P. v. Lowe

Filed 9/24/07 P. v. Lowe CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Mark McCain Lowe was convicted by a jury of 41 sex offenses against four victims: 27 violations of Penal Code section 288, subdivision (a) (lewd act on a child under 14),[1] three involving John Doe I, one involving John Doe II, 11 involving John Doe III, and 12 involving John Doe IV; 12 violations of section 288, subdivision (b)(1) (forcible lewd act on a child under 14) involving Doe IV[2]; one violation of section 288.5 (continuous sexual abuse of a child under 14) involving Doe II; and one violation of section 286, subdivision (c)(1) (sodomy of a child under 14) involving Doe IV. The jury further found that the section 288 offenses were committed against more than one victim. ( 667.61, subd. (e)(5).) Defendant was sentenced to 585 years to life in prison, representing consecutive terms of 15 years to life on the section 288 offenses. He received concurrent upper term sentences of 16 and 8 years for the section 288.5 (count 5) and 286 violations (count 41), respectively.

Defendant contends that: (1) the courts finding that he was competent to stand trial was not supported by substantial evidence; (2) testimony concerning child sexual abuse accommodation syndrome was erroneously admitted; and (3) his rights as set forth in Apprendi (Apprendi v. New Jersey (2000) 530 U.S. 466); Blakely (Blakely v. Washington (2004) 542 U.S. 296) and Cunningham (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856]) were violated by imposition of the upper term sentences on counts 5 and 41. We conclude that substantial evidence supported the competency finding, the child sexual abuse accommodation syndrome evidence was properly admitted, and the sentencing errors were harmless. The judgment is therefore affirmed.

I. COMPETENCY TRIAL

A. Background

The original indictment in the case was filed in October 2000. In January 2002, criminal proceedings were suspended pursuant to section 1368. In September 2002, defendant was found incompetent to stand trial, and he was committed in October 2002 to Napa State Hospital (Napa). Defendant was released from Napa in January 2003, and after a court trial, was found competent in March 2003. Criminal proceedings were again suspended in June 2003. In May 2004, after a jury trial, defendant was found to be incompetent. He was ordered committed to Napa in June 2004, and was certified by Napa as competent in January 2005. Defendant was found competent in July 2005, the finding challenged in this appeal, following a court trial.

Under section 1367, subdivision (a), a defendant is deemed incompetent to be tried if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. The defense did not dispute that defendant understood the nature of the criminal proceedings, but maintained that he could not rationally assist his counsel.

B. Evidence

The defense case for incompetence rested primarily on the testimony of psychologists Edward Hyman and Myla Young, who conducted psychological evaluations of defendant, and attorney Mike Markowitz, who represented defendant in the 2002 and 2003 competency proceedings.

Hyman examined defendant from December 2001 to February 2002, in March and April 2004, and in April 2005. He tested defendant for: mental disorders (MMPI-2 and PAI-2 tests); perceptions (Rorschach); intelligence (WAIS-3); memory (WMS-3); competency to stand trial (MacArthur, ECST-R); and malingering (TOMM, SIRS). In addition to the testing, he interviewed defendant at length about his criminal case and reviewed the records of defendants two Napa commitments.

Hyman found that defendant had a borderline IQ, and significant memory impairment. He determined that defendant suffered from chronic, severe depressive disorder, paranoid schizophrenic disorder, and NOS cognitive disorder. The NOS cognitive disorder impaired defendants ability to make judgments, consider alternatives, and anticipate consequences. The paranoid schizophrenic disorder caused him to misperceive reality, and prevented him from trusting doctors, lawyers, or judges. Hyman opined that defendant could not assist, and would instead interfere, with his defense, because [h]e becomes fixated on things that are unrelated to either any of the underlying charges or his trial.

Young examined and tested defendant in July 2002, April 2004, and March and April of 2005. She determined that defendant suffered from two major disorders: brain dysfunction, and an underlying psychotic process, which could be paranoid schizophrenia or paranoid delusional disorder. The brain dysfunction reflected problems with the frontal lobe (executive functioning, i.e., problem solving, impulse control) and the temporal lobe (memory, organization). The psychotic process resulted in gross distortion of reality and illogical, at times, psychotic and delusional thinking.

Young opined that defendant could not reasonably or rationally assist counsel with his defense. In Youngs view, defendant could not think flexibly or weigh alternatives. His thinking was tangential, preservative, and illogical. His attitude toward his defense, repeatedly stated, was simply: Dont do any investigation. Dont consider any alternative. Dont look at anything else. Just put the kids on the stand and ask them questions.

Markowitz said that when he represented defendant in 2002 and 2003, and when he spoke with him in April 2005, defendant had a single mantra about his case: Get the kids in court and they will tell the truth. Markowitz said that defendant would not cooperate with him when he tried to go over police reports, and that he found it difficult to get anything specific from defendant about the case. [I] would talk to him, Markowitz said, about the alleged victims, that he would have to be able to say: Yeah, I know this kid, or I dont know this kid. Or this kid was at my house, or this kid wasnt at my house. You couldnt have that kind of conversation with him. All he would be focusing on is they are liars, the littleand the way he referred to them generally was the little bastards. And if he could get them into a courtroom: They will see me and they will tell the truth. When defendant was asked, What happens if they dont tell the truth as you know it . . . ? [] He doesnt want to talk about it. Markowitz thought that defendants biggest problem was his single-mindedness, or tunnel vision. Previously, defendant had been focused entirely on what Markowitz called the little bastards issue; when Markowitz last saw him, he was obsessed about the poor treatment he felt he had received during his second stay in Napa.

Markowitz acknowledged in cross-examination that when the issue of defendants competency was tried in 2003, at a time when defendant objected to being found incompetent and was upset by continuances of his trial, he was absolutely able to . . . go on at great length about his frustration with [defense counsel] and that particular issue, and was able to recall specific matters such as the dates that had been set for trial. Similarly, when Markowitz was asked whether defendant, following his second stay in Napa, remembered the names of doctors he disliked and the circumstances of the episodes that upset him, Markowitz answered, Yeah, he sure did. Markowitz said that his knowledge of defendants unwillingness to address the specifics of the charges against him was based primarily on conversations with defense counsel; he admitted that he didnt spend a lot of time with that, because it wasnt my function . . . .

Prosecution witness James Jones, a psychologist at Napa, saw defendant for two to three hours in the mornings, and received staff reports on defendant twice a day, during defendants second commitment. Jones was part of the Napa team that certified that defendant was competent, and he repeated that opinion at trial.

Jones testified that defendants level of functioning was in the top 15 percent of the clients in Napa, his behavior was most often appropriate, he was very fluent in expressing himself, and he exhibited no severe brain disorder or mental illness. Defendant was interacting well and did not show severe cognitive problems that would prevent his learning of information or retrieval of information. When asked whether he thought defendant was paranoid, Jones answered, [i]f he was paranoid, he didnt have the severe paranoia that we are used to working with in regards to affecting his behavior throughout the day, throughout his interactions with people. I didnt see that.

Jones described defendant as edgy and angry, but said that those traits did not interfere with his ability to function. He said that defendant was very rigid and inflexible at times, [b]ut nothing that was so severe that it prohibited him from learning or responding. Defendant was not showing us severe mental illness. He was showing us temperament. Defendants problems were volitional; he was determined to have it his own way, as opposed to being flooded with problems, with delusions and hallucinations.

While defendant refused to talk about his own case, he was able to help others in groups and make perceptive comments about their cases. Although there were notes in defendants Napa file attesting to his lack of progress, Jones testified that his problem was clearly confined to his own case, and the Napa staff felt that he was making a choice not to address his case, not that he lacked the capacity to do so. It appeared very early during defendants latest commitment that he was just resisting, but, out of an abundance of caution, the staff continued to observe his behavior for a number of months to confirm that impression.

Another prosecution witness, neuropsychologist Larry Wornian, had examined defendant in July 2003 and April 2004, and had found him competent on both occasions. Wornian questioned Youngs test results because those results would predict much more gross behavioral deficits than defendant exhibited. Wornian believed that if a persons frontal lobe function were really grossly impaired, then that person is likely going to wind up needing placement in an institution. The tests Young administered were not designed to address the question of whether a person can cooperate with their attorney, and psychological testing was, in any event, only a kind of shortcut to spending just a whole bunch of time looking at that person through informed neuropsychological eyes. In Wornians view, the day-to-day observations of staff like that in Napa were entitled to equal, if not more weight than test results in determining what is going on with a person.

Wornian questioned Hymans scoring of defendants responses to the MacArthur competency test. For example, the test asked whether defendant thought he was more or less likely to be treated fairly by the legal system than others in trouble with the law, and why. Defendant circled the answer less likely, and explained: Probably because I have sex charges and assault charges, and theyre hating on me because it involves children, and I didnt do it, and I think theres prejudice toward me. Thats why I wanted my trial, to show them that Im not guilty. I just lost my temper, and I never heard of sexual abuse of a child, but Ive hollered and grabbed out of anger when theyve got smart and got into my face. Whereas Wornian thought this was a pretty good response, Hyman gave it only one point on a scale of zero (low) to two (high).

Psychologist Paul Good testified for the prosecution that the protocol for the MacArthur test encourages probing if an answer is incomplete or vague, and he opined that Hyman did not ask enough followup questions when he administered the test to defendant. For example, defendant was asked, What are some of the jobs of the jury? He answered, To listen to both sides and to make a determination of whos got the most evidence. Hyman gave this response one point. Good thought that the response as it stood could have been given two points, but that if Hyman wanted to be absolutely careful, he could have asked defendant if he could be more specific about what he meant by a determination, to confirm his understanding that the jury would render a verdict on guilt or innocence. Good thought that followup questions to defendant could have produced higher scores on 13 of the 22 items in the test, and resulted in findings of only mild, rather than clinically significant, impairment.

Defense psychologists Carol Walser and John Shields rescored defendants MacArthur test using his responses to Hyman, and reaffirmed Hymans finding of clinically significant impairment. Walser did not see the need for further probing of defendants answers, and while Shields thought that a few followup questions would have been helpful, he questioned whether further probing would have changed the result.

C. Decision

The court actively questioned the witnesses at trial, and explained at length its reasons for deciding that defendant was competent:

I have determined that Mr. Lowe suffers from some certain mental limitations that incline him towards tunnel vision that pose some memory problems for him. Ive also determined that he does appear to suffer from certain mental disorders that incline him towards depression and towards what Ill generally refer to as paranoia [and] suspicion about others.

But it has not been established to me by a preponderance of the evidence that these infirmities, such as they are, keep him from being able to understand the nature of the proceedings, or being able to assist counsel in a rational manner.

[I] very carefully listened to the evidence and tried to carefully scrutinize it.

Ive also observed Mr. Lowes demeanor during these proceedings, which has to be characterized as one of just complete withdrawal. Its as if he werent interested at all in what was going on.

But, at best, the totality of the evidence thats been presented here and my observations of the defendant during trial simply demonstrate to me that Mr. Lowe is a client who is difficult to deal with, and not that he cant rationally assist counsel in providing a defense.

As I intimated earlier in the course of closing argument, I dont have much confidence in the results of the various tests administered by defense experts. The People in their cross-examination of those experts, I think, clearly showed that those results were the results of the exercise of judgment. And in my view, the exercise of the judgment, that was very much skewed and biased. Far from showing that . . . defendants mental deficiencies . . . indicate that he cant rationally assist in providing a defense. [T]he questions that were asked of this defendant and the answers that he gave to those questions were just the opposite. [I]n my view they showed an above average understanding of the nature of criminal proceedings, and an above average understanding of the nature of the charges against him and his understanding of potential defenses to those charges.

[I]m not persuaded that he cant work with his counsel, and Im not persuaded that [counsel cant] work with him.

[B]ecause of a proclivity towards tunnel vision and because of suspicion of others and distrust of others and because of maybe some anger and also depression hes going to be a difficult person to work with, but nothing allows me to conclude that he is unable to provide counsel with the kind of assistance they need to defend him. Quite the opposite. [H]e understands what hes being charged with. He has a line of defense to it, that the actions towards the children are misinterpreted, that all he was doing was disciplining them, that he wasnt molesting them in any fashion or form, and that he wants to get on with it, and he [is] persuaded that once the witnesses take the stand and he confronts them that theyre going to recant some of the things they have said, or hell be able to explain the touchings as not being sexual or being for some other purpose.

Mr. MarkowitzNobody has told me, no evidence has really been presented that he cant provide details with regard to what happened on the days in question. Mr. Markowitz admitted that he never really went into them in any great length because his focus was on competency, as opposed to the merits or demerits of the underlying case. So although he had some question about whetherwhether Mr. Lowe could go into the details because of this tunnel vision that he described, he admitted, as he put it, in all fairness that he never did probe that very far.

[] . . . []

[M]r. Lowe has some mental deficiencies and mental disorders that create problems for [defense counsel] Im sure, but Im not persuaded by a preponderance of the evidence that these would keep him or make him incompetent within the [intendment] of Penal Code section 1365. So I do find him competent. That will be the order of the court.

D. Substantial Evidence

A defendant who is mentally incompetent cannot be tried . . . . The defendant has the burden of proving incompetency by a preponderance of the evidence. (People v. Marshall (1997) 15 Cal.4th 1, 31 (Marshall);  1367, subd. (a), 1369, subd. (f); see also People v. Rells (2000) 22 Cal.4th 860, 867 [defendants burden applies at hearing on recovery of mental competence].) When a competency finding is challenged on appeal, we must view the record in the light most favorable to the [finding] and uphold the [finding] if it is supported by substantial evidence, i.e., evidence that is reasonable, credible, and of solid value. (Marshall, supra, 15 Cal.4th at p. 31.)

Defendants brief acknowledges the force of the substantial evidence rule on appeal and the burden he assumes when challenging the sufficiency of evidence particularly where the challenge focuses on the credibility of testimony, as it does here. This is not one of the rare cases where that burden can be overcome.

Joness expert opinion alone constituted substantial evidence from which the court could find that defendant was competent. That opinion, based on extended observations of defendant, was reasonable, credible and of solid value. Defendant submits that his experts opinions were entitled to greater weight than that of Jones because they had tested him more recently than Jones had observed him, but the relative weight of the competing opinions was a judgment call for the trial court. The court could reasonably agree with Wornian that trained observations such as those of Jones are more probative of a persons competence than tests such as those administered by Hyman and Young. The court could also reasonably credit Wornians and Goods criticisms of Hymans test scoring.

The court cogently explained why it rejected the defense evidence, including Markowitzs testimony, and that evidence certainly did not as a matter of law compel a finding of incompetence. The court rendered a well-reasoned decision based on a careful review of the evidence, and the evidence provided ample support for its determination.

II. TRIAL OF CHARGES

A. Facts

Doe I, born in December 1981, was in the fifth grade when a school counselor introduced him to defendant, who was working as a teachers aide. Doe I considered defendant my teacher, mentor, father, and started hanging out with him. Doe Is real father wasnt . . . really around. Defendant was a cool guy, who helped in Doe Is special education class, took him to the arcade, and played football with him. They talked about football a lot, and defendant told him he had played football in the Canadian league.[3]

Doe I slept over at defendants place 15 to 20 times. One night in April 1995, while they were watching TV in defendants bedroom, defendant put his hand on Doe Is penis, underneath Doe Is clothing, for about half a minute. Doe I went to the bathroom, and when he returned defendant put his hand on his penis again. Defendant grabbed Doe Is penis again one night in June 1995. After this third incident, Doe I told his mother what defendant had done, she took him to the police station, and he gave a statement recounting what had transpired.

The prosecutor asked Doe I why he went back to defendant after defendant touched his penis the first time. Doe I had difficulty answering, but finally responded, I was in fear.

Doe II, born in September 1985, was 11 years old and in the fifth grade when he met defendant playing basketball at the Richmond YMCA. Doe II was in foster care during the time of his relationship with defendant; over the years, he had more than 20 different foster parents. Defendant was a cool guy who said he had played professional football. Doe II started hanging out with defendant, who took him out to eat, to the movies, the horse track, and arcades.

Doe II described defendants apartment as Fairylanda place that had a lot of candy on the table, teddy bears, everything I wanted as a kid. San Pablo Police Officer David Krastof, who executed a search warrant at the apartment in May 2000, testified that candy and stuffed animals were the first thing you saw when you went inside. Krastof said that there were boxes of popcorn and ice cream cones on top of the microwave, and pictures of defendant on the walls along with photos of sports heroes, political figures, and religious leaders. The only bed and TV in the apartment were in the one bedroom. The bedroom had a stereo system, video games and movies.

Doe II testified that, the third time he slept over at defendants apartment, defendant rubbed his penis for three or four minutes over his underwear, and then got on top of him and humped him for five or 10 minutes, rubbing their penises together. Doe II tried unsuccessfully to roll over or push defendant away. The outside of Doe IIs underpants around his penis was wet after defendant stopped. Doe II said that the same things happened the other 40 or 50 times he slept at defendants place over the course of a year.

When the prosecutor asked Doe II why he returned to defendants place after the first incident, Doe II answered, Because it was fun to do the activities that he had. . . . [] Playing football andplaying the sports. We went to the YMCA and being active. Doe II said defendant told him to keep his mouth shut, and he never told anyone what was happening.

Doe II moved to Vallejo and stopped seeing defendant. When he moved back to Contra Costa County, he wanted to see defendant again because he thought defendant could help him play high school football, but his foster father would not let him look defendant up.

Doe III, born in May 1988, started hanging out with defendant when he was nine or 10 years old. Defendant was his football coach and became like a father to him. He looked to defendant as a father figure because [I] didnt have a father figure then . . . . Defendant took him to the mountains, amusement parks, arcades, and movies. He was impressed when defendant told him that he had played professional football for the Bengals. Eventually they started calling each other father and son, and holding themselves out to others as father and son.

Doe III slept over at defendants apartment at least twice a week when he was 10 or 11 years old. Nearly every time, defendant would get on top of Doe III and hump him, rubbing their genitals together and leaving wet spots on the front of Doe IIIs briefs. Defendant sometimes stroked Doe IIIs penis, or put Doe IIIs hand on defendants penis.

When the prosecutor asked Doe III why he kept going back to defendants place despite the abuse, Doe III answered, Because I looked at him like a dad. Its likeit was like anything I didnt have, you know, he would get for me. He was like a trade for a trade, you could say. He did whatever he did, and in return I got whatever I wanted or something. Defendant warned him that he better not tell his aunt or grandmother, and he did not tell anyone what was going on. When the prosecutor asked why he did not tell anyone, he said, Embarrassment. [] . . . [] My friends thinking, you know, hey, I might have been gay, family looking at me different, church and things.

In cross-examination of Doe III, the defense brought out that he lived with his grandparents when he was involved with defendant, and that the grandparents were loving and supportive caregivers. The grandmother testified as a defense witness. In cross-examination she acknowledged that Doe IIIs father had not been around, and that defendant had been a mentor to Doe III. Doe III testified that he had mixed emotions when defendant was arrested. He admitted in cross-examination that he could have chosen to spend nights with his grandparents or aunt, rather than with defendant.

Doe IV, born in October 1989, was nine or 10 years old when he met defendant. He testified that Doe III, whom he knew as defendants son, was his best friend. Defendant was [l]ike a mentor to Doe IV, a nice person who took him to arcades and out to eat. Defendants apartment had stuffed animals, pictures of defendant on the wall, and [c]andy everywhere.

Doe IV slept over at the apartment once a week for three months during the summer of 1999. On every such occasion, defendant touched Doe IVs penis with his hand, got on top of Doe IV, and humped their penises together. One time defendant put his penis in Doe IVs butt. When defendant would pull Doe IV toward him, Doe IV would try to slide away from him, but defendant forced their contact.

Doe IV said that he did not tell anyone what defendant was doing to him because he was scared, and felt that it needed to be confidential. He said that, had he told his mother, she would have told his uncle, and the uncle would have come after defendant. Doe IV said he kept going back to defendants house because he did not want to make defendant paranoid and nervous by letting him know that he objected to his conduct, and because they had fun until it came down to going to sleep.

In cross-examination, Doe IV conceded that no one forced him to go to defendants place. He said there were incidents in his home when his mom got in a fight or something, and defendant would come to check on him and his mom would be like go with him or whatever, you know, get out of here . . . . Doe IV told a school counselor about the molestations before he told his mother. He was removed from his home and placed in foster care after the sexual abuse was revealed.

Four other witnesses, John Doe VIII, John Doe IX, John Doe X, and C.C., also testified about their involvement with defendant when they were children. Defendant befriended them playing sportsDoe VIII at age 11 or 12, Doe IX at age nine, Doe X at age 11,[4]C.C. at age 12 or 13and they ended up sleeping at his home. The second time C.C. slept over, he woke up and found defendant rubbing his penis with his hand. One of the times Doe IX slept over, defendant put his arm around him and rubbed his chest, an experience that made him uncomfortable. Doe X also woke up one night and felt uncomfortable when he found defendants arm around him. Doe VIII, who testified for both the prosecution and defense, said that he slept over at defendants home four times when he was 12, and that defendant never threatened or harmed him. When he slept over, defendant told him, but did not force him, to wear the underwear defendant bought for him. Defendant once hit him in the stomach, but not in a physical way.

B. CSAAS Evidence

(1) Record

Dr. Anthony Urquiza testified over a defense Kelly-Frye objection (People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. 1923) 293 F. 1013) concerning child sexual abuse accommodation syndrome (CSAAS). Urquiza said that CSAAS is used to dispel misperceptions or myths that people may have about what commonly occurs with a child who has been sexually abused. The syndrome has five facets: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed and unconvincing disclosure; and (5) retraction.

The secrecy component addresses the fallacy that child victims of sexual abuse will disclose what is happening to stop it from occurring. Ninety percent of victims are abused by someone with whom they have an ongoing relationship, and the dynamics of the relationshipthreats, favors, special attentionmay lead children to conceal their sexual abuse. Children may keep the abuse secret even if they have a good relationship with an attentive caregiver.

The helplessness component addresses the misperception that children can fend off or run away from their molesters. Children are unable to ensure their own sexual safety because their abusers are more sophisticated and physically stronger. Children are particularly vulnerable when those responsible for protecting them do not provide proper supervision, and they are especially helpless when the caregiver is the abuser.

Entrapment and accommodation refer to childrens ability to cope with abuse by compartmentalizing their feelings so as to appear surprisingly normal. Urquiza said that external signs of abuse are typically very limited, and that, after 20 years of practice in the field, he is unable to tell from observing a child whether he or she has been abused.

Delayed and unconvincing disclosure describe how reports of abuse are generally made. Contrary to expectations, immediate reports of abuse are rare. Seventy four percent of child abuse victims do not reveal their abuse in the first 12 months in which it occurs, and 35 percent or more of victims do not reveal the abuse until they are adults. The disclosure, when it occurs, may be unconvincing because victims generally do not disclose everything all at once, and may give different versions of events over time. Disclosure is best conceived as a process, rather than a single event, where progressively more is revealed as the victim overcomes feelings of embarrassment, humiliation and fear of retribution.

The final feature of the syndrome, retraction, occurs in 15 to 20 percent of cases, because of pressure from the perpetrator or the perpetrators supporters, or because of fear of having to testify about what transpired.

Urquiza acknowledged that he had not met any of the victims in defendants case, and that he was not testifying as to whether they had been molested. He said that CSAAS was a means to describe what commonly occurs with children who have been sexually abused, rather than a diagnostic tool. He said that there had been abundant research supporting each facet of the syndrome since it was identified in 1983, but that the syndrome was not reflected in every case.

Before Urquiza testified, and again at the end of the case, the jury was instructed pursuant to CALJIC No. 10.64 as follows:

Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that an alleged victims molestation claim is true.

Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.

You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that an alleged victims reactions, as demonstrated by the evidence, are not inconsistent with him having been molested.

(2) Discussion

Defendant acknowledges that case law supports admission of CSAAS evidence for the limited purpose identified in the foregoing instruction. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin); People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino).) In McAlpin, our Supreme Court indicated that expert testimony on CSAAS  [i]s needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused childrens seemingly self-impeaching behavior, and noted that the great majority of courts approve of the use of such testimony. (See also Askowitz et al., The Reliability of Expert Psychological Testimony in Child Sexual Abuse Prosecutions (1994) 15 Cardozo L.Rev. 2027, 2039, 2040 (Reliability) [[t]here appears to be acceptance within the scientific community that CSAAS identifies and describes behavioral characteristics commonly found in victims of child sexual abuse. . . . [] . . . [] The overwhelming majority of jurisdictions will allow testimony based on CSAAS when it is used to explain the significance of the child complainants seemingly self-impeaching behavior, such as delayed reporting or recantation].)

Identifying a myth or misconception has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victims credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. (Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) CSAAS testimony was admissible in People v. Wells (2004) 118 Cal.App.4th 179, 190, for example, because the victim had not immediately reported the alleged abuse, and when she eventually did tell adults her disclosures were piecemeal and sometimes contradictory in the details. Such testimony was likewise admissible here given the victims delayed disclosures, and their paradoxical behavior of submitting to repeated molestations, and defendant does not argue that there was an insufficient foundation for introduction of the evidence.

Defendant contends more broadly that it is time to reconsider the propriety of admitting [CSAAS] testimony at all. Defendant ventures that the passage of nearly twenty years since the CSAAS theory was first articulated and the proliferation in the media of various detailed accounts of numerous child sexual abuse cases has rendered the subjects the theory addresses within the common knowledge of the typical juror, and thus that the syndrome is no longer a proper subject of expert testimony. (Evid. Code,  801, subd. (a) [expert may opine on a subject that is sufficiently beyond common experience that the opinion of the expert would assist the trier of fact].)

However, defendant cites no authority for this proposition other than assertions in Commonwealth v. Dunkle (Pa. 1992) 602 A.2d 830, 836-838 (Dunkle)the leading case for the minority view that CSAAS is inadmissible (see Reliability, supra, 15 Cardozo L.Rev. at p. 2044)that failures of sexually abused children to promptly report abuse or recall dates and details of the abuse are matters of common understanding. Dunkles reasoning was implicitly rejected in McAlpin, which adhered to the majority rule that CSAAS is admissible, and no subsequent case suggests that our Supreme Court would now hold a different view. To the contrary, the court reaffirmed McAlpins endorsement of CSAAS testimony in People v. Brown (2004) 33 Cal.4th 892, 906. Defendants claim that the public has become so well informed about the behavior of child abuse victims as to obviate CSAAS evidence is speculative, and contrary to controlling authority in this state.

Defendants other argument against admission of the CSAAS evidence is that the syndrome is junk science. Again, however, his supporting authorities are inapposite. He cites articles showing that CSAAS has been rejected by the relevant scientific community as a diagnostic tool for making child sexual abuse determinations, but Dr. Urquiza explained that the syndrome was not a diagnostic tool, and that he was not purporting to opine on whether any of the victims had in fact been molested. CSAAS evidence was properly admitted here for the limited purpose described in CALJIC No. 10.64.

C. Sentencing

Defendant asserts Cunningham error as to the upper term concurrent sentences imposed for count 5 (continuous sexual abuse of Doe II) and count 41 (sodomy of Doe IV).

The court imposed the upper terms based on findings that the single factor in mitigation, defendants lack of a criminal record (Cal. Rules of Court, rule 4.423(b)(1)),[5] was outweighed by the following factors in aggravation relating to the crimes: high degree of cruelty, viciousness, and callousness (rule 4.421(a)(1)); particularly vulnerable victims (rule 4.421(a)(3)); planning, sophistication, and professionalism (rule 4.421(a)(8)); and exploitation of a position of trust and confidence (rule 4.421(a)(11)).

Here, as in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), [n]one of the aggravating circumstances cited by the trial court come within the exception set forth in Blakely. Defendant had no prior criminal convictions. All of the aggravating circumstances cited by the trial court were based upon the facts underlying the crime[s]; none were admitted by defendant or established by the jurys verdict. [A]ccordingly, . . . defendants Sixth Amendment rights were violated by the imposition of [the] upper term sentence[s]. (Id. at pp. 837-838, italics omitted.) The errors were harmless, however, if it appears that, had existence of the aggravating circumstances been submitted to the jury, the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance . . . . (Id. at p. 839.)

We have no doubt that a jury would have found true multiple aggravating factors supporting the upper term sentences for the crimes against Doe II and Doe IV here.

The evidence established that defendant sought out situations where he could meet and befriend the young boys on whom he preyed. Defendant set up his apartment to be what Doe II called a Fairyland for his victims, with, as Doe IV recalled, stuffed animals and candy everywhere. The apartment was arranged so as to lure children who slept over into defendants bed, the only bed in the apartment, next to the only TV. We can confidently conclude that a jury would have found, beyond a reasonable doubt, that the crimes were carried out with considerable planning.

Doe II, an 11-year-old boy with multiple foster placements, was obviously and indisputably (Sandoval, supra, 41 Cal.4th at p. 842) a particularly vulnerable victim. DefendantDoe IVs mentor and father of his best friendclearly and uncontestably took advantage of a position of trust in Doe IVs life.

There was no prejudicial error in connection with the concurrent sentences.

III. DISPOSITION

The judgment is affirmed.

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Marchiano, P.J.

We concur:

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Swager, J.

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Margulies, J.

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[1] All further statutory references are to the Penal Code.

[2] From this point we refer to these victims as Doe instead of John Doe.

[3] It was stipulated that defendant never played professional football.

[4] From this point we also refer to these victims as Doe instead of John Doe.

[5] All further rule references are to the California Rules of Court.