote in time.
Although the incident at the pool table was “dissimilar in terms of the nature, the timing of it, the person being awake, other witnesses being around, it is still the type of incident where it involves a younger female relative in a situation where clearly there should have been some understanding of what was appropriate and what was not appropriate, and on that basis the Court is going to allow the incident to be presented to the jury. I don’t think it will be confusing to the jury, I don’t think it is going to cause unnecessary, undue consumption of time. I don’t think it is going to be unduly prejudicial, nor will it be misleading.”
When ruling on the admissibility of evidence of another sexual offense, the trial court should consider “‘such factors as its nature, relevance and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.’ [Citation.] Like any ruling under section 352, the trial court’s ruling admitting evidence under section 1108 is subject to review for abuse of discretion. [Citations.]” (People v. Story (2009) 45 Cal.4th 1282, 1295.)
Defendant contends the trial court abused its discretion in admitting evidence of his sexual offenses against Maria and N., in that the incidents were dissimilar. Additionally, he claims there was likelihood of prejudice, in that, “[w]ith [N.], [defendant] stood accused [of] molesting his four year old daughter, an incident far more shocking to any juror than the conduct he was accused of. And if the jury believed that he molested [N.], his behavior with [Maria] was made to look like more of the same, ongoing behavior. It was made easy for the jurors to believe that he committed the uncharged conduct and to jump from that to conviction of the charged conduct.”
We agree with the trial court that there was sufficient similarity between the charged and uncharged offenses to justify admission of evidence of the uncharged offenses. Defendant’s nighttime conduct with both N. and Maria was the same as that with Julia. Maria and Julia were roughly the same age when this conduct occurred. That N. was younger does not render the offense so dissimilar as to make it irrelevant.
We also agree with the trial court that defendant’s conduct with N. was not so prejudicial as to require its exclusion. While her young age may have made the conduct against her worse in the eyes of some jurors, there was nothing about the molestation itself that was any more shocking or reprehensible than the conduct against Julia. This distinguishes the case from People v. Harris (1998) 60 Cal.App.4th 727, 740, on which defendant relies, in which the charged conduct involved nonviolent sexual conduct against women with whom the defendant was acquainted, whereas the prior conduct was the violent rape of a stranger.
As to the pool table incident with Maria, it was dissimilar enough that it was only marginally relevant. However, in light of the nature of the other conduct against Maria and N., its admission certainly was not prejudicial.
In summary, the record shows the trial court considered the appropriate factors in making its ruling. (People v. Lewis (2009) 46 Cal.4th 1255, 1285 & fn. 18.) There was “nothing arbitrary, capricious, or patently absurd in the trial court’s ruling.” (Id. at p. 1286.) Accordingly, the trial court did not abuse its discretion in admitting evidence of defendant’s sexual conduct with N. and Maria. (People v. Story, supra, 45 Cal.4th at p. 1295.)
D. CALCRIM No. 1120
Defendant contends CALCRIM No. 1120, which sets forth the elements of continuous sexual abuse of a minor, is constitutionally flawed because it removes an essential element of the offenses from the jury’s consideration. Specifically, he challenges the portions of the instructions which state that: “Lewd or lascivious conduct is any willful touching of a child accomplished with the intent to sexually arouse the perpetrator or the child. The touching need not be done in a lewd or sexual manner.” (Italics added.)
Defendant’s contention is based on Penal Code section 288, which provides that “[a]ny person who willfully and lewdly commits any lewd or lascivious act... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony....” (Italics added.) Penal Code section 288.5, which defines continuous sexual abuse of a child, refers to “lewd or lascivious conduct, as defined in Section 288.”
Defendant argues that CALCRIM Nos. 1110 and 1120 “expressly tell the jury that the acts in question need not be done in the very manner in which the statute requires that act to be done, namely ‘lewdly.’”
Defendant notes that the challenged language does not appear in CALJIC No. 10.42.6, the counterpart to CALCRIM No. 1120.
As the Supreme Court explained in People v. Martinez (1995) 11 Cal.4th 434, because the purpose of section 288 is to protect children from sexual misconduct, the statute “prohibits all forms of sexually motivated contact with an underage child. Indeed, the ‘gist’ of the offense has always been the defendant’s intent to sexually exploit a child, not the nature of the offending act.” (Martinez, supra, at p. 444.) Therefore, “‘[i]f [the] intent of the act, although it may have the outward appearance of innocence, is to arouse... the lust, the passion or the sexual desire of the perpetrator [or the child, ] it stands condemned by the statute....’ [Citation.]” (Ibid.) For this reason, there is no restriction on “the form, manner, or nature of the offending act.” (Ibid.) Indeed, it “need not be ‘sexual in character.’” (Ibid.) Rather, “any touching of an underage child is ‘lewd or lascivious’ within the meaning of section 288 where it is committed for the purpose of sexual arousal.” (Id. at pp. 444-445; accord, People v. Lopez (1998) 19 Cal.4th 282, 289.)
Stated otherwise, it is not the touching which must be “lewd” but the intent of the perpetrator in committing the act. CALCRIM No. 1120 therefore correctly states the law.
E. CALCRIM No. 1193
The trial court instructed the jury on Child Sexual Abuse Accommodation Syndrome (CSAAS) testimony as follows: “The testimony of the Expert Witness on CSAAS is being offered to you and may be considered by you only for the purpose of understanding and explaining the behavior of the alleged victim in this case, and not as proof that the molestation occurred as to anyone [sic] or more of the alleged victim/witnesses. So it is being offered for the sole purpose of helping you to understand and explain the behavior of children as a class, generally, and to help you understand, if it is determined by you to apply, the behavior of the alleged victim in this case, but not for the purpose of proving that the molestation occurred as to any one or more of the alleged victim/witnesses.”
The court later instructed the jury pursuant to CALCRIM No. 1193: “You have heard testimony from Dr. Jayme Jones regarding child sexual abuse accommodation syndrome. [¶] Dr. Jayme Jones’ testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against Defendant Severiano Gomez. [¶] You may consider this evidence only in deciding whether or not Julia M.’s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony.”
Defendant contends the final sentence of CALCRIM No. 1193 violates his rights to due process and a fair trial, in that it “creates a mandatory presumption that, if the jury finds that the victim’s reactions based on the evidence are consistent with the CSAAS theory, then it should or could conclude that a molestation did in fact occur. This presumption is reinforced by the CSAAS syndrome itself, which assumes that a molestation occurred in describing behavior.” Defendant alternatively claims that, even if the instruction did not create a mandatory presumption, it impermissibly shifted the burden of proof to defendant.
When reviewing the effect of challenged instructions, we look at the instructions given as a whole. (People v. Cain (1995) 10 Cal.4th 1, 36; People v. Garrison (1989) 47 Cal.3d 746, 780.) We determine whether a reasonable jury would have interpreted the instruction in the manner proposed by defendant. (Cain, supra, at p. 36; People v. Warren (1988) 45 Cal.3d 471, 487.)
Both CALCRIM No. 1193 and the instruction on CSAAS advise the jury that CSAAS evidence may not be used to prove defendant committed the charged offenses. Rather, it may be used to evaluate witness credibility. The instructions, though awkwardly phrased, are clear on that point, and any reasonable jury would have interpreted them in that manner. The language of the instructions does not create a mandatory presumption from the presence of CSAAS that the abuse did in fact occur.
Neither is there a shifting of the burden of proof to defendant. As previously stated, CALCRIM No. 1193 allows consideration of CSAAS in the context of witness credibility and states that it is not proof of abuse. The jury was given CALCRIM No. 220 as to the presumption of innocence and the People’s burden of proving guilt beyond a reasonable doubt. We presume the jury followed the instructions given it. (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331.)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J. ZELON, J.