Filed 2/21/18 P. v. Spain CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JORGE LUIS SPAIN,

Defendant and Appellant.
H043429
(Santa Clara County
Super. Ct. No. B1472804)
Defendant Jorge Luis Spain was convicted after jury trial of multiple counts of child molestation. On appeal, he argues he was denied effective assistance of counsel, the court should not have admitted testimony regarding Child Sexual Assault Accommodation Syndrome (CSAAS), and the prosecutor made improper arguments to the jury.
STATEMENT OF THE FACTS AND CASE
W. and G. are the victims in this case. W. was born in 1997, and G. was born in 1999; he has a twin brother, JJ. They are sister and brother, and their mother (hereafter, mother) began dating defendant when W. was in kindergarten or the first grade, and G. was four years old.
On Christmas Eve in 2004, defendant spent the night at the family’s home. J., mother’s 22-year-old daughter, also spent the night because she wanted to open presents with her younger siblings in the morning. J. was asleep on the couch when she woke up to find her sweatpants down and defendant crouching between her legs. J. screamed and pushed defendant, causing him to fall back. Mother woke up and heard J. scream, saying that defendant had pulled her sweatpants down. Mother threw defendant out of the house. Defendant blamed alcohol for what had happened with J., and mother and defendant got back together. Mother testified that J. did not like defendant and was upset that mother did not call the police after what happened on Christmas Eve, but “[they] all moved on.”
When G. was in the second grade defendant raped him. At the time, G. was watching the movie “Bad News Bears” in his mother’s room. Defendant was sitting on the bed, and mother was asleep. G. and W. were sitting on the floor, and JJ. was asleep on the floor. Defendant told W. to get on the bed with him. She said no, and that she wanted to go to bed, and she left the room. Defendant then told G. to get on the bed, and he did. Defendant pulled down G.’s pajama bottoms and underwear and raped him for about 10 to 15 minutes. G. tried to make noise to wake his mother up. Defendant held onto G. and told G. to shut up.
When the movie was over, defendant let go of G. and told him to get another movie in the living room. Defendant followed G. into the living room and told G. to close his eyes and put his hand out. Defendant put G.’s hand on defendant’s penis. Defendant told G. to put his mouth on defendant’s penis. G. refused and walked to the bedroom he shared with W. G. cried and eventually fell asleep.
After the rape, G. avoided defendant, and defendant eventually stopped coming around. G. did not tell anyone about the rape at the time because he thought it would be better to try to forget about it.
When W. was nine years old and in the fourth grade, defendant raped her. W. and her brothers were watching the movie “The Cat in the Hat” in the living room. At the time, defendant and mother were in mother’s bedroom. Defendant came out of the bedroom and W. could smell alcohol on his breath. Defendant pulled out the sofa bed from the couch and had W., G., and JJ. lie on it with him. Defendant tried to unzip W.’s footy pajamas. W. got up and locked herself in the bathroom, but her brothers would not come with her. W. was worried about G. and JJ. and went back to the living room after five minutes to check on them. W. found her brothers crying and their pajamas were messed up. W. took her brothers to their bedroom. W. tried to get mother’s attention, but mother’s bedroom door was locked and mother was “passed out.”
Defendant followed W. and her brothers into the bedroom. W. was lying on her stomach. Defendant pulled W.’s pajamas off partway and raped her. W. could hear her brothers crying and screaming and she tried to scream, but defendant pushed her face into a pillow. Defendant kissed her and licked her face, and his breath smelled like beer. Defendant left after about a minute. W. got into bed with her brothers, and they comforted her.
A little over a year after defendant raped W., defendant exposed himself to her. It was the summer of 2008, when W. was going into the sixth grade. Mother asked W. to take some food into mother’s bedroom and give it to defendant. When W. went into the bedroom, defendant was lying on the bed wearing his underwear. Defendant pulled his penis out of his underwear and began touching himself in front of W.
After the incidents with defendant, W. tried to avoid him whenever she could, even though defendant would encourage her to stay around him. W. never wanted to be home, and she would stay with her best friend instead.
Defendant stopped seeing mother after a few years of dating, but they kept in touch and would talk on the phone every few months. In June 2013, G. overheard mother talking with defendant on the phone, and he became very upset. G. took the phone from mother and told defendant he was a pervert and that G. would murder defendant. G. started crying and told mother that defendant had molested him. Mother testified that she believed G. because “[G.] doesn’t lie.”
At the time G. told mother that defendant had molested him, G.’s twin brother JJ. and one of mother’s friends were there. The friend drove G. to a police station. W. was in her room when she heard G. screaming about defendant, and she went with G. to the police station. While they were there, W. told the police that defendant had also raped her. After G. and W. told the police that defendant had raped them, police officers asked mother to call defendant. Defendant told mother, “We don’t talk about that,” and hung up the phone.
The reason W. did not tell mother about what defendant had done to her at the time it happened is that she was scared. G. and W. did not want to talk about what defendant had done to them with mother or with J. G. knew something had happened to W. and J., but none of them talked about it. G. did not want to talk about being raped because he wanted the memory to go away. G. did not remember everything that had happened when he was in second grade, but he did remember defendant raping him. G. thought about it every day because it was so traumatic.
At trial, defendant called his two brothers and his wife to testify on his behalf. They said they had not seen defendant show a sexual interest in children.
In October 2015, defendant was found guilty of three counts of lewd and lascivious acts on a child under 14 years of age by means of force or fear that were committed against more than one victim (Pen. Code, §§ 288, subd. (b)(1); 667.61, subds. (b) & (e)), rape of a child under 14 years of age and seven or more years younger than the offender (§ 269, subd. (a)(1)), assault with intent to commit rape, sodomy, oral copulation, or a sexual penetration (§ 220, subd. (a)(1)), misdemeanor indecent exposure (§ 314, subd. 1), and misdemeanor annoying or molesting a child (§ 647.6, subd. (a)(1)).
In March 2016, the trial court sentenced defendant to 30 years to life consecutive to an eight-year term. The trial court also imposed a 30-day consecutive jail term for the two misdemeanor convictions. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues he was denied effective assistance of counsel because his attorney failed to object to the admission of opinion evidence vouching for the victims’ truthfulness. Defendant also argues the testimony regarding CSAAS should not have been admitted, because it is “junk science.” Finally, he argues the prosecutor presented improper arguments to the jury.
Admission of Testimony of Victims’ Truthfulness
During cross-examination, defense counsel asked G. if he had been in the room with W. when defendant raped her. He asked G. if he heard W. screaming because defendant was on top of her, or if he heard W. screaming for her mother because defendant was raping her. G. answered no, but he “really [didn’t] doubt that that happened. I mean, I don’t doubt that that happened.”
On re-cross examination, defense counsel again asked G. questions about his memory of defendant raping W. and W. screaming. G. said, “I do believe that’s something I would remember, but I don’t remember it.”
On re-direct examination, the prosecutor asked G., “Do you know your sister to be a liar?” to which G. replied, “She’s not a liar.” Defense counsel did not object to the prosecutor’s question.
When the prosecutor questioned mother during direct examination, he asked mother if she thought G. “was telling the truth” when G. said that he had been molested by defendant. Mother responded, “Yes. [G.] doesn’t lie.” The prosecutor also asked mother about W.’s allegations, stating, “Have you known [W.] to ever lie to you about something like this?” to which Mother replied, “No. My kids don’t lie.”
Defense counsel did not object to G.’s testimony about W.’s truthfulness, or to mother’s testimony about the truthfulness of G. and W.
Defendant concedes his claim that the opinion evidence was improperly admitted is forfeited because defense counsel did not object in the trial court. However, he asserts that notwithstanding the forfeiture of the claim, the issue is cognizable on appeal because his counsel was ineffective for failing to object. “Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) ‘The ultimate purpose of this right is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result.’ (Ibid.) A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendant’s claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)” (People v. Powell (2011) 194 Cal.App.4th 1268, 1298.)
The burden of establishing ineffective assistance of counsel is upon the party claiming it. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) “ ‘The proof . . . must be a demonstrable reality and not a speculative matter.’ ” (People v. Karis (1988) 46 Cal.3d 612, 656.)
Here, defendant’s ineffective assistance of counsel claim fails to satisfy either of the requisite prongs. The first prong—deficient performance—requires that the court “ ‘exercise deferential scrutiny . . .’ and . . . ‘view and assess the reasonableness of counsel’s acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.’ [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) An ineffective assistance of counsel claim will be rejected unless there is a showing that there was no rational explanation for defense counsel’s act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442.) “ ‘ “[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266, quoting People v. Wilson (1992) 3 Cal.4th 926, 936.) Further, “deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.” (People v. Maury (2003) 30 Cal.4th 342, 419; see also People v. Dickey (2005) 35 Cal.4th 884, 914.)
Here, we cannot conclude from the record that “ ‘ “there simply could be no satisfactory explanation” ’ ” (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266) for counsel’s failure to object to G. and mother’s testimony. W. and G. testified at trial, making their character for truthfulness relevant and admissible. (Evid. Code, §§ 780, subd. (e), 1103, subd. (a)(2).) When the prosecutor asked whether G. considered W. to be a liar, and whether mother considered her children to be liars, defense counsel may have believed that any objection to this assessment would be viewed unfavorably by the jury. In particular, given the fact that defense counsel questioned the witnesses extensively about their truthfulness, he may have chosen not to object so as to avoid being perceived by the jury as hypocritical. Regardless of trial counsel’s rationale in choosing not to object, we cannot say there is no reasonable explanation for his failure to do so. Defendant has not demonstrated that counsel’s performance was deficient.
Further, defendant cannot establish prejudice to satisfy an ineffectiveness assistance of counsel claim, because even if counsel had objected, and those objections were sustained, it is not reasonably probable that defendant would have received a more favorable verdict. The evidence presented was consistent among the victims. Defendant anally raped G. when G. was in the second grade and vaginally raped W. around the same time period while she was in fourth grade. The rapes occurred while mother was not available to help the children, either because she was passed out in her locked bedroom or asleep. Defendant prevented the children from alerting mother of the attacks by pushing their faces into pillows while he was raping them. W. testified that after defendant raped her, she avoided being around him as much as she could. This is consistent with G.’s account that when defendant raped him, defendant asked W. to go to bed with defendant first, and W. left the room. J., W. and G. all testified that defendant drank heavily, and J. and W. testified that defendant smelled like alcohol when he assaulted them.
In light of the ample evidence of the incidents produced through multiple witnesses and victims, the exclusion of testimony of G. that W. was not a liar, and of mother that her children were not liars, would not have produced a more favorable verdict for defendant.
Because defendant has not shown that his counsel’s performance was deficient, nor has he shown that he was prejudiced by his counsel’s failure to object to the testimony, his ineffective assistance of counsel claim fails.
Expert Testimony on CSAAS
Both the prosecutor and defense counsel filed in limine motions regarding CSAAS testimony. The prosecutor sought to present the evidence “to dispel myths and misconceptions concerning child molestation and sexual assault.” Defense counsel moved to exclude the evidence on the ground that it was not relevant, was prejudicial, and did not have a sound scientific basis.
After the victims testified, the court found that the CSAAS testimony was relevant and admissible to dispel myths about delayed disclosure.
Prior to the testimony about CSAAS being presented, the court instructed the jury as follows: “And, members of the jury, you will now hear testimony from Ms. Miriam Wolf regarding Child Sexual Abuse Accommodation Syndrome. Miriam Wolf’s testimony about Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant committed any of the crimes charges against him. You may consider this evidence only in deciding whether or not the conduct of [G. or W.] was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of his or her testimony.”
Following the court’s instruction, Wolf, a licensed clinical social worker, testified for the prosecution as an expert on CSAAS as follows. CSAAS is a term that first appeared in an article by Dr. Ronald Summit in the Journal of Child Abuse and Neglect in 1983. Dr. Summit wrote the article to document some of the behavior he saw in treating child victims of sexual abuse. He wrote the article because the child victims he was familiar with displayed patterns of behavior that were unexpected by adults. Wolf testified that CSAAS is not an actual syndrome or diagnosis showing that a child has been sexually abused.
CSAAS consists of five categories of behavior: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicted, and unconvincing disclosure; and (5) retraction. Secrecy refers to the fact that abuse generally occurs in secret. The abuser is often in a position of power, and communicates the need for secrecy to the child.
Helplessness refers to the child’s cognitive inability to understand and appreciate the consequences of a sexual encounter with an older person. The child may experience emotional helplessness because the abuser sends the message that the child cannot disclose the abuse to trusted persons such as teachers and parents, or the child believes that such people will not be available to help him or her.
Accommodation means that children have to figure out how to cope with the situation and continue with their daily lives. Some children may avoid the abuser, while others may stay in the relationship.
Delayed, conflicting, or unconvincing disclosure means the child may not disclose the abuse for a long period of time, and a child sexual abuse victim may not remember all the details. Disclosure may be incremental and may become more detailed as time goes on.
Wolf noted that Dr. Summit published a subsequent paper expressing concern about how CSAAS was being used in court. He wrote that he had never intended for CSAAS to be used as a diagnostic tool or checklist. He had only intended to dispel myths held by many adults about how children would behave when molested.
Defendant argues CSAAS testimony should be inadmissible in all cases, because it is irrelevant expert opinion that usurps the jury’s function to determine credibility, violating a defendant’s rights to due process, to present a defense, and to receive a fair trial. Defendant also asserts CSAAS is “junk science” that is not accepted by the scientific community.
In People v. McAlpin (1991) 53 Cal.3d 1289, our Supreme Court did not directly address the admissibility of CSAAS testimony. However, in finding that expert opinion regarding a parent’s delay in reporting child molestation was admissible, it opined that such testimony is analogous to evidence of CSAAS. “ ‘Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children’s seemingly self-impeaching behavior. [¶] The great majority of courts approve such expert rebuttal testimony.’ ” (Id. at p. 1301.)
A number of Court of Appeal decisions, including our own in People v. Perez (2010) 182 Cal.App.4th 231, have held that CSAAS evidence is admissible for the purpose of dispelling common misperceptions a jury may have about how children react to sexual abuse. These cases include People v. Mateo (2016) 243 Cal.App.4th 1063, 1069; People v. Patino (1994) 26 Cal.App.4th 1737, 1744 1745 (Patino), and People v. Bowker (1988) 203 Cal.App.3d 385, 393-394.
Moreover, courts have rejected constitutional arguments similar to the ones defendant makes here. For example, the court in Patino rejected the argument that admission of CSAAS evidence violated a defendant’s right to confront and cross examine witnesses, or his right to due process. (Patino, supra, 26 Cal.App.4th at pp. 1746-1747.) “The United States Supreme Court has held the admission of relevant evidence of the battered child syndrome does not violate the due process clause of the Fourteenth Amendment. (Estelle v. McGuire (1991) 502 U.S. 62, 69-70.) Battered child syndrome evidence is analogous to CSAAS evidence. (People v. Bowker, supra, 203 Cal.App.3d at pp. 393-394.) For this reason, there can be little doubt the due process dimensions of both types of evidence is similar if not identical. Therefore, introduction of CSAAS testimony does not by itself deny appellant due process.” (Id. at p. 1747.)
Finally, the court rejected defendant’s argument that admission of CSAAS evidence violated his right to a fair trial. “Appellant has failed to demonstrate how his fundamental right to a fair trial was violated by the introduction of CSAAS testimony to rehabilitate [the victim’s] testimony after a rigorous defense cross-examination calling into question the victim’s credibility.” (Patino, supra, 26 Cal.App.4th at p. 1747.)
Defendant’s argument that CSAAS should be inadmissible because it is “junk science, rejected by the scientific community as well as its very creator, Dr. Roland Summit,” is based in large part on the Pennsylvania case of Commonwealth v. Dunkle (1992) 529 Pa. 168 [602 A.2d 830]. With regard to the need for expert opinion on why children delay in reporting sexual abuse, the court in Dunkle held: “Not only is there no need for testimony about the reasons children may not come forward, but permitting it would infringe on the jury’s right to determine credibility.” (Id. at p. 837.)
We are not persuaded by the Pennsylvania court’s views of CSAAS in Dunkle. The weight of authority in California, including our own case of Perez, holds that CSAAS is admissible to explain a child’s delay in reporting sexual abuse. Moreover, our own Supreme Court in McAlpin, implicitly rejected the argument that CSAAS is inadmissible. The court did not err in admitting CSAAS evidence in this case.
Prosecutorial Misconduct in Closing Argument
Defendant argues the prosecutor committed misconduct in his closing argument because he made statements implying he had expertise in memory. Defendant acknowledges his counsel did not object to the argument, but argues that any objection would have been futile. In the alternative, defendant argues his counsel’s failure to object was ineffective assistance of counsel.
Defense counsel began his closing argument stating that G.’s story was not credible because W. “directly contradict[ed] his story” by not remembering the family watching movies in her mother’s bedroom. Defense counsel argued that G. and JJ. should have remembered W.’s rape because it was traumatic for them as well. Defense counsel stated, “That’s a powerful, salient memory that you’re going to remember. Those boys, [G. and JJ.] . . . they’re going to remember that. [G.] directly contradicts her story.”
In response, the prosecutor argued in closing: “You don’t remember things as a child unless something tragic happened to you. That’s what you remember. And if it isn’t tragic, you’re not going to remember it. They’re the kind of incidences that burn into your soul, and they shape who you are as a human being. Those are the type[s] of tragic incidents that you remember as a child and you’ll never forget. They’re the kind of incidences that shape your life that either cause you to fall down a cliff or to somehow pick yourself up and learn from that. But everything stems from these types of incidents, and that’s what they experienced. Everything else they’re going to have a hard time remembering. [¶] And what do I mean? [W.] doesn’t remember being in the room the night [G.] was sodomized or shortly before. And why would she? That’s not a traumatic event for her. And if it isn’t common that she’s watching a movie in that particular room, then [the] defense is asking her or compelling her to remember one random night where nothing happened that was purely innocuous. She’s not going to remember. None of us would remember. [G.’s] going to remember because we know what happened to [G.] that night. [G.] was assaulted. [W.] wasn’t. And if she remembered, it would be kind of strange. [¶] [W.] remembers her legs hurting for weeks and states on the stand her lower body hurt that time. The person you see on the stand was a hostage to her 9-year-old mind, her 8 or 9 year-old mind, when this happened. Her memories are going to be based on the vocabulary range and the life experience[s] and knowledge of an 8- or 9 year-old.”
“To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and ask the trial court to admonish the jury to disregard the prosecutor’s improper remarks or conduct, unless an admonition would not have cured the harm.” (People v. Davis (2009) 46 Cal.4th 539, 612.)
Here, defendant acknowledges his counsel did not object to the prosecutor’s arguments at trial, but argues the claim should not be forfeited because any objection and request for admonition would have been futile. Defendant argues the prosecutor’s statements “struck at one of [his] core constitutional rights, that of confrontation and precluded any cross-examination to expose the inaccuracy of the information imparted by the prosecutor.”
The flaw in defendant’s argument is that the court instructed the jury that counsel’s arguments are not evidence, and that “[o]nly the witnesses’ answers are evidence.” Presuming, as we must, that the jury followed the court’s instructions, the jury would consider the prosecutor’s statements as argument, not as evidence. Moreover, defendant points to nothing in the record to show that any objection to the prosecutor’s argument and request for admonition would have been futile. Therefore, defendant has forfeited his claim of prosecutorial misconduct on appeal.
However, even if the claim was not forfeited, defendant has not established prosecutorial misconduct. “ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) A prosecutor’s conduct may be misconduct if it involves “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” (People v. Price (1991) 1 Cal.4th 324, 447.)
Here, the prosecutor’s statements about memory in closing were not egregious, nor were they deceptive or reprehensible. Closing argument is an opportunity for counsel to comment on the state of the evidence presented during the trial. “It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during a summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature. [Citations.] The prosecutor is entitled to draw conclusions from the evidence presented and to state them to the jury. The right is very broad and includes the opportunity to fully state his views as to what the evidence shows and as to the conclusions to be drawn therefrom.” (People v. Sassounian (1986) 182 Cal.App.3d 361, 396.)
The prosecutor’s arguments about G. and W.’s memories of the abuse each of them suffered was a fair comment on the evidence. The comments were in response to defendant’s arguments that G. and W. lacked credibility because they did not remember specific facts about the past. Statements about their memories were reasonable inferences and deductions based on the evidence presented at trial. The prosecutor did not commit misconduct in his closing argument.
DISPOSITION
The judgment is affirmed.






Premo, J.





WE CONCUR:






Elia, Acting P.J.








Grover, J.












People v. Spain
H043429