Opinion
A164419
04-28-2023
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW McCAULEY, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 19-CR-009944
MARGULIES, ACTING P. J.
Defendant Matthew McCauley was convicted of multiple sexual offenses, providing drugs to minors, and possession of assault rifles. On appeal, he contends his convictions for the sex offenses must be reversed because (1) the trial court allowed inadmissible and unduly prejudicial evidence (including child sexual abuse accommodation syndrome testimony) to be presented and argued to the jury and his counsel rendered ineffective assistance by failing to object, (2) the trial court excluded crucial expert evidence, (3) the prosecution committed misconduct, (4) his trial counsel rendered ineffective assistance by failing to seek severance of the gun charges, (5) the cumulative effect of the multiple trial errors requires reversal, and (6) insufficient evidence supported the gun charges.
For reasons we will explain, we reject all of defendant's challenges and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Incidents Underlying Sex Offenses
Arlene C. is the sole owner of a professional services company who employs many of her family members to work in her business. In 2003, defendant married Arlene C. and began working at her company providing information technology and technical support to corporate and field staff. Defendant had a close relationship with Arlene's family, including her niece, A.D. Defendant had a more flexible work schedule than Arlene and he would often help when his nieces, nephews, and stepchildren needed something. For many years, defendant picked A.D. up after school and brought her back to Arlene's office (the office). A.D.'s stepfather, Gene J., would collect her from the office after he got off work and take her home.
One day, when A.D. was in kindergarten or first grade, Gene went to the office after work to pick her up. Gene entered the building and went to defendant's downstairs office. He opened the door and saw defendant and A.D. lying down on a couch. A.D. was covered with a blanket. As he entered, Gene saw defendant yank his hand out from underneath the blanket and saw a movement that looked like A.D. pulling up her pants underneath the blanket. Defendant's face looked like he had been "caught."
A.D. testified that the incident was one of her earliest memories of sexual abuse by defendant. When she and defendant arrived at the office after school, defendant unfolded the brown futon couch in his office into a bed. A.D. lay down on the futon, pulled on a blanket, and played with defendant's iPad. Defendant worked for a while and then joined A.D. on the futon. Defendant lay down behind A.D. so that his body was around her body. Both defendant and A.D. were lying on their sides under the blanket. The front of defendant's body was pressed against the back of A.D.'s body. Defendant wrapped an arm around A.D. and put his hand in her pants, inside her underwear, and touched her vagina. He moved his finger up and down on the outside of the labia, made circles around her clitoris, and moved his finger up and down again. He stopped and jumped up when Gene opened the office door and surprised him.
Gene told A.D. to "get up" and "let's go." They went upstairs. Gene told Suzanne, Arlene's sister, what he had seen. Kristen, A.D.'s mother, was called, and Gene talked with her. Gene also had a long conversation with Arlene on the phone.
Later, at home, Gene and Kristen talked to A.D. and asked her repeatedly if defendant had touched her; she denied it and began crying.
For about six months or a year, the family did not allow defendant to be around A.D. and he stopped picking her up from school. But Arlene and Suzanne convinced Gene that defendant would never abuse A.D. Eventually, defendant resumed picking up A.D. from school.
On one occasion, defendant took A.D. to an empty rental unit at a property he and Arlene owned in Hayward. A.D. was in the living room playing on defendant's phone while he fixed something in the apartment. Defendant approached A.D., told her to pull her pants down, and rubbed her labia and tried to penetrate her vagina with his finger. A.D. told him it hurt, and he stopped. Then he resumed rubbing her vagina. After a while he stopped, and she pulled up her pants.
When A.D. was in third or fourth grade, defendant drove her in his van to Arlene's house. No one else was there. A.D. sat on a couch in the living room and watched television. Defendant sat next to her on the couch and told her to lay down and put her knees up. Defendant pulled her underwear and pants down, pushed her knees apart, and said he was "going to touch it." Defendant rubbed up and down between her labia and put his finger inside her vagina.
Defendant told A.D. he needed to show her something upstairs. She pulled up her pants and followed him upstairs to Arlene's bedroom. Defendant told her to get on the bed. He went into the bathroom and returned with Arlene's pink vibrator. Defendant pulled down A.D.'s pants and underwear, pushed her knees apart, turned the vibrator on and put it on her clitoris and labia. A.D. told him she did not like it. Defendant then told A.D. that he wanted to "lick it." He kneeled in front of her, moved her legs apart, and licked her labia up and down. She felt "really uncomfortable." She got off the bed, pulled up her pants, went downstairs, and told defendant to take her home.
Defendant also touched A.D.'s buttocks and her breasts. Sometimes he would ask her if he could touch her breasts for just a minute. He would set his phone timer for one minute and fondle her breasts under her clothes or her buttocks until the timer went off. Sometimes, A.D. asked defendant to buy her something or give her money, and he would promise to do it on the condition that she let him touch her breasts or let him put the money in her bra. When he put the money in her bra, he would touch her breasts with his fingers.
Once when A.D. was in fifth grade, he asked her to hold his penis while he urinated. She touched his penis with her finger and then left the bathroom.
One day when A.D. was a freshman in high school, she was with defendant in the front seat of his van. He tried to touch her breast and she scooted away and told him she knew what he was doing and to stop. After that, he only touched her breasts when she asked for money. She asked for money and defendant would place it in her bra once or twice a week. Defendant touched her breasts and put money in her bra until she was a sophomore in high school.
Defendant picked A.D. up from school, gave her money, and often brought her and her friends lunch at school. He bought her gifts and gave her money, which she considered "hush" money. Defendant gave A.D. "every single little thing [she] asked for." He often gave her friends rides, took them out to eat, gave them money, and took them shopping. Extensive evidence was presented at trial that defendant provided drugs and alcohol to A.D. and her friends.
Once, defendant allowed A.D. and her friend, K.D., to smoke with his vape pen in his van while he drove them to A.D.'s grandparents' house. After he parked, he asked them to return his vape pen. When they would not give it back, he became angry, exited the van, and opened the rear doors. Defendant climbed into the back of the van, reached his hand into K.D.'s tank top and bra and cupped her breast underneath her bra. A.D. and K.D. screamed, and A.D. asked him what he was doing. Defendant did not say anything. Right after that, defendant sent K.D. a text which said," 'you have nice boobs.' "
B. Disclosure
In spring 2019, A.D. and her friend, S.D., were in her bedroom doing drugs that defendant had given them. A.D. looked very serious and told S.D. she had been meaning to tell her something for a while, but she did not know how. She began to cry and told S.D. that defendant had sexually abused her. She choked on her words and had to stop and start over several times. She said she did not want to tell anyone else. At some point before she spoke to the police, A.D. also told K.D. that defendant had abused her.
After she told S.D. about the abuse, A.D. learned that Arlene and defendant were getting a divorce. Arlene texted A.D. that defendant refused to reconsider when she tried to reconcile. A.D. responded by text," 'You don't need him, Auntie. He's not getting you the money. You are.'" A.D. testified she meant that it was okay, that Arlene did not need defendant, and that Arlene was "going to continue to make her money and everything will be okay."
On April 9, 2019, Kristen, A.D.'s mom, told her the amount of money that defendant wanted Arlene to pay him in spousal support. A.D. thought the amount was "crazy." When she got home, A.D. thought, "he's not going to get this much money from what I know he did to me.... I think it's time to like say something."
Arlene testified the amount was between $38,000 to $40,000 per month.
A.D. told her boyfriend about the abuse, then her Aunt Arlene. Arlene urged A.D. to tell her mom, Kristen. On April 11, A.D., Arlene, Kristen, Suzanne, and Arlene's daughter had a "family meeting" at Arlene's house and A.D. told them about the abuse. Kristen was crying and was very angry. They discussed whether to tell A.D.'s stepfather, Gene, and decided they had to tell him. Kristen called Gene and told him to come to Arlene's house. When he arrived, the women escorted him to a bedroom upstairs, barricaded the door, and told him about the abuse. Arlene's daughter made a recording of the conversation with Gene.
They barricaded Gene in the bedroom because they were concerned about how he would react.
The next day, Kristen called the police. A.D. was interviewed at the Child Abuse Listening Interviewing and Coordination Center (CALICO) in San Leandro.
On June 26, 2019, A.D. made a pretext call to defendant. He was unusually quiet during the call. A.D. made specific allegations of sexual abuse. After about 20 minutes, defendant hung up on A.D. A short time later, police arrested defendant.
C. Searches
1. Assault Rifles
On the day defendant was arrested for the sex and drug offenses, Sergeant Jason Kritikos of the San Leandro Police Department executed a search warrant at defendant's home. In an aluminum box in the garage, he found what he believed to be "five 762-AK 47 assault rifles, one AR 15 assault rifle, two shotguns," an "older firearm," and a handgun.
Supervising Criminalist Jason Otis of the Alameda County Sheriff's Office crime lab testified about the nature of two firearms found in the search. He testified they were semiautomatic, centerfire rifles, without a fixed magazine and with a pistol grip, a folding or telescoping stock, and a flash suppressor. He also testified that for a rifle to be an assault weapon, it had to be a semiautomatic, centerfire rifle that does not have a fixed magazine and has at least one of approximately six different features listed in the Penal Code.
Although discovered in defendant's garage, the firearms belonged to the ex-husband of defendant's girlfriend., Susan G. Susan testified that her exhusband left the guns behind when he moved out of their home. Susan was afraid her son could access them, and defendant offered to remove them for her. He put the guns into a duffle bag, transported them to his garage, where he placed them in a large metal lockbox that he had purchased. Defendant did not want to keep the guns, and Susan wanted to return them to her exhusband pursuant to their divorce agreement.
Police also searched defendant's office, car, and home.
2. Vibrator
In September 2020, A.D. was working as an intern at Arlene's office. She and other interns who worked for Arlene were cleaning the office. One of the other interns found Arlene's pink vibrator in a lime green laptop bag on the top shelf of a cabinet. The intern brought the bag to where Arlene and A.D. were sitting and showed them its contents. Arlene was shocked and embarrassed; she recognized the vibrator as one that had gone missing from her bedroom years earlier. A.D. recognized the vibrator as the one defendant had used on her at Arlene's house. A.D. took the vibrator and said she needed "to talk to the DA" about it.
D. Procedural Background
On March 29, 2021, the district attorney filed a first amended information charging defendant with seven sex offenses, six drug offenses, and three firearms charges as follows: lewd and lascivious acts upon a child under 14 years old (Pen. Code, § 288, subd. (a), counts 1, 6); oral copulation or sexual penetration of a child 10 years old or younger (§§ 288.7, subd. (b); counts 2-5); misdemeanor child molesting (§ 647.6, subd. (a)(1); count 11); furnishing marijuana to a minor over 14 years old (Health &Saf. Code, § 11361, subd. (b); counts 7, 9, 12); soliciting a minor to use or sell narcotics (id., § 11353, subd. (a); counts 8, 10, 13); and possession of an assault weapon (§ 30605, subd. (a); counts 14-16).
All further statutory references are to the Penal Code unless otherwise indicated.
The prosecution later dismissed count 16.
A jury was sworn on April 19, 2021, and on May 6, the jury began deliberations. After three hours, the jury found defendant guilty on all counts.
The trial court sentenced defendant to an aggregate term of 80 years four months in prison. Defendant timely appealed.
II. DISCUSSION
A. Audio Recording
Defendant contends the trial court erred in allowing the jury to hear an audio recording capturing Gene's reaction to A.D.'s disclosure of defendant's abuse and that he was prejudiced by admission of the recording. He further contends that his counsel provided ineffective assistance by failing to object that the evidence was more prejudicial than probative.
1. Additional Background
After the prosecutor finished her opening statement, she informed the court that she had learned earlier that morning of the existence an audio recording of a family meeting during which A.D. disclosed to Gene in the presence of her mother, aunts, and cousin that "that his suspicions were correct and the defendant had been molesting" A.D. The recording is approximately 13 minutes long and was made by Arlene's daughter. At the beginning of the recording, A.D. told Gene that "your suspicions when I was younger were right." In response, Gene yelled, "I'm wanna kill that motherfucker. I'm gonna fucking kill that motherfucker, I swear to God," followed by multiple, tearful pleas from A.D., her mother, Kristen, and her aunt, Suzanne, for Gene not to harm defendant. Gene asked, "How did this happen? When did-how long has this been going on?" to which Arlene responded, "It's when you knew." Gene then asked Arlene if she was referring to what he "saw that day," meaning the incident in the office when A.D. was in kindergarten or first grade. Arlene responded, "Yes," repeating, "Gene, you were right." After more threats from Gene, and more pleas from the family, Gene broke down into tears, sobbing and wailing for several minutes.
As noted above, A.D., Gene, Arlene, Kristen (A.D.'s mother), Arlene's sister (Suzanne), and Arlene's daughter were all present during the disclosure to Gene.
The prosecutor represented that she had only learned of the recording that morning and immediately made defense counsel aware of its existence.
The trial court heard extended argument from the parties before deciding whether to allow the tape to be played for the jury. The prosecution sought to offer the first eight minutes of the recording as "various excited utterances," based on Gene's emotional responses, crying, and statements that he wanted to kill defendant. Defense counsel objected that the entire conversation was hearsay and argued the excited utterance exception did not apply because it took place 10 years after Gene found defendant with A.D. in the office. The trial court expressed concern about the late discovery of the recording and whether the content of the recording would be helpful but reserved ruling until the next day.
The next morning the court heard further argument from the parties. The prosecutor argued the recording was admissible because the statements on the recording were excited utterances by A.D., Arlene, Kristen, and Gene in that they all had emotional responses to A.D.'s disclosure of the sexual abuse. The prosecutor further argued the recording was relevant to disprove the defense theory that there was a conspiracy among family members to have A.D. lie to prevent defendant from getting money in the divorce. Defense counsel conceded it was "an excited utterance" but argued it did not fall within the hearsay exception for spontaneous statements because it did not describe an event, and was merely a belated and "backdoor" effort to allow hearsay evidence from A.D. and other family members for the truth.
After reviewing the transcript and listening to the first several minutes of the recording, the trial court stated, "Gene's reaction I think is clearly an excited utterance, but .... this is too long." The trial court expressed concern about a portion of the recording where family members were speculating about punishment for the defendant and how he was going to be abused and raped in prison. Defense counsel asked the court to admit the remainder of the recording under the rule of completeness (Evid. Code, § 356) if it was going to admit the first eight minutes and because A.D.'s statement about defendant going to prison was relevant to her motive to fabricate. The prosecutor further argued the conversation was a "fresh disclosure" of child abuse; that A.D.'s demeanor and circumstances around the disclosure were relevant and admissible; and that some of A.D.'s statements were admissible as prior consistent or inconsistent statements. Defense counsel argued the conversation was not a "first disclosure," because A.D. had already disclosed the abuse to S.D., Arlene, and her mother by this point.
Eventually, the trial court ruled all 13 minutes of the recording could be played to the jury.
2. Analysis
We review the trial court's rulings on the admissibility of evidence for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717, 725.)
Defendant contends the trial court erred in admitting the recording under the hearsay exception for spontaneous statements ("excited utterance") because the exception applies only to statements which "narrate, describe, or explain an act, condition, or event perceived by the declarant." (Evid. Code, § 1240.) He asserts that the "stressful 'act, condition, or occurrence'" to which Gene is reacting on the recording is A.D.'s complaint in 2019 that she had been sexually abused, but the statements do not narrate, describe, or explain that conversation, they express Gene's anger, anguish, and confusion in reaction to the disclosure. Further, Gene's question about what he "saw that day" is about an event many years in the past, and thus does not constitute an excited utterance. Defendant also contends that Arlene's and Kristen's statements and the family's pleas for Gene not to hurt defendant fail to describe or narrate A.D.'s disclosure and are likewise inadmissible.
The Attorney General asserts the trial court reasonably admitted the recording under the spontaneous hearsay exception because the recording shows that Gene, A.D., and Arlene were sincere in their testimony regarding the sexual abuse. In any event, the Attorney General argues, the trial court could have admitted the recording as fresh complaint evidence and for the additional nonhearsay purpose of disproving the purported conspiracy by family members to have A.D. lie to prevent defendant from collecting money in his divorce from Arlene.
For several reasons, we conclude the trial court did not err in allowing the jury to hear the recording.
a. Spontaneous Statements
First, as the trial court ruled, Gene's statements were admissible as spontaneous statements. "Evidence Code section 1240 excepts from the hearsay rule a statement that '(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.' . . . [¶] To be admitted under this exception, '" '(1) there must be some occurrence startling enough to produce . . . nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.'" '" (People v. Loy (2011) 52 Cal.4th 46, 65.)
Here, Gene's statements were made under the stress of a startling event (i.e., A.D.'s disclosure of the abuse), and the immediacy of his emotional reaction supports a finding there was insufficient time for Gene to reflect or contrive his response. A.D.'s statements, in turn, were necessary to understand Gene's excited utterance. Further, all of Gene's and A.D.'s statements related to the occurrence preceding it-A.D.'s disclosure of the abuse. Defendant's contention that Gene's reaction did not narrate, describe, or explain the event is unavailing because the recording captures A.D.'s disclosure of the abuse to Gene and the statements on the recording taken together all relate to the disclosure. (See, e.g., People v. Loy, supra, 52 Cal.4th at p. 65 [utterance must relate to the circumstance of the occurrence preceding it]; People v. Corella (2004) 122 Cal.App.4th 461, 466 [witness statement was "closely connected" with the occurrence at issue and "an unreflective explanation of her perception of the reasons why" the defendant hit her].)
b. Fresh Complaint
In addition, the recording was admissible under the fresh complaint doctrine. "[P]roof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose-namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others-whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred." (People v. Brown (1994) 8 Cal.4th 746, 749-750 (Brown).)
"[S]o long as the evidence in question is admitted for the nonhearsay purpose of establishing the circumstances under which the victim reported the offense to others, such evidence ordinarily would be relevant under generally applicable rules of evidence, and therefore admissible, so long as its probative value outweighs its prejudicial effect. (Evid. Code, § 352.)" (Brown, supra, 8 Cal.4th at pp. 759-760.) Because the evidence is not admitted for the truth of the matter stated, the details of the victim's complaint are not admissible as "a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault." (Brown, at p. 763.)
Here, defendant does not dispute the major issue at trial was A.D.'s credibility and the timing of the disclosure. Indeed, the defense theory was that A.D. lied about the abuse to aid her aunt in her divorce proceedings. Accordingly, the circumstances of that disclosure were highly relevant. As our high court explained in Brown, "when the victim of an alleged sexual offense did not make a prompt complaint but instead disclosed the alleged incident only some time later, evidence of the fact and circumstances surrounding the delayed complaint . . . may be relevant to the jury's evaluation of the likelihood that the offense did or did not occur." (Brown, supra, 8 Cal.4th at p. 761.)
Defendant argues the evidence of the recording is not admissible under the fresh complaint doctrine because it was offered for the truth of the matter asserted. The prosecution, however, used the recording to rebut the defense theory that A.D. made up the sexual abuse allegations to help her aunt in the divorce and to explain the circumstances and timing of A.D.'s disclosure of the abuse. When questioning Arlene about the recording, for example, the prosecutor asked Arlene about A.D.'s demeanor during the disclosure, whether Arlene's divorce had anything to do with what A.D. told her, whether A.D. stood to benefit from the divorce, and the timing of the disclosure in relation to the report to police. When questioning A.D. about the recording, the prosecutor asked A.D. about a statement she made on the recording that she "didn't remember," questioned her about jokes she made toward the end of the recording about defendant dropping the soap in jail, and asked about whether the family had decided to contact the police or not. In closing argument, the prosecution argued the jury should use the recording in assessing Gene's, Arlene's, and A.D.'s credibility. Thus, the recording was probative of the credibility of the testifying witnesses, the timing and circumstances surrounding the disclosure, and whether the allegations of abuse were manufactured. Moreover, neither A.D. nor any of the other individuals described or provided details about the acts of abuse, thus avoiding the prohibition on statements describing the molestations. (Brown, supra, 8 Cal.4th at p. 764.) The trial court did not err in admitting the recording.
Defendant's argument that the "same situation" was presented in People v. Loy is not persuasive. In Loy, the fresh complaint was made by a witness who did not testify at trial, having been found dead shortly after making the complaint. Further, the trial court in that case instructed the jury the only purpose for which it could use the testimony is to determine the truth of the matter asserted. (People v. Loy, supra, 52 Cal.4th at p. 65, fn. 2.) Here, A.D. did testify at trial, the evidence was relevant to evaluating her credibility, and any statements about the abuse were not the only evidence that it had occurred, but were cumulative of the testimony A.D. gave and on which she was cross-examined.
c. Harmless Error
Even if admission of the recording was erroneous, however, we conclude on this record it was harmless. The statements on the recording were consistent with and cumulative of the testimony of Arlene, Gene, and A.D. about the circumstances regarding A.D.'s disclosure, which defendant does not otherwise challenge. Moreover, the primary defense theory was that A.D., possibly with Arlene, manufactured the allegations of abuse. Indeed, while the trial court initially focused on how to shorten the recording that would be played to the jury, defense counsel asked the court to play the entire recording, almost doubling its length, so that the jury would hear A.D. making jokes about defendant going to jail and other circumstances defense counsel thought would help. Thus, the recording was probative for the defense in challenging the credibility of A.D. and Arlene and whether they had fabricated the abuse allegations or conspired against defendant. Further, while Gene's response to the disclosure of abuse was emotional, the jury would not be surprised to learn a stepparent had an emotional reaction to his stepchild disclosing abuse, particularly abuse he earlier suspected. Moreover, as the trial court noted, the jury had seen similar emotional reactions from Gene on the witness stand. In addition, Gene's reaction was not nearly as inflammatory as A.D.'s testimony about the molestation.
Further, the evidence of guilt in this case was very strong given the testimony of A.D., the testimony of S.D., K.D., and A.D.'s family members about her disclosure of the abuse to them, Gene's testimony that he walked into the office and saw defendant yank his hand out from under a blanket covering A.D., K.D.'s testimony that defendant touched her breast, evidence that defendant gave A.D. and her friends money and drugs, and did anything A.D. wanted, defendant's failure to deny the abuse on the pretext call, and the discovery of the vibrator in defendant's office. The jury took three hours to return a guilty verdict on all counts. In sum, it is not reasonably probable defendant would have obtained a more favorable result at trial if the recording had been excluded. (People v. Loy, supra, 52 Cal.4th at p. 67; People v. Valencia (2021) 11 Cal.5th 818, 840 [erroneous admission of nontestimonial hearsay is assessed under state law statutory standard].)
d. Ineffective Assistance
Finally, defendant contends that while his counsel objected to admission of the recording on hearsay grounds, he failed to object under Evidence Code section 352 that admission of the evidence would be more prejudicial than probative. To prevail on a claim of ineffective assistance, a defendant must demonstrate (1) his or her counsel's performance" '" 'fell below an objective standard of reasonableness under prevailing professional norms'" '" and (2)" '" 'the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.'" '" (People v. Johnson (2016) 62 Cal.4th 600, 653; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
Assuming, without deciding, that defense counsel's performance was deficient, defendant cannot show a reasonable probability that his counsel's failure to object to the recording on Evidence Code section 352 grounds was prejudicial. (Strickland, supra, 466 U.S. at p. 697 [reviewing court need not determine whether performance was deficient before examining prejudice].) First, the record reflects the court weighed the relative probative value of the evidence and its potential for prejudice in deciding whether to admit the recording. Toward the end of the colloquy with counsel about admission of the recording, the prosecutor noted it appeared the trial court had "[Evidence Code section] 352 concerns with respect to the length of the recording and potentially whether it's still excited by the end .... [and] about substantially more prejudicial then probative and taking up too much time ...." The court responded: "Those are all my concerns." Thus, the record reflects the trial court considered the application of Evidence Code section 352 in deciding whether to allow the evidence to be played to the jury, and if so, how much of the recording to play. Accordingly, it is unlikely defendant would have obtained a more favorable result had he expressly objected on those grounds. Moreover, given the centrality of A.D.'s and Arlene's credibility and the timing of the disclosure of abuse to the defense theory, evidence of the disclosure was highly probative as to whether A.D. and Arlene were lying and substantially outweighed any prejudice from Gene's understandably emotional reaction to the disclosure.
In any event, for all of the reasons we have discussed above, even assuming defense counsel should have objected that the recording was more prejudicial than probative, the evidence of guilt was strong and defendant cannot show that he would have attained a more favorable result had the evidence been excluded.
B. Family Law Expert
Defendant next contends the trial court erred by excluding expert testimony about divorce law. In doing so, he contends, the trial court not only violated state evidentiary law, but denied him his constitutional right to present a defense.
1. Additional Background
Before trial, defendant moved to present expert family law testimony that would show Arlene stood to benefit financially from defendant's convictions. The prosecution moved in limine to exclude details of the divorce not known to A.D. at the time of her disclosure or at the time of trial. Defense counsel initially agreed that details of the divorce were only relevant to the extent A.D. knew them, but he argued that there could be information related to the divorce that reflected on Arlene's credibility. The trial court granted the prosecution's motion in limine but allowed the parties to request reconsideration of the ruling as the trial progressed.
Before opening statements, defense counsel informed the court that he intended to call "a certified family law lawyer who would testify as an expert only on the subject of alimony and in particular Family Code [s]ection [4320] that when there is a change in circumstance it could affect alimony payments either up or down." The prosecutor objected to the testimony, arguing that unless defendant could establish that A.D. knew a criminal conviction could result in Arlene receiving more money, the testimony was irrelevant. The trial court agreed and excluded the testimony as irrelevant to A.D.'s motives because there was no evidence that A.D. was familiar with the Family Code or knew any of the details about which the expert would testify. The trial court specifically invited defendant to reassert the issue if evidence presented at trial made the expert testimony relevant.
2. Analysis
We reject defendant's claim that the trial court abused its discretion or violated his constitutional rights by excluding the evidence." 'Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." '" (People v. Gonzalez (2021) 12 Cal.5th 367, 408.) "The trial court has broad discretion to determine the relevance of evidence [citation], and we will not disturb the court's exercise of that discretion unless it has acted in an arbitrary, capricious or patently absurd manner [citation]." (People v. Jones (2013) 57 Cal.4th 899, 947 (Jones).)
Defendant sought to introduce the family law expert in support of the defense theory that A.D. fabricated the sexual assault charges so that Arlene would benefit financially in the divorce. Defendant's offer of proof was that "the motive for the fabrication is when [A.D.] writes a text message to her aunt, this is right when [A.D.] hears about this court-ordered payment, says 'Auntie, don't worry. He's not going to get your money,' then she reports it to the police."
A.D. admitted at trial that she decided to disclose the molestation when she heard the amount of alimony Arlene would be paying defendant in a divorce. Further, her text message to her aunt was introduced as evidence of motive, and both A.D. and Arlene testified and were cross-examined extensively about the divorce proceedings, money, and A.D.'s motive to lie. There was no evidence that A.D. knew anything about the Family Code or the legal effect of potential incarceration on alimony payments. The presentation of a family law expert to testify about that subject with no suggestion A.D. knew anything about the law would not be relevant to her motive to lie and would serve only to confuse the issues and invite the jury to speculate.
Defendant relies on Franklin v. Duncan (N.D.Cal. 1995) 884 F.Supp. 1435 as a "helpful comparison," but that case is inapposite. In Franklin, the defendant was convicted of murder 20 years after the crime took place. The defendant's daughter was the prosecution's key witness. She testified that she had witnessed her father sexually assault and kill her friend 20 years earlier but had repressed the memory of it. (Id. at p. 1440.) The trial court excluded evidence that the details of the crime testified to by the daughter were widely available in press reports and the public domain. In closing argument, the prosecutor argued the daughter could only have known the details of the crime if she had witnessed it. (Id. at pp. 1452-1453.) The district court concluded the error likely had "a critical effect on the jury" because the defendant was effectively denied the opportunity to disprove that the key witness's memory of minute details of the crime scene must have necessarily resulted from her having witnessed the crime. (Id. at pp. 14541455.)
Here, by contrast, A.D. admitted she was upset and motivated to report the molestation because she believed defendant was going to receive alimony payments of $40,000 per month in the divorce, substantial additional evidence was introduced supporting the defense theory that A.D. lied to help her aunt financially, and both A.D. and Arlene were cross-examined about their motive to lie to reduce or eliminate the alimony Arlene would owe defendant. Moreover, unlike the press reports in Franklin that had permeated the public domain, there was no basis here to infer that A.D. had any knowledge of the technical legal issue on which the defense proposed to offer testimony.
Evidence regarding a financial motive for the disclosure included the following: (1) A.D. was upset about the $40,000 alimony payment defendant was seeking in the divorce, thought it was "crazy,"" 'unreasonable,'" and that defendant did not deserve it; (2) A.D. sent a text message to Arlene about defendant "not getting you the money" before she disclosed the abuse; (3) the whole family was concerned that defendant was trying to take all of Arlene's money in the divorce; (4) the day after defendant was arrested, Arlene filed a declaration under penalty of perjury requesting that the court suspend alimony payments; (5) while defendant was in jail pending these molestation charges, Arlene was paying him only $15,000 in alimony, not $38,000 or $40,000; (6) S.D. testified that A.D. thought "Matt was taking all of Arlene's money"; and (7) A.D. texted her boyfriend that defendant was "taking my whole family down." Most of this evidence was highlighted by defense counsel in his closing argument regarding A.D.'s motive to lie.
In sum, the trial court did not err by excluding a family law expert to testify about the impact of possible incarceration on alimony payments. Moreover, given the extensive evidence introduced about the family's anger at the amount of alimony payments and the close timing between the disclosure of abuse and the divorce proceedings, it is not reasonably probable that defendant would have received a more favorable verdict had a legal expert testified about family law.
Having found no state law error, we likewise reject defendant's argument that the trial court violated his constitutional right to present a complete defense by excluding his proposed expert. (Jones, supra, 57 Cal.4th at p. 957 [the routine application of state evidentiary rules does not implicate a criminal defendant's constitutional rights].)
C. Child Sexual Abuse Accommodation Syndrome Expert
Defendant next contends his counsel rendered ineffective assistance by failing to object at trial to testimony by Dr. Blake Carmichael, a psychologist who was admitted as an expert on child sexual abuse accommodation syndrome (CSAAS). Defendant asserts the prosecution improperly invited Dr. Carmichael to apply CSAAS evidence to conclude the molestation happened by using inappropriate hypotheticals based on the particular facts of this case. Defendant further asserts that the testimony of Deputy Joshua Chaves and Officer Deborah Trujillo about common behaviors of child victims of sexual abuse was a type of "CSAAS-type testimony" that the prosecution improperly used to bolster A.D.'s credibility and prove the abuse occurred.
1. Additional Background
The prosecutor moved in limine to admit expert testimony on CSAAS to help prove A.D.'s behavior was not inconsistent with a minor who has been sexually abused. Specifically, the prosecution sought to explain A.D.'s late disclosure, her denial at age six that defendant was touching her, repeatedly being in defendant's presence even after the abuse started, accepting defendant's gifts and money, accepting drugs and alcohol from defendant, and her fears of damaging "the family dynamic." Defense counsel did not object.
At trial, Dr. Carmichael testified as the first witness for the prosecution. He was qualified as an expert in child sexual abuse. He explained that CSAAS describes common misconceptions about how child victims of sexual assault behave, and clarified that it is "a tool to educate people, not identify child victims." Carmichael enumerated five categories of common misconceptions about how child victims of sexual abuse behave: (1) secrecy; (2) helplessness; (3) entrapment or accommodation; (4) delayed, unconvincing, and conflicting disclosure; and (5) retraction or recanting. He noted not all five components manifest in every victim of child abuse because "[t]here's no such checklist" for sexual abuse, but the CSAAS tool describes why child victims of abuse might or might not do certain things. Defense counsel did not object during Carmichael's testimony.
In questioning Carmichael about the "helplessness" component of CSAAS, the prosecutor asked, "Hypothetically, if a family member walked in on a young child four, or five, six years old being sexually touched by that child's uncle and believed that was what was happening but couldn't directly see what was occurring hypothetically under a blanket and thereafter the family allowed the child to have contact with the offender alone on a more regular access again, is that consistent with the child feeling more helpless because now intervention has failed?" Carmichael responded, "It certainly can be perceived that way, and if a child has the experience someone else even saw this, someone else was even there, or I tried to tell them and they didn't believe me, what good is it . . . to talk about it if it's just going to continue."
The prosecutor also posed a hypothetical asking, "[I]f there's a divorce wherein [the abuser] will be removed from the family, could that prompt a disclosure where a child of sexual abuse was previously unwilling to disclose?" Carmichael responded that "[i]t certainly can," elaborating that "[i]f the [specter] of seeing that person is removed and the child is confident that they may not have to see that person again, then they may feel confident to tell."
Later, the prosecutor asked Carmichael to consider "hypothetically a four-, or five-, or six-year-old girl is being sexually touched by her uncle under a blanket in a work place, and her stepdad or parental figure walks in and observes this and immediately gets very angry, removes her from the situation and eventually asks her with a loud and somehow kind of aggressive tone if she was being touched, would it be consistent with a child of sexual abuse to deny that touching even though it was happening?" Carmichael opined the child might feel responsible for causing the anger, might deny to avoid the anger, that such behavior would be consistent with child sexual abuse, and that "reactions of fear, shame, guilt, embarrassment" around disclosure are "all in play when we think about child victims."
The prosecutor also asked Carmichael about children who are abused receiving "gifts or getting material rewards from their abuser either formerly or currently and therefore they don't want to tell anyone," and asked whether substance abuse is "part of the coping" with sexual assault. Carmichael acknowledged that a child may believe "the negative outcome of telling can outweigh what's going on," and a child may believe if he or she can "deal with it in [their] mind okay and realize these benefits of security, protection otherwise, and enjoyable time, that may be enough for a child to not want to tell." He also confirmed that drugs and alcohol can be "a very effective quick way" for a victim of child sexual assault to numb feelings and avoid thoughts.
At trial, defense counsel asked Deputy Joshua Chaves whether A.D. had ever mentioned to him or another deputy that a vibrator had been placed between her labia. Chaves responded, "At that time, no, but I wouldn't say that's unusual for a-for a child." When testifying about her experience with child abuse investigations, Officer Deborah Trujillo affirmed that it is common for children of sexual abuse to reveal more details in subsequent interviews or later questioning, further responding that she had worked with and interviewed more than 100 victims of sexual assault. Trujillo stated that a "second interview will often reveal other details or more details of the crime."
2. Analysis
Evidence regarding CSAAS allows jurors to understand the reactions of children who have been the victims of sexual abuse. (People v. Mateo (2016) 243 Cal.App.4th 1063, 1069.) CSAAS evidence is admissible to dispel certain myths about the typical behavior of childhood victims of sexual assault, but it is inadmissible to prove that a victim's claim of molestation is true. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301; People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker).)
In People v. Gilbert (1992) 5 Cal.App.4th 1372, an opinion cited by defendant, the Sixth Appellate District noted that it is not easy to delineate the line between the permissible and impermissible use of expert testimony regarding CSAAS. (Id. at pp. 1383-1384.) The Gilbert court observed the "better practice" is to limit an expert's testimony "to observations concerning the behavior of abused children as a class and to avoid testimony which recites either the facts of the case at trial or obviously similar facts." (Id. at p. 1384; see also Bowker, supra, 203 Cal.App.3d at pp. 392-393.)
Defendant argues that here, "[b]y providing 'hypothetical' facts that mirrored the specifics of this case, the prosecutor suggested that the jury could use Dr. Carmichael's testimony to infer that [A.D.] displayed signs of CSAAS and therefore was telling the truth about her accusations against [defendant]." He argues his counsel could not have had any reasonable grounds to not object and he was prejudiced by counsel's deficient performance. For several reasons, we disagree.
First, it is not clear counsel had a valid objection to the prosecution's hypotheticals. As defendant acknowledges, hypotheticals put to a CSAAS expert should bear some relationship to the facts of the case so that the expert's testimony is "targeted to a specific 'myth' or 'misconception' suggested by the evidence." (Bowker, supra, 203 Cal.App.3d at pp. 393-394.) Here, the hypotheticals challenged on appeal asked Carmichael to opine about particular behaviors or responses to a factual situation, not whether the hypothetical facts would mean the child had been abused. (See id. at p. 394 [CSAAS testimony is admissible to show "that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested"].) Further, Carmichael testified he knew nothing about the facts of this case and had no opinions about it. While the hypothetical questions tracked some of the facts of this case, his responses explained general behaviors of child sexual abuse victims as a class. Carmichael also made clear that CSAAS is not a diagnostic tool and cannot be used to identify victims of child sexual abuse. Accordingly, his testimony did not suggest A.D.'s allegations of abuse were true based on his expert opinion.
Defendant relies on People v. Jeff (1988) 204 Cal.App.3d 309, 338-339 and People v. Clotfelter (2021) 65 Cal.App.5th 30, 64 to argue his counsel was ineffective for failing to object, but those cases are inapposite. In Jeff, two experts for the prosecution testified: first, a social worker described the victim's symptoms based on interviews with and evaluations of the victim, and second, a psychologist testified regarding" 'child molest syndrome.'" The prosecution told the jury in his opening statement that the social worker would describe the victim's symptoms while the psychologist would tell the jury" 'what these symptoms mean.'" (Id. at pp. 337-338.) The prosecution then asked the psychologist a series of hypothetical questions that incorporated "the exact same facts and details" as told by the victim to the social worker, and the psychologist explained that the victim's "emotions, fears, and reactions to others are symptoms exhibited by a child molest victim." (Id. at p. 338.) On appeal, the court held the evidence was inadmissible because the expert's testimony "told the jury that they should accept" as true the victim's version of events. (Ibid.)
Here, unlike in Jeff, the prosecution did not present expert testimony based on interviews or examinations of A.D., and Dr. Carmichael testified he was unfamiliar with the circumstances of the case or the victim. Although some of the prosecutor's hypotheticals bore similarities to the evidence, the questions and responses did not tell the jury it should believe A.D.'s allegations. For example, when the prosecutor asked the two hypotheticals about an uncle touching a victim under a blanket and being discovered, Carmichael testified a child "certainly can" perceive they are helpless because intervention has failed, and then he continued to talk about such reactions more generally. He also explained children "can" deny abuse occurred when they are asked about it directly, or if they see an adult is angry, may deny the abuse to avoid the anger because they "feel like they are in trouble." He explained that "reactions of fear, shame, guilt, embarrassment" around disclosure "are all in play when we think about child abuse victims." These responses did not tell the jury to believe A.D. was abused but provided information that would help the jury assess her credibility. Moreover, Carmichael emphasized that he did not have an opinion about this case and that CSAAS cannot be used to diagnose sexual abuse.
In fact, in response to the first hypothetical about a child being sexually touched by the child's uncle under a blanket, Carmichael testified that "[i]t's one of those misnomers . . . where people anticipate that a child will try to resist being around their perpetrator" and offered examples that maybe "kids are told they have to be with that person . . . overnight" or "in the uncle example maybe they have cousins there that they like to play with." The fact that Carmichael's response employed these additional hypothetical facts that were not based on the evidence in the case further demonstrates that his answers were provided to help the jury understand common reactions of child abuse victims, not conclude the abuse had occurred.
People v. Clotfelter, supra, 65 Cal.App.5th 30 (Clotfelter), is likewise distinguishable. In Clotfelter, unlike here, two of the alleged victims denied that they had been touched inappropriately by the defendant, and the parents of the boys (who were mandatory reporters) said they never saw anything troubling. (Id. at pp. 64-65.) As to a third victim, who also testified the defendant did not do anything inappropriate, the evidence was insufficient to support a guilty verdict. (Id. at pp. 39, 54, 65.) The prosecution presented two experts: (1) a clinical psychologist (who had evaluated the defendant over 10 years prior to his arrest) who opined that a person with the exact same history as the defendant has "either reoffended or is close to reoffending," and (2) Dr. Carmichael, who testified regarding CSAAS. (Id. at pp. 61, 62-63.)
On appeal, the appellate court was troubled by the introduction of all of the expert testimony produced by the prosecution because the key issue at trial was whether defendant's conduct was criminal and the fact that a qualified psychiatrist expert testified it was, was unquestionably prejudicial. (Clotfelter, supra, 65 Cal.App.5th at p. 60.) In addition, the expert's response to the hypothetical in that case was equivalent to testifying the defendant had the requisite mental state and was guilty of the charged offenses. (Id. at p. 61.) Finally, because the case did not involve delayed reporting of abuse, the CSAAS testimony was not relevant. (Id. at pp. 64-65.) Rather, the prosecutor was using the CSAAS testimony to ask the jury to infer the boys in that case were victims despite the fact that none of them ever disclosed or testified to any inappropriate behavior. (Ibid.)
Here, by contrast, Dr. Carmichael did not testify to defendant's state of mind, and unlike the victims in Clotfelter, A.D. obviously did delay reporting the abuse. The key issue in this case (as defendant concedes) was A.D.'s credibility, rather than a lack of evidence of criminal behavior as was the case in Clotfelter. Further, here, the jury was never called upon to infer that A.D. was molested based solely on an expert's testimony about the reactions of most child abuse victims.
Even assuming the hypotheticals improperly employed case specific facts, however, the limited record before us on appeal sheds no light as to defense counsel's reasons for failing to object to Dr. Carmichael's testimony. We cannot state that there can be no satisfactory explanation to justify the failure to object to the identified testimony. (Strickland, supra, 466 U.S. at pp. 689-690; People v. Mai (2013) 57 Cal.4th 986, 1009 [on review of ineffective assistance claim, court defers to counsel's reasonable tactical decisions and presumes competent assistance].) Counsel could have reasonably determined that it was better not to draw unwarranted attention to the hypotheticals which the prosecutor posed to Dr. Carmichael. As we have explained, during his testimony, Carmichael made clear that he had no information about the case, did not know the victim's name, had formed no opinions about the case, and that CSAAS cannot identify victims of abuse. On cross-examination, he also confirmed that certain behaviors described in the prosecution's hypotheticals (e.g., denial of abuse, absence of outward signs of distress) which are consistent with a child having been sexually abused would also be consistent with a child having not been abused. During closing argument, defense counsel argued to the jury that prosecutors frequently call experts like Carmichael to testify that behavior is consistent with a child who has been abused, but the same behavior is "also entirely consistent with someone who makes up the allegations."
Nor can we say defense counsel's failure to object to the prosecutor's opening statement and closing argument fell below an objective standard of reasonableness. "Advocates are given significant leeway in discussing the legal and factual merits of a case during argument." (People v. Centeno (2014) 60 Cal.4th 659, 666.) "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was a 'reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (Id. at p. 667.)
Defendant cites several examples of inappropriate remarks by the prosecution. First, defendant argues, the prosecution's opening statement implied that Carmichael would be testifying about the specific facts of the case. Defendant quotes a portion of the opening in which counsel described anticipated testimony by both Carmichael and A.D. But the statement reasonably suggests that the expert would testify to what qualifies as normal behavior, while A.D. would testify to the facts of the case, including what happened to her and how it made her feel. In any event, as discussed above, Carmichael did not testify about the facts of the case, but confirmed he was unaware of them.
The excerpt reads: "The expert will explain to you that it's normal for kids to feel like they provoked this somehow. You may hear [A.D.] when she testifies tell you that she felt like she let him touch her, like she let her uncle sexually molest her. You will also hear that because kids feel entrapped because they feel like they can't get out, that they start to accommodate, get used to this almost everyday occurrence, that their survival instincts kick in, and so it becomes normal and how do they cope with that. And then it happened over and over again and that becomes their new normal. Every few days when I am alone with Uncle Matt he touches me, that's what he does. No, I can't remember the details of every single one because it happens all the time. Not every single time we're alone, because that might push me away, but often and frequently. I have adapted to that. That is my normal because he chose it for me."
Defendant also argues that in closing the prosecutor improperly told the jury that "[t]he key" question was whether A.D.'s conduct was "consistent with someone who is being molested," and argued that it was "in every single way." The prosecutor also told the jury that child molesters "tend to be exactly who the defendant was in [A.D.'s] life" and that "offenders tend to be bigger and stronger, and frankly, smarter than kids are and that's consistent with [A.D.] as well." Finally, the prosecutor argued that "Dr. Carmichael was given the hypothetical with Gene walking in and this very emotional conversation where I think he said, quote, 'is he fucking touching you,' and [A.D.] said 'no.' And Dr. Carmichael said, yes, that is consistent with a child of sexual abuse. That is consistent."
In the context of counsel's entire argument and the instructions to the jury, however, we do not think there is a reasonable likelihood the jury understood or applied the prosecution's remarks in an impermissible manner. First, in discussing Carmichael's testimony, the prosecutor began by telling the jury there is a jury instruction "specific to this issue" that "says, you may consider this evidence only in deciding whether or not [A.D.]'s conduct was not inconsistent with the conduct of someone who had been molested and in evaluating the believability of her testimony," explaining that "basically this is saying can you use this information to say [A.D.] is not being inconsistent with what is normal." It was in explaining this instruction that counsel said the "key here" is whether A.D.'s conduct was consistent with that of someone who is being molested and counsel "submit[ted]" to the jury that it was "in every single way." The prosecutor appropriately referred the jury to the instruction that it was only allowed to consider Carmichael's testimony for the purpose of assessing whether A.D.'s reactions were not inconsistent with having been molested. If counsel's argument that A.D.'s behavior was consistent with that of an abuse victim was misleading, the instruction was clear, and we presume the jury followed that instruction. (People v. Parker (2022) 13 Cal.5th 1, 71.)
As to the other remarks, the prosecutor argued to the jury that testimony by Carmichael about child abusers generally (e.g., that they tend to be "loving, trusting adults" and "bigger and stronger, and . . . smarter"), offered while explaining misconceptions about secrecy and helplessness, applied to the evidence in the case and helped explain A.D.'s behavior. Similarly, the comment about the hypothetical with Gene references Carmichael's testimony that a child in such a situation might deny the abuse happened. These arguments appropriately urged the jury to use the expert's testimony to evaluate A.D.'s reactions to the abuse. In any event, to the extent the remarks arguably improperly linked Carmichael's testimony with specific facts of the case, they were exceedingly brief comments in the prosecution's lengthy discussion of his testimony. Defense counsel might have chosen not to object to avoid drawing attention to the remarks. In light of the arguments and instructions as a whole, it is not reasonably likely the jury used them for an improper purpose.
In sum, based on the evidence, defense counsel's cross-examination of Carmichael, and the full context of both parties' closing arguments to the jury, it appears defense counsel made a tactical choice regarding how to respond to Carmichael's disputed testimony. The record does not affirmatively disclose that no rational tactical basis existed for the failure to raise an evidentiary objection or object to the prosecution's closing argument. (People v. Mai, supra, 57 Cal.4th at p. 1009.) Accordingly, defendant has failed to establish that his counsel's performance fell below an objective standard of reasonable competency, and the claim must fail.
Finally, even if defendant could establish his counsel performed deficiently by failing to object to the improper use of hypotheticals, he cannot demonstrate prejudice. Defendant argues the prosecutor urged the jurors to use Carmichael's testimony to find that A.D. "had in fact been sexually abused," but the record does not support his argument.
As we have explained above, the prosecutor's hypotheticals and closing argument did not impermissibly suggest to the jurors that they could use Carmichael's testimony to find the charged crimes had occurred. Moreover, the court instructed the jury with CALCRIM No. 1193, which explained that Carmichael's testimony could not be used as evidence that defendant was guilty of committing the crimes charged, but only in evaluating A.D.'s credibility and determining whether her conduct was not inconsistent with the conduct of someone who has been molested. The court also instructed the jury that hypothetical questions posed to experts assume certain facts are true, but it is up to the jury to decide whether an assumed fact has been proved. Through other instructions, the jury was informed that defendant was presumed innocent and that the prosecution bore the burden to prove his guilt beyond a reasonable doubt. For each of the charged crimes, the jurors were told the prosecution had to prove each of the required elements. Nothing the attorneys said undermined these instructions, and in any event, the court further instructed the jury that counsel's arguments are not evidence. We presume the jury followed all of the court's instructions. (People v. Parker, supra, 13 Cal.5th at p. 71.)
In sum, based on this record, defendant has not shown he was prejudiced from his counsel's failure to object to the prosecutor's use of hypotheticals.
We likewise reject defendant's contention that the testimony of Chaves and Trujillo about common behavior of child abuse victims based on their experience as police officers was "CSAAS-type" evidence to which counsel should have objected. (See, e.g., People v. McAlpin, supra, 53 Cal.3d at p. 1306 [lay opinion testimony based on personal observation is admissible].) Neither Chaves nor Trujillo was qualified as an expert in child sexual abuse, and we do not see how exclusion of their extremely brief testimony about the general behavior of children in child abuse investigations based on their personal experience could have reasonably resulted in a more favorable outcome for defendant.
D. Prosecutorial Misconduct
Next, defendant challenges various statements made by the prosecution about defense counsel during the course of trial. Defendant contends the prosecutor's remarks accused defense counsel of victimizing the complaining witness and constituted prosecutorial misconduct that rendered his trial fundamentally unfair.
" 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such" 'unfairness as to make the resulting conviction a denial of due process.'" [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial.'" (People v. Salcido (2008) 44 Cal.4th 93, 152.) A prosecutor is given wide latitude to vigorously argue his or her case and make fair comment upon the evidence, including reasonable inferences or deductions that can be drawn from the evidence. (People v. Ledesma (2006) 39 Cal.4th 641, 726.) A prosecutor commits misconduct, however,"' "if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." '" (People v. Seumanu (2015) 61 Cal.4th 1293, 1336-1337 (Seumanu).)
Defendant contends the following statements by the prosecution constituted misconduct: (1) during her opening statement, the prosecutor stated that A.D.'s friend, S.D., "got reamed" during her preliminary hearing testimony; (2) during the redirect examination of S.D., the prosecutor asked her whether the questions asked at the preliminary hearing felt "aggressive" and, noting the same attorney was counsel for defendant at trial, asked if the earlier cross-examination made her "not want to come to court"; (3) during closing argument, the prosecutor noted that A.D. had testified for three days at the preliminary hearing and two days at trial, stating she "got explicitly called a liar to her face"; (4) told the jury that A.D. was "willing to take all that"; and (5) argued that A.D. "suffered through not one, not two, but three days of preliminary hearing."
As to the prosecution's comment during her opening statement that S.D. "got reamed" at the preliminary hearing, the trial court sustained defendant's objection, admonished the jury to "disregard that," and reminded the jury that "everything the lawyers say during opening is not evidence." We presume the jury understood and applied that instruction.
Regarding the prosecutor's questions to S.D. on redirect examination, the prosecutor first asked her if questions asked at the preliminary hearing felt "aggressive." Defense counsel objected on relevance grounds, and the trial court overruled the objection, but told counsel to "rein it in please." When the prosecutor asked, "Does it make you not want to come to court?" the trial court sustained an objection, stating, "[T]hat's not relevant." And when the prosecutor asked if it was hard to answer questions at trial because of how she was treated at the preliminary hearing, the court said, "Can you just ask the question without the characterization?" In light of the trial court's admonishments to the prosecutor and the sustained objection, it is not likely the jury would have used the comments in an improper or erroneous manner. (Seumanu, supra, 61 Cal.4th at p. 1337 [to prevail on a claim of prosecutorial misconduct defendant must show" 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner' "].)
Finally, as to the prosecutor's statements during closing argument, defense counsel did not object. "To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553.) In any event, even assuming the argument was preserved for appeal, we conclude any error was harmless. It was not improper for the prosecution to argue that A.D.'s willingness to tell her story to strangers in multiple proceedings indicates that she was motivated to tell the truth. (See People v. Turner (1983) 145 Cal.App.3d 658, 673 [prosecutor appropriately sought to bolster victim's credibility by arguing her "telling the details of the crime several times to many strangers indicates she was motivated to testify truthfully"], disapproved on other grounds in People v. Newman (1999) 21 Cal.4th 413, 422, fn. 6 &People v. Majors (1998) 18 Cal.4th 385, 411.) While one statement by the prosecutor perhaps implied that defense counsel called A.D. a "liar to her face," it was fleeting, indirect, and is more reasonably interpreted as a comment about enduring the rigors of cross-examination than an attack on defense counsel. Moreover, as we have already noted, the trial court instructed the jury that the parties' arguments are not evidence. Accordingly, we cannot infer the jury "drew the most damaging rather than the least damaging meaning" from any improper argument, and we conclude any alleged misconduct was harmless. (Seumanu, supra, 61 Cal.4th at p. 1337.)
E. Severance of Gun Charges
Defendant contends his trial counsel rendered ineffective assistance by failing to seek severance of the gun charges.
Charges may be joined if the charged offenses are "connected together in their commission," if they are "different statements of the same offense," or if they belong to the "same class of crimes or offenses." (§ 954.) Joinder conserves judicial resources and is therefore preferred by law. (People v. Simon (2016) 1 Cal.5th 98, 122.)
" 'In determining whether a trial court's refusal to sever charges amounts to an abuse of discretion, we consider four factors: (1) whether evidence of the crimes to be jointly tried is cross-admissible; (2) whether some charges are unusually likely to inflame the jury against the defendant; (3) whether a weak case has been joined with a stronger case so that the spillover effect of aggregate evidence might alter the outcome of some or all of the charges; and (4) whether any charge carries the death penalty or the joinder of charges converts the matter into a capital case.'" (People v. Westerfield (2019) 6 Cal.5th 632, 689.)
Even assuming that a severance motion might have been successful, we conclude defendant has not shown ineffective assistance on this record.
"On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai, supra, 57 Cal.4th at p. 1009.)
It is not clear from the record why counsel elected not to seek severance of the gun charges. The decision may have been for tactical reasons. Defendant's girlfriend, Susan G., testified that defendant took the guns at her request because she was afraid that her teenage son was going to access them. Counsel may have calculated that such evidence helped prove defendant's good character or made him appear sympathetic. In closing, defense counsel argued, "[Y]ou know everything about the guns and why and how it [sic] ended up in [defendant's] garage.... He was trying to do the right thing. He should be applauded for that."
In any event, even if counsel's performance was deficient, defendant has not demonstrated prejudice. (Strickland, supra, 466 U.S. at p. 697.) The firearms evidence was a small part of the prosecutor's case, and defense counsel spent even less time on it than the prosecution. In closing, counsel said, "I am going to spend about ten seconds on the guns ....This is a man that doesn't know one thing about guns. He couldn't even tell you if a gun is loaded or not. He hates guns .... He was trying to do the right thing.... He didn't want them to be at Susan [G.]'s house with her 17-year old kid." Moreover, the evidence supporting the molestation charges and drug charges was very strong. Therefore this does not appear to be a case where strong firearms evidence was used to bolster a weak drug or molestation case. Furthermore, the gun possession charges were not particularly inflammatory as it was undisputed defendant was trying to get rid of the guns and there was no evidence he intended to use the firearms for a nefarious purpose. Rather, Susan G. testified to defendant's good intentions in helping her protect her son. Because the gun charges were a relatively minor aspect of the trial and defense counsel used the evidence to show defendant's good character, it is not reasonably probable that he would have obtained better results on the molestation and drug offenses had he moved for severance.
F. Cumulative Error
Defendant contends the cumulative effect of the multiple errors at trial identified above requires reversal of the judgment. We disagree.
Under the cumulative error doctrine, "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) As we have discussed in detail above, we have rejected defendant's individual claims of error, and accordingly, there is no prejudice to accumulate. Any potential errors we have considered separately and found to be harmless; we reach the same conclusion considering them collectively.
G. Sufficiency of the Evidence on Gun Charges
Finally, defendant asserts we must reverse his convictions on counts 14 and 15 for possession of an assault weapon because insufficient evidence supported those verdicts.
Counts 14 and 15 charged defendant with possession of an assault weapon. The trial court instructed the jury that to find defendant guilty, the prosecution must establish beyond a reasonable doubt that he "possessed an assault weapon, specifically an AK-47 and/or AR 15," and that he knew or reasonably should have known that the weapon "had characteristics that made it an assault weapon." The court also instructed the jury that "[a]n AK-47 and/or AR 15 are assault weapons." The jury returned a guilty verdict on both counts. The verdict form indicated that defendant "did unlawfully possess an assault weapon, to wit: AK-47, AR-15 assault rifles."
Section 30605 prohibits the possession of "any assault weapon," which the statutory scheme defines alternatively by reference to specific makes and models (§ 30510), or by reference to generic characteristics (§ 30515). Section 30510 defines assault weapons as including "All AK series," including the AK-47 and the "Colt AR-15 series." (§ 30510, subd. (a)(1), (5).) Section 30515 provides: "Notwithstanding Section 30510, 'assault weapon' also means . . . [¶] (1) A semiautomatic, centerfire rifle that does not have a fixed magazine," but has certain prohibited features, such as a folding or telescoping stock or a flash suppressor. (§ 30515, subd. (a)(1).)
Defendant contends the evidence in this case was insufficient to support the verdict because the first amended information, jury instructions, and verdict form all defined the firearms as assault weapons by reference to a make and model set forth in section 30510, i.e., "AK-47" or "AR-15." Therefore, defendant contends, despite testimony from a firearms expert that the assault rifles introduced as exhibits at trial had characteristics of an assault weapon as provided in section 30515, insufficient evidence supported the verdict because no evidence was introduced that they were in fact an AK-47 and/or an AR-15.
Defendant does not raise any challenge to the jury instructions given at trial.
We disagree. To obtain a conviction under section 30605, the prosecution must prove that defendant possessed an assault weapon as defined by one of those statutes, that he knew he possessed it, and that he knew or reasonably should have known that the firearm he possessed had the characteristics that made it an assault weapon. (§ 30605; In re Jorge M. (2000) 23 Cal.4th 866, 887 (Jorge M.) [construing former § 12280, which has been renumbered as § 30605 without substantive change (Stats. 2010, ch. 711, § 6; CALCRIM No. 2560.)
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] . . . A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Here, Criminalist Jason Otis testified that an assault weapon has a semiautomatic, centerfire rifle that does not have a fixed magazine and has at least one of approximately six different features listed in the Penal Code. Regarding the two firearms found in the search of defendant's home, Otis testified they were semiautomatic, centerfire rifles, without a fixed magazine and with a pistol grip, a folding or telescoping stock, and a flash suppressor. The weapons, which are identified in the exhibit log as an AR-15 and AK-47, were admitted as exhibits at trial and available to the jury to examine. On this record, substantial evidence supports the jury's findings that defendant possessed an assault weapon, that he knew he possessed it, and that he knew or should have known that the firearm he possessed had the characteristics that made it an assault weapon. (In re Jorge M., supra, 23 Cal.4th at p. 888 [person who has had "substantial and unhindered possession of semiautomatic firearm" would be expected to know whether it was of make and model or has clearly discernable features defined in statutes].)
Defendant contends the jury had no evidence from which to conclude that the firearms underlying his convictions were an AR-15 and AK-47 as identified in the jury instructions and the verdict forms. First, we observe defendant did not object below to either the jury instructions or the verdict forms on the basis that they improperly described the assault weapons only by their make and model. In any event, as noted above, the firearms themselves were admitted as evidence at trial and the jury had the opportunity to observe them. Defendant does not assert the weapons lacked markings indicating they were an AK-47 and an AR-15. (See, e.g., People v. Sullivan (2007) 151 Cal.App.4th 524, 549 [appellate court presumes the judgment is correct; defendant bears the burden to affirmatively demonstrate error; and any uncertainty in the record must be resolved against the defendant].) Furthermore, Otis's undisputed testimony that the weapons were semiautomatic, centerfire rifles, without a fixed magazine and with a pistol grip, a folding or telescoping stock, and a flash suppressor established that they had the characteristics of an assault weapon. Accordingly, the jury's verdict was supported by uncontroverted evidence that the weapons were assault weapons within the meaning of the statute.
Defendant's reliance on People v. Siko (1988) 45 Cal.3d 820 to argue that the prosecution could not prove the firearms were assault weapons within the meaning of section 30515 based on general characteristics is unavailing. In Siko, our Supreme Court held the ban on multiple punishment under section 654 prohibited the defendant from receiving three separate sentences on his convictions for rape, sodomy, and lewd conduct where the lewd conduct conviction was based on the same acts supporting the rape and sodomy convictions. The court rejected an argument that although the charging document and verdicts specified the defendant's lewd conduct as acts of rape and sodomy, other acts by the defendant would also support the lewd conduct conviction. (Siko, at pp. 825-826.) Here, the Attorney General does not argue that an uncharged act supports defendant's conviction for possession of assault rifles, and Siko is inapposite.
We also disagree with defendant's contention that the only testimony presented about defendant's possession of the firearms was too attenuated to prove he could have acquainted himself with their characteristics as firearms. "Possession of a weapon may be proven circumstantially, and possession for even a limited time and purpose may be sufficient." (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) Here, Susan G. testified that she saw defendant put the firearms in duffle bags and he then transported them to his house. She further testified that defendant stored them in a lockbox in his garage that he had purchased for that purpose and that he sent her a picture showing that they were inside the lockbox. From these facts, the jury could reasonably infer defendant had an opportunity to view, remove, and inspect the weapons. Accordingly, we conclude there was sufficient evidence for the jury to reasonably conclude that defendant "had substantial and unhindered possession" of the firearms and should have known they had the characteristics of assault weapons. (In re Jorge M., supra, 23 Cal.4th at p. 888.)
H. Abstract of Judgment
At sentencing, the trial court ordered defendant's sentence on count 11 to run concurrently to the remaining counts. The court's minutes and abstract of judgment incorrectly state that the sentence on count 11 shall run consecutively. We will remand to the trial court to remedy the clerical error.
III. DISPOSITION
The judgment is affirmed. The trial court shall correct the sentencing minute order and the abstract of judgment to reflect that count 11 is to run concurrently to the remaining counts. The trial court shall forward a certified copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation.
WE CONCUR: BANKE, J., SWOPE, J. [*]
[*] Judge of the San Mateo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.