Opinion
C086695
05-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JERRY ALLEN MATTSON II, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F17-000129)
A jury convicted defendant Jerry Allen Mattson II of one count of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a), count I), and found true the special allegation of substantial sexual conduct of sodomy. In a separate case (case No. F15-000194), defendant pleaded no contest to a violation of section 288, subdivision (b)(1). The court sentenced defendant to an aggregate term of 18 years eight months.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred prejudicially in admitting testimony by the prosecution's expert about (1) child sexual abuse accommodation syndrome (CSAAS) and (2) the infrequency of false allegations of child sexual abuse; (3) instructing the jury with CALCRIM No. 1193; and (4) precluding cross-examination of the victim about an alleged prior false accusation of rape. Defendant also contends, and the People concede, that the court erred at sentencing by prohibiting defendant from owning, possessing, or controlling any "dangerous weapons" for life, and by miscalculating his custody credits.
Agreeing only with the last two contentions, we shall modify the judgment to correct the sentencing errors and otherwise affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution case
H.T., the victim, was born in 2001. She has five half siblings: brothers J.B., D.M., S.M., defendant, and sister R.M. Defendant, the victim's half brother, is about 11 years older than H.T.
H.T.'s testimony
H.T. was placed in foster care as a young child. After her biological mother died, H.T. attempted to reconnect with defendant. At the time, H.T. was 11 or 12 years old and defendant was in his early 20's. At first, H.T. would visit defendant for a couple of hours every few weeks. But after defendant's girlfriend K., moved into defendant's apartment with her daughters, H.T.'s visits became longer and more frequent.
When H.T. visited, defendant sometimes did things that made H.T. uncomfortable. On one occasion, when H.T. was 12 or 13 years old, defendant grabbed her buttocks as she walked by. H.T. laughed it off.
In January of 2015, when she was 13 years old, H.T. stayed at defendant's apartment for a couple of nights after having an argument with her adoptive mother. Only H.T., defendant, and defendant's infant daughter P. were at the apartment. H.T. and defendant were talking and at some point the conversation turned sexual.
Later that evening, defendant tried to watch porn in front of H.T. Initially, H.T. left the room. But defendant taunted H.T. for refusing to watch and H.T. felt like she "had something to prove to him." Defendant and H.T. began to play a game in which they each tried to make the other person uncomfortable. The behavior "kept going back and forth and farther and farther." Eventually, defendant took his pants off and began "playing with himself." At some point, H.T. removed her shorts and got on her hands and knees on the couch. Defendant then grabbed H.T. from behind and anally penetrated her with his penis, ejaculating inside her anus. When he was finished, defendant told H.T. that she "took it like a champ" and told her it would not happen again.
The same night, after the two had watched a movie together, defendant told H.T. that he wanted to "do it once more just really quick." H.T. told defendant she did not want to and that it was painful. Defendant said that he would be "gentle" and "slow" and told H.T. that he had "numbing lube." H.T. gave in because she wanted it to be over.
The next day they had anal sex two or three more times. At some point during that day, H.T. received a welfare visit from a social worker. H.T. and defendant knew the social worker would be coming. Defendant made H.T. shower before the social worker arrived because defendant had just had anal sex with her. H.T. did not tell the social worker about the anal sex and did not request to be taken home.
In February 2015, H.T. was committed to a mental hospital for approximately two weeks for attempting to harm herself.
In March 2015, defendant fondled H.T. and penetrated her anus with his finger. Defendant gave H.T. $15 so she could go to the store and purchase a septum ring. When she returned, defendant offered to pierce H.T.'s septum if she would let him "bend [her] over." H.T. refused.
In May 2015, H.T. walked to defendant's apartment after school to talk to defendant after learning a friend had committed suicide. H.T. did not recall how things progressed, but at one point her leggings were down around her knees and defendant grabbed her and anally penetrated her with his finger and his tongue. H.T. tried to pull her pants up a couple of times, but defendant pulled them back down and kept going. When H.T. made it clear she did not want to go any further, defendant stopped and went into the bathroom and "did whatever."
In June 2015, H.T. told her older half sister, R.M., about defendant's sexual abuse. H.T. did not tell anybody earlier because she loved defendant. H.T. eventually came forward because she felt it was wrong and because she did not want similar things to happen to defendant's daughter or K.'s other daughters.
H.T. admitted that in the past she may have accused various males, including her half brothers, of sexually molesting her. She did not know who specifically she had accused. She testified that she was molested by someone and thought it was one of her half brothers. H.T. remembered at some point accusing her half brother D.M. of sexually molesting her because she had dreams as a young child and D.M.'s face was in the dreams.
When she was about six years old, H.T. raised her hand during a school assembly after students were asked whether they had ever been touched inappropriately or felt violated by an adult or someone else. An investigation was opened, but H.T. did not want to talk about it. About a year later, the case was closed.
H.T. did not recall telling police that she was molested by E.G., a former boyfriend of H.T.'s biological mother, but she did not deny having done so. H.T. believed he had molested her, but her memories were vague.
R.M.'s testimony
H.T.'s half sister, R.M., was placed in foster care in 2005 when she was nine years old. Before going into foster care, R.M. lived in a house with her mother, father, and siblings, including defendant.
When R.M. and defendant were living in the same home, defendant sexually abused her. R.M. recalled a specific incident that occurred about a week before going into foster care when R.M. was nine years old and defendant was a teenager. R.M. was alone in the living room when defendant came into the room, grabbed her by the shoulders and arms, and bent her over the couch. R.M. tried to pull away and told defendant to leave her alone. Defendant pulled down R.M.'s pants/shorts and anally raped her. R.M. started screaming and defendant told her, "Scream all you want. There is no one here to hear you, to help you," or something similar. After defendant finished, he laughed and said, "Oh, you liked it," and walked away. R.M. was crying and felt defeated and gross.
R.M. recalled that defendant would force her to perform oral sex on him, would perform oral sex on her, and would touch her inappropriately. The incidents of sexual abuse happened more than once a week while R.M. and defendant were living in the same home. R.M. feared defendant and tried to avoid him and be out of the house as much as possible.
After being placed in foster care, R.M. continued to have contact with defendant during weekend visits with her biological mother. During these visits, defendant would hug and touch R.M. in ways that made her uncomfortable. On one occasion when R.M. was 11 or 12, defendant put his hand inside her pants and grabbed her buttocks. Another time, defendant placed his hands inside R.M.'s waistband and rubbed her vagina.
R.M. never told anyone about the abuse because she feared defendant and the abuse made her feel ashamed. As she got older, she did not report the abuse because she was not around defendant, believed defendant would change, and did not want to lose contact with her remaining family after her parents died.
In 2014 or 2015, when R.M. was about 18 or 19 years old, defendant visited her and apologized for sexually abusing her when she was younger. Defendant, who appeared to be drunk, acknowledged "things in the past when I like . . . raped you," told R.M. that he was sorry, and began crying. R.M. told defendant that she accepted his apology and that she was glad he had changed and that the incident was in the past. Defendant told her it was not in the past and that if he had the chance to be sexual with R.M. again, he would. Defendant said he "liked [her] butt" and, when he was with K., he "imagined" he was with R.M. Defendant told her that he likes "small . . . little girl butts," and that he would think about R.M. when she was "small" and "a lot younger." This made R.M. feel afraid and nauseated.
At some point in 2015, H.T. told R.M. that defendant had molested her. Although H.T. had a reputation in the family as a liar, R.M. believed her. R.M. told H.T. that she had similar experiences with defendant in the past, but did not share any details. A day or two later, R.M. contacted law enforcement.
The jailhouse informant
Thomas Wood, Jr., shared a jail cell with defendant for seven or eight months beginning in June or July 2015. Wood was in jail for having sex with a 13-year-old girl when he was over the age of 21, although he claimed he did not know she was 13 years old at the time.
While they were cellmates, defendant told Wood about sexual interactions defendant had with his half sister (H.T.), infant daughter, and his girlfriend's eldest daughter. Wood kept a diary of everything defendant told him, including the month and year defendant made the statements. Wood kept the diary in hopes of possibly working out a deal with the district attorney. Wood also found defendant's behavior upsetting and did not "want somebody like [defendant] out there."
Wood also offered to provide incriminating information on at least one other inmate. When Wood handed over his notes to law enforcement, there was no promise of leniency. But Wood ultimately received a lighter sentence in exchange for his testimony.
Wood testified that defendant discussed having anal sex with H.T. Defendant told Wood that the first time they had anal sex was when they were playing a game that involved doing something to make the other person uncomfortable. Defendant told Wood that he never had to worry about H.T. telling anyone about the abuse because he was the only family she had and everyone else in the family had disowned her.
Defendant also described abuse involving K.'s oldest daughter. Defendant told Wood that in the morning, before others were awake, defendant would have K.'s daughter, S., sit on his lap in her pajamas or underwear. He would wrap a blanket around them while they were watching television or playing a game and have S. rub her butt on his crotch until he ejaculated. Defendant said this happened frequently. Defendant also told Wood that he had played with his infant daughter's anus while changing her diaper and was surprised at how much he liked it.
Because defendant knew that Wood would be released before him, defendant asked Wood to create a fake Facebook profile for H.T. Defendant wanted Wood to use the fake profile to send a message to K. while posing as H.T., stating that the claims against him were false. Defendant gave Wood a handwritten "script" to follow to make it sound like it came from H.T. It was stipulated that the script was written in defendant's handwriting and Sergeant Brian Blakemore of the Grass Valley Police Department read it aloud in court.
Sergeant Blakemore initially was suspicious that Wood might have obtained information about defendant's case by reading defendant's police report. But Sergeant Blakemore testified that Wood told him details about defendant's case that were not contained in the police reports.
Testimony of Dr. Urquiza
Psychologist Dr. Anthony Urquiza testified as an expert for the prosecution about behaviors associated with child victims of sexual abuse and CSAAS. The purpose of his testimony was to disabuse jurors of myths or misconceptions they might hold about how a child reacts to sexual abuse when it occurs.
Defense evidence
The defense's theory was that the prosecution's witnesses were not credible. The defense argued that H.T. is a manipulative, pathological liar with a history of false accusations of sexual abuse, that R.M. lied to bolster H.T.'s credibility, and that Wood lied to receive leniency in sentencing.
Defendant's testimony
Defendant testified in his own defense. Defendant admitted that H.T. stayed with him while K. and her daughters were out of town. Defendant denied any sexual activity with H.T. during her stay.
Defendant described H.T. as "very clingy," and needing lots of attention. Defendant said H.T. tried to hug him, sit on him, and lay her head in his lap. This made him uncomfortable and he would try to push her off. When he did this, she would become even more clingy.
H.T. sometimes dressed provocatively. When K. and defendant told H.T. that it was inappropriate to dress that way, she would become "hissy or violent or belligerent." When they told H.T. she would not be allowed to come over unless she changed her behavior, H.T. would threaten to tell people that defendant touched her or raped her. When they told H.T. not to say things like that, H.T. would say that is just something she does, and that she had been suspended for saying similar things at school. Defendant testified that H.T.'s other family members would not allow H.T. to come over because she repeatedly told lies and stories and became belligerent when confronted about them.
Defendant admitted prior sexual activity with R.M., but denied having anal sex with R.M., sexually penetrating her, or using any kind of force against her. Defendant testified that when he was about 13 years old and R.M. was about seven years old, they watched a pornographic videotape together and attempted to imitate what was on the screen. They took off their clothes and "kind of humped each other and inspected each other." At some point, his genitals touched R.M.'s genitals. Defendant said he did not know any better. They stopped when the actors began performing oral sex.
Defendant acknowledged he was recorded apologizing to R.M. after she told him that he "raped [her] in the butt," held her down, and did "horrible things" to her. He admitted telling R.M., "I apologized to you for all that stuff. I did that stuff when I was a kid because I didn't know any better." But defendant denied that he was apologizing for anally raping R.M. He was apologizing for the humping incident and for doing things like "holding her down and farting in her face" and "tickling her until she peed herself."
In June 2015, after defendant became aware of H.T.'s accusations against him, R.M. came to his apartment and they discussed those accusations. R.M. told defendant she was not sure she believed H.T. and asked if defendant would take a polygraph test. R.M. said she would tell the police that he did the same things to her if he did not take a polygraph test.
Defendant admitted writing the Facebook script while in jail after hearing a story about another inmate who had used a similar scheme to obtain a better plea deal. Defendant denied telling Wood about the details of his case nor did he make any admissions. He kept copies of the police reports and witness statements from his case in an unlocked box in his cell and there were many times Wood was in the cell alone and could have accessed them. Defendant knew Wood was collecting information on other inmates. Defendant did not trust Wood and would not have told him any details of his case or ask him to smuggle the script out of jail.
Prior molestation allegations
The defense introduced evidence that H.T. had previously accused other men, including her half brothers, of molesting her.
When H.T. was five years old, she told her therapist that her half brothers had touched her private parts. When law enforcement investigated, H.T. denied the allegations, which were deemed unfounded.
When H.T. was seven years old, she disclosed to her legal guardian that her older half brothers would hold her down and penetrate her vagina with their fingers. H.T. participated in an interview at the sheriff's office on June 11, 2009. During the interview, H.T. would not take the questioning seriously and indicated that she did not know the difference between the truth and a lie. When it became clear that H.T. was not going to cooperate, the interview was terminated. The case was closed as unfounded.
H.T.'s older half brother J.B. testified that he first found out H.T. had accused him of molesting her during a court proceeding when he attempted to adopt or foster her. J.B. was surprised. He denied ever molesting H.T.
H.T.'s half brother D.M. testified that his father severely beat him when he was in the sixth grade. Afterwards, D.M. learned that his father believed D.M. had sexually abused H.T. D.M. denied ever sexually abusing H.T.
H.T. told a police detective that E.G., who was in a relationship with defendant's biological mother from 2007 to 2011, had sexually molested her when she was little. E.G. was unaware that H.T. had accused him of sexual abuse, and he denied sexually abusing her.
Verdict and Sentencing
The jury found defendant guilty of continuous sexual abuse of a child (§ 288.5, subd. (a), count I), and found true the special allegation of substantial sexual conduct of sodomy (§ 1203.066, subd. (a)(8)). The jury did not return verdicts on counts II and III (sodomy), and the court dismissed them. In a separate case (case No. F15-000194), defendant entered a plea of no contest to a violation of section 288, subdivision (b)(1).
The court denied defendant's motion for a new trial, and sentenced defendant to the upper term of 16 years on count I, and two years eight months (representing one-third the midterm) for the other case, for a total sentence of 18 years eight months. The court prohibited defendant from owning, possessing, or controlling any firearm, ammunition, or other dangerous weapons for life, pursuant to section 29800, subdivision (a). The court credited defendant with 975 days in actual custody and 146 days of conduct credit for a total of 1,121 days.
DISCUSSION
I
Expert Testimony Regarding False Allegations of Sexual Abuse
Defendant contends the trial court prejudicially abused its discretion by permitting Dr. Urquiza, the prosecution's expert on CSAAS, to testify that children rarely make false allegations of sexual abuse. We conclude that defendant forfeited the claim by failing to object below and, in any event, any error was harmless.
A. Additional background
CSAAS is a concept originally developed to educate therapists about the ways in which children commonly respond to the experience of being sexually abused. Although CSAAS testimony is inadmissible to prove that a child was in fact sexually abused, it is admissible to disabuse jurors of myths or misconceptions they might hold about how a child reacts to sexual abuse when it occurs. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301.) CSAAS evidence also is admissible to rehabilitate credibility when the defense suggests a child's conduct after an incident is inconsistent with abuse. (Id. at p. 1300.) CSAAS evidence tells the jury that certain behavior by a child—such as a delay in reporting—is not inconsistent with the child having been molested. (Ibid.; People v. Housley (1992) 6 Cal.App.4th 947, 955.)
Here, Dr. Urquiza testified for the prosecution about five emotional behaviors that have been observed in children who have experienced sexual abuse: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed and unconvincing (inconsistent) disclosure, and (5) retraction or recantation. He did not opine on the credibility of the victim or any of the witnesses in this case. He also testified that he had not met any of the witnesses in the case and had not reviewed any of the reports. Finally, Dr. Urquiza testified that it would be improper for him to provide an opinion on defendant's guilt or innocence or opine whether abuse occurred in this case.
On cross-examination, defendant's counsel asked Dr. Urquiza about the relationship between CSAAS and false allegations of abuse. Dr. Urquiza testified that CSAAS only applies to children who have been sexually abused. He testified that CSAAS has nothing to do with false allegations of abuse. Dr. Urquiza explained that "while kids do make false allegations, I know the literature, the issue with regard to [CSAAS] requires that we're talking about kids who have been sexually abused."
During redirect examination the prosecution asked Dr. Urquiza to explain his familiarity with the literature on false allegations. Dr. Urquiza testified that the limited amount of research on the topic shows that while false allegations of sexual abuse happen, they happen "very infrequently or rarely." He attempted to elaborate on this statement by citing statistical evidence regarding the percentage of children who make false allegations. But, as he did so, defense counsel objected to "any statement of percentages." The trial court sustained the objection and admonished the jury to disregard the testimony about percentages, but allowed the answer to otherwise stand.
Dr. Urquiza continued his testimony: "I am not going to tell you any percentages. I will stick with this notion of very infrequently or rarely." Dr. Urquiza then discussed one study, which found a "very low percentage" of false allegations. Dr. Urquiza's takeaway message was that false allegations do happen, but they happen "very infrequently" and usually arose during child custody disputes.
During closing argument, the prosecutor briefly referred to Dr. Urquiza's testimony about false accusations and "how rare" they are. But the prosecutor told the jury to consider Dr. Urquiza's testimony "for the purposes that it's being offered to address these general myths and misconceptions as it may relate to behaviors." Defense counsel argued during his closing that Dr. Urquiza had no experience with false accusers and "no particular knowledge sorting out what is false and what is true . . . ."
The jury was instructed that Dr. Urquiza's testimony is not evidence that defendant committed any of the crimes charged against him and may not be used to determine if the alleged victims' claims are true. The jury was further instructed that it may consider Dr. Urquiza's testimony "only in deciding whether or not [H.T.'s] conduct as demonstrated by the evidence was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony." Jurors also were instructed that they alone must judge the credibility or believability of the witnesses.
B. Forfeiture
Defendant challenges expert testimony that children "very infrequently and rarely" make false allegations of sexual abuse. While Dr. Urquiza did not express an opinion about whether the victims in this case were telling the truth, he discussed the truth of child sexual abuse allegations generally. Defendant argues that Dr. Urquiza's testimony invaded the province of the jury because it, in effect, told the jury that a child claiming to be sexually abused was likely to be telling the truth. In support of his argument, defendant relies on two cases decided after his trial—People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson) and People v. Julian (2019) 34 Cal.App.5th 878 (Julian)—both of which concluded that statistical evidence about false allegations of child sexual abuse is inadmissible evidence that goes beyond the permissible scope of CSAAS expert testimony. (Wilson, supra, at pp. 569-571; Julian, supra, at p. 886.)
The People argue that defendant forfeited his claim by failing to interpose a timely and specific objection to Dr. Urquiza's false accusation testimony. We agree. Defendant's narrow objection to the testimony about "percentages" did not preserve the broader attack he now urges on appeal. (People v. Williams (2008) 43 Cal.4th 584, 620 (Williams); People v. Nelson (2012) 209 Cal.App.4th 698, 710-711; Evid. Code, § 353.) Because defendant did not object to the challenged testimony at trial, he failed to preserve the issue for appeal. (Williams, supra, at p. 620.)
The People also argue that defense counsel opened the door to the challenged testimony by asking Dr. Urquiza about false accusations during cross-examination. We disagree that asking whether CSAAS applies to children who falsely claim they were sexually abused somehow opened the door for the prosecutor to elicit testimony about the likelihood that a claim of sexual abuse is true. Counsel's cross-examination clearly related to CSAAS and the limitations of that tool, i.e., that it only applies if the child was in fact sexually abused and cannot be used to prove that a child was abused. The challenged testimony, in contrast, has nothing to do with CSAAS. (See People v. Gilbert (1992) 5 Cal.App.4th 1372, 1385-1386 [expert opinion that children are more credible than adults not within scope of CSAAS evidence], superseded by statute on other grounds as stated in People v. Levesque (1995) 35 Cal.App.4th 530, 536-537.)
Defendant also suggests the issue is properly raised on appeal because he raised it in his motion for new trial. However, raising an evidentiary objection in a posttrial motion does not preserve the issue for appeal. (People v. Memory (2010) 182 Cal.App.4th 835, 856, fn. 6; People v. Williams (1997) 16 Cal.4th 153, 254.)
Defendant argues that his failure to object should be excused because an objection would have been futile under the governing law at the time. We disagree. An unforeseen change in law is a recognized exception to the contemporaneous objection requirement (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1334), but that exception does not apply here. Although Wilson and Julian were decided after defendant's trial, the grounds for objection to Dr. Urquiza's testimony are rooted in long-standing legal principles and supported by numerous opinions issued before the date of trial. (See cases discussed in Wilson, supra, 33 Cal.App.5th at pp. 568-571, and Julian, supra, 34 Cal.App.5th at pp. 885-887.) Indeed, the fact that defendant objected to Dr. Urquiza's "percentages" testimony undermines his claim that there were scant grounds for objection. Accordingly, we agree with the People that defendant forfeited the claim by failing to interpose a timely and specific objection.
C. Ineffective assistance of counsel
Anticipating the forfeiture problem, defendant argues that his attorney's failure to object constituted ineffective assistance of counsel. We may address the merits of an otherwise forfeited issue to forestall a claim of ineffective assistance of counsel. (People v. Lewis (1990) 50 Cal.3d 262, 282; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 81-82.) To establish ineffective assistance of counsel, a defendant must show by a preponderance of the evidence both that (1) counsel failed to act in the manner expected of reasonably competent attorneys acting as diligent advocates, and (2) the deficient performance prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692, 694 [80 L.Ed.2d 674, 693, 696, 698] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).)
A court need not determine whether counsel's performance was deficient before addressing whether counsel's performance was deficient. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 697; In re Fields (1990) 51 Cal.3d 1063, 1079.)
To show prejudice, it is not enough to show that the errors had " 'some conceivable effect on the outcome of the proceeding.' " (Ledesma, supra, 43 Cal.3d at p. 217, quoting Strickland, supra, 466 U.S. at p. 693.) The defendant must show that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (Ledesma, at pp. 217-218; In re N.M. (2008) 161 Cal.App.4th 253, 270 [violation of the right to effective counsel is reviewed under harmless error test].) " 'When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.' " (Ledesma, at p. 218.)
The "reasonable probability" standard applies even to evaluate ineffective assistance claims involving failure to preserve constitutional rights. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008-1009.)
Here, even if we assume that the challenged testimony was improperly admitted and that counsel was ineffective in failing to object to it, defendant cannot show a reasonable probability that, but for the alleged error, the result of the proceeding would have been more favorable to defendant.
Contrary to defendant's claim, Dr. Urquiza did not improperly vouch for the credibility of H.T. and R.M. Defendant admits that Dr. Urquiza did not express an opinion based on the facts of this case. Dr. Urquiza did not testify that he believed the complaining witnesses were telling the truth or that he thought defendant was guilty of any misconduct. (Compare People v. Sergill (1982) 138 Cal.App.3d 34, 39 [trial court erred in permitting police officers to testify that in their opinion a certain witness was credible] with People v. Coffman and Marlow, supra, 34 Cal.4th at p. 82 [expert testimony that codefendant was credible should have been excluded on proper objection].) Dr. Urquiza made clear that he had not met any of the complaining witnesses and that he knew "literally nothing" about the case other than the name of the defendant. He specifically told the jury that it was not his place to tell the jury whether the complaining witness was, in fact, sexually abused. The purpose of his testimony was to disabuse jurors of myths or misconceptions they might hold about how a child reacts to sexual abuse when it occurs.
Defendant argues that the jury may have relied on Dr. Urquiza's testimony about the rarity of false accusations for the improper purpose of bolstering the truth of the victim's molestation claim. We are not persuaded that there is a reasonable probability that, but for the challenged testimony, the result of the proceeding would have been any different. Dr. Urquiza's challenged testimony was limited in both scope and duration. Due to defense counsel's objection, Dr. Urquiza was prevented from testifying about the statistical probabilities of false allegations. He only testified that false allegations of sexual abuse by children are rare.
Further, he did not testify that children never lie about having been sexually abused. He expressly acknowledged that children sometimes make false accusations, and he did not express any opinion about the complaining witnesses in this case. He was clear that it was for the jury to decide whether the complaining witnesses were telling the truth about being sexually abused.
In addition, the challenged testimony was brief and a minor part of the trial. The challenged testimony comprises less than two pages of a reporter's transcript that spans over 1,400 pages. In contrast, the complaining witnesses testified extensively at trial and the jury had more than ample opportunity to assess their credibility. (See Wilson, supra, 33 Cal.App.5th at p. 572 [finding no prejudice in admitting statistical evidence about false allegations where expert's testimony was brief and complaining witnesses testified extensively].)
Although the prosecutor briefly referred to the challenged testimony during closing argument, the prosecutor also told the jury to consider Dr. Urquiza's testimony "for the purposes that it's being offered," namely, to address the "myths and misconceptions" about how children react to sexual abuse when it occurs. Moreover, the jury specifically was instructed that the testimony may be considered only for purposes of understanding and explaining the behavior of the alleged victims in the case and not as proof that any molestations occurred. Jurors were instructed that they alone must judge the credibility of the witnesses. We presume the jury understood and followed these instructions. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 83.)
Accordingly, we conclude there was no prejudice. It is not reasonably probable that defendant would have achieved a more favorable result had defense counsel successfully objected to the challenged testimony.
II
Expert Testimony Regarding CSAAS
Before the start of trial, the defense moved to exclude any expert testimony about CSAAS, arguing that the usual justifications for allowing CSAAS testimony did not apply in this case. The defense argued that CSAAS testimony should not be admissible unless the prosecution shows such testimony is necessary to rebut a specific myth or misconception about the victims' reactions in this case. The trial court allowed the prosecution to present CSAAS evidence, finding the alleged victim's credibility was called into doubt by delayed reporting, incomplete or inconsistent reporting, recantation, and continued association with defendant.
On appeal, defendant contends the trial court prejudicially abused its discretion by permitting expert testimony about CSAAS. Defendant argues CSAAS evidence is not a legitimate subject of expert testimony because the myths and misconceptions the evidence is intended to rebut are no longer sufficiently common to outweigh the risk that jurors will misuse the evidence as corroboration for the victim's claims of abuse.
An expert witness's opinion testimony is limited 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).) The decision whether to permit expert testimony about a subject ordinarily lies within the discretion of the trial court and will not be reversed absent an abuse of discretion. (People v. McDowell (2012) 54 Cal.4th 395, 425-426.) We find no abuse here.
Although expert testimony on CSAAS is not admissible to prove the complaining witness had in fact been sexually abused, California courts consistently have held that such evidence is admissible to disabuse the jury of myths and misconceptions it might hold about the behavior of abuse victims. (See People v. McAlpin, supra, 53 Cal.3d at pp. 1300-1301; People v. Housley, supra, 6 Cal.App.4th at p. 957; People v. Patino (1994) 26 Cal.App.4th 1737, 1744; People v. Gonzales (2017) 16 Cal.App.5th 494, 503 (Gonzales); Julian, supra, 34 Cal.App.5th at p. 885.) When an alleged victim's credibility is placed in issue due to seemingly counterintuitive behavior, CSAAS evidence is admissible to rehabilitate the victim's credibility by showing that his or her reactions are not inconsistent with abuse. (Patino, supra, at pp. 1744-1745.)
We reject defendant's suggestion that jurors no longer harbor confusion or misconceptions about how children react to sexual abuse. And we decline to overturn California's long-standing rule allowing CSAAS evidence where, as here, the victim's credibility is placed in issue due to counterintuitive behavior. The trial court properly admitted the CSAAS evidence to rebut those misconceptions.
Finally, defendant argues that because the premise of CSAAS is that a child was abused, CSAAS evidence should not be admissible if "there is doubt" the child has been abused. Because defendant did not object on this basis in the trial court, we deem the issue forfeited. (Williams, supra, 43 Cal.4th at p. 620.) In any event, the argument lacks merit. Accepting defendant's argument would defeat the purpose of CSAAS evidence, which is to show that a child's behavior is not necessarily inconsistent with the child having been abused. Such evidence would not be necessary if there were no dispute the child had been abused.
III
CALCRIM No. 1193
Defendant complains the trial court erred by instructing the jury with CALCRIM No. 1193. Even though CALCRIM No. 1193 is a standard jury instruction for CSAAS testimony, defendant argues that the last sentence of the instruction improperly encourages the jury to infer that sexual abuse occurred if the victim's conduct was consistent with the conduct of someone who was sexually abused. The People respond that CALCRIM No. 1193 properly instructed the jury that the CSAAS testimony could be used only to conclude the victim's self-impeaching behavior is not inconsistent with abuse, and could not be used as proof that the victim had in fact been sexually abused. We agree with the People that the trial court properly instructed the jury with CALCRIM No. 1193.
We review de novo whether a jury instruction correctly states the law. (People v. Franco (2009) 180 Cal.App.4th 713, 720.) When a defendant claims an instruction was subject to erroneous interpretation by the jury, we inquire whether the jury was reasonably likely to have construed the instruction in a manner that violates the defendant's rights. (Ibid.; People v. Covarrubias (2016) 1 Cal.5th 838, 926.) We presume that jurors are intelligent persons capable of understanding and applying all instructions given. (Franco, supra, at p. 720.)
In this case, the trial court gave a standard CALCRIM instruction regarding CSAAS evidence: "You have heard testimony from Dr. Anthony Urquiza regarding child sexual abuse accommodation syndrome. [¶] Expert testimony about child 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 [H.T.'s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony."
Defendant focuses on the last part of this instruction, arguing that the language invites the jury to impermissibly rely upon CSAAS testimony as proof that the alleged abuse occurred. We disagree.
Defense counsel did not object to the instruction at trial but, as the People concede, we may 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, 857-858.)
In Gonzales, supra, 16 Cal.App.5th 494, Division Six of the Second Appellate District upheld CALCRIM No. 1193 against a challenge that the instruction is inconsistent and improperly allows CSAAS testimony to be used as proof that the victim was molested. (Gonzales, at pp. 503-504.) Consistent with CALCRIM No. 1193, the jury was instructed that the expert's testimony about CSAAS was not evidence that the defendant committed the crimes charged against him and that the jury could consider the evidence only in deciding whether the victim's conduct was " 'not inconsistent' " with the conduct of someone who has been molested, and in evaluating the believability of her testimony. (Gonzales, at p. 503.) The defendant argued on appeal that it is impossible to use the CSAAS testimony to evaluate the believability of the victim's testimony without using it as proof that the defendant committed the charged crimes. (Ibid.)
The Court of Appeal disagreed that the instruction allowed the CSAAS testimony to be used as proof of sexual abuse. The court held that the instruction must be understood in the context of the expert's testimony that CSAAS is a tool to understand a child's reactions when he or she has been abused and is not a tool to diagnose whether a child actually has been abused. (Gonzales, supra, 16 Cal.App.5th at pp. 503-504.) The court held that "[a] reasonable juror would understand CALCRIM No. 1193 to mean that the jury can use [the CSAAS expert's] testimony to conclude that [the victim's] behavior does not mean she lied when she said she was abused. The jury also would understand that it cannot use [the expert's] testimony to conclude [the victim] was, in fact, molested. The CSAAS evidence simply neutralizes the victim's apparently self-impeaching behavior." (Gonzales, at p. 504.) Thus, there is no conflict in the instruction. (Ibid.)
The reasoning of Gonzales is persuasive. The challenged instruction correctly informs jurors that they may use CSAAS evidence for the limited purpose of deciding the victim's conduct was not inconsistent with having been molested, but not to determine whether the victim's molestation claim was true. Thus, the instruction correctly describes the permissible and impermissible uses of such evidence.
In addition, the challenged instruction cannot be read in isolation; it must be read in the context of Dr. Urquiza's testimony and in the context of the jury instructions as a whole. (Gonzales, supra, 16 Cal.App.5th at p. 503; People v. Houston (2012) 54 Cal.4th 1186, 1229.) As discussed above, Dr. Urquiza told the jury that he had not met any of the complaining witnesses and that it was not his place to tell the jury whether the complaining witness was, in fact, sexually abused. And the jury was instructed that Dr. Urquiza's testimony may be considered "only for the purpose of understanding and explaining the behavior of one or more of the alleged victims in the case and not as proof that the molestation occurred as to any one or more of the alleged victims." Jurors were instructed that they alone must judge the credibility of the witnesses. "Jurors are routinely instructed to make . . . fine distinctions concerning the purposes for which evidence may be considered, and we . . . presume they are able to understand and follow such instructions. [Citation.]" (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
Based on our review of the record, we conclude it is not reasonably likely that the jury construed CALCRIM No. 1193 in a manner that violates defendant's rights. Accordingly, the trial court did not err in giving the challenged instruction.
IV
Exclusion of Evidence of H.T.'s Past Sexual History
Defendant contends the trial court erred by preventing the defense from cross-examining H.T. about an allegedly false claim that she was raped while hitchhiking in 2015. We disagree.
Defendant's argument focuses on Evidence Code section 782, which provides a procedure by which a defendant may attempt to attack the credibility of a complaining witness by introducing evidence of the complaining witness's prior sexual conduct. That procedure is inapplicable because the evidence at issue concerns false complaints of rape that the defense sought to use as impeachment evidence, not an attempt to attack credibility based on prior sexual conduct. (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1454, 1456.) Regardless, we would reach the same conclusion under Evidence Code sections 780 and 782 as we do under Evidence Code sections 210 and 352. (People v. Waldie (2009) 173 Cal.App.4th 358, 364 (Waldie).)
The trial court precluded the defense from cross-examining the victim's allegedly false claim because the defense presented nothing in its offer of proof to establish that the claim was, in fact, false. The trial court's ruling is reviewed for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201; People v. Scott (2011) 52 Cal.4th 452, 490; Waldie, supra, 173 Cal.App.4th at pp. 363-364.)
The prior accusation of rape was relevant to H.T.'s credibility only if the accusation was false. (People v. Winbush (2017) 2 Cal.5th 402, 469; People v. Alvarez, supra, 14 Cal.4th at p. 201; Waldie, supra, 173 Cal.App.4th at pp. 363-364.) Defendant failed to proffer any evidence to support his assertion that the claim was false. Thus, the trial court did not abuse its discretion in excluding the evidence.
On appeal, defendant argues that H.T.'s alleged "refusal to cooperate" in any investigation of the incident supports the defense theory that the accusation was false. We conclude defendant forfeited this argument by failing to timely raise it before the trial court. (Williams, supra, 43 Cal.4th at p. 620.) But even if it were not forfeited, we would conclude it lacks merit. The trial court did not abuse its discretion.
In his motion for new trial, defendant referred to the victim's alleged "refusal to cooperate" in an investigation, but defendant did not argue—as he does here—that the victim's refusal to cooperate established that the accusation was false. Nor did defense counsel cite any evidence to support the assertion that the victim actually refused to cooperate in an investigation of the incident. In any event, raising an evidentiary issue belatedly in a motion for a new trial does not preserve the issue for appeal. (People v. Memory, supra, 182 Cal.App.4th at p. 856, fn. 6.)
V
Order Prohibiting "Dangerous Weapons"
When imposing the sentence, the trial court prohibited defendant from owning, possessing, or having control of any firearm, ammunition, or other "dangerous weapons" for life. Defendant contends that the trial court exceeded its authority under section 29800, subdivision (a) to include weapons other than firearms. The People agree, and so do we.
Section 29800, subdivision (a) prohibits a convicted felon from owning, possessing, or having under his or her control "any firearm." It does not prohibit other types of dangerous weapons. Accordingly, we shall strike the phrase "other dangerous weapons" from the judgment. (Because the error was not repeated in the abstract of judgment, it shall not be necessary for the court to correct the abstract of judgment.)
VI
Calculation of Custody Credits
At sentencing, the trial court credited defendant with 1,121 days of credit, consisting of 975 days of actual credit and 146 days of conduct credit. The minute order and abstract of judgment both reflect the custody calculation indicated by the court. Defendant contends the trial court erred in calculating his custody credits. Defendant contends that, including both the date of arrest and date of sentencing, his actual time in custody was 978 days rather than 975 days.
The People concede that defendant should have been given credit for 978 days. We accept this concession. (People v. Smith (1989) 211 Cal.App.3d 523, 526.) Because defendant was awarded only 975 days of actual credit, we shall modify the judgment to give defendant credit for 978 days of actual credit, increasing his total custody credits to 1,124 days.
DISPOSITION
The judgment is modified to (1) strike the phrase "other dangerous weapons" from the portion of the court's judgment prohibiting defendant from owning, possessing, or having control of any firearm, ammunition, or other dangerous weapons for life, and (2) credit defendant with 1,124 days of credit, consisting of 978 days of actual credit and 146 days of conduct credit. The trial court is directed to correct its minute order consistent with this opinion. The trial court also is directed to prepare an amended abstract of judgment showing the award of custody credits and forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
KRAUSE, J. We concur: MURRAY, Acting P. J. RENNER, J.