Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 199589 MCN 2244516
Jenkins, J.
Defendant and appellant Eduardo Pascual Naval (defendant) appeals the judgment entered after a jury found him guilty of various offenses, including continuous sexual abuse of his daughter K.N., in violation of Penal Code, section 288.5. We affirm in part, reverse in part and remand the matter for resentencing.
Further statutory references are to the Penal Code unless otherwise noted.
Procedural Background
On September 6, 2006, the San Francisco District Attorney filed an information alleging in count 1 that defendant engaged in continuous sexual abuse of his daughter K.N. while she was under fourteen years old, in violation of section 288.5. In count 2, the information alleged that defendant threatened death or great bodily injury against his wife E.N., in violation of section 422. In count 3, the information alleged that defendant willfully prevented and dissuaded E.N. from giving testimony at trial, in violation of section 136.1, subdivision (c)(1). In count 4, the information alleged that defendant committed assault with a deadly weapon, to wit, a hammer, against E.N., in violation of section 245, subdivision (a)(1).
Trial proceedings began on September 25, 2007. On October 31, 2007, the jury returned guilty verdicts on all four counts. At a hearing on February 21, 2008, the trial court sentenced defendant to the midterm of three years on count 4, assault with a deadly weapon (§ 245), and designated that sentence the principle term. On count 3, dissuading a witness (§ 136.1), the court imposed the midterm of three years to run consecutively. On count 2, issuing a criminal threat (§ 422), the court imposed the midterm of two years, stayed pursuant to section 654. On count 1, continuous sexual abuse (§ 288.5), the court imposed the midterm of 12 years to run consecutively. The court imposed a total term of imprisonment of 18 years. Defendant filed a timely Notice of Appeal on February 26, 2008.
Facts
San Francisco Police Officer John Keesor testified that he was on uniformed vehicle patrol on April 9, 2004. At around 6 p.m., he responded to a 911 report of domestic violence at a house in San Francisco. When Keesor arrived at the scene, E.N. was there with her daughter K.N. and son Ke.N. Keesor described the Naval residence as a small in-law unit downstairs from the main house where another family lived above. Entry to the unit leads directly into the kitchen/living room area. The bedroom was to the rear of the unit. The only other room is a bathroom. E.N. told Keesor what happened. Keesor described E.N. and the children as visibly “shaken up.” Keesor noticed that the bedroom door had been forcibly ripped off its hinges and the handle was missing. Where the handle had been, there was “one oblong hole, but it was two circular holes that were punched into the door which created one big hole.”
Defendant’s daughter K.N. was born in 1990, and at the time of trial in October 2007 she was 16 years old. K.N. testified that in April 2004, she was in eighth grade and was 13 years old. She lived with her family in the downstairs in-law unit. The whole family slept in one bedroom with a king-sized bed and a bunk bed. Her parents slept on the king-sized bed. K.N. slept on the top bunk and her younger brother Ke.N. slept in the lower bunk.
K.N. testified that when she was eight years old, defendant started coming into her bunk bed and touching her breasts. This happened “almost every week,” early in the morning while her brother was asleep and after her mother had gone to work. After K.N. turned nine years old, the “touching changed” and defendant began to touch her vagina. K.N. said defendant “would put his hand on my crotch and just start rubbing.” Defendant would also try to force K.N.’s hand down his pants and rub his penis against her. This too happened after K.N.’s mother left for work and her brother was either asleep or getting ready for school. K.N. testified that after she was ten years old defendant began to put his penis inside her vagina. When K.N. told defendant to stop, he threatened to tell what they were doing and said they “would both get in trouble.” K.N. did not tell anyone because she was “scared” of defendant. K.N. testified that “basically the same stuff [] went on every week until I was 13.” Almost every week, usually on K.N.’s bunk, defendant would put his penis into K.N.’s vagina. Most of the time, defendant would remove his penis before he ejaculated. Afterwards, K.N. said she would “first clean myself up and then get rid of the bed sheet, try and clean it.” During this time, defendant told K.N. not to tell anyone. When K.N. told defendant to stop, defendant would “get mad and say you just want to have sex with the other boys at school.” Also, K.N. said defendant told her he thought that “all I did at school was flirt and have sex with the other boys.”
K.N. testified that on April 9, 2004, she finally told her mother about what defendant had been doing to her. Her mother called defendant and he drove straight home. K.N. and Ke.N. were upstairs in the other unit when defendant came home. K.N. could hear defendant and her mother arguing downstairs. K.N. then heard defendant running up the stairs. Defendant saw his daughter K.N. and hit her. He told K.N. and Ke.N. to go downstairs. Defendant was yelling that K.N. was a liar. K.N.’s mom said she was going to take the children somewhere else. Defendant got mad and locked the front door. Defendant then “went into the drawer and got something.” K.N.’s mother took her, and her brother Ke.N. into the bedroom and locked the door. Defendant started banging on the bedroom door, yelling “Open the door. Let me in.” K.N. was terrified and she and Ke.N. were crying. K.N.’s mother called 911. Defendant finally broke the door down just as K.N. heard police sirens coming towards the house. Defendant calmed down: “He dropped whatever he was hitting the door with and then he was basically apologizing.” Defendant left before the police arrived.
E.N. testified that she married defendant in 1990 and divorced him in 2006. They had two children together, a daughter K.N. and a son Ke.N. E.N. stated that the family lived in the downstairs in-law unit for twelve years before she and the children left on April 9, 2004. As of April 9, 2004, E.N.’s regular work schedule as a nursing assistant was from 7 a.m. to 3.30 p.m., Thursday through Sunday. Defendant worked Monday-Friday from 9 a.m. to 5 p.m. On the days E.N. worked, defendant would get the children ready for school and take them to the bus stop.
E.N. further testified that on April 9, 2004, K.N. asked if she could go and stay with her grandmother for the weekend. E.N. told K.N. defendant did not want her to go. K.N. started crying, called defendant a “fucking molester” and told E.N. about how defendant had abused her since she was eight years old. E.N. called defendant and defendant said K.N. was not telling the truth. E.N. took the children upstairs because she thought defendant would come home. Defendant arrived home about thirty minutes later. He was really mad, said K.N. was a liar and that E.N. should take K.N. to the doctor and have her checked. E.N. and defendant went upstairs to get the children and then came back downstairs to talk. Defendant kept trying to grab K.N. but E.N. put herself between them to protect K.N. E.N. told defendant she and the children were going to leave him. Defendant said he would kill them if they left him or told anyone what happened to K.N. Then defendant went into the kitchen and started to look for something inside the drawer. E.N. grabbed the two children, went into the bedroom and locked the door. E.N. was “really scared” and the children were screaming, crying and hugging her. Defendant started banging loudly on the door, yelling he was going to kill them. E.N. tried to call 911 on the house phone but the line was dead, so she used K.N.’s cell phone to call 911. The banging on the door continued until defendant succeeded in breaking the door down. Defendant was standing in the doorway and E.N. saw a hammer on the floor next to him. Defendant asked for forgiveness. E.N. could hear police sirens in the distance. At the sound of the sirens, defendant left the house.
At the time of trial K.N.’s younger brother Ke.N. was a junior in high school. Ke.N. testified that in April 2004 he was 12 years old and in 7th Grade. Regarding the events of April 9, 2004, Ke.N. testified that after he got home from school, K.N. told her mother that defendant had been molesting her. His mother called defendant and he came home. Ke.N.’s parents began arguing. Defendant was yelling and began looking for K.N., who was in the apartment upstairs. Ke.N. tried to stop defendant from going upstairs but defendant pushed him out of the way. Defendant hit K.N. on the head and accused her of lying. Ke.N. stated that after his mother told defendant she did not believe him, defendant “goes into the kitchen, tries to get something to hurt us with.” Ke.N., K.N. and their mother went into the bedroom and Ke.N.’s mother locked the door. Ke.N. heard defendant outside the door yelling “You better open this door or else.” Ke.N. and his mother were holding the door and his mother used K.N.’s cell phone to call 911. Defendant was pounding on the bedroom door with a hammer. After defendant broke the door down, Ke.N. saw him standing in the doorway with the hammer still in his hand. Defendant said, “If you tell anyone about this, then I’ll kill all of you.”
The prosecution also presented the testimony of several expert witnesses during the course of the trial. Janet Hines testified as an expert in the area of forensic examination of children. In April 2004, Janet Hines worked at the Child and Adolescent Support Advocacy and Resource Center (CASARC) located on the campus of San Francisco General Hospital. CASARC is a Department of Public Health agency responsible for providing services to children and adolescents who are suspected of having been physically or sexually abused. Hines conducted a forensic examination of K.N. on April 20, 2004 and prepared a report using the form for non-acute forensic examinations, i.e., those conducted more than 72 hours since the last reported act of abuse. During the standard preliminary interview, K.N. reported “multiple incidents over time since she was eight years old.” K.N. reported the alleged perpetrator was her father. K.N. further reported genital and vaginal contact, penetration by penis and finger and sucking of her breasts. K.N. stated that her menstrual periods had begun at the age of eleven.
During the genital examination, Hines noted that K.N. had “an estrogenized redundant hymen.” According to Hines, when estrogen is released into the body at puberty, the hymen changes from “being like a stretched piece of membrane to being redundant, meaning it’s very loopy and kind of folds onto itself.” Hines probed that area and found a transection towards the bottom part of the hymen. A transection is a complete separation of the hymen from the edge to the base. The transection had completely healed and the edge was completely smooth. In the report, Hines noted: “Well-healed transection, difficult to determine due to redundant tissue. Will review photos.” Hines stated that the photos were too out of focus to show what she had seen with the naked eye in the examination. Hines testified that if the person being examined was consensually sexually active, then a transection of the hymen would not be an unusual finding. However, based on the history given by K.N. that she was not consensually sexually active, Hines opined that a transection of the hymen was an abnormal finding. Hines opined that in light of this abnormal finding, K.N. had experienced penetrating trauma to her vagina at some time in the past, and over time the trauma had completely healed.
Dr. Tonya Chaffee testified as an expert in the area of pediatrics. Chaffee stated that she is the medical director for CASARC. Chaffee did not review any files for this case and never examined K.N. Chaffee testified regarding the stages of female pubertal development and their relationship to ovulation and pregnancy. Chaffee testified that when a female first begins to menstruate her periods can be irregular. In addition, Chaffee testified that because a female has monthly periods it does not necessarily follow that she is ovulating because it can take up to two years after menarche (a female’s first menstrual period) until the menstrual cycle consistently reflects the ovulatory cycle. The prosecutor posed a hypothetical to Chaffee and asked her to assume a child starts her period at eleven years old, that her father vaginally penetrates her with his penis every week until she is thirteen years old; and that father ejaculates outside of the child’s body three out of four times. Based upon this hypothetical, the prosecutor asked Chaffee if she would expect that child to get pregnant. Chaffee responded that she could not answer that question because “there’s too many variables at that age.”
Dr. Anthony Urquiza, a psychologist and social professor in the Department of Pediatrics at the UC Davis Medical Center in Sacramento, testified as an expert in the area of child sexual abuse, in particular the Child Sexual Abuse Accommodation Syndrome (CSAAS). Urquiza explained that CSAAS was first discussed by Roland Summit in an article published in the Journal of Child Abuse and Neglect in 1983. Summit’s purpose in publishing the article was to dispel the common myths and misunderstandings that therapists had about how children react to sexual abuse. CSAAS is an educational tool designed to help mental health therapists better treat child victims of sexual abuse. CSAAS is not a diagnostic tool for evaluating mental health problems. Urquiza acknowledged that CSAAS is not a recognized mental health or medical disorder like those listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the medical psychiatric association.
Urquiza’s testimony focused on the myths and misconceptions that CSAAS is meant to dispel. There are several myths and misconceptions addressed by CSAAS, the first of which is secrecy. The myth is that an abused child will immediately tell about the abuse, whereas the reality is children are often abused by someone with whom they have an ongoing relationship. Because the abuser is in a position to either directly or indirectly threaten the victim, the overall effect is that children keep quiet about the abuse. Another myth addressed by CSAAS is helplessness. The myth is that a child subjected to abuse will fight off her attacker or run away. The reality is that the child is younger and smaller than her abuser and the abuser is in a position of control and authority. Due to these factors, children cannot ensure their own sexual safety. CSAAS also addresses myths that have two components, the first of which involves entrapment and accommodation. Regarding entrapment, the myth is that an abused child would necessarily take some action that would result in disclosure of the abuse. The reality is that a child who is being sexually abused and is induced to keep it secret cannot prevent it from happening again. There is a resulting sense of helplessness or entrapment. Regarding accommodation, the myth is that a child will become distraught and react in a very emotional way when talking about having been sexually abused. The reality is that because child victims of sexual abuse feel powerless to stop it, they “dissociate” from it by “disconnect[ing] a part of their sense of reality in order to function.” CSAAS also addresses myths related to delayed and unconvincing disclosure. Regarding delayed disclosure, the myth is that a child will report sexual abuse immediately, whereas the reality is that a significant period of time can elapse between the abuse and its disclosure by the child. Regarding unconvincing disclosure, the myth is that a child will report the abuse in a clear and direct manner. The reality is that because children have fears about disclosing, they often refer to the abuse in a vague or oblique way. If the response is supportive, the child will reveal more and in this way go through a “process of disclosure.”
On cross-examination, Urquiza acknowledged that CSAAS was not developed through research and empirical study based on the analysis of data. Rather, according to Urquiza, Summit saw his CSAAS article as a “conceptual” piece “describing what commonly occurs” with a child who has been sexually abused. Urquiza also acknowledged that the assumption underlying CSAAS is that “the therapist assumes a child is telling the truth [about the abuse] and then acts as an advocate on their behalf.” CSAAS does not address the issue of whether a child has, in fact, been sexually abused.
Dr. Shannon Thyne, medical director of the Children’s Health Center at San Francisco General Hospital, testified as an expert in the area of pediatrics and child sexual abuse. Thyne stated that at one time she acted as interim medical director of CASARC. In that capacity, she was part of a group of physicians and nurses who reviewed all CASARC cases on a monthly basis. Thyne stated that when she viewed the photos taken by Hines she was unable to make an independent assessment of the injury or findings because the photos were out of focus. In such cases, the review group relied “on the drawings on the physical exam form that were done by the original examiner and that examiner’s assessment.”
Thyne also testified about the concept of conditioning. Conditioning is the process by which minimal physical contact, such as hand holding, can progress to the point of maximal physical contact, such as vaginal penetration with a penis or other object. The process allows the body to become conditioned to the physical and physiologic changes at each stage of physical contact. Conditioning enables the body “to accommodate what is going to happen next,” thus reducing the chance of traumatic injury in the abused victim. The prosecutor posed a hypothetical to Thyne and asked her to assume that “a female child is molested from eight years old to 13 years old by her father. The molestation starts by touching of the breast. Then the father uses his hands to fondle the child’s genitals. A finger is also used. Then around 9 or 10, the father starts rubbing his penis around her genital area. And finally, the father penetrates the child’s vagina with his penis.” Based upon this hypothetical, the prosecutor asked Thyne if she would expect to see injury. Thyne opined that unless the person was examined acutely (within 72 hours) after each of these events, “there’s really no way to know whether an injury occurred.” Also, the process of conditioning would make the likelihood of injury less.
The defense also presented the testimony of several experts as well as a police officer assigned to investigate the alleged sexual abuse against K.N. Dr. Diana Everstine testified as an expert in the area of trauma response as it pertains to clinical psychology. Everstine testified that child sex abuse accommodation syndrome (CSAAS) is not a recognized diagnostic tool for evaluating trauma in a child sexual abuse victim. Recognized diagnostic tools are those listed in the diagnostic manual of the American Psychiatric Association. Everstine opined that post traumatic stress is a recognized diagnostic tool that could be useful in evaluating whether a child had been subjected to penile-vaginal intercourse by her father. In this regard, Everstine stated that “incestuous rape... is a very, very serious trauma,” and a child who had been raped over a period of time by her father “would be suffering one of the forms of post traumatic stress.” These characteristics, according to Everstine, “go in two directions: Avoidant and intrusive.” Persons who exhibit avoidant characteristics of post traumatic stress “shut down” and experience emotional numbing. They can appear distracted and talk in a monotone voice, known as a “flat affect.” Persons who exhibit intrusive characteristics have flashbacks and relive events in their head. They experience mood swings, anxiety and may exhibit “behavior problems.” Everstine opined that a child who suffers such prolonged incestuous rape as K.N. is “pretty much 100%” likely to experience post traumatic stress.” Everstine stated that “[t]o have a child raped by her father once a week and sometimes more for three years is a horrible, horrible trauma. And I would expect there to be evidence of the pain, the trauma to be there.”
Dr. Steven Gabaeff is an emergency room physician who testified for the defense as an expert in emergency room medicine including examinations for child sexual assault. Gabaeff testified that he reviewed the photos taken by Hines during her examination of K.N. Gabaeff said the photos were “the tiniest amount” out of focus but that the hymen was visible “with as much detail as is required to do an analysis of its condition.” The photos, according to Gabaeff, did not show a transection of the hymen. The photos showed “a perfectly smooth, round, and intact hymen, the kind that’s called a cuffed hymen.” Gabaeff opined that, if K.N. had been subjected to the repeated penile-vaginal intercourse as she claimed, it would have resulted in a “complete disfigurement of the hymenal anatomy.” Gabaeff opined that the photos were not consistent with a young girl who had been subjected to multiple intercourse with an adult male. Because of the small diameter of a young girl’s vagina compared to the much greater diameter of an adult male penis, penile-vaginal penetration would result in significant tearing not only in the hymen but also to tissue on the vaginal walls. Gabaeff rejected the idea that such significant tearing can heal without scarring or any other sign of the injury.
The defense also called San Francisco Police Officer Liane Corrales, the inspector assigned to investigate the alleged sexual abuse against K.N. Corrales kept a chronological log of the case. Corrales confirmed that according to the log, she placed a call to CASARC on April 21, 2004. Corrales spoke with someone at CASARC named Janet. Regarding K.N.’s examination, Corrales’ log reflects that Janet said, “So far, exam normal, not all results [are] in.”
Discussion
A. Assault With a Deadly Weapon
After the prosecution rested, counsel for defendant moved for acquittal under section 1118.1 on count four, the charge of assault with a deadly weapon in violation of section 245. Defendant asserts the trial court’s denial of his section 1118.1 motion was error because the evidence was insufficient to sustain the charge of assault with a deadly weapon against E.N.
“ ‘The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to [Penal Code] section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.” ’ ” (People v. Stevens (2007) 41 Cal.4th 182, 200.) We independently review a trial court’s ruling under Penal Code section 1118.1 as to the sufficiency of the evidence to support a conviction. (People v. Cole (2004) 33 Cal.4th 1158, 1213.) Under sufficiency of the evidence review, we must examine “ ‘the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ (Citations.) The court does not, however, limit its review to the evidence favorable to the respondent.” (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) Rather, “ ‘our task... is twofold. First, we must resolve the issue in the light of the whole record ─ i.e., the entire picture of the defendant put before the jury ─ and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements... is substantial; it is not enough for the respondent simply to point to “some” evidence supporting the finding, for ‘ “Not every surface conflict of evidence remains substantial in the light of other facts.” ’ (Citation.)” (Id. at p. 577.)
The jury was instructed on the assault with a deadly weapon charge pursuant to CALCRIM 875, which stated in pertinent part: “The defendant is charged in Count 4 with Assault With A Deadly Weapon. [¶] To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person;
“2. The defendant did that act willfully;
“3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and
“4. When the defendant acted, he had the present ability to apply force with a deadly weapon to a person. [italics added.]”
In denying defendant’s section 1118.1 motion, the trial court ruled as follows: “There was evidence that, if believed, that [defendant] used the hammer in a way not only just to take the door down, but also to break through the door, that left, if believed, holes through the door, that it was a pounding through the door in the direction of the people who were holding the door on the other side. [¶] So the court finds sufficient evidence for the charge.”
Defendant argues that there was no evidence that he acted with the requisite general intent required for assault with a deadly weapon, i.e., that he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone. In this regard, defendant contends there is no evidence defendant knew that pounding on the door and putting a hole in it at the door knob, would directly and probably result in the application of force to E.N.
Respondent counters that there was sufficient evidence of intent because the record supports a “reasonable inference was that appellant repeatedly struck the door with the hammer in an attempt to attack E.N., who was locked in the bedroom. Striking a hammer at a door with someone on the other side, where the strikes were strong enough to punch holes in the door, constituted an act that a jury could find that by its nature would probably and directly result in physical force being applied to the person on the other side of the door.” Having considered the opposing arguments of the parties and the cases proffered by them, we are persuaded by defendant’s contention that there is insufficient evidence on the element of intent.
Accordingly, we need not address defendant’ s further contentions that there is insufficient evidence of his present ability to commit the assault and that the hammer was not a deadly weapon under the facts of the case.
Our Supreme Court addressed the intent requirement for assault in People v. Williams (2001) 26 Cal.4th 779 (Williams). The case arose from a confrontation between Williams and Gregory King based on their rivalry for the affections of Deborah Nicholson. Williams was living with Deborah at the time. King and his two teenage sons drove to Deborah’s house because King wanted to ask her to come with them on a camping trip. King parked his truck at the front curb, put a note on Deborah’s front door, and knocked on the door. King then retreated to his truck hoping that Deborah would come out and talk to him. However, Williams emerged, and told King to stay away from Deborah. To make his point abundantly clear, Williams retrieved a 12-gauge shotgun from his truck parked in the driveway and fired a “warning shot” directly into the rear passenger wheel well of King’s truck. (Williams, supra, 26 Cal.4th at pp. 782-783.) “Defendant testified that, at the time he fired the shot, King’s truck was parked between him and King, and that he saw King crouched approximately a foot and a half away from the rear fender well of the truck.... [¶] Although defendant did not hit King..., he did hit the rear tire of King’s truck. The shotgun pellets also left marks on the truck’s rear wheel well, its undercarriage, and its gas tank.” (Id. at p. 783.) After the Court of Appeal reversed William’s jury-trial conviction for assault with a deadly weapon for instructional error, the Supreme Court “granted review to clarify the mental state for assault.” (Ibid.)
Surveying its precedents on the issue, the Supreme Court noted that although it had “conclusively classified assault as a general intent crime,” it had also “cautioned against the rote application of the general/specific intent framework.” (Williams, supra, 26 Cal.4th at p. 785.) The crime of assault, the court explained, “has always focused on the nature of the act and not on the perpetrator’s specific intent. An assault occurs whenever ‘ “[t]he next movement would, at least to all appearance, complete the battery.” ’ (Citation.)” (Id. at p. 786.)
The court observed, however, that because “assault criminalizes conduct based on what might have happened − and not what actually happened − the mental state for assault incorporates the language of probability, i.e., direct, natural and probable consequences.” (Williams, supra, 26 Cal.4th at p. 787.) This “language of probability,” said the court, had caused confusion because it “arguably implies an objective mental state consistent with a negligence standard.” (Ibid.) To dispel any confusion on this point, the court clarified the mental state for assault as follows: “[A] defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known. He, however, need not be subjectively aware of the risk that a battery might occur.” (Id. at p. 788.)
The court emphasized that even with this newly-announced “knowledge requirement” assault is still a general intent crime and does not require a specific intent to injure the victim. (Williams, supra, 26 Cal.4th at p. 788.) However, “mere recklessness or criminal negligence is [] not enough (citation), because a jury cannot find a defendant guilty of assault based on facts he should have known but did not know (citation).” (Ibid.)
The court concluded that the jury instruction in question was “potentially ambiguous” because it could conceivably result in a conviction even if defendant “did not actually know the facts sufficient to establish that his act by its nature would probably and directly result in a battery.” (Williams, supra, 26 Cal.4th at p. 790 [italics added].) “Nonetheless,” the court stated, “any instructional error is largely technical and is unlikely to affect the outcome of most assault cases, because a defendant’s knowledge of the relevant factual circumstances is rarely in dispute. Indeed, this case corroborates this observation. Here, defendant admitted he loaded his own shotgun with two shotgun rounds. He further testified that he knew that King, the alleged victim, “was crouched on the far side of the truck between the rear fender and the cab.” Finally, defendant admittedly fired a warning shot at King’s truck even though he knew that King was in the near vicinity. In light of these admissions, defendant undoubtedly knew those facts establishing that his act by its nature would directly, naturally and probably result in a battery.” (Ibid.) Accordingly, the court held that “any minor ambiguity in the instruction was harmless beyond a reasonable doubt.” (Ibid.)
Unlike the record in Williams, defendant’s knowledge of the relevant factual circumstances is in dispute. The trial court’s rationale in denying defendant’s 1181.1 motion was that defendant “pound[ed] through the door in the direction of the people who were holding the door on the other side.” However, of critical significance here is the fact that no evidence was presented from which it can be inferred defendant knew that E.N. (the victim) was pressed against the other side of the door. Patently, defendant knew that E.N., K.N. and Ke.N. had locked themselves in the bedroom, but nothing in the record establishes that he knew E.N. was against the door, or for that matter was aware of her relative position in the room, while striking the door with the hammer. Ke.N. testified that he and his mother E.N. were holding the door. E.N. testified that the children were screaming, crying and hugging her, but did not say whether they were holding the door at this time or were further back in the bedroom. K.N.’s testimony is silent on this point. There is nothing in the record from which we can infer that defendant was aware of the fact [E.N. was holding the door] that would be sufficient to establish that his act [pounding on the door with a hammer with sufficient force to penetrate the door] would by its nature probably and directly result in a battery. The case at bar is in stark contrast to Williams, supra, where Williams knew that King was crouched close to the point at which he aimed the shotgun blast. Upon examining the record, we conclude it lacks substantial evidence that defendant actually knew the facts “sufficient to establish that his act by its nature would probably and directly result in a battery.” (Williams, supra, 26 Cal.4th at p. 790.) Therefore, defendant’s conviction for assault with a deadly weapon on E.N. must be reversed.
B. Unanimity
In regard to count two (§ 422 [threatening great bodily injury]), count three (§ 136.1 [dissuading a witness]) and count four (§ 245 [assault with a deadly weapon]), the trial court instructed the jury according to CALCRIM 3500 as follows: “The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts for each offense charged in Counts 2, 3, and 4, and you all agree on which act he committed for the offense charged in each of these Counts.”
Despite the jury instruction on this point, defendant argues that the trial court “failed to require a unanimous verdict” on count two and count three. Defendant asserts that in closing argument the prosecutor did not make a clear election of the specific time or instance upon which she was relying, stating only that the threat was “he is going to kill the entire family if they tell anyone or if they leave him.” Defendant further asserts “there were at least three distinct times at which the charged single act could be found.... There was no clear election by the prosecutor. The general unanimity instruction required agreement on the specific act but not which time it took place.” (Italics added.) We disagree.
The court instructed the jury it not only had to find defendant “committed at least one of these acts for each offense charged” but that it also had to “agree on which act he committed for the offense charged in each of these Counts.” The jury was properly instructed on the unanimity requirement under CALCRIM 3500, and we assume the jury understood and followed the court’s instruction. (People v. Holt (1997) 15 Cal.4th 619, 662.) We decline to accept defendant’s invitation to speculate that the jury failed to follow the instruction given here. We find no error in the instruction given and defendant provides no basis for reversal of counts two and three on this point.
Defendant futilely tries to employ People v. Melhado (1998) 60 Cal.App.4th 1529 (Melhado) in his favor. Melhado applied the standard rule, as did the trial court here, that “if the prosecution shows several acts, each of which could constitute a separate offense, a unanimity instruction is required.” (Id. at p. 1534.)
C. Continuous Sexual Abuse
Defendant contends that his conviction on count 1 under section 288.5 for continuous sexual abuse of his daughter K.N. should be reversed because the trial court excluded evidence critical to a fair trial and his confrontation rights. Defendant identifies three instances wherein the trial court excluded such critical evidence: (1) the trial court excluded evidence showing K.N. was capable of becoming pregnant during the time she was being sexually abused by defendant; (2) the trial court refused to show the jury the whole videotape of K.N.’s interview at CASARC and instead showed only portions of it later in the trial after K.N. had testified; (3) the trial court excluded relevant testimony by Dr. Everstine about defendant’s lack of proclivity for sexual deviance.
Defendant also contends that count 1 should be reversed because the trial court improperly denied the defense the opportunity to refresh and rehabilitate Dr. Gabaeff, the defense expert in emergency room examinations for child sexual assault victims. We discuss each of these points below and find none have merit.
We review the trial court’s ruling on relevance and the exclusion of evidence under Evidence Code section 352 for an abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 578.) To amount to an abuse of its discretion, a trial court’s ruling must be “arbitrary, capricious, or patently absurd.” (People v. Hovarter (2008) 44 Cal.4th 983, 1004; People v. Mullens (2004) 119 Cal.App.4th 648, 658.) “ ‘ “[E]xclusion of evidence that produces only speculative inferences is not an abuse of discretion.” ’ (Citation.)” (People v. Daniels (2009) 176 Cal.App.4th 304, 320.)
“Error in the admission or exclusion of evidence following an exercise of discretion under section 352 is tested for prejudice under the Watson harmless error test. (Citation.)” (People v. Mullens, supra, 119 Cal.App.4th at p. 659.) Under the Watson harmless error test, reversal is warranted only if a miscarriage of justice should be declared because the reviewing court, “ ‘after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Ibid. citing People v. Watson (1956) 46 Cal.2d 818, 836.)
1. Evidence of Fertility
Defendant asserts prejudicial error on the grounds the trial court excluded evidence that K.N. was not infertile. In this regard, defendant challenges the trial court’s pre-trial ruling on his motion, filed pursuant to Evidence Code section 782 (section 782), to introduce evidence of K.N.’s sexual conduct in order to attack her credibility. In this motion, defendant sought to admit evidence that K.N. had sexual relations with her boyfriend in 2006, became pregnant, and gave birth to a child in October 2006. According to defendant, evidence of K.N.’s subsequent pregnancy shows she was not infertile and would have undermined the credibility of her testimony that she had endured numerous “sexual exposures in which the ejaculate was deposited inside her.”
Evidence Code section 782 describes the procedures to be followed “if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780.” (§ 782, subd. (a).) The section provides that if such evidence is “relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted.” (§ 782, subd. (a)(4).)
The trial court rejected defendant’s section 782 motion as follows: “I am not persuaded by [defense counsel’s] offer of proof and find that evidence of K.N.’s subsequent sexual conduct for the reasons proffered... is not probative at all. And that any evidence that would come in of her subsequent sexual conduct and the fact that she had a child would be more prejudicial than probative than any of the issues in this case. The Court is not permitting that.”
We cannot say the trial court’s decision to exclude evidence of K.N.’s subsequent sexual conduct and pregnancy was an abuse of discretion. On the ultimate issue of whether K.N. was molested as she claimed, evidence that she became pregnant two years after the molestation ceased is irrelevant and of no probative value. Further, defendant’s contention that evidence of K.N.’s subsequent pregnancy has material impeachment value—because it undermines her testimony that defendant ejaculated inside her on multiple occasions between two and six years earlier—is unpersuasive. It is based on the speculative and unfounded assumption that, because K.N. became pregnant after sex with her boyfriend when almost 16 years old, she would necessarily have become pregnant as a result of the sexual abuse inflicted by defendant when she was between ten and thirteen years old. In sum, the trial court did not err by excluding evidence of K.N.’s subsequent sexual conduct.
2. Videotape of K.N.’s interview at CASARC
Defendant contends the trial court abused its discretion and violated his confrontation rights by playing only portions of the videotape of K.N.’s interview at CASARC rather than the whole tape, and by playing those portions of the tape after K.N. left the stand. This contention is meritless.
On October 10, 2007, just before K.N. testified, defense counsel indicated he wanted to play parts of the videotape to the jury for impeachment purposes. The trial court denied counsel’s request to show the videotape because counsel had not provided the court with a copy of the transcript in advance. The trial court ruled, however, that counsel could question K.N. about what she said in the CASARC interview and then if necessary use the transcript of the interview to impeach “the same way you would with a deposition transcript.” Defense counsel followed the procedure suggested by the trial court. During K.N.’s cross-examination, defense counsel referred to the transcript of the videotaped interview to impeach K.N. with the following statements: that she was eight years old when the abuse began; her father penetrated her at that age; the abuse always took place on her bunk bed, and that her brother never saw any of the abuse because her father always sent her brother out of the room when it happened.
(See California Rules of Court, rule 2.1040(a) [“Unless otherwise ordered by the trial judge, a party offering into evidence an electronic sound or sound-and-video recording must tender to the court and to opposing parties a typewritten transcript of the electronic recording.”].)
On October 12, 2007, the trial court, defense counsel and the prosecutor met outside the presence of the jury and viewed the videotape of K.N.’s interview at CASARC. After the viewing, defense counsel asked that the whole tape be admitted in order to give “context” to those parts of the tape with which K.N. was impeached on cross-examination. Defense counsel also requested that the whole tape be admitted “for the purpose of showing K.N.’s demeanor during the interview.”
In response to defense counsel’s requests, the trial court stated: “I do stand by my ruling that [the tape] should not have been shown to the jury at the time K.N. was on the stand for two reasons. [¶] One, it hadn’t been presented to the Court... sufficiently in advance, it came right as you were going to begin your examination... so we were unable to have this hearing that we are just having now and viewing of the tape. And two, I am persuaded... that that would be intimidating and unfair to a child witness. [¶] So I think it was appropriate to handle the cross-examination of K.N. the way in which we did it. [¶] Having said that, now the question is whether [defense counsel] should be given an opportunity to show those portions to the jury when K.N. isn’t in the courtroom and therefore can’t be threatened or intimidated by that or unduly made embarrassed or uncomfortable as a child. [¶] My inclination is to allow [defense counsel] to play portions of the video. [¶] The question then becomes more thorny and complicated because how much of the video should be shown? And to give context to the questions, because this video is one where K.N. does very little talking, she’s almost not given a chance to get a word in edgewise with this particular interviewer. This interviewer goes on and on and on and talks and talks, and K.N. has barely a chance to say anything. [¶] And she does correct herself or change – you know age, nine to 10, to 11, different portions of the tape. [¶] What I have to consider is what you want to show, [counsel] and whether it would be a misrepresentation to pull certain things out of context to an improper − or the full, correct meaning to it. [¶] And that’s the argument in favor of showing a larger portion of the tape to the jury. But I need to see what you would be willing, you know, or asking the Court to see, and we would have to consider carefully appropriate jury instructions.” After further discussion between the trial court and counsel, it was agreed defense counsel would go through the tape to identify those portions he would like to show to the jury, confer with the prosecutor, and the trial court would decide the matter at a subsequent hearing.
On the afternoon of October 15, 2007 the trial court took up the issue of the videotape again to “see if there could be a stipulation as to what portions would be played with respect to the inconsistent statements.” Defense counsel stated he had identified the portions of the tape he wished to play and provided the court with a copy of the transcript with the portions highlighted. Defense counsel acknowledged he wished the trial court to play those portions of the tape containing statements he had identified as inconsistent and showing the allegedly inconsistent statements in context. The prosecutor argued that “the entirety of the tape” should be admitted under the rule of completeness. After a short recess to review defense counsel’s highlighted transcript, the trial court rejected the prosecutor’s argument that the whole tape should be played, stating, “For use of impeachment purposes, we don’t get in the entire transcript of any proceeding. So I’m not persuaded by that.” The trial court stated it had “gone over this in light of my notes, seen the interview tape, and so on, and we’ll go through it together.” The trial court then went through the transcript by page and line number and identified those portions of the tape to be played to the jury.
On the afternoon of October 16, 2007 the trial court indicated that it wanted to “memorialize on the record what occurred yesterday afternoon” concerning “what portions [of the videotape] were going to be shown to the jury today.” The court recapped that it had “reviewed the transcript again and the highlighted portions and determined... that it would be appropriate to show the jury just those portions that were referenced in the examination of K.N., which would have been able to be shown to the jury at the time of her examination if the video had been ready and properly presented to the Court and Counsel in sufficient time.” The court added that it “did agree to include more than just the exact page and line numbers that were mentioned during her examination related to the subject matter of how old she was when certain things happened. [¶] Because there are various statements about that in the transcript, by K.N., and to simply choose one or some without giving all of them would not be giving the jury a fair presentation of what she said during the interview. [¶] So a few more are included. [¶] As a result of that, this is what the Court determined could be shown, and I’m going to give page and line numbers and then, Counsel, you may put on the record what you wish if you have anything further to add.”
Following the trial court’s recital of the page and line numbers to be admitted, the prosecutor reiterated her position that the entire tape should be played. Defense counsel argued that the trial court should include other portions of the tape “where K.N. answered questions in non-verbal ways” because on cross-examination K.N. denied nodding her head in response to questions on the tape. Counsel also opined the trial court should have included “anything that referred to a bed” because on the tape she never mentions that the molestation happened anywhere other than on her bunk bed, and her testimony was different than that. Regarding defense counsel’s objection that more of K.N.’s non-verbal responses should have been shown, the trial court stated: “There were a lot of compound questions,... those were many of the ones that [defense counsel] wanted in where K.N. was nodding her head at the end of a long string of compound questions, not just one or two things but several items. [¶] And for that reason, the Court exercised its discretion under Evidence Code Section 352 to find those areas to be more prejudicial than probative because it would be impossible to... really determine what K.N. was shaking her head to, given the interviewer’s techniques and questions. And those the Court did not permit in. [¶] With respect to K.N. nodding her head so that the jury would see that, many of the questions in the videotape were K.N. nodding her head. They saw that.” On defense counsel’s objection that every reference to “bed” should be included, the trial court stated: “I determined to have all those areas come in, going through this and picking out every single one, after her examination, which were not stated each single time in the examination of K.N. would be to give undue weight and emphasis to that in showing the videotape. So I denied putting that in.”
Our careful review of the record reveals no abuse of discretion by the trial court on its evidentiary ruling to play only the portions of K.N.’s videotaped interview related to her potentially inconsistent statements. In fact, it shows exactly the contrary—that the trial court carefully and thoughtfully considered this issue and crafted a ruling that was scrupulously fair to both prosecution and defense. In addition, the entire transcript of the videotaped interview was available to defense counsel for purposes of cross-examination, and counsel vigorously cross-examined K.N. on it. Thus, we conclude defendant suffered no violation of his right to confrontation.
3. Dr. Everstine’s Testimony
Defendant asserts the trial court abused its discretion by limiting the testimony of Dr. Everstine. In particular, defendant contends the trial court erred by precluding Dr. Everstine from testifying that defendant’s character traits were “those of a non-molester.” Also, defendant contends the trial court erred by precluding testimony from Dr. Everstine “that would illustrate K.N. did not exhibit typical child abuse signs” and permitting only testimony as “to signs of trauma” in general “but not as they related to K.N.”
We first address the trial court’s ruling that Dr. Everstine could not testify about defendant’s character. At a pre-trial hearing on motions in limine, defense counsel stated Dr. Everstine had “looked at the evidence in this case and looked at the police report from this incident and looked at the reaction that Mr. Naval had.” On this basis, defense counsel stated that Dr. Everstine would testify that defendant did not fit the profile of a child molester. The trial court ruled Dr. Everstine could not offer that opinion because it was not permissible character evidence, which, the trial court stated, must be rendered by someone who “knows [defendant], knows his reputation in the community or knows him in his family or personal life and can come in and say that he knows he has a character for being... whatever it is.”
The trial court was not entirely correct on this point: “It is now settled that psychological opinions based upon personal examination and an analysis of accepted psychological tests... may be admitted as character evidence tending to show that an individual was or was not likely to have committed a particular act.” (People v. Ruiz (1990) 222 Cal.App.3d 1241, 1243-1244 (Ruiz) [italics added] [citing People v. Stoll (1989) 49 Cal.3d 1136 (Stoll)]. In Stoll, the California Supreme Court held that the trial court erroneously excluded in a child molestation case a psychiatrist’s opinion that defendant had a “normal personality function,” that defendant had not previously engaged in “sexual deviancy of any kind” and that it was “ ‘unlikely... she would be involved in the events she’s been charged with.’ ” (Stoll, supra, at p. 1149.) The court found the expert opinion admissible because the opinion had been formed on the basis of the psychiatrist’s individual interpretation of the test and interview results, and the tests at issue were long accepted and thus were not a new scientific technique. (Id. at pp. 1154-1155.)
Unlike the expert in Stoll, however, Dr. Everstine never interviewed defendant and did not conduct any psychological testing on defendant. Thus, any opinion by Dr. Everstine regarding defendant’s psychological profile lacked proper foundation and was inadmissible on that basis. (Cf. Stoll, supra, at pp. 1154-55.) Thus, the trial court did not err by excluding testimony from Dr. Everstine that defendant did not match the profile of a child molester.
In Ruiz, supra, the appellate court noted: “Stoll does not hold that ‘profile’ evidence is admissible. Rather, the court carefully limited its holding, emphasizing that the psychiatrist in that case had indicated that ‘no psychological “profile” entered into his diagnosis.’ Instead, the psychiatrist would emphasize that the defendant showed ‘ “low indication for antisocial or aggressive behavior,’ ” implying that she ‘is “unlikely” to commit the charged acts or any serious crime.’ (People v. Stoll, supra, 49 Cal.3d at p. 1153.)” (Ruiz, supra, 222 Cal.App.3d at p. 1245.) Regardless of whether or not Dr. Everstine’s proffered testimony was “profile evidence,” it was not admissible as character evidence under Stoll because it lacked proper foundation on account of the fact Dr. Everstine did not test or interview defendant prior to forming her opinion.
We now consider the trial court’s ruling that limited Dr. Everstine’s testimony regarding victims of sexual abuse. As indicated above, the prosecution was permitted to introduce, over defendant’s objection, the testimony of Dr. Urquiza concerning CSAAS. In accordance with People v. Bledsoe (1984) 36 Cal.3d 236 and this court’s decision in People v. Wells (2004) 118 Cal.App.4th 179, among other cases, the jury was instructed that Dr. Urquiza’s testimony concerning the common reactions of children to sexual abuse was not to be considered in determining whether K.N. had in fact been abused by defendant, but was offered only to dispel certain common misperceptions relevant to the credibility of K.N.’s testimony. Dr. Everstine disputed the reliability and scientific foundation for CSAAS and was permitted to so testify.
Dr. Everstine went on to testify to what she explained are recognized diagnostic tools in the evaluation of trauma victims. She testified that “if somebody was raped over a period of time by [her] father, [she] would be suffering one of the forms of posttraumatic stress.” Further, the posttraumatic stress would be displayed in one of two ways, which she characterized as “avoidant” or “intrusive.” The former, Dr. Everstine testified, is an “emotional numbing” evidenced by “what the cops refer to as the 50-foot stare. They talk in this monotone voice. They look kind of distracted....” The latter is evidenced by flashbacks and intrusive memories: “Sometimes you ask a kid what is it like talking about it now and they say it’s like they’re in a bad movie in my head and I can’t turn it off. Or sometimes in school I’m working on a math problem and this video goes on in my head and it’s just awful. Intrusive memories, they just can’t shake [them] out.”
The trial court’s in limine rulings prohibited Dr. Everstine from testifying to whether K.N. displayed the symptoms Everstine said normally reflect trauma caused by the sexual abuse of a child. Relying largely on People v. Wells, supra, 118 Cal.App.4th 179, the court ruled that she could describe manifestations of trauma associated with child sexual abuse, but she “cannot talk about the particulars of this case or anyone’s symptoms in this case or what is usual or not usual.” Despite the court’s broad statement that Dr. Everstine could not discuss what reactions are “usual,” it is apparent from the testimony quoted above that she did so (as she did in Wells), and the only objection that was offered at that point in the trial was withdrawn after a bench conference. However, when the defense attorney asked whether Dr. Everstine observed in the video of K.N.’s interview the flat affect she had described, the prosecution’s objection was sustained in accordance with the in limine rulings.
People v. Wells also involved the question of whether the trial court properly limited testimony by Dr. Everstine proffered by the defense in a sexual molestation case. On appeal, defendant characterized Dr. Everstine’s proffered testimony as “concerning the ‘usual disclosure behavior of child sexual abuse victims who have suffered a penetrative trauma,” and argued that “it was unfair for the trial court to deny him an opportunity to present this testimony to rebut the prosecution’s argument [presented, as here, through Dr. Urquiza’s testimony about CSAAS]... that [the victim’s] disclosure behavior was ‘not inconsistent’ with having been sexually abused.” (Wells, supra, 118 Cal.App.4th at p. 187.)
By a divided vote, we rejected this argument in Wells. (Compare 118 Cal.App.4th at pp. 187-191 with id. at pp. 192-194.) It is unnecessary to revisit the question that divided the court in Wells — whether for the purpose of disproving the alleged sexual abuse — a qualified expert should be permitted to testify that child sexual abuse is normally accompanied by certain signs of trauma and that the purported victim did not display those signs. The record here contains only a generalized offer of proof concerning Dr. Everstine’s proposed testimony; the record does not contain a statement of the precise testimony she would have given if permitted to do so. More importantly, it is clear that Dr. Everstine did not lay, and could not have provided, a proper foundation for such testimony in this case. The testimony she did give, summarized above, indicates that trauma flowing from child sexual abuse will be evidenced in one of two ways, one of which is experiencing intrusive symptoms. Dr. Everstine never did examine K.N., which was critical to the trial court’s limitation of her testimony: “Dr. Everstine, who has never met or consulted with or evaluated the victim in this case,... is not going to be able [to testify] on my witness stand in this trial and say that [K.N.] does or does not display the symptoms of someone who has trauma or not.” While defendant points out that a request to permit Dr. Everstine to interview the victim was denied, no contention is made that this denial constituted error, nor does defendant contend that Dr. Everstine could have formed an opinion as to whether the victim was experiencing intrusive symptoms indicative of trauma without having interviewed her. Therefore, on the record before us, there is no basis to conclude that the trial court erred in limiting Dr. Everstine’s testimony.
4. Dr. Gabaeff’s Testimony
Defendant contends the trial court erroneously denied the defense the opportunity to refresh and rehabilitate Dr. Gabaeff, the defense expert witness on the examination of child sexual assault victims. Our review of the record shows this claim is not a basis for reversal.
This issue arose on Dr. Gabaeff’s cross-examination. The prosecutor asked Dr. Gabaeff to confirm that Dr. Thyme never told him that she thought the findings on K.N.’s examination were normal. Dr. Gabaeff replied, “ I think [Dr. Thyme] wrote it out, didn’t she, in a postexamination review?” Dr. Gabaeff, however, was unable to produce the document he was referring to and said he “would have to look through my notes” to find it. The prosecutor then proceeded to cross-examine Dr. Gabaeff on People’s Exhibit 56A, the redacted medical report of K.N.’s examination, and he conceded that nowhere on the form did it say K.N.’s examination was normal. On redirect examination, defense counsel reminded Dr. Gabaeff that on cross-examination he mentioned “having seen a document somewhere where somebody indicated that there was a normal exam.” At this juncture, defense counsel attempted to introduce Defendant’s Exhibit 64, a notation by Inspector Corrales made after she called CASARC, spoke with Janet Hines, and reported Hines as stating, “So far exam normal, not all results [are] in.” Defense counsel argued that Exhibit 64 was “a proper document for me to use to refresh [Gabaeff’s] recollection as to what it was that he had been referring to.” The trial court denied defense counsel’s request to introduce Exhibit 64 for purposes of refreshing Gabaeff’s recollection on the basis that it contained “two layers of hearsay and [] has nothing to do with Dr. Thyne.”
Appellant asserts that the trial court erred by refusing to allow Dr. Gabaeff to refresh his recollection with Exhibit 64, and that this error damaged and undermined Dr. Gabaeff’s testimony because the jury could perceive him as having been “ ‘caught’ in claim that was ‘false.’ ” We need not reach the evidentiary question of whether the trial court erred in refusing to allow Dr. Gabaeff to refresh his recollection via Exhibit 64 because any error on this point was harmless. During cross-examination, the prosecutor scored the point that Dr. Gabaeff mistakenly attributed a normal exam finding to Dr. Thyne. While Defendant’s Exhibit 64 may have explained why he made that mistake, it did not change the fact that he made it. Moreover, Dr. Gabaeff clearly rebutted the statement by the prosecutor that he “just told this jury that Dr. Thyne said that this was a normal exam related to K.N.” In response to the prosecutor’s statement, Gabaeff responded, “She didn’t say anything to me. I never talked to her and she never talked to me.” Thus, Dr. Gabaeff successfully rebuffed the prosecutor’s suggestion that he misstated Dr. Thyme’s opinion regarding the results of K.N.’s examination.
In conclusion, we find no merit in any of defendant’s evidentiary objections to his conviction on count 1 for continuous sexual abuse of his daughter K.N. Therefore, we reject his claim that count 1 should be reversed on the grounds he was denied a fair opportunity to present his defense.
D. Jury Instruction Regarding CSAAS Evidence
The trial court instructed the jury on CSAAS with CALCRIM 1193 as follows: “You have heard testimony from Dr. Anthony Urquiza regarding child sexual abuse accommodation syndrome. [¶] Dr. Urquiza’s 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 K.N.’s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony.”
Defendant argues that this instruction is erroneous on three separate grounds, which we discuss in detail below. However, in considering his claim of instructional error, “we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Accordingly, to prevail on a claim that the jury instructions were misleading, the defendant must prove a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.) We assume jurors are intelligent persons capable of understanding and correlating all jury instructions given. (People v. Guerra (2006) 37 Cal.4th 1067, 1148.) When scrutinized under these principles, defendant’s claims of instructional error clearly lack merit.
First, defendant seizes upon the phrase “not inconsistent,” and asserts that the use of a “peculiar double negative” allowed the jury to consider CSAAS evidence to establish “traits associated with molested persons” as opposed to misconceptions about sexual abuse. Defendant’s contention is without merit. The double negative in the instruction identifies the purpose for which CSAAS evidence is offered, namely to “disabuse[e] a jury of the misconceptions it might hold about how a child reacts to a molestation,” and it is admissible only for that limited purpose. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) We conclude the instruction as given accurately cabins CSAAS evidence within its proper legal purpose, and that the language of the instruction is therefore not reasonably susceptible to defendant’s interpretation. Accordingly, we conclude there is no “reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.” (People v. Andrade, supra, 85 Cal.App.4th at p. 585.)
Second, defendant contends that the instruction allowed the jury to misuse the CSAAS evidence to find that “the complaining witness was in all probability a molestation victim,” thereby bolstering her credibility and reducing the prosecution’s burden of proof on this critical issue. First, as concluded above, the phrase “not inconsistent” does not invite such misuse because the instruction as a whole restricts the use of CSAAS evidence to its legal purpose. Second, and more pertinent here, the instruction as given is appropriate in that the jury is told that it can use the CSAAS evidence to evaluate credibility, which is proper. (See Patino, supra, 26 Cal.App.4th at p. 1745 [CSAAS evidence is pertinent and admissible as to the issue of the victim’s credibility].) Thus, defendant’s claim of instructional error on this point is without merit.
Third, defendant argues that the instruction on CSAAS evidence was deficient because it did not remind the jury prior to deliberation that “the concept of CSAAS assumes that a molestation occurred,” despite defendant’s specific request that the instruction be so modified. Any instructional error on this point was harmless because there is no possibility defendant “would have obtained a more favorable outcome had the error not occurred.” (People v. Breverman (1998) 19 Cal.4th 142, 178 [applying Watson harmless error review to claimed instructional error in non-capital cases].) Dr. Urquiza acknowledged during his testimony that CSAAS assumes sexual abuse has actually occurred. Moreover, at the conclusion of Dr. Urquiza’s testimony the trial court instructed the jury in pertinent part as follows: “[Y]ou’ve just heard testimony today from Dr. Urquiza regarding [CSAAS]. [¶] As you’ve heard Dr. Urquiza testify to you, this syndrome or his explanation of these myths and what he calls this syndrome assumes that a child sexual abuse has occurred. [¶] It is up to you, the jury in this case, to decide whether or not there has been the abuse that is alleged. And as you heard, Dr. Urquiza is not giving any opinions about this particular case.” We presume the jury followed the trial court’s instruction on this point. (People v. Smithey (1999) 20 Cal.4th 936, 961.) Thus, defendant was not prejudiced by the trial court’s failure to repeat prior to deliberation its admonition that CSAAS assumes that a child sexual abuse has occurred.
In sum, we find no basis for reversing defendant’s conviction on count 1 for continuous sexual abuse of his daughter K.N. on account of instructional error.
E. Section 136.1 Instruction
Defendant contends that the jury instruction on count 3, dissuading a witness in violation of section 136.1, was improper because it included the heading, “CALCRIM 2623. INTIMIDATING A WITNESS: SENTENCING FACTORS.” Defendant does not object to any of the language in the body of the instruction but asserts that “the heading makes it clear that by finding force the sentence will be increased and invites consideration of the sentence.”
This claim is meritless. Before reading the jury instructions to the jury, the trial court stated that the jury would be provided with six copies of the written instructions in the jury room. Regarding the written instructions, the trial court specifically admonished the jury as follows: [W]hen you get the jury instructions, you will see at the top that there are letters and numbers and titles. You are not to be concerned with those. Those are place markers so that we can find them in our books on our computers and word processing and so on. What is important for you is the text of the instruction, and you should just really ignore the titles; those are not more important than the titles of a chapter of a book that you might be reading.” (Italics added.) We presume the jury followed the trial court’s instruction on this point. (People v. Smithey, supra, 20 Cal.4th at p. 961.) Thus, there was no error on this point and the judgment on count 3 stands.
Disposition
Defendant’s conviction on count 4, assault with a deadly weapon in violation of section 245, subdivision (a)(1), is reversed. Defendant’s convictions on the remaining counts are affirmed. The matter is remanded for resentencing.
Our reversal of defendant’s conviction on count 4 renders moot his contention that count 4 should be reversed on grounds of instructional error.
Because we remand for resentencing, we need not address defendant’s claims of sentencing error.
We concur: McGuiness, P. J., Pollak, J.