Filed 3/1/18 P. v. Patino CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
OSCAR GILBERTO PATINO,
Defendant and Appellant.

A147623

(San Mateo County
Super. Ct. No. SC080081A)


Defendant Oscar Gilberto Patino was sentenced to state prison for an aggregate term of 60 years to life after a jury found him guilty of 12 felonies and their accompanying enhancement allegations. All of the charges related to sexual acts committed against minors.
The major issues on this appeal concern testimony provided at trial about Child Sexual Abuse Accommodation Syndrome (CSAAS). “It is beyond dispute that CSAAS testimony is inadmissible to prove that a molestation actually occurred. It can be highly prejudicial if not properly handled by the trial court. It is unusual evidence in that it is expert testimony designed to explain the state of mind of a complaining witness. The particular aspects of CSAAS are as consistent with false testimony as with true testimony. For these reasons, the admissibility of such testimony must be handled carefully by the trial court. [Citations.] [¶] Although inadmissible to prove that a molestation occurred, CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) “The testimony is pertinent and admissible if an issue has been raised as to the victim’s credibility.” (Id. at p. 1745.)
The issue of CSAAS testimony first arose in one of the prosecution’s in limine
motions. The object of the motion was described as follows: “The victims in the present case did not promptly disclose the sexual abuse by the Defendant. A reasonable juror might tend to believe the molestation did not actually occur since they did not disclose immediately. These are all common misconceptions. [¶] The People intend to call Miriam Wolf and/or Anthony Urquiza as an expert on Child Sexual Abuse Accommodation Syndrome. He/She will explain why sex assault victims, in particular child victims, may react to sex crimes in ways which may appear inconsistent with actual victimization to lay people with little or no knowledge of common child reactions to molest[ation]. In short, [he/]she will disabuse the jury of common misconceptions of child molest victims. He/she will not opine that she believes the victims were actually molested in this case.”
Defendant opposed the motion because “expert testimony on this issue is no longer needed. It is no longer a myth or misconception that people who are victims of sexual assault report immediately.” The trial court granted the prosecution’s motion. After being accepted as an expert on CSAAS, without objection from the defense, Ms. Wolf, a licensed clinical social worker, initially testified about the syndrome in very general terms. The only thing approaching a specific was that the syndrome had five “categories” or “clusters” of “patterns of behavior.” Before her direct examination began, the court admonished her: “Ms. Wolf, under the law you can only testify generally as to CSAAS. What I mean by that is please don’t do anything connected with this case.”
The prosecutor asked: “Is it common for a child . . . to not tell anyone for a long time that they have been abused?” Ms. Wolf answered: “It’s quite common.” She explained that “not all children disclose during childhood. Many people go into adulthood without disclosing childhood sexual abuse. Of those that do, the research is quite clear that there is this delay. So, when children do report sexual abuse, it is delayed and it is often conflicted.” A major factor is the child’s fear: “it may be fear of the perpetrator, but also fear of people’s reactions,” and possibly fear of being diagnosed with a sexually transmitted disease. By contrast, “when we hear about sexual abuse, we look at it through our adult prism and everything that we know about sexuality,” but “often . . . kids . . . don’t have an appreciation for [the] sexual nature of what has happened.” The whole point of CSAAS is “to help adults to think about this from a child’s perspective.” Ms. Wolf agreed that CSAAS “is not going to tell you whether or not someone was molested.”
Defendant first contends, to quote the caption of his brief: “The court erred in granting the prosecution’s motion in limine . . . because CSAAS evidence violate[d] appellant’s right to a fair trial and due process of law.” This point was not preserved for review because it was not made the basis for a specific and timely objection to the trial court. (Evid. Code, § 353, subd. (a); People v. Abel (2012) 53 Cal.4th 891, 924.) If the point had been preserved, it would fail. Our Supreme Court has approved admission of CSAAS testimony (People v. McAlpin (1991) 53 Cal.3d 1289, 1300–1301), and its use entails no constitutional violation. (People v. Patino, supra, 26 Cal.App.4th 1737, 1747; Brodit v. Cambra (9th Cir. 2003) 350 F.3d 985, 991.)
Defendant next contends, again quoting the caption in his brief, that “the prosecution committed misconduct in eliciting CSAAS testimony beyond its permissible scope,” to wit, “the prosecution committed misconduct when he elicited CSAAS testimony to show that the molestations had occurred,” specifically, “when he asked Ms. Wolf to testify as to hypotheticals that tracked the facts of the case,” and “when he elicited CSAAS testimony prior to when the defense raised issues about the complaining witnesses’ credibility.”
Defendant made one objection to a question on direct examination that the answer would “not [be] part of the—[¶] . . . [¶] — syndrome,” and another that an answer went beyond the “literature.” These were not sufficient to alert the trial court that the prosecution was being accused of committing misconduct. Nor was either protest accompanied with a request that the jury be given a curative admonition, both of which are requisites to preserving a claim of prosecutorial misconduct for review. (People v. Gray (2005) 37 Cal.4th 168, 215; People v. Prieto (2003) 30 Cal.4th 226, 259–260.) Again, if the claim had been preserved, it would fail.
The prosecutor had barely commenced his direct examination when he asked, “[in] your testimony today you are being asked to testify about CSAAS and how that applies to children. Are you going to be doing that, applying your research to the children that may be in this case or generally to children as a population?” Ms. Wolf responded: “I am going to do my very best to describe the literature in general.” It was immediately after this that the trial court delivered the admonition quoted above, very probably at the request of defense counsel at an unreported sidebar. It would be truly extraordinary if the prosecutor then proceeded to ask improper questions, to which the witness provided improper answers, and the trial court simply watched it happen without intervening to uphold its ruling. So, it is gratifying to learn that nothing approaching the claimed misconduct actually occurred.
At the outset we reject defendant’s claim that the timing of testimony was itself misconduct. The point of CSAAS testimony is to dispel possible misconceptions or myths in juror’s minds. It is permissible to do the dispelling preemptively in the prosecution’s case-in-chief. (See People v. Riggs (2008) 44 Cal.4th 248, 293; People v. Patino, supra, 26 Cal.App.4th 1737, 1744–1745.)
Defendant points to a number of “hypotheticals” which, he claims, “tracked the facts of this case” asked by the prosecution, and the answers by Ms. Wolf. There is no need to spell out all the details. Both questions and answers were general and nonspecific (e.g., “Have you ever had an experience,” “do you have any experience related to or reviewed any literature related to,” “I have had that happen on more than one occasion in my own anecdotal experience”). And it was at this time that the prosecutor asked: “Again, the Child Sexual Abuse Accommodation Syndrome is not going to tell you whether or not someone was molested; correct?” Ms. Wolf replied: “That is actually one of the misuses that I referenced before. You cannot take these five categories and use them as a checklist and say, ‘Okay. Three out of five. Majority wins. This child was molested.’ [¶] An individual child may display some of these patterns of behavior, and an individual child might display all o[f] them or anywhere in between. It’s a way of understanding something that it counterintuitive to adults, but it’s not a diagnostic tool or a checklist on any particular case.” Later, Ms. Wolf testified that CSAAS was not “a generally accepted theory about how child sexual abuse occurs.”
A careful examination of the record establishes that no misconduct occurred. It follows that defendant’s trial counsel was not constitutionally incompetent for failing to present claims of misconduct that would not have succeeded. (See, e.g., People v. Anderson (2001) 25 Cal.4th 543, 587 [“Counsel is not required to proffer futile objections.”].)
Defendant presents another, more serious, claim of impropriety. According to his caption: “The prosecution committed misconduct in dissuading appellant’s witness from testifying,” the specific witness being his wife, Ms. Manjarres. The only details in the opening brief are these:
On page 13: “Prior to trial, the prosecutor spoke to Ms. Manjarres about testifying. ([reporter’s transcript (RT)] 446; [clerk’s transcript (CT)] 385–388; 404.) The prosecutor informed the Court on March 13, 2015, that Ms. Manjarres was not going to be testifying. (RT 446.) Ms. Manjarres later testified at appellant’s motion for new trial hearing on November 6, 2015, that the prosecutor dissuaded her from testifying. (RT 446; CT 385–388; 404.)”
And on page 55, immediately following the caption quoted above: “Ms. Manjarres did not testify in appellant’s trial. Prior to trial, Ms. Manjarres had met with the prosecutor (RT 446), whom she states intimidated and dissuaded her from testifying. (RT 446; CT 385–388; 404.) She testified to this at appellant’s motion for new trial hearing on November 6, 2015. (RT 446; CT 385–388; 404.) The prosecutor informed the Court on March 13, 2015, that Ms. Manjarres was not going to be testifying. (RT 446.) The prosecutor committed misconduct in preventing Ms. Manjarres from testifying. Ms. Manjarres would have been a beneficial and case-changing witness for appellant. (CT 404.).”
We included the record citations because, when checked, none, we repeat none, of them substantiated the claim of misconduct, or even came close. The claim could be summarily rejected on that basis alone. (See In re S.C. (2006) 138 Cal.App.4th 396, 406; Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113; Cal. Rules of Court, rule 8.204(a)(1)(C).) Fortunately for defendant, the Attorney General made good this omission.
The court was told during trial, by defense counsel, that Ms. Manjarres “before trial started told the District Attorney that if called as a witness she would invoke the marital privilege. I just would like to ask [the prosecutor] to enter into a stipulation to that fact,” which the prosecutor did. It was only after the verdicts were in that Ms. Manjarres submitted a declaration in support of defendant’s motion for a new trial, in which she stated: “I wanted to testify on behalf of my husband. However, my husband’s attorneys told me that I shouldn’t testify because the jury would not believe me.” It was claimed that this constituted ineffective assistance of defense counsel.
Ms. Manjarres testified at the hearing on defendant’s new trial motion. So did defendant’s former counsel, who reiterated the version told the court during trial. The trial court denied the motion, finding that former counsel was credible, defendant’s wife was not. In light of these conclusive credibility determinations (which defendant does not mention, let alone challenge), the factual predicate of defendant’s claim—improper dissuasion—disappears. (See., e.g., People v. Rameriz (1934) 1 Cal.2d 559, 563 [“ ‘upon the hearing of the defendant’s motion for a new trial’ ” “ ‘[t]he trial judge’s determination of . . . credibility is conclusive.’ ”].) Thus, no misconduct.
Defendant’s final contention is that during final argument, the prosecutor uttered these words: “The defendant as he sits in custody—excuse me. Strike that. After he has been—” The trial court sustained defense counsel’s objection and ordered the prosecutor’s remarks stricken. The court thereafter denied defendant’s oral motion for a mistrial, calling the prosecutor’s remarks inadvertent, “a clear slip of the tongue.” The court thought the remarks did not cause “sufficient prejudice for a mistrial.” It offered defendant the choice of “just let[ting] it go” or “tell[ing] the jury that any evidence that defendant is in custody is irrelevant and must not be considered by them.” Defense counsel opted to have no further action, on the theory that “a curative instruction would be further prejudice.”
Defendant attacks the ruling as error. The standard for reversal is whether the trial court abused its considerable discretion in concluding a fair trial was still possible. (People v. Wallace (2008) 44 Cal.4th 1032, 1068; People v. Avila (2006) 38 Cal.4th 491, 573.) We cannot so conclude. The remarks were fleeting, instantly repudiated, and not repeated. As for prejudice, the jury acquitted defendant of one of the charges, so we cannot conclude it was incurably inflamed against defendant.
The final matter is from the Attorney General: “[T]he abstract of judgment incorrectly states appellant was sentenced to a total of 30 years to life, and that he received 15 years to life only for counts 5, 6, and 12. The trial court imposed a total of 60 years to life consisting of consecutive sentences of 15 years to life for counts 5, 6, 12, and 13, and concurrent sentences of 15 years to life for counts 1 and 7 through 11. Thus, this court should direct the trial court to correct the abstract of judgment so it accurately reflects appellant’s sentences for all counts.” The Attorney General is correct, and the abstract should be so modified.
The judgment of conviction is affirmed. The clerk of the trial court is directed to prepare an amended abstract of judgment in conformity with the preceding paragraph, and to forward a certified copy to the Department of Corrections and Rehabilitation.



_________________________
Richman, Acting P.J.


We concur:


_________________________
Stewart, J.


_________________________
Miller, J.

























A147623; P. v. Patino