Opinion
D070277
06-01-2017
THE PEOPLE, Plaintiff and Respondent, v. JAY MICHAEL RILEY, Defendant and Appellant.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD264698) APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed. Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Jay Michael Riley guilty of 27 counts involving sexual molestation of two separate minor girls. The trial court sentenced Riley to an indeterminate prison term of 150 years to life along with a determinate prison term of eight years.
Riley contends (1) the trial court violated his constitutional rights and abused its discretion in permitting a support dog to accompany minor witnesses at the witness stand during their trial testimony; (2) the trial court improperly instructed the jury with both CALCRIM Nos. 301 and 1190; and (3) defense counsel was ineffective by requesting a specific jury instruction regarding the testimony of an expert on the typical behavior of children who experience sexual abuse. We conclude that Riley's arguments lack merit, and accordingly we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A 12-year-old female relative of Riley (Jane Doe 1) disclosed that on a recent occasion, while she was asleep, she was woken up by Riley touching her vagina and her buttocks over her clothes with his hands. Shortly after Jane Doe 1's disclosure, another minor female relative of Riley (Jane Doe 2) disclosed that when she was between approximately six years old and 15 years old, Riley touched her with his hands on numerous occasions when she was sleeping, both over and under her clothes, including touching her buttocks, her breasts, the outside of her vagina and the inside of her vagina.
For his molestation of Jane Doe 1, Riley was charged with two counts of committing a lewd act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) With respect to Jane Doe 2, Riley was charged with nine counts of sexual penetration of a child 10 years old or younger (§ 288.7, subd. (b)); 10 counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)); and six counts of committing a lewd act upon a child 14 or 15 years old (§ 288, subd. (c)(1)). For one of the counts concerning Jane Doe 1, and for four of the lewd act counts concerning Jane Doe 2, the information also alleged that Riley had substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd. (a)(8)). In connection with each of the counts alleging lewd acts on a child under the age of 14, the information also alleged that Riley committed an offense against more than one victim. (§ 667.61, subds. (b), (c), (e).)
Unless otherwise indicated, all further statutory references are to the Penal Code.
During a lengthy trial, both Jane Doe 1 and Jane Doe 2 testified, describing Riley's molestation of them. Riley testified in his own defense, denying that he ever touched either girl in an inappropriate manner.
A jury found Riley guilty on all of the counts and made true findings as to each of the additional allegations. Riley was sentenced to an indeterminate prison term of 150 years to life along with a determinate prison term of eight years.
II.
DISCUSSION
A. Riley's Challenge to the Use of a Support Dog During the Minors' Trial Testimony
1. Trial Court Allows the Use of a Support Dog During Trial
At the time of their trial testimony, Jane Doe 2 was 16 years old, and Jane Doe 1 was 13 years old. Three other minor witnesses testified at trial: a 10-year-old witness who was present during the incident involving Jane Doe 1; a 15-year-old witness who saw Jane Doe 1 in emotional distress immediately after the incident; and a 17-year-old witness to whom Jane Doe 2 previously disclosed Riley's molestation of her.
During in limine motions, the People requested that the trial court permit each of the minor witnesses to use a support dog during their testimony to give emotional comfort at the witness stand. The People explained that the minors "are just all nervous about testifying, and obviously the subject matter is traumatizing." As the People observed in their in limine motion, "[s]upport canines have proven very effective in making children feel safer to recall past traumatic events, speak in front of strangers, and give clearer testimony." The People also pointed out that the four minors who testified at the preliminary hearing had the assistance of a support dog at that proceeding, with the dog "placed underneath the box so that basically its's out of the view of almost everyone."
As reflected in the record, a support dog is a canine that is accompanied into the courtroom by a "handler," who sits nearby in the courtroom while the dog is present with the witness at the witness stand to provide emotional comfort.
Defense counsel objected to the use of the support dog, explaining "I think it's just distracting when the jury sees the cute dog come in and sits with a kid." Defense counsel also argued that it was not right that "Mr. Riley, if he testifies, he's not allowed to have a dog," but that option is available to someone under the age of 18. Defense counsel stated that if the trial court decided to allow the use of the support dog, the trial court should instruct that the dog be brought in through the back hallway and put under the witness stand so that "the jury does not have to see the dog parading back and forth before them."
The trial court granted the People's request to allow the use of the support dog for the minor witnesses. The court explained, "I think the case law supports it. I think it's appropriate. It does seem to assist child witnesses when they testify." The trial court agreed with defense counsel's suggestion that the dog be brought in through the back hallway because "that's an accommodation that . . . minimizes any potential emotional reaction." The court explained that "if the purpose is for the dog to be there while the child is testifying and it meets up with the child at the witness stand[,] that might be a solution to just eliminate that initial cuteness factor when the dog is walking in front of the jury box." The trial court also offered to provide an instruction to the jury regarding the support dog at the request of either party, but the record does not reflect that either party requested such an instruction, and none was given.
The clerk's minutes from the trial reflect that a support dog was escorted into the courtroom through the back hallway and was placed under the witness stand during the testimony of each of the minor witnesses. It is not clear from the record whether in each instance the support dog was put in place before the jury was escorted into the courtroom. However, in at least one instance, the trial court specifically instructed the bailiff to bring in the jury after the support dog was brought in.
2. The Use of the Support Dog Did Not Violate Riley's Constitutional Rights
Riley contends that because of the presence of the support dog, his constitutional right to a fair trial was violated for two reasons: (1) he was denied due process due to the presence of the support dog because the prosecution's burden of proof was lowered and the presumption of innocence was eroded; and (2) the presence of the support dog prevented him from exercising his right to cross-examine witnesses. As we will explain, both arguments fail based on this court's opinion in People v. Chenault (2014) 227 Cal.App.4th 1503 (Chenault).
In developing his due process argument, Riley contends although a defendant is presumed innocent until proven guilty beyond a reasonable doubt, that presumption disappears in the presence of a support dog. Riley argues that when a juror hears the testimony of a witness who is comforted by a support dog, the juror will assume that the victim has been harmed and traumatized by the defendant's wrongful acts. Therefore, the mere presence of the support dog will relieve the prosecution of presenting evidence to prove the defendant's guilt, because the dog will stand as a "powerful symbol . . . that the children were 'victims' that suffered an underlying trauma and required protection and/or comforting from a dog." Riley argues that "allowing the dogs to be present to comfort the children conveyed to the jury that they were victims that suffered some underlying trauma, which presupposed that [Riley] was guilty."
With respect to the right to cross-examine witnesses, Riley argues that "[b]y alleviating the normal stress that comes from giving testimony — especially under cross-examination — the use of comfort dogs compromise[s] a significant aspect of our adversarial system." According to Riley, because the support dog provides emotional comfort to a witness and may prevent the witness from experiencing stress, it is not possible for the defendant to effectively cross-examine the witness. In a secondary argument, Riley also contends that his right to cross-examination was infringed because he was unable to cross-examine the support dog. He explains that "the defense is not able to get the dog to testify as to why it chose to move or breathe in a particular manner at a particular time."
In Chenault we considered and rejected both constitutional challenges. (Chenault, supra, 227 Cal.App.4th at pp. 1515-1516.) Specifically, the defendant in Chenault contended that the presence of a support dog during the testimony of two child witnesses violated his constitutional right to a fair trial, including his right to the presumption of innocence and his constitutional right to confront witnesses. (Ibid.) As does Riley, the defendant in Chenault argued that the presence of the support dog would "cause a jury to decide a defendant's guilt based on impermissible factors" and " 'unfairly bolsters the prosecution's case by aligning witnesses with a powerful symbol of trustworthiness and vouching for their credibility as victims.' " (Id. at p. 1515.) Relying on case law that established that the mere presence of a support person in the courtroom during a witness's testimony does not erode the presumption of innocence or impermissibly encroach on confrontation clause and due process clause rights, we explained that the presence of a support dog was not "inherently . . . more prejudicial than the presence of a support person." (Chenault, at p. 1515, citing People v. Myles (2012) 53 Cal 1181, 1214 & People v. Ybarra (2008) 166 Cal.App.4th 1069, 1077.) We therefore concluded that "the presence of a support dog" "likewise is not inherently prejudicial and does not, as a matter of law, violate a criminal defendant's federal constitutional rights to a fair trial and to confront witnesses against him or her." (Chenault, at pp. 1515-1516.)
Under section 868.5, a prosecuting witness in cases involving certain criminal offenses may be accompanied to the witness stand by a support person. "[T]herapy dogs are not 'persons' within the meaning of section 868.5." (People v. Spence (2012) 212 Cal.App.4th 478, 517.)
Based on our holding in Chenault, we reject Riley's constitutional challenge to the presence of the support dog, and we conclude the presence of the dog during the testimony of the minor witnesses in this case did not, as a matter of law, violate Riley's constitutional rights to due process and to confront the witnesses against him.
3. The Trial Court Did Not Abuse Its Discretion in Permitting the Use of a Support Dog
We next consider Riley's contention that the trial court abused its discretion by permitting a support dog to be present during the testimony of each of the minor witnesses in this case.
As explained in Chenault, although the presence of a support dog during a minor witness's testimony does not, as a matter of law, violate a defendant's constitutional rights, the trial court's decision to permit a support dog may nevertheless be reviewed to determine whether the trial court abused its discretion in permitting the presence of the support dog under the specific circumstances of the case. (Chenault, supra, 227 Cal.App.4th at pp. 1517-1521.)
As Chenault explains, the trial court's exercise of its discretion to allow a support dog during the testimony of a minor witness is governed by Evidence Code section 765, under which "the trial court has broad discretion . . . to exercise control over interrogation of witnesses and protect them from undue harassment or embarrassment." (Chenault, supra, 227 Cal.App.4th at p. 1514.) "On appeal, we apply the abuse of discretion standard in reviewing a trial court's exercise of its authority under Evidence Code section 765." (Chenault, at p. 1514.)
Chenault set forth guidelines for the trial court's exercise of its discretion in allowing a support dog during a witness's testimony. "[I]n exercising its discretion under Evidence Code section 765, a trial court should consider the particular facts of the case and the circumstances of each individual witness and determine whether the presence of a support dog would assist or enable that witness to testify without undue harassment or embarrassment and provide complete and truthful testimony. In so doing, the court should focus on whether the presence of the specific support dog would likely assist or enable the individual witness to give complete and truthful testimony by reducing the stress or trauma the witness may experience while testifying in court or otherwise minimizing undue harassment or embarrassment. If the trial court finds the presence of a support dog would likely assist or enable the individual witness to give complete and truthful testimony and the record supports that finding, the court generally will act within its discretion under Evidence Code section 765 by granting a request for the presence of the support dog when that witness testifies." (Chenault, supra, 227 Cal.App.4th at p. 1517, fn. omitted.)
Riley argues that the trial court abused its discretion in concluding that a support dog would assist the witnesses' testimony because "there was no discussion of any circumstances of each witness and why they required a therapy dog, or even if they said that they wanted one." According to Riley, "neither the court below nor the prosecutor endeavored to made any particularized showing as to why these witnesses needed a specific support dog or that the absence of a support dog would impact the respective witnesses' ability to testify in court."
As the discussion in Chenault establishes, when reviewing the trial court's exercise of its discretion we may conclude that the trial court made implicit findings that the presence of a support dog would assist a witness "to testify completely and truthfully without undue harassment or embarrassment." (Chenault, supra, 227 Cal.App.4th at p. 1520 [concluding that the trial court made implicit findings regarding the benefit of using a support dog].) Here, the record shows that the trial court made an implicit finding concerning the appropriateness of using a support dog in this particular case for each of the minor witnesses, and those findings are supported by substantial evidence. Specifically, when explaining the need for the support dog, the prosecutor informed the trial court that the minor witnesses had the benefit of a support dog during the preliminary hearing and they were all nervous about testifying because of the traumatic subject matter. Indeed, as the trial court understood, the witnesses at issue were all minors, ranging in age from 10 to 17, and their testimony would involve embarrassing sexual subjects that they would have to discuss in front of strangers. The prosecutor explained to the trial court that "[s]upport canines have proved very effective in making children feel safer to recall past traumatic events, speak in front of strangers, and give clearer testimony." In making its ruling in favor of allowing a support dog, the trial court observed that the presence of a support dog "does seem to assist child witnesses when they testify." These items in the record amply support an implicit finding that, for each of the minor witnesses, the presence of a support dog would enable and assist them to testify completely, truthfully and with less nervousness and embarrassment. Accordingly, we find no merit to Riley's contention that the trial court abused its discretion by failing to consider whether the use of a support dog would be appropriate in the particular circumstance of this case.
Further, the trial court properly exercised its discretion under the guidelines set forth in Chenault because, after concluding that a support dog would be beneficial for the witnesses, it took steps to minimize any prejudicial impact from the dog and it offered to instruct the jury. As Chenault establishes, as part of the proper exercise of discretion to allow a support dog, "the court should also take appropriate measures to reduce, if not eliminate, any prejudice to the defendant possibly caused by the presence of the support dog during the witness's testimony. For instance, the court should attempt to make the presence of the support dog as unobtrusive and as least disruptive to the proceedings as reasonably possible. The court may have the jury recess while the witness takes the stand and the support dog enters and is positioned, and then recess again before the witness and dog leave the courtroom. In certain physical courtroom settings, it may be possible to have the support dog lie on the floor near the witness, entirely out of the jurors' view. If not, the support dog should be positioned, if possible, so its presence is not significantly distracting to the jurors." (Chenault, supra, 227 Cal.App.4th at p. 1517.) Further, Chenault points out that "whenever the support dog's presence becomes known, or is likely to become known, to the jury, it generally will be the preferred practice for the court to give an appropriate admonishment to the jury to avoid, or at least minimize, any potential prejudice to the defendant." (Id. at pp. 1517-1518.) Here, the trial court properly followed these guidelines in exercising its discretion. Specifically, the trial court (1) ordered that the support dog be brought into the courtroom through the back hallway to minimize the impact that the presence of the dog would have on the jurors, and (2) offered to provide, at either party's request, an instruction to the jury to reduce any prejudice that might be caused by the presence of the support dog.
In sum, in applying the guidelines for the exercise of the court's discretion set forth in Chenault, we conclude that the trial court did not abuse its discretion in allowing the presence of a support dog during the testimony of the minor witnesses. B. Riley's Challenge to the Instruction of the Jury with Both CALCRIM No. 301 and CALCRIM No. 1190
The jury was instructed with CALCRIM No. 301 as follows: "The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence." The jury was also instructed with CALCRIM No. 1190, as follows: "Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone."
Riley contends that his "substantial rights were violated by these instructions because the instructions were argumentative, confusing, and lightened the prosecution's burden of proof." In particular, he argues that giving the instructions together "lessens the prosecution's burden of proof by implying to the jury that they need not view the one witness'[s] testimony with caution."
However, as Riley acknowledges, our Supreme Court has already considered and rejected this argument in the context of older CALJIC instructions containing substantially the same content. (People v. Gammage (1992) 2 Cal.4th 693, 702 (Gammage).) In Gammage, the court rejected the defendant's argument that giving the two instructions together "unconstitutionally 'creates a preferential credibility standard for the complaining witness.' " (Gammage, at p. 700.) As Gammage explained, because the instructions both properly set forth the law, "[t]he instructions in combination are no less correct, and no less fair to both sides, than either is individually . . . ," and were therefore properly given together. (Id. at p. 701.)
Specifically, Gammage considered CALJIC No. 2.27 and CALJIC No. 10.60. CALJIC No. 2.27 stated: " 'Testimony as to any particular fact which you believe given by one witness is sufficient for the proof of that fact. However, before finding any fact required to be established by the prosecution to be proved solely by the testimony of such a single witness, you should carefully review all the testimony upon which the proof of such fact depends.' " (Gammage, supra, 2 Cal.4th at p. 696, italics omitted.) CALJIC No. 10.60 stated, " 'It is not essential to a conviction of a charge of rape that the testimony of the witness with whom sexual intercourse is alleged to have been committed be corroborated by other evidence.' " (Gammage, at pp. 696-697.)
Gammage's reasoning is equally applicable to the similar instructions in CALCRIM Nos. 301 and 1190, and we are therefore bound to follow our Supreme Court's holding in Gammage in rejecting Riley's argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see also People v. Cromp (2007) 153 Cal.App.4th 476, 480 [rejecting a challenge to a CALCRIM instruction by relying on Supreme Court authority approving of a similar CALJIC instruction].) C. Riley's Contention That He Received Ineffective Assistance of Counsel
As Riley clarifies, even though he acknowledges his argument is foreclosed by binding authority, he raises it "to ensure that it is properly preserved for later review if required."
We next consider Riley's contention that he received ineffective assistance of counsel because defense counsel requested a defective jury instruction concerning the limitations on how the jury could use the testimony of an expert who described the typical behavior of children who have experienced sexual abuse.
1. Fortin's Expert Testimony and Defense Counsel's Proffered Instruction
During trial, social worker Laurie Fortin testified as an expert witness for the People. Although Fortin was not familiar with the victims in this case, in the course of her testimony, Fortin was asked to describe "common myths and misconceptions" surrounding children who have been sexually abused. Among other things, Fortin stated that instead of immediately disclosing molestation, the majority of children delay their disclosure, and when the victim has a close relationship to the abuser, it is likely that there will be a longer delay. In addition, according to Fortin, it is the norm that children will disclose the details of the molestation incrementally over time, and children who are molested will often have positive feelings toward their abuser.
During her testimony, Fortin made no reference to a syndrome, often mentioned in earlier case law, known as child sexual abuse accommodation syndrome (CSAAS). As described in the relevant cases, CSAAS is used as a therapeutic tool, and it recognizes five stages of a victim's reaction to child sexual abuse. (People v. Bowker (1988) 203 Cal.App.3d 385, 389.) The stages are (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed disclosure; and (5) retraction. (Ibid.) Courts have held that expert testimony about CSAAS "is inadmissible to prove that a child has been abused because the syndrome was developed not to prove abuse but to assist in understanding and treating abused children. However, . . . such evidence may be admitted to dispel common misconceptions the jury may hold as to how such children react to abuse." (People v. Stark (1989) 213 Cal.App.3d 107, 116.) Further, case law holds that " 'if requested the jury must be admonished "that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true. . . . The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." ' " (People v. Housley (1992) 6 Cal.App.4th 947, 955.)
Based on this case law, CALCRIM No. 1193 sets forth an instruction to be given to the jury if evidence regarding CSAAS has been presented at trial. "You have heard testimony from ___ <insert name of expert> regarding child sexual abuse accommodation syndrome. [¶] ___ 's <insert name of expert> testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her). [¶] You may consider this evidence only in deciding whether or not ___ 's <insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony." (CALCRIM No. 1193.)
As the bench notes to CALCRIM No. 1193 state, case law is in disagreement as to whether courts have a sua sponte duty to give such an instruction when warranted, or whether it need only be given upon request. (Judicial Council of Cal. Crim. Jury Instns. (2017) Bench Notes to CALCRIM No. 1193, p. 940.)
Here, during motions in limine the People explained that Fortin would be testifying about child molestation victims as a class, but she would not be mentioning CSAAS. The People's briefing in support of the motion in limine to admit Fortin's testimony pointed out that the trial court could give a limiting instruction similar to that given for CSAAS evidence. The People specifically cited an unpublished opinion from this court, which quoted a limiting instruction that the trial court had tailored for expert testimony that described child molestation victims as a class but did not mention CSAAS. Referring to the tailored instruction identified by the People, defense counsel stated, "I would be happy with those words exactly. . . . I would ask for this exact jury instruction."
The instruction stated, " ' "The testimony of [the expert is] admitted for a limited purpose. The[] testimony is offered and may be considered by you only for the purpose of understanding a class of individuals, child victims of sexual assault or abuse that may behave in a certain way . . . because of membership in this class of persons. This evidence cannot be used for any other purpose. Do not assume just because I give a particular instruction, that I am suggesting anything about the facts. [¶] The complaining witness, [A], may or may not be within that class of persons. This is for you to decide." ' " (People's motion in limine at G-N, quoting People v. Starks (No. D060092, Oct. 12, 2012 [2012 Cal.App.Unpub. Lexis 7422, at pp. *11-*12] (italics in Starks).)
At the end of the trial, the parties and the trial court once again discussed the jury instruction concerning Fortin's testimony. Defense counsel confirmed that he still wanted the court to instruct with the language identified by the People during motions in limine. Defense counsel then submitted a proposed instruction to the trial court, closely basing it on the language identified by the People.
As given to the jury, the instruction stated: "The testimony of Laurie Fortin was admitted for a limited purpose. The testimony was offered and may be considered by you only for the purpose of understanding a class of individuals, child victims of sexual assault or abuse who may behave in a certain way. This evidence cannot be used for any other purpose. [¶] Do not assume just because I give a particular instruction that I am suggesting anything about the facts. The complaining witness may or may not be within that class of persons. That is for you to decide."
Riley contends that defense counsel offered ineffective assistance because the instruction he submitted was insufficient to communicate the concepts set forth in CALCRIM No. 1193. According to Riley, because Fortin's testimony was similar to CSAAS evidence in that it addressed the myths and misconceptions regarding child sexual molestation victims as a class, the same instructional requirements should apply as in a case in which CSAAS evidence is admitted. Riley contends that, however, in this case "the instruction . . . fails to make clear that the testimony of Ms. Fortin was not to be used to determine whether [Riley] was guilty." According to Riley, the instruction "failed to tell the jury that they were forbidden from using [Fortin's] testimony to judge the credibility of the complainants."
2. Riley Has Not Established Ineffective Assistance of Counsel
A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685 (Strickland); People v. Frye (1998) 18 Cal.4th 894, 979.) To establish a denial of the right to effective assistance of counsel, a defendant must show (1) his counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (Strickland, at pp. 687, 691-692; Frye, at p. 979.) "It is defendant's burden to demonstrate the inadequacy of trial counsel." (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas).)
To show prejudice, the defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." (Id. at p. 693.) "A defendant must prove prejudice that is a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Further, "[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (Lucas, supra, 12 Cal.4th at p. 442; see People v. Anderson (2001) 25 Cal.4th 543, 569.) "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.) "[T]actical choices presented to us on a silent record" are "better evaluated by way of a petition for writ of habeas corpus" and will be rejected on direct appeal. (People v. Mayfield (1993) 5 Cal.4th 142, 188.)
Riley's attempt to establish ineffective assistance counsel fails because he has not shown that by requesting the instruction, defense counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Indeed, the instruction that defense counsel requested was specifically based on language quoted by this court in an unpublished opinion, and it reasonably communicates to the jury the concept that Riley claims is missing, namely that Fortin's testimony should not be used to determine whether the victims' molestation claims are true.
The instruction stated that Fortin's testimony was admitted only "for a limited purpose," "may be considered by you only for" that limited purpose, and "cannot be used for any other purpose." The instruction specifically identified that limited purpose as "understanding a class of individuals, child victims of sexual assault or abuse who may behave in a certain way." The instruction further specified that "[t]he complaining witnesses may or may not be within that class of persons." Taken together, all of these statements in the instruction adequately communicate to the jury that Fortin's testimony should not be used to determine whether Jane Doe 1 and Jane Doe 2 were in fact victims of Riley's sexual molestation.
Further, even assuming there was any insufficiency in the wording of the instruction, defense counsel could reasonably have made the tactical decision that rather than crafting a new instruction to tailor CALCRIM No. 1193 to a situation in which the expert does not mention CSAAS, he would be on firmer legal ground if he adopted the exact language set forth in our unpublished opinion cited by the People. In that context, we cannot conclude that Riley has met his burden on direct appeal to establish that there could be no rational tactical basis for counsel's decision.
We accordingly conclude that Riley has not established ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: NARES, J. AARON, J.