Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS061279
McAdams, J.
Defendant Perry Hamm was convicted by jury of two counts of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5). The jury also found true a special allegation that there was more than one victim. (§ 667.61, subd. (e)(5).) The court sentenced defendant to prison for 15 years to life on the first count and imposed a concurrent sentence of 15 years to life on the second count pursuant to the One Strike law. (§ 667.61, subds. (b), (e)(5).) The court also imposed various fines and fees.
All further statutory references are to the Penal Code, unless otherwise stated.
This case involves the continuous sexual abuse of two sisters, M.B. and J.B. The prosecution alleged that the molestations of M.B. occurred between December 1994 and July 2000 and that the molestations of J.B. occurred between October 1995 and October 2001. Although there was evidence that defendant molested M.B. before December 1994, the prosecution only charged the abuse from December 1, 1994, forward, reasoning that this would permit sentencing under the One Strike law (§ 667.61), which became effective on November 30, 1994. (People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178 (Alvarez).) Section 288.5 requires proof of “three or more acts of substantial sexual conduct, ” or “three or more acts of lewd or lascivious conduct” with a child under the age of 14. (§ 288.5, subd. (a) citing §§ 1203.066, subd. (b) & 288.) Defendant contends that the prosecution presented evidence of only two acts of sexual abuse involving M.B. during the period charged in the information and argues that his trial counsel rendered ineffective assistance when he elicited evidence of additional incidents of sexual abuse on cross-examination. Defendant also contends that trial counsel’s cross-examination made the prosecution’s case that defendant had “recurring access” to M.B., one of the elements of continuous sexual abuse of a child. (§ 288.5, subd. (a).) In addition, defendant argues that the trial court erred when it instructed the jury with CALCRIM No. 1193 that it could consider expert testimony regarding Child Sexual Abuse Accommodation Syndrome in evaluating the believability of the complaining witnesses. Finally, defendant asserts that his convictions should be reversed for cumulative error. We conclude that trial counsel was not ineffective and that the court did not err in instructing the jury with CALCRIM No. 1193.
This opinion, although unpublished, may be publicly accessible into the indefinite future. We have therefore taken special care to honor this state’s policy against identifying “ ‘living victims of sex crimes’ ” in order to “ ‘prevent the publication of damaging disclosures’ ” regarding such persons. (Cal. Style Manual (4th ed. 2000) § 5:9, pp. 179-180.) The Rules of Court provide that to protect anonymity in such cases “a party must be referred to by first name and last initial in all filed documents and court orders and opinions; but if the first name is unusual or other circumstances would defeat the objective of anonymity, the party’s initials may be used.” (Cal. Rules of Ct., rule 8.401(a)(2) & former rule 8.400(b)(2); see also California Style Manual, supra, § 5:9, at pp. 179-180 & § 5:10, at pp. 180-181 [“Individuals entitled to protective nondisclosure are described by first name and last initial”].) Since this case involves two sisters, use of both their first names and last initial may defeat the objective of anonymity. We shall therefore refer to them by their initials only.
However, we question the propriety of sentencing defendant under the One Strike law, since the offense of continuous sexual abuse of a child was not listed in section 667.61 until 2006. We therefore asked the parties to submit supplemental briefing on the question whether punishing a violation of section 288.5 that was completed before 2006 under the One Strike law violates constitutional prohibitions against ex post facto laws. Having reviewed the parties’ supplemental briefs, we conclude that sentencing pursuant to the One Strike law in this case violates the prohibition against ex post facto laws. We will therefore reverse the judgment and remand for resentencing.
Facts
I. Prosecution Case
A. Victims’ Relationship With Defendant
M.B. and J.B. moved to Pacific Grove with their father (Father) in 1991 (we shall refer to M.B. and J.B. jointly as “the Girls” and to the Girls and Father jointly as “the family”). The family was from Pennsylvania. Father was a single parent and worked as a plumber. Between 1991 and 2001, the family lived in several different residences in Monterey County, including defendant’s mobile home on a remote property in Greenfield (defendant’s home). To establish the time frames during which the abuse happened, the prosecution elicited evidence regarding the family’s many moves and used the Girls’ various residences as points of reference.
Father met defendant in 1992 or 1993. By that time the family had moved to Greenfield; Father had lost his job, was on welfare, and was behind on the rent. A few months later, defendant suggested Father and the Girls move in with him.
There was conflicting evidence regarding whether the family moved to defendant’s home in 1992, 1993, or 1994. Father testified that the family moved in with defendant in the late summer or early fall of 1992; M.B. testified that the move occurred in the late summer or early fall of 1993, when she was 7 years old. Defendant testified that the family moved in with him in the spring of 1994.
During the time that the family lived with defendant, defendant provided daycare whenever father went out to look for work or to play poker. Father played poker “a couple nights a week”; he said he needed to go out and be with friends.
According to Father, in October 1994, the family moved to a ranch house in Greenfield, two miles from defendant’s home (second Greenfield residence). They lived there until November 1995. Defendant testified that the family moved to the second Greenfield residence in February or March 1995. When the family lived in the second Greenfield residence, defendant continued to provide childcare once or twice a week when Father played poker or partied with friends. Father would drop the Girls off at defendant’s home; sometimes he would not pick them up until the next morning. Father admitted that “partying with friends” included using drugs. From 1993 until 1996, Father used methamphetamine and marijuana. Sometimes, he used drugs in defendant’s home, in front of defendant.
In November 1995, the family was evicted from the second Greenfield residence for non-payment of rent and moved back to Pennsylvania.
Father and the Girls returned to California in April 1996 and lived with defendant for two weeks. (According to defendant, it was four months.) Father got a plumbing job in Salinas and moved the family to Salinas. At first, they lived in Salinas motels; later they rented a house in Salinas. Defendant did not provide childcare when the family lived in Salinas.
In 1998, the family moved back to Greenfield to a residence that was one quarter to one half mile from defendant’s home (third Greenfield residence). Defendant helped Father find that place.
In December 1999, the family moved to another residence in Greenfield (fourth Greenfield residence), which Father eventually purchased. He still lived there in 2009, when this case went to trial. After the family moved back to Greenfield, defendant visited and took care of the Girls occasionally until 2001.
B. Molestation of M.B.
M.B. testified that she moved in with defendant when she was seven years old. At that time, defendant was 51 years old and J.B. was four or about to turn four. M.B. testified that she lived with defendant until she was eight or nine years old. She stated that defendant “was like my dad that we lived with, and a babysitter.”
Defendant started touching M.B. shortly after she moved in with him. The first time, defendant suggested she sit next to him on the couch in his living room, put his hand on her leg, moved it toward her genital area, and touched her vagina over her clothes. This occurred almost daily when she was seven years old. At some point, when she was still seven years old, defendant started touching her under her clothes. He slid his hand down her pants, slid his finger over her vagina, touched her labia, but did not penetrate. This occurred more than once. Occasionally, defendant tried to put her on his lap. Sometimes when she sat on defendant’s lap and tried to get up, he pulled her back down and put his arm around her. She never sat on defendant’s lap in a way that was appropriate. The molestations occurred more than three times and happened the entire time that M.B. lived with defendant.
M.B. testified that the family moved from defendant’s home to the second Greenfield residence when she was eight or nine years old and that defendant continued to babysit her at his house after she moved to the second Greenfield residence. M.B. turned eight in August 1994 and nine in August 1995. (The prosecution charged continuing sexual abuse from December 1, 1994, until July 2000.) M.B. did not describe any specific incidents of molestation at the second Greenfield residence.
M.B. never touched defendant’s penis. However, she saw his penis once. It happened in 1996, when she was about nine, after she returned from Pennsylvania, during the two weeks that she lived with defendant. Defendant stood in front of M.B., pulled his penis out, masturbated in front of her, ejaculated into a tissue, and said, “ ‘[T]his is how babies are made.’ ” He did not touch her; he only touched himself. She did not touch him.
During that same two-week period, in addition to the masturbation incident, defendant also touched M.B.’s vagina under her clothing. M.B. could not recall how many times defendant touched her during that time frame. On direct examination, M.B. testified that the touching was not daily like before; it occurred less frequently because Father was there more and there were fewer opportunities for defendant to touch her. On cross-examination, defense counsel asked her if defendant touched her daily during this period. M.B. responded, “More or less... there might have been a few days between or a couple days between where it didn’t happen”; M.B. stated that it happened more times than not. On appeal, defendant argues that defense counsel was ineffective when he cross-examined M.B. on this point and elicited that evidence.
Once, when M.B. was about nine, defendant put his hand down her pants and fondled her while she was trying to sleep on the living room floor at defendant’s home; Father and J.B. were also asleep in the living room.
M.B. testified that although defendant visited the family when she lived in Salinas, he did not touch her inappropriately in Salinas.
M.B. recalled one incident when she was 11 years old, after she moved to the third Greenfield residence, in which defendant touched her inappropriately. Defendant still babysat the Girls after they moved to the third Greenfield residence. The touching occurred at her house. Defendant sat down next to her on her couch, reached down her pants, and touched her vagina. Initially, M.B. testified that this was the first time defendant touched her after she returned from Pennsylvania. She later corrected her testimony and said that this was the first time he touched her after she returned from Salinas and after the two-week period that she lived with him in 1996.
After that incident, defendant did not touch her vagina under her clothing again. When asked whether he touched her over her clothing thereafter, M.B. responded “He had tried to before. But just after I started to get beyond that age, I just remember not giving him the opportunity to.”
When M.B. was 13, her family moved to the fourth Greenfield residence. M.B. recalled one incident of inappropriate touching occurring at that house; it was the last time defendant touched her inappropriately. Defendant came over one day while Father was at work. M.B. was in the kitchen, washing dishes. Defendant came up from behind her, stuck his tongue in her ear, and jiggled it around. She pulled away and left the room.
M.B. never screamed; she does not recall whether she ever cried when defendant molested her. Defendant never made any threats or promises. M.B. never told Father that defendant was touching her because she was humiliated and scared. She never said anything to Father, even after they moved out of defendant’s home. Although she had a good relationship with Father and trusted him, she did not think she could tell him his friend was molesting her. She never told J.B. that defendant was touching her, even though she was concerned that defendant might touch J.B.
In 2003, when M.B. was 16 or 17 years old, a family friend asked Father whether defendant would make a good babysitter. According to M.B., the friend was thinking about listing defendant as an emergency contact for her grandson on a school form. When Father responded that defendant had “always been good” with his children, M.B. “gave [him] a look.” Later that day, M.B. told Father that defendant had molested her several times when she was little. She asked him not to do anything about it and said she would take care of it herself. She felt too humiliated, did not want people knowing about it, and did not think that she could handle “coming out with it... publicly.”
C. Molestation of J.B.
J.B. testified that defendant touched her chest area and her genitals over her clothing. This usually occurred on the couch. She did not recall how old she was the first time it happened; defendant touched her this way more than once before she moved to Pennsylvania. Defendant would also take her hand and make her touch his penis over his clothing. Sometimes his penis was soft and sometimes it was hard. Sometimes he ejaculated and his clothing got wet. J.B. recalled that defendant would sit down on the couch with her and start “groping.” He would grab her and touch her and pull her closer and she would try to get away. Sometimes she would get away and that would be the end of it. If she did not get away, he would continue until he was done. Although defendant would occasionally hug her, for the most part the only time he touched her was for a sexual purpose. Defendant touched her inappropriately and had her touch him almost the whole time she knew him, off and on for four or five years.
Before she moved to Pennsylvania, defendant touched her at his home. J.B. recalled that defendant babysat her occasionally after she returned from Pennsylvania.
After she moved to the third Greenfield residence, defendant occasionally watched her. He touched J.B.’s genitals more than once and touched her chest more than once when she lived in the third Greenfield residence. While she lived at that house, he also made her touch his penis at least one time.
Defendant continued to babysit her after she moved to the fourth Greenfield residence. He would watch her both at his house and at her house and on those occasions he would touch her genitals.
On cross-examination, J.B. testified that she told the sheriff in 2005 that none of the touchings occurred at defendant’s house. But at trial in 2009, she recalled that some of the touching did occur at his house. She also remembered telling the prosecution investigator in November 2005 that defendant touched her at his house.
J.B. never said anything to defendant or told him not to touch her. Sometimes, she would get up and leave to make it stop. Defendant never made any threats or promises to her. J.B. knew what defendant was doing was wrong and she did not like it, but she was little and afraid to get in trouble. She thought Father would not believe her and get angry with her because defendant was Father’s friend.
D. M.B. Reports Molestation to Police; Pretext Telephone Call
When M.B. was 18, she reported the molestations to the police. The police had M.B. make a pretext telephone call to defendant. The prosecution played the tape of the pretext call for the jury and a transcript of the conversation was in evidence. During the conversation, M.B. told defendant she “need[ed] to clear some things up.” She asked him whether he remembered the time the previous summer when she asked him about “those things [he] did when [she] was little” and when he said it was because he loved her. Defendant responded “I sure do.” M.B. then asked, “if that’s so, how could you touch my little sister?” Defendant told her he cared for both of them “dearly” and referred to the time “when two beautiful ang[els] came into [his] life.” He stated that “there was certainly nothing but love... intended in any of this.... it’s crazy how much love... the love that I’ve had for you, that I’ve had for you guys, that I still do... I’ll always love you. There was certainly no, no harm.” He told her that if he “were a younger man” and “if things still existed like in the Mormon days when you could have more than one wife, ” he would marry both of them. When M.B. said, “I don’t understand how molesting children justifies love, ” defendant responded “I didn’t molest y’all honey.” When M.B. asked, “what do you call it?” defendant responded “... it’s love, is what it is.... I mean as far as playing around, and... joking around and stuff.... That’s what the biggest majority of... that was... I mean I’m terribly sorry and I apologize uh... deeply... if things were taken otherwise. I... was... going through a horrible time in my li[f]e and I know you guys were too. And maybe that still doesn’t justify... a lot of circumstances, but, but uh, you know I care for you deeply... I love you deeply... and I always will... if we were husbands and wives in our, in our... lifetime in other lifetimes, ... but I mean I care for you guys I care for your dad.”
E. Expert Testimony Regarding Child Sexual Abuse Accommodation Syndrome
Both sides presented expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Anthony Urquiza, Ph.D., testified on behalf of the prosecution. He is a psychologist at the University of California Davis Medical Center, an associate professor in the department of pediatrics, and director of its child abuse treatment program. He testified regarding the origins of the theory (the article written by Dr. Roland Summit in 1983) and the five components of the theory: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed and unconvincing disclosure; and (5) retraction and recantation. He discussed Dr. Summit’s 1992 article about abuse of the theory in the courtroom and other articles and research in the area. Dr. Urquiza told the jury that he had very little information about M.B. and J.B., that he was not there to give an opinion about whether they had been abused, and that CSAAS assumes the child has been sexually abused.
On cross-examination, Dr. Urquiza agreed that determining the validity of the child’s claims was an issue for the courts and that it is not the role of a mental health provider to determine whether the child has been abused. CSAAS describes what happens to a child that has been abused and does not address false allegations of abuse. Dr. Urquiza testified that both immediate disclosure and delayed disclosure are consistent with abuse, however, in the majority of cases the abused child delays disclosure. He agreed that both children who display helplessness and those who do not could be abused and that some abused children do not accommodate or retract.
1. Defense Case
i. Character Witnesses
Defendant presented four character witnesses who had known him for 20 years, 27 years, five years, and 10 years respectively. Kathleen Rocha rented a room from defendant in 1994 and 1995; Vicki Orta lived there for one week right after the Girls moved in. Rocha testified that Father would leave the Girls with defendant for weeks at a time. Defendant took care of the Girls, played with them, and read them stories. “He... was just like an extra father to them.” Neither Rocha nor Orta ever saw anything inappropriate. All four character witnesses testified that defendant was honest. They told the jury he was the kind of person who went out of his way to help others; he was “trustworthy” and “pretty righteous.”
ii. Defendant’s Testimony
Defendant testified. He denied molesting the Girls or touching them in a sexual way. He specifically denied each type of conduct that the Girls described. Father would leave the Girls in his care, both night and day, and would sometimes be gone overnight, but that was “very seldom.” Defendant touched the Girls in nonsexual ways: he roughhoused with them, kissed them on the forehead or the top of the head, touched their arms or back, and tickled their shoulders; they sat on his lap when he brushed their hair.
Defendant was “devastated” when he learned of the Girls’ accusations, but cooperated with law enforcement. When he received the pretext call, he thought he was talking to someone else. He did not realize it was M.B. until she mentioned her sister. He felt sorry that she thought he had molested her; he was not saying that he was sorry for molesting her. The “harm” he talked about referred to the fact that the Girls usually ate Top Ramen and he could not afford to feed them better. When he talked about Mormons and taking more than one wife, he was just rambling.
iii. Defense Expert Testimony on CSAAS
Thomas Reidy, Ph.D., a forensic psychologist, testified on behalf of defendant regarding CSAAS. He described CSAAS as an “unscientifically determined group of traits, characteristics and symptoms” and Dr. Summit’s “clinical opinion.” Psychologists and social workers who treat patients cling to this theory, while scientists say it is invalid and unreliable. This lack of reliability has been noted in various studies. While subsequent research supports Dr. Summit’s conclusion that secrecy and delayed disclosure are pretty common in cases of child sexual abuse, no study has validated the theory as a whole. Dr. Reidy criticized CSAAS, because Dr. Summit relied on a sample that was not scientifically valid because it included Dr. Summit’s own patients, his review of other cases, and conversations with other therapists. Dr. Reidy stated that scientific research does not support Dr. Summit’s theory that disclosure is often a process in which the child reveals more and more about the abuse over time. He stated that if one is going to use a theory in any kind of legal proceeding, there has to be a scientific foundation for it. The American Psychological Association suggests that when the validity and reliability of a theory has not been established, the psychologist describe the strengths and limitations of the test results and interpretation.
Discussion
1. Ineffective Assistance of Counsel
i. Cross-Examination as Proof of Three Incidents of Molestation
As noted in the introduction, to prove continuous sexual abuse of a child, the prosecution must present evidence of “three or more acts of substantial sexual conduct, ” or “three or more acts of lewd or lascivious conduct” with a child under the age of 14. (§ 288.5, subd. (a) citing §§ 1203.066, subd. (b) & 288.) Defendant contends that the prosecutor presented evidence of only two incidents of lewd and lascivious conduct during the period charged in the second amended information in his direct examination of M.B. and that defense counsel was ineffective because, in his cross-examination of M.B., he elicited evidence of a third act of lewd or lascivious conduct required to prove continuous sexual abuse of a child, thereby proving the prosecution’s case. Alternatively, defendant contends that if the prosecution produced “legally sufficient evidence of a third act, ” that evidence “was so weak, because it was contradicted by other prosecution evidence, such that the jury could have disbelieved that there was a third act.”
“To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694.) “ ‘Tactical errors are generally not deemed reversible; and counsel’s decision-making must be evaluated in the context of the available facts.’ ” (People v. Hart (1999) 20 Cal.4th 546, 623.)
A careful review of the record reveals that there is no factual support for defendant’s contention that the prosecution did not present evidence of three acts of lewd or lascivious conduct with M.B. during the period charged in the second amended information on direct examination. It is undisputed that the prosecution presented clear evidence of two instances of lewd and lascivious conduct involving M.B.: (1) the incident at the third Greenfield residence when M.B. was 11 and defendant reached into her pants and touched her vagina and (2) the incident at the fourth Greenfield residence when M.B. was 13 and defendant stuck his tongue in her ear and jiggled it around.
We agree with defendant’s contention that the record does not disclose any evidence of lewd acts during the period charged in the second amended information when M.B. lived at the second Greenfield residence. We also agree with defendant’s contention that the masturbation incident in 1996 does not qualify as lewd or lascivious conduct because there was no touching involving M.B. (People v. Austin (1980) 111 Cal.App.3d 110, 112-113.)
However, M.B. testified that defendant touched her vagina under her clothes during the two-week period that she resided with defendant in the spring of 1996 after returning from Pennsylvania. M.B. was nine years old at that time. On direct examination, M.B. testified that she could not recall how many times defendant touched her during that two-week period and that the touching did not occur daily like before. It occurred less frequently because Father was there more and there were fewer opportunities for defendant to touch her. This is clearly evidence of a third touching during the relevant time frame.
We therefore turn to defendant’s alternative argument that even if the prosecution did present evidence of a third act of lewd or lascivious conduct, that evidence “was so weak, because it was contradicted by other prosecution evidence, such that the jury could have disbelieved that there was a third act.” Defendant relies on M.B.’s testimony that she believed that the molestation incident at the third Greenfield residence when she was 11 was the first time defendant molested her after she returned from Pennsylvania. He argues that this testimony contradicted her testimony that she was molested in the spring of 1996 when she was nine years old and stayed with defendant for two weeks and created a reasonable doubt as to whether there was a third incident of lewd or lascivious conduct during the relevant time frame. We disagree.
When the prosecutor asked M.B. whether the molestation when she was 11 at the third Greenfield residence was “the first time since [she] had returned from Pennsylvania that [defendant] had touched [her] inappropriately, ” she responded “I believe so.” In her response to the third question after that, she suggested that her previous answer was incorrect with regard to the timing. The prosecutor asked her about the touching at the third Greenfield residence again, to clarify the timing, stating, “And that would still be the first time he touched you after you returned from Pennsylvania, correct?” M.B. disagreed and responded, “After I returned from Salinas.” She then explained that in addition to the masturbation incident, defendant touched her vagina under her clothing during the two-week period that she stayed with him after returning from Pennsylvania in April 1996. She could not recall how many times defendant touched her during that two-week period. It was not daily like before, because Father was around more. As noted before, she was nine years old during that time frame. M.B. then testified that the molestation at the third Greenfield residence when she was 11 was the “first time after the two week period” that defendant had touched her. Since M.B. and the prosecutor clarified her testimony with regard to this point, there was no longer a conflict in the evidence as to whether there were at least three incidents of molestation during the time period charged.
There was other evidence from which the jury could have concluded that there were three or more touchings during the relevant time frame. The information charged continuing sexual abuse from December 1, 1994, until July 2000. M.B. testified that defendant touched her “daily” during the time that she lived with him. Although Father testified that the family moved from defendant’s home to the second Greenfield residence in October 1994, defendant testified that the family lived with him until February or March 1995. Thus, there was evidence from which the jury could have concluded that defendant molested M.B. daily during the first three or four months of the time charged in the information.
Since the prosecutor presented evidence of three or more acts of lewd or lascivious conduct during the relevant time frame in his direct examination of M.B., we conclude that defense counsel was not ineffective when he cross-examined M.B. about the events that occurred during her two-week stay with defendant in the spring of 1996.
ii. Cross-Examination as Proof of “Recurring Access”
Defendant also contends that trial counsel was ineffective because his cross-examination of M.B. regarding the frequency of the molestations during the two-week period that she lived with him in 1996 made the prosecution’s case by proving the “recurring access” element required to prove continuous sexual abuse of a child.
Section 288.5 provides in relevant part: “(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in... three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child....” (Italics added.)
In People v. Rodriguez (2002) 28 Cal.4th 543, 546-550 (Rodriguez), the California Supreme Court construed the “recurring access” element. The court “discern[ed] no meaning, technical or otherwise, of the term ‘recurring access’ other than its commonly understood meaning as an ongoing ability to approach and contact someone time after time.” (Id. at p. 547.) “The express legislative purpose in enacting section 288.5 was to provide ‘additional protection’ for victims of child molestation by assuring that ‘resident’ child molesters and others who repeatedly abuse a child over a prolonged period of time would not escape prosecution because of difficulties in pleading and proving with sufficient precision the dates, times, and particular nature of each molestation.” (Id. at p. 549.) Continuous access is not required. (People v. Vasquez (1996) 51 Cal.App.4th 1277, 1284, 1287 [the victim lived with the defendant for two months in 1989 and during the summer of 1991].)
We find absolutely no merit to defendant’s contention that the prosecution presented insufficient evidence of recurring access and that defense counsel made the prosecution’s case with regard to this element when he cross-examined defendant regarding the frequency of the molestations in the spring of 1996. The prosecution presented evidence that M.B. and her family lived with defendant starting in 1992 or 1993 until October 1994. During that time, defendant provided daycare services and babysat the Girls at least twice a week. When the family moved from defendant’s home to the second Greenfield residence, defendant continued to babysit the Girls once or twice a week. This continued until the family moved to Pennsylvania in November 1995. When the family returned to California in April 1996, the Girls lived with defendant for two weeks. Thus, during the time frame relevant to the cross-examination at issue, defendant not only had “recurring access” to the Girls, he “reside[d] in the same home” with them. (§ 288.5, subd. (a).) Defendant also babysat the Girls when they lived at the third Greenfield residence. M.B. told the jury that defendant “was like my dad that we lived with, and a babysitter.” Thus, the prosecution presented ample evidence that defendant either resided with the girls or “had an ongoing ability to approach and contact them time after time” during the relevant time frame in his roles as provider, babysitter, and trusted family friend. (Rodriguez, supra, 28 Cal.4th at p. 547.)
Defendant contends that since the prosecution arguably only presented evidence of three instances of lewd or lascivious conduct during the charged time frame (the molestation at his home when M.B. was nine, the molestation at her home when she was 11, and the molestation at her home when she was 13) and defendant was not babysitting M.B. at the time of the last molestation, arguably the “recurring access” element was not proven. However, the question of recurring access is not limited to only those instances when the three or more acts of molestation occur, but looks at the nature of the defendant’s relationship with the child. Here there was a longstanding relationship, where the victims lived with defendant during two separate time frames, he babysat for them for years, and continued to be a trusted family friend. Although some of the access occurred before the period charged, there was ample evidence that such access continued during the time frame charged in the second amended information.
For these reasons, we reject defendant’s contention that his trial counsel was ineffective because counsel’s cross-examination tended to prove the “recurring access” element.
2. Jury Instruction Regarding Child Sexual Abuse Accommodation Syndrome
Defendant contends that the trial court erred in giving CALCRIM No. 1193, a standard jury instruction on CSAAS, because the instruction improperly told the jury that it could rely on the expert testimony to evaluate the credibility of the complaining witnesses.
The court instructed the jury about CSAAS in the language of CALCRIM No. 1193 both before Dr. Urquiza testified and during the jury instruction phase of the trial as follows: “This expert testimony about Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not the conduct of [M.B.] and/or [J.B.] was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of the testimony of [M.B.] and [J.B.]”
When a criminal defendant contends that a jury instruction is erroneous, this court inquires “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72, quoting Boyde v. California (1990) 494 U.S. 370, 380.) In conducting this inquiry, we must consider the challenged instruction in the context of all the instructions given by the trial court. (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)
Defendant acknowledges that “[a]spects of CSAS have been upheld, provided that the jury is told that it may not consider the CSAAS testimony as evidence that the defendant committed the crime.” He argues however, that the instruction was erroneous because it told the jury that it could consider the CSAAS evidence in evaluating the complaining witnesses’ credibility. In view of the case law authority that follows, we reject this argument.
In People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe), our state Supreme Court held that expert testimony regarding rape trauma syndrome is “inadmissible when offered to prove that the complaining witness has in fact been raped.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin), citing Bledsoe, at pp. 248-251.) But the court “recognized, as other courts had held [citation], that such testimony is admissible to rehabilitate the complaining witness when the defendant impeaches her credibility by suggesting that her conduct after the incident-e.g., a delay in reporting-is inconsistent with her testimony that she was raped.” (McAlpin, at p. 1300.) The court “reasoned that ‘in such a context expert testimony on rape trauma syndrome would play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.’ ” (Ibid., citing Bledsoe, at pp. 247-248.)
In McAlpin, the Supreme Court observed that the Courts of Appeal have extended both the rule and the exception from Bledsoe to expert testimony involving CSAAS. (McAlpin, supra, 53 Cal.3d at p. 1300.) The court explained that “expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness’s credibility when the defendant suggests that the child’s conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation. [Citations.] ‘Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children’s seemingly self-impeaching behavior. [¶] The great majority of courts approve such expert rebuttal testimony.’ ” (Id. at pp. 1300-1301, italics added, fn. omitted.) In People v. Gilbert (1992) 5 Cal.App.4th 1372, this court stated that “expert testimony from which it may be inferred that ‘the victim manifests certain defined characteristics which are generally exhibited by abused children’ [citation] is not admissible, and may not be used by the jury, to prove that the victim was in fact abused.... But... such expert testimony ‘is admissible to rehabilitate [the victim’s] credibility when the defendant suggests that the child’s conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation.’ ” (Id. at p. 1383.) In light of this authority, we find no merit to defendant’s contention.
CALCRIM No. 1193 specifically informed the jury that expert testimony regarding CSAAS “is not evidence that the defendant committed any of the crimes charged against him.” The instruction also told the jury that it “may consider this evidence only in deciding whether or not the conduct of [M.B.] and/or [J.B.] was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of the testimony of [each girl].” Credibility and believability are synonyms. (See Black’s Law Dict. (9th ed. 2009) p. 423, [defining “credibility” as “[t]he quality that make something (as a witness or some evidence) worthy of belief”].) By disabusing the jury of misconceptions it may hold regarding how sexually abused children as a class behave, CSAAS evidence is “pertinent and admissible if an issue has been raised as to the victim’s credibility.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1745.) Here, the victims’ credibility was in dispute. Thus, the jury could properly consider CSAAS evidence in weighing the victims’ credibility and CALCRIM No. 1193 correctly stated the law in this regard.
In addition, the trial court instructed the jury pursuant to CALCRIM No. 220 [the “defendant in a criminal case is presumed to be innocent”]. When CALCRIM No. 1193 is considered as a whole, and in context with CALCRIM No. 220, it is not reasonably likely that the jury would have understood that the expert testimony regarding CSAAS could be considered to determine whether the abuse of M.B. or J.B. occurred, thereby lightening the prosecution’s burden of proof.
In Bledsoe, the court held that the evidence of rape trauma syndrome was not admitted for a proper purpose, since “the victim promptly reported the attack, ” immediately exhibited the type of emotional reaction that lay jurors associate with rape, and suffered physical injuries that corroborated her claim. (Bledsoe, supra, 36 Cal.3d at p. 248.) Citing Bledsoe, defendant argues that the CSAAS evidence should not have been admitted and the court should not have instructed the jury with CALCRIM No. 1193 because defendant did not challenge the Girls’ “credibility for delayed disclosure, or for incomplete reporting” and that defense counsel “merely took them through their direct testimony, hoping to find inconsistencies.” We disagree. Since defendant denied any abuse, this case was essentially a credibility contest between defendant and the Girls. On cross-examination, defense counsel questioned M.B. and J.B. about delayed reporting and their failure to disclose the abuse sooner.
We also reject defendant’s argument that since part of the instruction is invalid, the court erred in instructing the jury on both a valid theory and an invalid theory. CALCRIM No. 1193 merely states both the general rule and the exception from Bledsoe and McAlpin.
For these reasons, we conclude the court did not err when it instructed the jury with CALCRIM No. 1193.
III. Cumulative Error
Since we find no ineffective assistance of counsel or instructional error, we reject defendant’s claim of cumulative error.
IV. Ex Post Facto
Defendant was sentenced pursuant to section 667.61, commonly known as the One Strike law, to 15 years to life in prison on count 1 and 15 years to life concurrent on count 2. Although M.B. testified that defendant started molesting her in 1993, the prosecution charged continuous sexual abuse (§ 288.5) of M.B. from December 1, 1994, through July 31, 2000, in count 1 because the prosecution wanted defendant sentenced under the One Strike law, which became effective on November 30, 1994. (Alvarez, supra, 100 Cal.App.4th at p. 1178.) In count 2, the prosecution charged the continuous sexual abuse of J.B. between October 20, 1995, and October 20, 2001.
We questioned whether defendant was subject to One Strike sentencing since his crimes were not listed in the One Strike statute until 2006. We therefore requested supplemental briefing from the parties on the following question: “Does punishing a violation of... section 288.5 (continuous sexual abuse of a child) that was completed before 2006 under the One Strike law (... section 667.61) violate constitutional prohibitions against ex post facto laws? Please discuss the effect, if any, of the 2006 amendments to... section 667.61.”
Defendant argues that application of the One Strike law in this case is prohibited under the ex post facto clauses of the state and federal constitutions because the One Strike statute did not apply to violations of section 288.5 until 2006 and that since defendant’s offenses were completed in 2001, the case must be remanded to the trial court for resentencing.
The Attorney General observes that the list of sexual offenses punishable under the original version of the One Strike law included “a violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.” (Former § 667.61, subd. (c)(7).) The Attorney General argues that a person, like defendant, who was convicted of continuous sexual abuse of a child that occurred prior to 2006 could properly be sentenced under the One Strike law if he could be “deemed to have been convicted of the underlying lewd or lascivious acts.” The Attorney General cites People v. Palmer (2001) 86 Cal.App.4th 440 (Palmer), which rejected that argument, but argues that this case is distinguishable from Palmer. He also states that if the former version of section 667.61 is viewed as narrowly as the Palmer court viewed it, then this case must be remanded for resentencing.
We begin by noting that, even though trial counsel did not object to sentencing under the One Strike law in the trial court, we may consider the issue on appeal because erroneous application of the One Strike law may result in an unauthorized sentence. “[A]n ex post facto violation resulting in an unauthorized sentence may be raised on appeal even if the defendant failed to object below.” (People v. Hiscox (2006) 136 Cal.App.4th 253, 258.)
Article I, section 10, clause 1 of the federal Constitution states: “No state shall... pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, ....” Similarly, article I, section 9, of the California Constitution provides: “A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed.” We interpret this latter clause “no differently than its federal counterpart.” (People v. Snook (1997) 16 Cal.4th 1210, 1220; see also People v. Helms (1997) 15 Cal.4th 608, 614.)
“The prohibition against ex post facto laws seeks to achieve two important goals. First, it assures ‘that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.’ [Citation.] Second, the rule ‘restricts governmental power by restraining arbitrary and potentially vindictive legislation.’ [Citation.] Thus, the ex post facto clauses of the state and federal Constitutions are ‘aimed at laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.” ’ ” (People v. Grant (1999) 20 Cal.4th 150, 158 (Grant).) “ ‘ “The critical question is whether the law changes the legal consequences of acts completed before its effective date.” ’ ” (Id. at p. 159, citing People v. Palacios (1997) 56 Cal.App.4th 252, 257.)
Section 228.5 (continual sexual abuse of a child) became effective on January 1, 1990 (Grant, supra, 20 Cal.4th at p. 153), long before the events at issue in this case took place. Thus, defendant is subject to prosecution under section 288.5. Section 288.5 provides that someone who “is guilty of... continuous sexual abuse of a child” “shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.”
Section 667.61, the One Strike law, became effective on November 30, 1994. (Alvarez, supra, 100 Cal.App.4th at p. 1178.) It requires a sentence of 15 years to life for a person convicted of certain enumerated sexual offenses under particular aggravating circumstances, which are listed in subdivision (e) of the statute. (§ 667.61, subd. (b).) The One Strike law requires a sentence of 25 years to life for a person convicted of the enumerated sexual offenses “under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e).” (§ 667.61, subd. (a).)
Section 667.61 provides in part: “(a) Any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life. [¶] (b) Except as provided in subdivision (a), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.”
Two aspects of section 667.61’s structure are relevant to our analysis. First, subdivision (c) of the statute lists the sexual offenses that are subject to enhanced sentencing under the One Strike law. Second, subdivisions (d) and (e) list the aggravating circumstances that trigger application of the statute’s sentencing provisions. The aggravating circumstances listed in the statute include cases in which “[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.” (§ 667.61, subd. (e)(5).) In this case, the jury made a special finding that defendant committed the crime against more than one victim.
When section 667.61 was enacted in 1994, continuous sexual abuse of a child in violation of section 288.5 was not one of the seven offenses listed in subdivision (c) of the statute. Continuous sexual abuse of a child was added to the list of offenses subject to One Strike sentencing (§ 667.61, subd. (c)(9)) when the statute was amended by the Legislature in 2006. (Stats. 2006, c. 337, § 33, pp. 2163-2164, eff. Sept. 20, 2006; see 49 West’s Ann. Pen. Code (2010 supp.) foll. § 667.61, pp. 275-278.) Thus, continuous sexual abuse of a child was not punishable under the One Strike law until 2006. However, the offenses in this case were completed by 2001.
In 1994, the offenses listed in former section 667.61, subdivision (c) included: (1) rape (§ 261, subd. (a)(2)); (2) spousal rape (§ 262, subd. (a)(1)); (3) rape, spousal rape, or sexual penetration in violation of section 264.1; (4) lewd or lascivious conduct by force (§ 288, subd. (b)); (5) sexual penetration (§ 289, subd. (a)); (6) forcible sodomy or oral copulation (§§ 286, 288a); and (7) cases of lewd or lascivious conduct (§ 288, subd. (a)) where the defendant does not qualify for probation under section 1203.066, subdivision (c). (49 West’s Ann. Pen. Code (1999 ed.) § 667.61, pp. 578-579.)
The Attorney General argues that defendant is eligible for sentencing under the pre-2006 version of the One Strike law because the pleadings, the jury instructions, and jury verdicts “all operate to show that [defendant’s] convictions under section 288.5 (continuous sexual abuse) were predicated upon his having committed no fewer than three lewd or lascivious acts on each of his two victims.” At the time of the offenses in this case, the sexual offenses enumerated in the One Strike law included lewd or lascivious conduct in “violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066, ” but did not include continuous sexual abuse of a child under section 288.5 (Former § 667.61, subd. (c)(7).) The court addressed this issue in Palmer, supra, 86 Cal.App.4th 440, a case which involved a slightly different procedural history than presented here.
In Palmer, the defendant was convicted by jury of two counts of continuous sexual abuse of a child involving two different children that occurred between 1994 and 1997. (Palmer, supra, 86 Cal.App.4th at p. 443.) A conviction for continuous sexual abuse of a child under section 288.5 requires proof that the defendant has engaged in “three or more acts of substantial sexual conduct with a child under the age of 14 years..., as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, ....” (§ 288.5, subd. (a).) In Palmer, the prosecution pleaded and proved three or more acts of substantial sexual conduct and the appellate court concluded that “the jury convicted [the defendant] under the ‘substantial sexual conduct’ prong, instead of the ‘lewd or lascivious’ prong” of section 288.5. (Palmer, at p. 444.) Relying on jury instructions regarding the multiple victim special circumstance under subdivision (e)(7) of section 288.5, the Attorney General argued that when the jury made its multiple victim finding in Palmer, it implicitly convicted the defendant of violating section 288, thus triggering the One Strike law. (Palmer, at p. 444.) The court rejected that argument, because (1) “a true finding as to an enhancement is not a conviction of a substantive crime”; (2) the jury was never instructed on the elements of section 288 and it violates fundamental notions of due process to deem a defendant convicted of an offense on which the jury was never instructed; and (3) section 288 is not, a lesser included offense of section 288.5. With regard to the last point, the court stated that the “offenses involve different elements” and explained, “ ‘Section 288 requires the specific intent of “arousing, appealing to, or gratifying the lust or passions or sexual desires of [the defendant] or of the child....” A conviction for section 288.5, in contrast, ... requires no specific intent.... Because section 288.5 could be violated without necessarily also violating section 288, the latter is not necessarily included within the former....’ ” (Palmer, at pp. 444-445.)
The Attorney General argues that this case is distinguishable from Palmer because the pleadings, jury instructions, and verdict forms here only mention the lewd and lascivious conduct prong of section 288.5. He argues that for defendant “not to be eligible for One Strike sentencing under the pre-2006 version of the One Strike law seems absurd when the Legislature has expressed its intent to make eligible for a One Strike sentence anyone convicted of even a single non-forcible lewd and lascivious act under section 288.” However, as the Attorney General acknowledges, there is a difference between a case where the defendant has been convicted of violating section 288 and a case, such as this, where we are asked to infer from the charges, instructions and verdicts that the defendant’s conviction under section 288.5 necessarily included a conviction of section 288. In addition, the strength of that inference is undermined by the fact that section 288.5 does not require the jury to agree unanimously on which lewd or lascivious acts were committed. In this case the jury was instructed with CALCRIM No. 1120 regarding the elements of section 288.5. That instruction included some language regarding lewd or lascivious conduct. But defendant was not charged with violating section 288 and the jury was not instructed separately on the elements of section 288.
In spite of the procedural differences between this case and Palmer, we conclude that the Palmer court’s holding applies here. As the Palmer court aptly stated, the Attorney General’s “efforts to turn a conviction of continuous sexual abuse (§ 288.5) into a conviction for lewd and lascivious conduct (§ 288) must ultimately fail because [the Attorney General] ignores the One Strike law’s plain language. The [pre-2006 version of the] One Strike law include[d] lewd and lascivious conduct among its enumerated offenses; it d[id] not include continuous sexual abuse in that category. (See [former] § 667.61, subd. (c).) [Defendant] was charged and convicted of violating section 288.5; he was not charged or convicted with violating section 288. Sections 288 and 288.5 are not... interchangeable statutes. The Legislature enacted section 288.5 to deal with the particular evidentiary problems associated with child molesters who live with or have easy access to their victims. Under such living arrangements, the victim often cannot recall the number and dates of specific instances of molestation. The victim’s hazy memory may create problems for the prosecution. [Citation.] Accordingly, the Legislature lowered the prosecution’s evidentiary hurdle by allowing the prosecutor to prove merely a continuous course of abuse, leaving unclear many of the details surrounding specific instances of molestation which would be required to prove a violation of section 288. [Citations.] Having enjoyed, however, the lighter evidentiary burden of section 288.5, the People cannot now attempt to avoid the consequence of having prosecuted under section 288.5 by claiming no difference exists between the two statutes.” (Palmer, supra, 86 Cal.App.4th at pp. 445-446.)
Before the 2006 amendment to section 667.61, continuous sexual abuse of a child was punishable by 6, 12, or 16 years in prison (§ 288.5, subd. (a)) and was not punishable as a One Strike offense. After the 2006 amendment to section 667.61, the offense is punishable by 15 years to life in a case such as this where one of the circumstances listed in subdivision (e) of section 667.61 is present. Since section 667.61 increases the punishment for continuous sexual abuse of a child in the circumstances presented here, we conclude that defendant’s sentence violates constitutional prohibitions against ex post facto laws. Since all of the conduct here occurred on or before July 31, 2001, the trial court erred when it sentenced defendant pursuant to section 667.61 and imposed a sentence of 15 years to life on count 1 and a concurrent sentence of 15 years to life on count 2. We shall therefore remand the matter for resentencing.
Disposition
The judgment is reversed and the case is remanded for resentencing.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.