Opinion
C077837
04-18-2017
THE PEOPLE, Plaintiff and Respondent, v. RANDALL ALLEN MILLER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF122143)
A jury found defendant Randall Allen Miller guilty of continuous sexual abuse of a child, his former step-daughter Tiffany.
On appeal, defendant contends: (1) the trial court committed structural error by abdicating control of the readback process and failing to preserve a record of what portions of Tiffany's testimony were read back; (2) the prosecutor committed misconduct in her closing argument; and (3) his trial counsel was ineffective in failing to object to the alleged prosecutorial misconduct. We disagree and affirm.
I. BACKGROUND
A. Tiffany's Testimony
Tiffany testified that defendant, her former step-father, began molesting her when she was four years old, and he stopped when she was about twelve. She recalled details about these two incidents and some others:
The first time, Tiffany was outside playing basketball with her brother when defendant called her inside. There, defendant told her to take off her pants and underwear. She laid down on the floor next to the couch, and he touched her vagina with his hand and then his tongue. He told her not to tell anyone or "something bad would happen." Tiffany's mother was at work at the time, and Tiffany did not tell her what happened out of fear of the consequences.
The last time, Tiffany came home and saw an advertisement for a snowmobile. She had wanted a new snowmobile and often joked about it. She said, " 'Oh, you can get it on sale.' " Defendant told her that if she went into his room and let him touch her breasts, he would get her one. She said "no," but he took her into his bedroom and did it anyway. She told him to stop and said she would tell her mother. Defendant said, " 'No, you're not going to tell your mom, or you're not going to see your mom,' " and took Tiffany outside to see a snowmobile that he and her mother had already purchased for her.
Tiffany's boyfriend testified that she told him defendant had offered the snowmobile in exchange for masturbating him.
Tiffany also testified regarding the frequency of these acts. For instance, she said that from the first time defendant molested her until they moved to Yuba City, when she was seven years old, defendant touched her vagina a couple times a week and over 50 times total. Regarding their time together in Yuba City, Tiffany estimated defendant made her rub his penis at least 30 times in total and about ten times a month, and touched her breasts and vagina "almost every day" and more than 100 times overall. Usually, he used his mouth and tongue to touch her vagina. She did not keep a record of these events. She explained that as she got older and started standing up for herself and saying, "no," the frequency decreased.
She explained that he also touched her breasts during that time period, but did not specify how often.
Additionally, Tiffany testified that once when she was 11, defendant asked her to put his penis in her mouth. She told him "no." He got mad, and she went to her bedroom. When Tiffany was 12, defendant tried to have sex with her, but she was able to run away to her bedroom and lock the door.
Tiffany said defendant never hit her, but he had "a really bad temper." For example, when they lived in Yuba City, if he came home and found shoes out of place, he would yell and throw the shoes in the trash. Next, he would go into one of the children's rooms and fling the mattress off the bed, throw the contents of the closet on the floor, and then make Tiffany or her brother clean it up, depending on whose room it was.
The first person Tiffany told about the molestation was a boyfriend when she was fourteen. She told him not to tell anyone else because she was afraid of what would happen to her. Tiffany also told two subsequent boyfriends. Meanwhile, Tiffany's grandmother asked her if defendant had ever touched her inappropriately, and Tiffany denied it. Tiffany's current boyfriend eventually told Tiffany's mother. Tiffany explained that she did not want to report what happened at that time because she was seven months into a high-risk pregnancy. Tiffany did not make initial contact with the police. Instead, a few months later, a neighbor made the report after speaking with Tiffany's mother. By this time, Tiffany was 18. B. Child Sexual Abuse Accommodation Syndrome
This was after defendant moved out. Tiffany was 16.
The prosecution and the defense both presented expert testimony on the subject of child sexual abuse accommodation syndrome (CSAAS). Dr. Anthony Urquiza testified as the prosecution's expert. We will focus only on his testimony as it pertains to the issues raised by defendant. Dr. Urquiza said CSAAS is used to educate therapists about what commonly occurs with a child who has been sexually abused in order to dispel misconceptions about how children react as victims of sexual abuse, and thereby help therapists treat sexually abused children. CSAAS is not a diagnostic tool.
Dr. Urquiza described the five parts of CSAAS: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and recantation or retraction of the abuse allegation. With respect to secrecy, Dr. Urquiza explained some of the reasons why children often keep sexual abuse a secret. He said most children are sexually abused by someone they know who is bigger, stronger, more knowledgeable and may be in a position of authority over the child. Abusers may also use strategies such as threats, intimidation, special attention, gifts or favors to keep their victim quiet.
The helplessness component addresses the misperception that children will be able to do something to keep themselves safe. Because of their inherent helplessness, most abused children submit and accept the fact there is nothing they can do to stop the abuse.
Entrapment explains that a child who cannot tell anyone or stop the abuse from continuing is trapped.
With respect to accommodation, Dr. Urquiza said he cannot tell by looking at someone if they have been abused. Children disconnect from the experience to cope with it, and have to manage their feelings because they know the abuse will happen again. As a result, they "look like everybody else."
As to delayed and unconvincing disclosure, Dr. Urquiza said disclosure is a process. Some victims will disclose some information, and if the response is supportive, the victim may reveal more information. Delayed disclosure is common. About one-third of victims do not disclose their abuse prior to turning 18.
Dr. Urquiza testified that 20 to 25 percent of children who have been abused disclose and then retract the allegation, usually because of pressure from the child's family.
Additionally, Dr. Urquiza said children tend to disclose their abuse to someone who is a confidant. They also usually state the amount of times they were touched inappropriately "in somewhat general terms." He explained: "[I]f [it] was one time, they would say 'one.' If it was . . . maybe twice a week for the last four years, they might say . . . 'hundreds of times' or 'thousands of times' because they're really reflecting 'It is a lot of times, but I don't know how many times.' [¶ ] . . . [¶] I don't recall somebody saying like 'I was sexually abused 235 times.' I mean, it doesn't happen." Additionally, children who were frequently abused have difficulty providing details regarding what happened during a particular incident. C. Prosecutor's Closing Statement
1. Tiffany's Testimony
During closing argument, the prosecutor discussed Tiffany's testimony. Defendant takes issue with several instances in which the prosecutor commented on the honesty or credibility of this testimony:
"She was very honest. I asked her, 'Did he put his penis in your vagina?'
"And she said, 'No. He tried.' She said, 'I was 10 or 11, and he tried,' and his penis touched her vagina, and she said 'No,' and she ran away into her bedroom and locked the door. She was honest about it.
"I asked her, 'Did he ever make you put his penis in your mouth?'
"And she said, 'He asked me one time, and I said, No,' and he didn't push it. Very honest."
Later, the prosecutor stated, "[Tiffany] said that when she was younger, it happened a lot more, but as she got older, it slowed down. How honest is that? Credible."
The prosecutor also recalled questioning Tiffany about whether defendant had ever hit her: "And she said, 'No, he never hit me.' She was honest. Brutally honest."
2. CSAAS Evidence
Additionally, defendant challenges the prosecutor's statements regarding CSAAS. The prosecutor argued Tiffany never would have come forward about the abuse "because that's what usually children [sic] do who are molested." He continued:
"And how do we know that? We know that from research. We know that from Dr. Urquiza, a renowned expert in his field in the State of California from UC Davis. He testified about [CSAAS]. Dr. Urquiza said there were five components to this when they studied children who have been molested, and he has seen thousands of children. He said they keep it secret because there's usually a fear factor involved, there's an authority figure, perpetrator is bigger, larger, the child is smaller. He said the child is helpless. The child feels entrapped, and there's a delayed disclosure. And let's take a minute to see how . . . Tiffany fit into . . . those categories.
"She kept it a secret. Yes, she did. She felt connected to her boyfriends. That, Dr. Urquiza said, was normal that the child would feel more connected with their peer that they fall in love with. She told her boyfriends that she forbid them to not [sic] tell anyone. She kept it a secret until she was made to talk about it. She was helpless.
"[Defendant] was a parental figure. He watched them after school. He was in [a] position of authority. He would make them clean their room when he wrecked it. She was helpless, she was entrapped, and she coped. And like Dr. Urquiza testified, children in this situation cope by trying to live a normal life. She played sports, she went into cheerleading, she graduated, went to prom, had a dog, sweet pet. You know, had friends, Emma[] played dolls with her, coped. Coped with the secret.
"And then Dr. Urquiza talked about delayed disclosure, and he said the studies show two-thirds of the children don't disclose until they're adults. Two-thirds. Very consistent with how Tiffany lived with this continuous child molest. Very consistent. And you get to use that to believe her. You get to use that to find her credible.
"Dr. Urquiza talked about how disclosure of a child molest by a child, even when that child[ becomes] an adult, is a process. So each time they feel safer with the interviewer, they will give you more details. Tiffany was interviewed four times. Three times by Detective Wallace and one time by a CPS forensic interviewer, Tony Kildare.
"Detective Wallace said he's reviewed all three interviews, actually all four, he said, and Tiffany was consistent. Each time she was asked, she had the same story. She never changed anything. He asked her, 'How many times, Tiffany?'
" 'A lot. Every chance he got.'
" 'Give me a number, 100, 50?'
"She's like, 'Okay, 100. A lot.'
"Dr. Urquiza testified about when the child . . . gives a number. He said, 'Yeah, when it's a lot, they say 100. When it's a lot. When it's not that much, maybe five or ten,' so it's very subjective. They don't keep a diary; they don't keep a log; they don't put hash marks on the wall each time they're touched. They just know it happened so many times, it almost became a way of life." D. Jury Readback
During deliberations, the jury sent several notes to the trial court. The court described one communication as asking to " 'see Tiffany's testimony,' " and then asked whether there was "any objection to the court reporter going in reading Tiffany's testimony from beginning to end?" After both the prosecutor and defense counsel stated there was no objection, the court continued: "Anything obviously that's been stricken she's not to read, and she's not to discuss with the jurors any matters. I think based on what happened with the bailiff yesterday, I don't need to bring them in to instruct them that. Do both attorneys agree?" Both stated that they did, and the court concluded: "Okay. So we will send the court reporter in to read Tiffany's testimony." The time was noted as 11:37 a.m.
The actual note is not in the record.
The previous day, the jury asked to hear the audio of the pretext phone call between defendant and Tiffany. The jury was instructed, "[W]e are going to send in the bailiff with the computer to play the CD that you've requested. You cannot deliberate while she is in there with you. She alone will operate the computer. If you wish to listen to the entire tape, you can do that. If you want her to move it forward, move it backward, she can do that. Once you've completed listening to it, she's going to take the computer and the CD with her and leave the room, and then you can continue your deliberations."
At 2:40 p.m., the court explained outside the presence of the jury, "The court reporter was doing read back. It's my understanding that the jury wanted specific read back. She did read, I think, for about an hour and a half. She returned to the courtroom. I happened to be sitting on the bench. Shortly thereafter, the jury has indicated they have a verdict. I don't know if counsel are aware of that. Mr. [sic] Chopra [(the prosecutor)], anything—go ahead, Mr. Leri [(defense counsel)].
"MR. LERI: I didn't understand what you meant by she read straight through for an hour.
"THE COURT: She read in the morning till lunch. They took a lunch break from 12:00 to 1:15. I think the clerk called and let you know that. She did further read back from 1:15 for some period of time. It's my understanding they did not—they had portions they wanted to listen to. I just wanted to put that on the record.
"MR. LERI: So they didn't listen—
"THE COURT: It wasn't an entire read back.
"MR. LERI: It wasn't an entire
"THE COURT: It wasn't an entire read back. Ms. Chopra, anything further before the jury is permitted to come back into the courtroom?
"MS. CHOPRA: No, your Honor.
"THE COURT: Mr. Leri?
"MR. LERI: No your Honor."
The jurors then returned to the courtroom, and the guilty verdict was read. After the jurors were polled, but before their discharge, defense counsel asked to approach the bench. The following discussion was held in chambers:
"MR. LERI: I'm sorry. Which portions of the testimony were read back?
"THE COURT: Okay. Hold on. I don't think you can ask that question.
"MR. LERI: Well, when we instructed her to go back, it was to read the entire portion.
"THE COURT: That's right.
"MR. LERI: So if she only read a portion of it, we can't ask what portion was read?
"THE COURT: You're inquiring into their deliberations.
"MR. LERI: Okay.
"THE COURT: I put that on the record so that it was on the record. That's why I asked both counsel if there was anything before the jury was called in. I do not believe it is an appropriate question to ask the court reporter because that may delve into what their deliberations were.
"MR. LERI: Okay. I just didn't know how to preserve that if the court
"THE COURT: No. Absolutely anything you want to put on the record is fine.
"MR. LERI: I just want to point out that the instruction that was announced in court was that the entire testimony of Tiffany would be read, and apparently from what a note—or whatever came out, only a portion of her testimony was read.
"THE COURT: The court reporter advised me that when she went in, they requested to read a portion of the testimony.
"MR. LERI: So the totality was never read.
"THE COURT: As I understand it, that's correct.
"MR. LERI: Okay. Thank you. I wasn't quite
"THE COURT: That's why I wanted to put that on the record before the jury was called in, before I had ever seen the verdict. That's why I put that on the record.
"MR. LERI: Okay.
"THE COURT: So I think the record is well preserved.
"MR. LERI: Good. Thank you.
"THE COURT: So anything further before I'm going to give them their final instructions and allow them to leave?
"MR. LERI: No."
II. DISCUSSION
A. Claim of Structural Error
"After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." (Pen. Code, § 1138.) Defendant asserts the trial court committed structural error that requires reversal without a showing of prejudice by abdicating control of the readback process and failing to preserve a record of what portions of the testimony were read back. The People contend this claim is forfeited. We will begin by analyzing the forfeiture question and then address both aspects of defendant's claim of structural error separately.
Undesignated statutory references are to the Penal Code.
1. Forfeiture
We conclude that defendant's appellate claim is forfeited by his acquiescence in the trial court. (People v. Robinson (2005) 37 Cal.4th 592, 634; People v. Roldan (2005) 35 Cal.4th 646, 729-730 (Roldan), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) As our Supreme Court explained in Roldan, defendant's citation to People v. Litteral (1978) 79 Cal.App.3d 790 to assert that forfeiture does not apply in this situation is without merit: "Litteral is of doubtful validity because it permitted a defendant to assert what is essentially the jury's right to a readback of testimony. [Citation.] In any event, the case is distinguishable, for there the trial court refused to read back portions of the trial, although the jury requested the readback. The jury was thus deprived of critical information it desired to make a decision." (Roldan, supra, at p. 729.) Here, the court granted the request, but when the court reporter went in to do the reading, the jury only wanted a portion of the testimony read. Thus, by all indications, the jury heard all the testimony they wanted to hear. (See People v. Gordon (1963) 222 Cal.App.2d 687, 689 ["If the testimony actually read to them did not contain the matters they wished to hear, they surely would have said so"].) Consequently, the principles of forfeiture apply to this case under Roldan and its progeny.
Defendant argues his "trial counsel created a record that the court reporter did not provide the requested readback, impliedly stating his objection to the procedure." We disagree that his counsel's clarification amounted to an objection.
Defendant alternatively contends that an objection would have been futile because the jury had already reached their verdict when defendant was informed that only a partial readback occurred. The verdict had not yet been returned, and so it was still subject to reconsideration by the jury. (People v. Castro (1986) 184 Cal.App.3d 849, 856.) A defendant "cannot be permitted to sit back and acquiesce in the procedure used, await a jury verdict, and then assert error . . . during the readback." (People v. Rhoades (2001) 93 Cal.App.4th 1122, 1126.) Moreover, defendant also failed to move for a mistrial. " 'The failure of defendant's counsel to object or move for a mistrial upon the court frankly informing him of the court's action might also be construed to be a tacit approval. Approval of the court's action, even though it might have been a technical violation of section 1138 . . . , cures any possible error.' " (Roldan, supra, 35 Cal.4th at p. 729.) Under the circumstances, defendant's failure to raise any objection to the procedure or move for a mistrial cures any possible error.
2. Judicial Control Over Readback
In any event, defendant's claim of structural error is without merit. The trial court complied with section 1138 by directing the reporter to read Tiffany's testimony to the jury in its entirety after notice to the parties. In this case, it appears the jury heard everything they wanted to hear. (See People v. Gordon, supra, 222 Cal.App.2d at p. 689.) Thus, there was no violation of the jury's right under section 1138 to be apprised of the evidence. Accordingly, defendant's assertion of structural error relies largely on Riley v. Deeds (9th Cir. 1995) 56 F.3d 1117 (Riley) and his contention that the trial court here abdicated control of the readback process. The Ninth Circuit has subsequently acknowledged the holding in Riley is limited to its particular facts. (United States v. Arnold (9th Cir. 2001) 238 F.3d 1153, 1155.) In Riley, the jury requested readback of the victim's testimony at a time when the trial judge was not in the courthouse and could not be located. (Riley, supra, at p. 1119.) The judge's law clerk apparently made the decision to grant the request without consulting the judge, and told the jury the court reporter would read the victim's testimony and the foreman should raise his hand when the jury heard enough. (Id. at pp. 1119-1120) The foreman raised his hand to terminate the readback at the conclusion of the victim's direct examination. (Id. at p. 1119.) In this context, the Ninth Circuit concluded there was "a complete abdication of judicial control over the process," (id. at p. 1121) and reversed without an assessment of prejudice (id. at p. 1122).
Again, for this reason, People v. Litteral, supra, 79 Cal.App.3d 790 is inapplicable. Therefore, defendant's reliance on a portion of this opinion analyzing prejudice and noting there was no inquiry into what testimony the jury sought is misplaced. (See id. at p. 797.) Defendant must first establish error for this holding to apply, and he has failed to do so. Further, we reiterate that "Litteral is of doubtful validity." (Roldan, supra, 35 Cal.4th at p. 729.) --------
The circumstances of this case are different. The trial judge was present to receive the jury's readback request, she ruled on it, and she was apparently available to address any questions that might have arisen during the readback. Defendant nonetheless claims the court abdicated control over the readback process by "allowing the court reporter to decide which testimony was responsive to the jurors' questions." We disagree. This case is similar to People v. Ayala (2000) 23 Cal.4th 225. There, defense counsel and defendant waived their right to be present and let the jurors hear readback in the deliberation room. (Id. at p. 288) When the trial court announced the jury had reached a verdict, it also read a note from the foreperson informing the court that the jury had asked the court reporter to stop reading the requested testimony somewhere during defendant's cross-examination. (Ibid.) In concluding defendant's counsel did not render ineffective assistance in waiving the right to be present during readback, our Supreme Court stated, " ' "It is presumed that official duty has been regularly performed. . . ." (Evid. Code, § 664.) This presumption applies to . . . court reporters . . . .' [Citation.] Therefore we assume the reporter properly read the testimony until stopped by the jury." (Id. at p. 289.) We make similar assumptions regarding the court and the court reporter here. Unlike in Riley, there was no "complete abdication of judicial control over the process," and no structural error. (Riley, supra, 56 F.3d at p. 1121.)
3. Record of Readback
With respect to defendant's claim that failure to preserve a record regarding what portions of Tiffany's testimony were read back also constituted (or at least contributed to) structural error, our Supreme Court has "emphasized that interrogating jurors in the middle of their deliberations is a delicate business and courts should take care lest they inadvertently coerce a verdict." (Roldan, supra, 35 Cal.4th at p. 730.) "In any event, state law entitles a defendant only to an appellate record 'adequate to permit [him or her] to argue' the points raised in the appeal. [Citation.] Federal constitutional requirements are similar. The due process and equal protection clauses of the Fourteenth Amendment require the state to furnish an indigent defendant with a record sufficient to permit adequate and effective appellate review. [Citations.] . . . The defendant has the burden of showing the record is inadequate to permit meaningful appellate review." (People v. Rogers (2006) 39 Cal.4th 826, 857-858.) And a record of what portions of Tiffany's testimony were read back would serve no purpose in this case. "Although the mandate of . . . section 1138 is an important protection for a party, it is the right of the jury which is the primary concern of the statute; its provisions do not delegate to the trial judge, the parties, or their attorneys the right to determine the jury's wishes." (People v. Butler (1975) 47 Cal.App.3d 273, 283.) Indeed, if the defendant had "demanded that the reporter continue to reread the testimony, defendant could not have compelled the trial court to order the jury to continue to listen to the rereading of testimony once it was satisfied it had heard enough." (People v. Ayala, supra, 23 Cal.4th at p. 289; see also People v. Gordon, supra, 222 Cal.App.2d at p. 689 [" 'If the jury did not wish to hear it read the court was not required to compel them to listen to it' "].) And here defendant never made such a demand. Under these circumstances, the mere fact we do not know what portions of Tiffany's testimony were read does not have any impact on our review of defendant's claims or equate to structural error. B. Alleged Prosecutorial Misconduct
Defendant also contends on appeal that the prosecutor committed prosecutorial misconduct in her closing statement. "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, . . . when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.] [¶] At closing argument a party is entitled both to discuss the evidence and to comment on reasonable inferences that may be drawn therefrom." (People v. Morales (2001) 25 Cal.4th 34, 44.)
" 'To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument.' " (People v. Linton (2013) 56 Cal.4th 1146, 1205.) A court will excuse a defendant's failure to do so only if doing either would have been futile or if " ' "an admonition would not have cured the harm caused by the misconduct." ' " (People v. Hill (1998) 17 Cal.4th 800, 820.) Here, neither exception to the rule requiring a timely objection to purported misconduct in argument applies.
Acknowledging that his trial attorney failed to object, defendant argues we should reach the merits of his misconduct claim because his attorney was ineffective in failing to object to purported prosecutorial misconduct during closing argument. Thus, we will consider the issue of prosecutorial misconduct in the context of that assertion.
To prevail in showing ineffectiveness of counsel, a defendant must show his attorney acted below the standards of professional competence and that there is a reasonable probability he would have obtained a more favorable result in the absence of counsel's failings, that is, if counsel had objected and sought admonitions. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) We begin with an assessment of whether the prosecutor's statements during closing argument amounted to misconduct. If they did not, then defense counsel was not ineffective in making no objection. (People v. Thomas (1992) 2 Cal.4th 489, 531.)
"Impermissible vouching occurs when 'prosecutors [seek] to bolster their case "by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it." [Citation.] Similarly, it is misconduct "to suggest that evidence available to the government, but not before the jury, corroborates the testimony of a witness." ' " (People v. Linton, supra, 56 Cal.4th at p. 1207.) "However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching." (People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
On appeal, defendant contends the prosecutor committed prosecutorial misconduct by calling Tiffany "honest" and using CSAAS as evidence that she was honest and therefore credible. Defendant also asserts the prosecutor's argument contravened the instruction regarding CSAAS and misleadingly argued the expert testimony demonstrated that molestation had occurred. We disagree that the comments were improper.
The prosecutor did not suggest she was privy to additional evidence outside of the record or that the jury should trust her because she was the prosecutor. The prosecutor's remarks were based on the record, rather than her personal belief or knowledge. The CSAAS evidence was evidence in the record. The instances in which the prosecutor commented on Tiffany's honesty were all in the context of describing testimony about what defendant did not do. That admitting he had not done these things was honest is a reasonable inference to draw from the record because that he had not done these things is undisputed. The prosecutor also stated, "[Tiffany] said that when she was younger, it happened a lot more, but as she got older, it slowed down. How honest is that? Credible." "Read in context, the challenged comments urged the jury to credit the witnesses' testimony based on matters within the record, not matters within the prosecutor's own personal knowledge." (People v. Farnam (2002) 28 Cal.4th 107, 170; accord People v. Ochoa (2001) 26 Cal.4th 398, 443, abrogated on another point as noted in People v. Prieto (2003) 30 Cal.4th 226, 263 fn. 14.) Thus, we conclude there was no improper prosecutorial vouching.
Likewise, the prosecutor's comments regarding CSAAS were not improper. The jury was instructed regarding CSAAS based on CALCRIM No. 1193: "You have heard testimony regarding child sexual abuse accommodation syndrome. 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 Tiffany's conduct was not inconsistent with the conduct of someone who had been molested and in evaluating the believability of her testimony." This was the argument the prosecutor made—that Tiffany's conduct including delayed disclosure, behaving normally, and an inability recall certain information, was consistent with someone who had been molested and could be considered in evaluating her credibility. And this is the proper use of CSAAS evidence—dispelling specific misconceptions the jury may hold about how a victim should react. (See In re S.C. (2006) 138 Cal.App.4th 396, 418 ["CSAAS is admissible evidence for the limited purpose of disabusing the fact finder of common misconceptions it might have about how child victims react to sexual abuse"]; People v. Patino (1994) 26 Cal.App.4th 1737, 1745 [CSAAS testimony as part of case-in-chief was proper where it "was offered for the limited purpose of explaining why [the victim] did not immediately inform anyone of her molestation and why she slowly revealed the details of the molestation"].) No prejudicial misconduct occurred. Accordingly, defendant's trial counsel was not ineffective in failing to object.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J.
We concur:
/S/_________
MAURO, Acting P. J.
/S/_________
MURRAY, J.