Opinion
C093487
09-22-2022
THE PEOPLE, Plaintiff and Respondent, v. JAIRO VELASQUEZ MAIRENA, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. LOD-CR-FE-2018-14043
DUARTE, ACTING P. J.
Defendant Jairo Velasquez Mairena appeals from a jury verdict finding him guilty of sexual intercourse with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a))and two counts of committing lewd acts upon a child under the age of 14 (§ 288, subd. (a)). He contends the trial court erred by admitting testimony regarding child sexual abuse accommodation syndrome (CSAAS), instructing the jury regarding CSAAS, and admitting expert testimony regarding a child's reasons for delayed disclosure of sexual abuse. He also claims the prosecutor committed prejudicial misconduct during closing argument and, to the extent that claim was forfeited by trial counsel's failure to object at trial, counsel was constitutionally ineffective. Finding no error, we affirm.
Further undesignated statutory references are to the Penal Code.
FACTS AND PROCEEDINGS
Defendant was in a relationship with the victim's (D.) aunt Candy. Defendant and Candy had several children together and lived in the same house. D., who referred to defendant as her uncle, often spent time at defendant's house while her mother worked. When D. was three or four years old, defendant began to sexually abuse her. D. testified that she was 12 years old at the time of trial.
As defendant notes, D. also testified as to her birthday, which, if correct, would have made her 13 years old at the time of trial. This discrepancy is irrelevant for the issues on appeal.
The first incident, which was charged in count 1, occurred when D. was three or four years old. Defendant laid D. down on an air mattress and got on top of her. He kissed her and rubbed her chest and vagina. He also licked her vagina. Defendant then inserted his penis inside D.'s vagina while continuing to kiss her. He told D. that he wanted to put his penis all the way inside her vagina, but she cried because of the pain. Defendant's penis became wet, and he told D. that if she told her dad what happened, her parents and she could go to jail, or her parents would hit her. D. tried to resist or push him away. D's cousin J. knocked on the door, but she could not get in because it was locked. Eventually D. was able to leave with J.
Count 4 was charged as a different offense based on the same conduct as that charged in count 1.
In another incident, charged in count 3, D. was playing a game called "zombies"--similar to hide and seek--with her cousins. While D. hid during the game, defendant touched her vagina over her clothes and her chest under her clothes. D. testified that J. came in the room and saw defendant touching her; J. asked D. why defendant was touching her, and they went outside.
D. revealed the abuse to a teacher in fifth grade, and child protective services (CPS) and the police were both notified. D. was interviewed by a CPS social worker and underwent a recorded forensic interview at the Children's Advocacy Center. A video of that interview was played for the jury, and a transcript of the interview distributed to the jury appears in the record on appeal. Dr. Mamta Jain, a pediatrician at the San Joaquin General Hospital and the Children's Advocacy Center, performed a nonacute physical examination on D. and made no physical findings.
In her forensic interview and at trial, D. testified to multiple other instances of abuse. She also asserted that she saw defendant molest J. on multiple occasions.
J. testified that D. told her she had gone into a room with defendant and came out crying, but D. asked J. not to tell anyone because she did not want to get into trouble. D. did not tell J. what had happened, but she mentioned that defendant had touched her. D. was scared to tell J.
At a different time, during a game of "zombies," J. saw both of defendant's hands "slide down" to D.'s chest, but she clarified that his hands did not go down below her stomach. She recalled that D.'s facial expression indicated that she was "shocked about it." J. testified as to another instance in which defendant, defendant's daughter, and D. went in a room and defendant closed the door. After about 30 minutes, D. came out crying. D. approached J. and asked her if she wanted to leave and they went to a nearby family member's house. On the way, J. asked D. what happened, but D. did not want to say.
J. underwent an interview regarding D.'s allegations. J. testified that she remembered the interview, and related some of the details of the interview on direct and cross-examination, but the interview was not played for the jury.
On cross-examination, J. agreed with defense counsel that defendant had never touched her inappropriately.
A jury found defendant guilty of sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a); count 1) and two counts of committing lewd or lascivious acts upon a child under the age of 14 (§ 288, subd. (a); counts 3 &4). The jury could not reach a verdict as to count 2, a second count charging a violation of section 288.7, subdivision (a), and that count was dismissed. The trial court sentenced defendant to an aggregate term of 31 years to life in prison.
Defendant timely filed a notice of appeal. After delays to augment the record and continue the briefing schedule at the parties' request, the case was fully briefed in June 2022, and assigned to this panel on June 30, 2022. The parties waived argument and the case was deemed submitted on August 26, 2022.
DISCUSSION
I
Child Sexual Abuse Accommodation Syndrome
Defendant contends the trial court prejudicially erred by admitting expert testimony on CSAAS, which explains "common stress reactions of children who have been sexually molested . . ., which also may include the child's failure to report, or delay in reporting, the abuse." (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin).) We disagree.
A. Procedural Background
Before trial, the People moved to allow psychologist Anthony Urquiza, Ph.D., to testify regarding CSAAS. The defense objected on due process grounds, and later on foundation grounds. The defense also requested a limiting instruction. The trial court admitted the evidence for limited purposes and agreed to provide a pinpoint instruction.
Dr. Urquiza was a psychologist, a professor in the department of pediatrics at University of California Davis Medical Center, and the director of a child abuse treatment center. He had been a therapist for child sexual abuse victims for nearly 30 years, trained medical students and psychiatry fellows on how to conduct therapy with child sexual abuse victims, stayed current on literature on child sexual abuse, and published his own clinical writing and research on the subject. He had testified an estimated "easily, 600, 750 times" as an expert on child sexual abuse. Dr. Urquiza did not review any of the materials from this case or interview D.
Dr. Urquiza testified that CSAAS is not a diagnosis, but rather is used to educate people about the experience of being sexually abused in order to explain the potentially counterintuitive behaviors of a child who has been sexually abused and to dispel misperceptions, misunderstandings, or myths that therapists may have about child victims of sexual abuse. The syndrome involves five concepts: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and recantation or retraction of the allegation.
Dr. Urquiza testified that a very small percentage of child sexual abuse victims disclose the abuse soon after the abuse occurs. Rather, most victims do not disclose the abuse until months or years after the abuse. Dr. Urquiza referenced a study that found approximately three-quarters of child sexual abuse victims do not disclose the abuse less than a year after the first instance. Most child victims do not disclose the abuse right away because they are afraid of consequences or of not being believed, or because they are ashamed.
B. Expert Testimony Regarding CSAAS
The Attorney General contends defendant failed to object to the evidence on several of the bases he raises on appeal. We do not address forfeiture because we reach the merits of defendant's claims.
Numerous courts have found expert testimony concerning CSAAS properly admitted in sexual abuse cases. (See, e.g., In re S.C. (2006) 138 Cal.App.4th 396, 418 [collecting cases]; see also McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) Our Supreme Court has 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.'" (McAlpin, at pp. 1300-1301, fn. omitted; see People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 [where the victim's credibility is placed at issue due to seemingly counterintuitive behavior, including a delay in reporting molestation, CSAAS evidence is pertinent and admissible to rehabilitate the victim's credibility by showing that his or her reactions are not inconsistent with abuse].)
Here, D.'s credibility was the central issue at trial. Defense counsel stated his position succinctly in closing: "[A]ll the charges boil down to the exact same issue. Can [D.] provide proof beyond any reasonable doubt in this case?" D. testified there was a two-year gap between the last time defendant abused her and when she reported it, and she testified that she was afraid to tell anyone about what happened to her and that defendant told her that her dad would go to jail if she said anything. The defense repeatedly argued that D. had fabricated all of the accusations in this case and was not credible. On this record, the prosecution was entitled to present CSAAS evidence, which was relevant and admissible as to D.'s credibility. We reject defendant's claim that jurors no longer harbor confusion or misconceptions about how children react to sexual abuse. We also decline to overturn California's long-standing rule allowing CSAAS evidence where, as here, the victim's credibility is placed at issue due to counterintuitive behavior. We are bound to follow our Supreme Court's decision permitting the admission of CSAAS evidence for the limited purpose it was admitted here. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) For that reason, defendant's reliance on out-of-state cases that find CSAAS evidence inadmissible is misplaced.
We also reject defendant's claim that CSAAS evidence is inadmissible because it fails to satisfy the legal requirements for the admissibility of new scientific methodologies under People v. Kelly (1976) 17 Cal.3d 24 and Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Kelly/Frye rule). The Kelly/Frye rule does not apply where, as here, the CSAAS testimony is admitted" 'for the limited purpose of disabusing [the] jury of misconceptions it might hold about how a child reacts to a molestation.'" (People v. Wells (2004) 118 Cal.App.4th 179, 188.) When introduced for that purpose, and when, as here, the evidence is limited to the expert's own clinical experience and familiarity with relevant professional literature, the CSAAS evidence does not implicate Kelly/Frye principles. (People v. Harlan (1990) 222 Cal.App.3d 439, 448-449.)
Finally, defendant claims Dr. Urquiza's testimony that approximately 75 percent of the victims in a study by his colleague failed to tell anyone about the abuse within the 12 months following the first instance of abuse was "highly improper." He contends this statistic invaded the jury's role as the arbiter of credibility, relying on People v. Julian (2019) 34 Cal.App.5th 878, at pages 886 to 887, People v. Wilson (2019) 33 Cal.App.5th 559, at pages 570 to 571, and multiple out-of-state cases. But these cases are inapposite.
In Julian, Dr. Urquiza testified at length about the low percentage of false sexual abuse allegations made by children. (People v. Julian, supra, 34 Cal.App.5th at pp. 883, 884, 885.) The court concluded such statistical testimony improperly suggested that the victim was telling the truth, and, consequently, that the defendant was guilty. (Id. at pp. 886-887.) In Wilson, Dr. Urquiza again discussed multiple studies concluding that false sexual abuse allegations occurred very rarely. (People v. Wilson, supra, 33 Cal.App.5th at p. 568.) Here, unlike these cases, Dr. Urquiza did not testify that false sexual abuse allegations rarely occur, but rather that most sexual abuse victims failed to tell someone about the abuse within 12 months of its initiation. That testimony is well within the purpose of CSAAS evidence, which is to explain typical behaviors of sexually abused children, including delayed reporting.
II
CALCRIM No. 1193
Defendant contends that reversal is required because CALCRIM No. 1193 is invalid as it erroneously instructs the jury that it may use CSAAS evidence to determine the credibility of the victim and to corroborate the victim's claims of abuse, thereby lowering the prosecution's burden of proof in violation of his constitutional rights to due process and a fair trial. We disagree.
Defense counsel did not object to the instruction at trial, but we review the merits of the claim to determine whether defendant's substantial rights were affected. (§ 1259; People v. Felix (2008) 160 Cal.App.4th 849, 857.)
We independently determine whether a jury instruction correctly states the law. (People v. Riley (2010) 185 Cal.App.4th 754, 767.) Review of the adequacy of an instruction is based on whether the trial court fully and fairly instructed on the applicable law. (Ibid.) When reviewing a purportedly erroneous instruction, we inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the constitution. (People v. Richardson (2008) 43 Cal.4th 959, 1028.) We consider the instructions as a whole and assume that the jurors are intelligent persons and capable of understanding and correlating all the instructions that are given. (Riley, at p. 767.) A jury instruction should be interpreted, if possible, to support the judgment rather than defeat it, if it is reasonably susceptible to such interpretation. (Ibid.)
Here, the jury was instructed with CALCRIM No. 1193 as follows: "You have heard testimony from Dr. Urquiza, regarding [CSAAS]. Dr. Urquiza's testimony about [CSAAS] is not evidence that the Defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether [D.'s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony."
CALCRIM No. 1193 is a correct statement of the law. CSAAS evidence is properly considered to evaluate whether the victim's conduct as demonstrated by the evidence was inconsistent with having been molested, and to help the jury evaluate credibility, i.e., the believability of the victim's testimony. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301; see also People v. Housley (1992) 6 Cal.App.4th 947, 958-959.)
Contrary to defendant's contention, the instruction does not lower the prosecution's burden of proof; it specifically states that CSAAS testimony "is not evidence that the defendant committed any of the crimes charged against him," and that the jury "may" consider the evidence "only in deciding whether or not [D.'s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony." The instruction does not state or imply that jurors could consider the CSAAS evidence to corroborate D.'s claims of molestation. Further, the challenged instruction cannot be read in isolation; it must be considered in the context of the instructions as a whole. As relevant here, the jury was instructed on the presumption of innocence and the prosecution's burden of proof (CALCRIM No. 220), and how to evaluate witness credibility (CALCRIM No. 226) and conflicting evidence (CALCRIM No. 302). It was instructed to "[p]ay careful attention to all of the[ ] instructions and consider them together" (CALCRIM No. 200), that "certain evidence was admitted for a limited purpose," and to "consider that evidence only for that purpose and for no other" (CALCRIM No. 303). The jury was further instructed that it was not required to accept as true or correct expert testimony and it "may disregard any opinion [it found] unbelievable, unreasonable or unsupported by the evidence." (CALCRIM No. 332, Expert Witness Testimony.) We presume the jury understood and followed the court's instructions, including the prosecution's burden of proof. (People v. Edwards (2013) 57 Cal.4th 658, 746.) We conclude that it is not reasonably likely that the jury understood CALCRIM No. 1193 in the manner suggested by defendant.
III
Expert Testimony
Defendant contends the trial court erred by admitting a pediatrician's expert opinion on the reasons for an abuse victim's delayed disclosure. He contends the expert's opinion violated his right to a fair trial and to due process because the prosecution failed to present sufficient foundation that the expert was qualified to render such an opinion. We disagree.
A. Background
The People called Dr. Mamta Jain, a pediatrician with 20 years of experience, chair of the department of pediatrics at San Joaquin General Hospital, and a medical doctor for child advocacy at the Mary Graham Children's Shelter in French Camp. Dr. Jain provided medical care to children at the Children's Shelter, and performed physical examinations of children suspected of having been physically or sexually abused. She typically performed "nonacute" medical exams of abuse victims who reported the sexual abuse at least 72 hours after it occurred; the exams were intended to check for trauma or scarring associated with chronic abuse, sexually transmitted infections, and pregnancy. The exams also included a behavioral assessment intended to connect the child to appropriate resources related to mental health.
In response to the prosecutor's question as to the purpose of the nonacute physical exam, Dr. Jain volunteered that most of the victims she treated disclose more than 72 hours after the abuse because they are pregnant or scared. Defendant objected to that testimony as outside the scope of the witness's expertise. The prosecutor offered to establish additional foundation, and asked: "Based on your training and expertise working as a pediatrician, and specifically for the treatment of abused children, what are your -- what's your understanding of the reasons for delayed disclosures?" After the court overruled defendant's objection on the basis of a lack of foundation, Dr. Jain responded: "Lot of times it's they're groomed." Defendant objected on the basis that Dr. Jain is not a psychologist, but the court stated, "she's the chair of pediatrics and the head of the Child Advocacy Center." Without ruling on the objection, the court invited the prosecutor to "lay a little more foundation." Instead, the prosecutor shifted the focus of her questioning back to Dr. Jain's physical examinations. Before she did so, the prosecutor asked for clarification as to what part of the testimony was subject to a request to strike; the court replied that it was not striking the testimony.
Dr. Jain later testified that her behavioral health assessment includes asking the child age-appropriate questions about his or her medical history, hobbies, and school, but that, by the time she interviews the child, the child has already undergone a forensic interview and she is aware of the content of that interview. If the child was "opening up," she would confirm some of the disclosures made during the forensic interview, and ask clarifying questions if necessary.
B. Legal Background
California law permits a person with special knowledge, skill, experience, training, or education in a particular field to qualify as an expert witness and to give testimony in the form of an opinion. (Evid. Code, §§ 720, 801; People v. Gardeley (1996) 14 Cal.4th 605, 617, disapproved of on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) An expert's opinion must be "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) "Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert." (Id., § 720, subd. (a).) "In considering whether a person qualifies as an expert, the field of expertise must be carefully distinguished and limited." (People v. King (1968) 266 Cal.App.2d 437, 445.)
"The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion." (People v. McDowell (2012) 54 Cal.4th 395, 426.)
C. Analysis
We find no abuse of discretion in the trial court's decision to not strike Dr. Jain's testimony that child sexual abuse victims often delay disclosure because they are groomed. Dr. Jain was the chair of a pediatrics department and specialized in examining children who had suffered sexual abuse but delayed reporting it. She testified that part of her exam includes an assessment of the child's mental health in order to connect the child to appropriate mental health treatment resources. Dr. Jain's testimony was specifically based on and limited to her observations, training, and experience in examining sexual abuse victims. Further, as we discussed ante, the reasons for a child sexual abuse victim's delayed reporting is sufficiently beyond the common experience of the jury to require explanation by an expert witness.
Additionally, any error in admitting Dr. Jain's testimony was clearly harmless. Erroneous admission of expert testimony warrants reversal of a judgment only if it is reasonably probable that a result more favorable to defendant would have been reached absent the error. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b); People v. Pearson (2013) 56 Cal.4th 393, 446; People v. Watson (1956) 46 Cal.2d 818, 836.) Dr. Jain offered a very brief comment that many child sexual abuse victims delay reporting because they are groomed, but she did not testify that D. had been groomed or offer any other reason why D. delayed disclosure. Instead, Dr. Jain's testimony primarily concerned the physical examination she conducted on D. Moreover, after Dr. Jain's testimony, Dr. Urquiza testified extensively about the reasons why sexual abuse victims delay disclosing their abuse; therefore, it is extremely unlikely that Dr. Jain's testimony had any effect on the outcome of the trial.
IV
Alleged Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct on two occasions during closing argument by referring to facts not in evidence and by misstating the law, violating his rights to due process and a fair trial. We disagree.
A. Alleged Suggestion Regarding the Content of J.'s Statement
1. Background
During the prosecutor's closing argument, she told the jury that J.'s mother, Guadalupe, testified that not long after she learned of D.'s allegations against defendant, she received a letter from defendant asking her to tell J. "to tell the truth." The prosecutor argued: "Now, you could infer by that that [defendant] didn't like what [J.] had said the first time to the authorities." Defense counsel objected, and the trial court admonished the jury that "what the attorneys say is not evidence. You have listened to all the evidence. You alone are the deciders of fact and will determine what the evidence is." The prosecutor continued: "[W]hen you're reviewing the evidence, the reason we have jurors come in is because we need people with common sense and life experience. We need people who can look at the evidence and use reasonable inferences that they draw from the evidence, right? You could infer that when [defendant] made this communication to Guadalupe, that he was trying -- he did not like whatever statement he understood [J.] to make first, and he wanted her to change her story." Defense counsel objected again, and the court overruled the objection.
Defense counsel argued during closing that, contrary to D.'s testimony that J. had been molested, J. testified that she did not see anything and had not been molested. He further argued that defendant's letter to Guadalupe could have been intended simply to encourage J. to tell the truth. He continued: "[R]emember, [D.] took the stand and said something that the Government didn't like. They played [D.'s] old statement. The People did not play any other statement by [J.]" The trial court overruled the prosecutor's objection. Defense counsel continued: "They didn't play any other statement by [J.] like they clearly could have." The trial court sustained the prosecutor's objection.
In rebuttal, the prosecutor noted the defense's argument that she could have played" '[J.'s] first interview for you,'" but she argued, "that's really not very fair to me. Because when we conduct trials here in the courthouse, attorneys have to operate by the rules of evidence." Defense counsel objected on the basis that the argument was disparaging, but the trial court overruled the objection. The prosecutor continued: "I would have loved to play the video of [J.]. Because I wanted you to see. Unfortunately, under the rules of evidence, we can't play things called hearsay. And that falls into the category of hearsay. So nothing was being hidden from you. It's just, we have to follow the law. So that really wasn't a fair attack on the People's case." Defense counsel objected, but he agreed to wait to argue the objection until after the prosecutor's argument concluded.
Following argument, defense counsel argued that he should have objected to the prosecutor's statement that she was unable to play J.'s prior statement as a misstatement of the law because J. was subject to recall and had made a prior inconsistent statement; therefore, the prosecutor could have played the video. Defense counsel further argued that the prosecutor's statement suggested there was evidence that did not exist. The prosecutor responded that the defense's argument that she was hiding evidence by choosing not to play J.'s statement was inappropriate because she had wanted to play J.'s prior statement, but defense counsel had previously opposed on hearsay grounds, and she did not believe any hearsay exception applied.
The trial court concluded that defense counsel's argument entitled the prosecutor to respond, and it overruled defense counsel's objection and denied his request for a mistrial.
2. Analysis
Prosecutorial misconduct occurs when a prosecutor uses" 'deceptive or reprehensible methods to persuade the jury,'" and such misconduct requires reversal under the federal Constitution" 'when they infect the trial with such" 'unfairness as to make the resulting conviction a denial of due process.'" '" (People v. Parson (2008) 44 Cal.4th 332, 359.) Prosecutorial misconduct does not require a showing of bad faith on the part of the prosecutor. (People v. Hill (1998) 17 Cal.4th 800, 823.) Referring to facts not in evidence during argument is a form of misconduct. (People v. Ledesma (1987) 43 Cal.3d 171, 238.)
Defendant contends the prosecutor used her personal knowledge outside the record to assure the jury that her case was stronger than the evidence suggested because J. had previously made an incriminating statement concerning defendant, and defendant tried to influence J. to change her story.
We disagree. First, the jury was aware that J. had been interviewed by authorities; J. testified about the interview, and defendant questioned her about it on cross examination. Second, the prosecutor was well within her discretion to argue to the jury that it should infer defendant wrote the letter to Guadalupe because he did not like what J. had said in her interview. (See People v. Hill, supra, 17 Cal.4th at p. 823 [prosecutors have wide latitude to draw inferences from the evidence presented at trial]). Defense counsel was entitled to--and did--argue that the jury should instead infer that defendant was simply asking J. to tell the truth. Third, we recognize that the prosecutor stated that she "would have loved to play the video of [J.]" because she "wanted [the jury] to see," but she could not play the video under the rules of evidence. This type of extra-record assurance to the jury is generally impermissible, particularly when coupled with a reference to the rules of evidence, which are not before the jury. However, this comment was in direct response to defense counsel's argument that the prosecutor failed to play J.'s prior statement--"like they clearly could have"--when J. "said something the Government didn't like." Thus, rather than attempting to strengthen her case by suggesting the existence of evidence outside of the record, the prosecutor was responding to the defense's assertion that the prosecution did not play J.'s prior statement despite having the ability to do so.
Although certainly not an ideal exchange to have in front of the jury, we disagree that the prosecutor committed misconduct because, as defendant argues, she suggested her case was stronger than the evidence showed.
B. Argument that J. was a Victim of Sexual Abuse
1. Background
During closing, the defense argued in part that D.'s testimony was not credible because she testified that J. had witnessed defendant molesting D. and also that defendant had molested J., but J. had testified that she did not witness defendant molesting D. and that she herself was not molested.
In rebuttal, the prosecutor argued: "[J.], this case is not about [J.]. [J.] is not the alleged victim in this case. [D.] is the alleged victim in this case. You heard from [J.] because she was a witness to some of the events with [D.]. But to suggest that just because [J.] has not made her own disclosure of any abuse, to suggest that means [D.] is lying about what she saw, well, that's not really fair, right? Because Dr. Urquiza said all kids have their own factors that come into play about when, or if they're going to disclose.
"It's a lot of people, kids don't want to deal with the shame, the embarrassment of it. So they just want to keep quiet about it. And for every kid that's going to be a different journey. For [D.], she just happened to have the circumstances align [when she disclosed the abuse]. Every child who is a victim of sexual abuse is going to have their own moment like that.
"But to say just because [J.] has not made that type of disclosure about [defendant] does not necessarily mean that [D.] is lying. And I would ask you to be understanding of that. And nobody is going to force [J.] to have that experience before she's ready. And so I ask you to consider [J.'s] testimony for what it's being offered for. What she saw, what she heard, her descriptions of [D.]'s reactions to [defendant].
"Because her testimony does corroborate [D.]'s version of events. And it would be a shame to just throw out either girls' testimony because you think one has to cancel out the other."
Defendant did not object to this argument or request a curative instruction.
2. Analysis
Defendant's failure to object to this argument or request a curative instruction has forfeited the claim of error on appeal. (People v. Valdez (2004) 32 Cal.4th 73, 132.) Anticipating that conclusion, defendant contends trial counsel was constitutionally ineffective for failing to object. To prevail on his claim of ineffective assistance of counsel, defendant must show (1) that his counsel's representation was deficient, i.e., that it "fell below an objective standard of reasonableness," and (2) that prejudice resulted, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)" 'If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.'" (People v. Holt (1997) 15 Cal.4th 619, 703.)
"When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) The record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Williams (1997) 16 Cal.4th 153, 215.)" '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one' [citation], and 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence.'" (People v. Centeno (2014) 60 Cal.4th 659, 675.) If the record on appeal sheds no light on why trial counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Defendant contends trial counsel was constitutionally ineffective for failing to object to the prosecutor's argument that J. was a victim of sexual abuse but was delaying disclosure, and therefore her statements, which contradicted D.'s as to whether J. was abused, should not be believed.
At the outset, we disagree with defendant's claim that there was "no factual basis" for the prosecutor's argument that J. was the victim of sexual abuse. D. testified that she had personally witnessed J. being sexually abused by defendant, and she told a social worker that she saw defendant touching J. at a family member's house. While we recognize J. did not corroborate D.'s testimony on that point, and there was no physical evidence corroborating D.'s testimony, D.'s testimony certainly provided a factual basis to support the prosecutor's argument.
We also disagree with defendant's characterization that the prosecutor improperly used CSAAS to bolster her argument that J. had been abused, and J.'s statements to the contrary should not be believed. CSAAS evidence was admitted to assist the jury in assessing whether or not D.'s testimony was believable. The defense argued that D. was not a credible witness because she had testified that J. had observed D. being abused and that J. had herself been abused, yet J. testified that she did not see D. being abused and she had not been abused. The nature of the prosecutor's response was to argue that J.'s testimony did not render D. an unbelievable witness; in other words, the prosecutor invoked the CSAAS evidence to argue for the believability of D.'s testimony. Indeed, the prosecutor stated, "just because [J.] has not made that type of disclosure about [defendant] does not necessarily mean that [D.] is lying." (Italics added.) The jury was entitled to consider CSAAS evidence to assess the believability of D.'s testimony.
Because defense counsel did not fall below a reasonable attorney standard in failing to object to the prosecutor's argument, defendant's claim of ineffective assistance of counsel fails.
V
Cumulative Error
Defendant contends the cumulative effect of the errors he has asserted requires reversal. "In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial. [Citation.] A predicate to a claim of cumulative error is a finding of error. There can be no cumulative error if the challenged rulings were not erroneous." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Because we have found no error, defendant's claim necessarily fails.
DISPOSITION
The judgment is affirmed.
We concur: Hoch, J., Renner, J.