Filed 1/21/20 P. v. Aguilar-Mozo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

FILADELFO FELIPE AGUILAR-MOZO,

Defendant and Appellant.

H044591

(Santa Clara County

Super. Ct. No. C1631115)

I. INTRODUCTION

Defendant Filadelfo Felipe Aguilar-Mozo appeals after a jury found him guilty of two counts of forcible rape of a minor age 14 or older (Pen. Code, § 261, subd. (a)(2)), two counts of forcible sexual penetration of a minor age 14 or older (§ 289, subd. (a)(1)(C)), eight counts of committing a lewd or lascivious act on a minor under age 14 (§ 288, subd. (a)), misdemeanor battery (§ 242), assault with intent to commit forcible oral copulation (§ 220), misdemeanor assault (§ 240), and misdemeanor contempt of court (§ 166, subd. (a)(4)). The jury also found true the allegation that defendant inflicted great bodily injury in the commission of one of the rapes (§ 667.61, subds. (a), (d), (l)). The trial court sentenced defendant to an aggregate term of 41 years plus life without the possibility of parole.

Defendant requests this court to independently review the sealed education and medical records he subpoenaed that were withheld from disclosure by the trial court. In addition, defendant contends that the trial court abused its discretion and violated his right to due process when it admitted evidence of child sexual abuse accommodation syndrome (CSAAS), it erroneously instructed the jury on the CSAAS evidence with CALCRIM No. 1193, and it erroneously instructed the jury on consciousness of guilt with CALCRIM No. 371. In the alternative, defendant contends that his counsel provided ineffective assistance when she failed to object to the instructions on CSAAS evidence and consciousness of guilt. Finally, defendant contends that the cumulative effect of the errors requires reversal.

For reasons that we will explain, we will affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with 26 counts pertaining to the alleged sexual and physical abuse of his longtime girlfriend, K.D., and her daughters, S.D. and C.D. S.D. was born in September 2001. C.D. was born in July 2003.

A. Prosecution Evidence
B.
K.D. met defendant in 2009 or 2010 when she was working at a Carl’s Jr. and he was a frequent customer there. They started dating and eventually defendant moved in with K.D. and her daughters into K.D.’s one-room apartment in San Jose. In June 2015, they moved into a one bedroom apartment where K.D. and defendant shared the bedroom, and S.D. and C.D. slept on two couches in the living room.

In 2014, K.D. worked from 5:00 a.m. until 2:00 p.m. and from 5:00 p.m. until 1:00 a.m. Defendant worked from 9:00 a.m. until 3:00 p.m. Defendant took the girls to school and picked them up on the days K.D. was unable to. He also cared for them in the evenings while K.D. was at work. When defendant’s schedule changed in 2015, requiring him to work from 5:00 p.m. until 9:00 p.m., K.D. took her daughters with her to work. Defendant picked them up when he got off of work and cared for them until K.D. got home.

1. Abuse of K.D. (Counts 20-26)

In 2012, defendant went to Mexico and saw his sons, who were almost the same age as S.D. and C.D. When he returned, he “acted very violent.” Defendant shouted at K.D., insulted her, and slapped her face “all the time.” Defendant was obsessed with having a son because did not like daughters. K.D. was unable to have more children.

In 2014, defendant slapped K.D. on the face once or twice a week. In 2015, he became more violent and sexually abused her approximately twice a week. In June 2015, defendant told K.D. that everything would be different if she could give him a son. Defendant slapped K.D. and choked her. K.D. could not breathe and urinated on herself.

On another date in 2015, defendant called K.D. a prostitute and a bitch and told her he wanted to have sex with her. K.D. refused. Defendant slapped K.D. twice, so hard that she fell to the ground. Defendant grabbed K.D.’s arms hard and “did what he wanted.” Defendant got on top of K.D. and put his penis in her vagina. Then he pulled K.D.’s hair and told her he wanted her to “do it with [her] mouth.” K.D. told defendant “no” and tried to push him off of her, but she was unsuccessful. K.D. orally copulated him.

Another time in mid-2015, defendant slapped K.D. on her face and pushed her, causing her to fall. When she was on the ground, defendant kicked K.D. in the stomach.

On Thanksgiving Day 2015, K.D. took the car keys away from defendant because he was too drunk to drive. Defendant got very angry and bit K.D.’s right wrist in front of S.D. and C.D., leaving teeth marks and a purple bruise.

In late 2015, during an argument, defendant hit K.D. on the back with a knife. It did not leave a mark. Defendant told K.D. that everything would be different if she could give him a son and left.

K.D. did not report any of the abuse because defendant supported her by taking care of her daughters. She considered him to be a father to her girls and thought her daughters were happy. She never saw defendant hit the girls or touch them sexually.

2. Abuse of S.D. (Counts 1-15)

S.D. was seven years old when she met defendant. Defendant and her mother, K.D., started living together when S.D. was eight.

In 2014, defendant came up behind her and put his hand inside her shirt, under her bra. Defendant squeezed S.D.’s breast, which made her feel uncomfortable. S.D. tried to take defendant’s hand away, and he took his hand out from under her shirt. S.D. did not tell anyone about what happened. S.D. did not tell her mother because defendant said she would not believe her. “[T]he whole month of January,” defendant touched S.D. “over and under [her] clothes.”

Defendant touched S.D. in a way that made her feel uncomfortable eight times. Once, after winter break, defendant hugged S.D. from behind by her waist. Then he put his hand inside her jeans and underwear and started to touch her. Defendant stopped when S.D. pushed him away and told him to stop.

Another time when defendant was cooking, S.D. went to the sink to wash some dishes and defendant came up behind her, put his hands around her waist, and put one hand inside of her pants over her underwear and started to touch her.

Another time in the afternoon after school, defendant walked into the kitchen as S.D. was getting some fruit out of the refrigerator. Defendant asked if he could have some fruit and S.D. refused. Defendant went into the living room, but then came back into the kitchen and hugged S.D., putting his hand inside her jeans and touching her.

Once, on a Saturday or Sunday, S.D. was lying down in the bedroom watching television. S.D. got up when she saw defendant coming into the room. She was going to go into the living room, but defendant blocked the doorway. S.D. walked over to the window and began to communicate with one of her friends outside. S.D. went over to the television, and defendant came up behind her and put one hand in S.D.’s jeans, touching her vagina, and the other hand on her breast. S.D. was able to get defendant off of her and went into the living room to wait for her sister to come home.

In January 2015, defendant touched S.D.’s vagina. S.D. was in the kitchen after school getting herself some food and defendant came up behind her and put his hand inside her pants. Defendant touched S.D.’s vagina for about two minutes while S.D. tried to move away and pull defendant’s hand out of her pants.

Another time in 2015, S.D., C.D., and defendant were in the bedroom talking. They decided to go to a store downtown. C.D. left to go to the bathroom, and S.D. went to get a jacket from the closet. Defendant walked up to S.D., hugged her, and put one hand inside her pants and the other on one of her breasts. C.D. walked in and stared at them. Defendant removed his hands.

On another date, S.D. and C.D. were in the living room watching television. S.D. went to the bathroom, and when she was washing her hands, defendant stood behind her and looked at her in the mirror. Defendant put one hand on S.D.’s shoulder and his other hand inside her jeans. C.D. came into the room and said she needed to use the bathroom. Defendant let go of S.D.

One night in November 2015, around 11:00 o’clock, S.D. was at home with C.D. and defendant. Defendant was in boxer shorts and a tank top. C.D. was asleep on one couch and S.D. was lying on the other couch watching the news. Defendant walked over to S.D. S.D. began to shake because she felt like defendant was going to do something. Defendant got on top of S.D., keeping one leg on the ground, and looked to see if she was asleep. Defendant got up, pulled down his boxer shorts, and got back on top of S.D., pulling off her jeans and underwear. Defendant kept staring at her. He put one of his hands on the side of S.D.’s head and touched her vagina with his other hand. Defendant digitally penetrated her. S.D. started silently crying. She was too scared to tell him to stop. S.D. tried to push defendant off of her, but defendant slammed himself back down, knocking the air out of her.

Defendant put his penis inside S.D.’s vagina for about 10 minutes. S.D. was crying and trying to push defendant off of her while defendant moved up and down. At some point defendant got off of her and cleaned himself with toilet paper. S.D. did not tell her mother because defendant said that she would never believe her.

On another date in November 2015, sometime after Thanksgiving, S.D. and defendant were watching the news while C.D. was asleep. S.D. either fell asleep or pretended to, and awoke to defendant “just standing there.” Defendant sat down by S.D.’s feet and asked her if she did drugs, if she was offered drugs at school, and whether she would try drugs. As the discussion ensued, defendant scooted himself up and pulled S.D.’s leggings and underwear down. Defendant pulled his boxer shorts down and touched S.D.’s vagina, inside the vaginal lips. S.D. told him to “ ‘[g]et off.’ ” Defendant got on top of S.D. and put his penis inside her vagina. S.D. started crying and yelled at defendant to get off of her. S.D. tried to push defendant up with her hands, but defendant slapped her and continued. After 10 minutes, defendant got up and went into the bathroom.

S.D. did not tell her mother what happened because when defendant took her and C.D. to school the next day, he told them that they should not trust their mother, their mother had no time for them and did not pay attention to them, and they should tell him everything. Defendant also threatened to have his friends “do something” to S.D. and C.D. Although S.D. did not tell her mother, at some point she told defendant “not to do that to [her] because he was [her] mom’s boyfriend and he should respect [her] mom.”

In addition to the sexual abuse, from 2014 through 2016, defendant often hit S.D. on the legs with the cord of a phone charger. Defendant would hit S.D. so hard she would cry. If defendant could not find the phone charger, he would use a hangar and would hit S.D. on her arms, leaving a mark.

Once, when S.D. was in eighth grade, she did not change for gym class because she had a mark on her thighs from defendant hitting her with the phone cord. Another time, defendant got mad at S.D. because she had a boyfriend. He called her a “hoe” and took her phone away. Defendant slapped S.D. on the back with the flat side of a 9- to 10-inch butcher knife.

S.D. met with her school psychologist in August 2015. S.D. was cutting herself. An individualized education plan was developed to help S.D. stop harming herself. At the end of 2015, S.D. experienced flashbacks that interfered with her concentration. She worked with the psychologist to develop coping mechanisms.

3. Abuse of C.D. (Counts 16-19)

At some point when C.D. was in middle school, she went into the kitchen after school and defendant came up and hugged her. He grabbed her chest over her clothes and squeezed for five seconds. C.D. told him to stop. Defendant touched C.D’s chest another time, but she did not remember the details. Defendant also grabbed C.D.’s butt once when she was in the kitchen getting food. “[H]e just c[ame] out of nowhere.”

On Halloween 2015, defendant touched C.D. on her butt for five seconds, which made her uncomfortable. C.D. told defendant not to do it again.

C.D. did not tell K.D. about the touching because she was scared it would aggravate her mother’s asthma.

When defendant got mad at C.D., he would hit her with a phone charger on her arm or back. He also struck C.D. with his hand when she tried to stop him from hitting K.D.

4. Subsequent Events

In January or February 2016, S.D. began having stomach pain and headaches. The stomach pain worsened daily. On February 15, K.D. took S.D. to the hospital for tests and they learned that she was pregnant. When K.D. asked if defendant was the father, S.D. told her that he was.

S.D. and K.D. returned home from the hospital. S.D.’s aunt and uncle were with them. K.D. confronted defendant about S.D.’s pregnancy, and defendant denied the child was his. C.D. called the police. Defendant went into the bathroom and pushed the window screen out. S.D.’s uncle grabbed defendant. They went into the living room and defendant got on top of a couch and tried to climb out the window. S.D.’s uncle grabbed him again, and the police arrived.

S.D. gave birth to a girl in August 2016, after two days of labor. The delivery was hard and painful.

On May 5, 2016, defendant was ordered not to have any contact with K.D. Between June 25, 2016 and July 30, 2016, K.D. received 41 calls from the Elmwood Correctional Facility. On some of the voicemail messages from those calls, the caller identified himself as “Felipe.”

5. Expert Testimony

a. Dr. Anthony Urquiza

Dr. Anthony Urquiza testified as an expert in victims of child abuse and the dynamics of disclosure. He did not know the facts of the case and had not met the victims or made a diagnosis.

Dr. Urquiza testified regarding child sexual abuse accommodation syndrome, which was developed as a tool to dispel common misperceptions about victims of child sexual abuse. Dr. Urquiza stated that children are usually sexually abused by someone with whom they have an ongoing relationship, rather than a stranger. The abuser is usually older, stronger, bigger, and/or in a position of authority over the child. In Dr. Urquiza’s experience, many children genuinely care about and love their abuser because the abuser is also their caretaker and emotional support.

Dr. Urquiza testified that one of the factors of CSAAS is helplessness. It is unreasonable to expect sexually abused children to fight off the perpetrator or scream. That usually does not happen. Anything that marginalizes the victim or gives more power to the perpetrator makes the victim more helpless, including telling the victim that no one would believe him or her.

Another factor of CSAAS is secrecy. Dr. Urquiza testified that most victims do not immediately disclose the abuse. He also stated that perpetrators do things to ensure nondisclosure, such as threatening the victim with harm if he or she tells anyone, intimidating the victim through violence with other household members, or giving the victim a lot of praise and affection.

Entrapment and accommodation pertain to a situation where the victim is trapped and the coping mechanisms he or she develops in response. The most common coping mechanism is disassociation, where a victim suppresses feelings of shame, embarrassment, and humiliation by disengaging part of his or her awareness. “[W]hat that looks like is kids talking about being sexually abused without any emotional connection.”

Dr. Urquiza testified that delayed disclosure is more common than immediate disclosure. Three-quarters of sexually abused children do not disclose the abuse within the first year, even if the child has a close friend or family member he or she can confide in. The closer the relationship between the perpetrator and the victim, the longer it takes the victim to disclose. Dr. Urquiza also stated that children will disclose some information about the abuse, and if the disclosure is responded to supportively, they will disclose additional information. This dynamic has been termed “unconvincing disclosure” because victims’ versions of abuse change. In a minority of cases, usually when the disclosure has not been delayed, victims disclose everything that happened to them at once.

Dr. Urquiza testified that it is difficult for victims to describe different instances of abuse if they have been sexually abused several times and the abuse is similar. Details of the circumstances of the abuse, such of the color of the perpetrator’s shoes, are also difficult for children to describe.

b. Criminalist Michelle Bell

Criminalist Michelle Bell testified as an expert in forensic science and DNA analysis. Bell developed DNA profiles for S.D., “Baby Girl” L.D., and defendant. Bell testified that “[a]ssuming that [S.D.] is the mother of [L.D.], the likelihood of this combination of DNA profiles is at least 666,500 times greater if there is a biological parent/child relationship between [defendant] and [L.D.] than if there’s no biological relationship.” Bell stated this was “very strong support for the hypothesis that [S.D.] and [defendant] are the biological parents of [L.D.].”

C. Defense Evidence
D.
Santa Clara County social worker Enrique Ramirez testified that he spoke with S.D. on February 15, 2016, after the police responded to K.D.’s apartment. S.D. was distraught and crying but she “seemed open” and answered his questions about what happened to her.

Ramirez also spoke with C.D. and K.D. C.D. did not give any indication that she had been physically or sexually abused by defendant. K.D. stated that she had been verbally abused by defendant and physically abused by him on at least one occasion when he hit her arm, causing a bruise. She did not describe any sexual abuse. K.D. told Ramirez that she had been planning to have defendant move out of the house because of the violence. K.D. asked Ramirez about a “U visa,” which is a visa provided to victims of violent crime. K.D. also indicated that she wanted to move to Atlanta.

Ramirez spoke to K.D. again the next day. K.D. told him that S.D. said defendant molested her twice. K.D. stated that she wanted to move to Atlanta because it was painful for her and the girls to stay in the apartment, but she wanted to remain in California until defendant was sentenced like he deserved. K.D. applied for relocation funds.

San Jose Police Officer Patrick Baldassari testified that on February 15, 2016, he responded to a call regarding a family disturbance. Officer Baldassari heard a loud argument as he approached the caller’s apartment.

Officer Baldassari met the reporting party, C.D., who waved him inside. The living room of the apartment had two couches, each along a separate wall. The couches were approximately 10 feet apart. The kitchen could be seen from the living room, and there was a bathroom off to the side and a door to the bedroom.

Officer Baldassari interviewed S.D. in English. She was able to explain herself to the officer. S.D cried during the interview. S.D. stated that she did not have a cell phone. S.D. provided her mother’s phone number to the officer as a contact number.

Officer Baldassari also interviewed C.D. in English. She answered his questions. She had a serious, matter-of-fact demeanor. She did not ask to be interviewed in Spanish.

Emergency room physician Greg Groetsema testified that on July 24, 2013, he treated K.D. for an injury from a car accident. He saw no indication that K.D. was a victim of domestic violence or that she suffered from asthma.

Emergency room physician Meenesh Bhimani testified that on March 13, 2015, he treated K.D. for a headache. He did not see any injuries consistent with domestic violence. He did not note any history of asthma.

Rita Mamarian testified that she was a clinician at Uplift Family Services on the Community Services Program. She met with K.D. and S.D. on May 4 and on another date.

M.L. testified that she had been friends with S.D. since around sixth grade. They became closer in high school, but they were no longer friends at the time of trial. M.L. would not characterize S.D. as an honest person.

M.L. stated that she would describe S.D.’s relationship with defendant as boyfriend-girlfriend, rather than father-daughter, based on the way that defendant looked at her and the way she talked to him and “played around with him.” In text messages, S.D. and defendant called each other “Babe.” M.L. did not see any signs that S.D. was being physically abused and S.D. never told her that she was being physically abused. M.L. believed S.D. “went along with the sexual relationship.”

M.L. stated that she found out S.D. was pregnant in February 2016 when she, her mother, and another friend were at S.D.’s house. K.D. forced S.D. to tell them she was pregnant, saying, “ ‘Go. Tell them what happened.’ ” K.D. was very mad and very upset. S.D. was crying.

On cross-examination, M.L. testified that defendant was over-protective of S.D. and that he got jealous when she talked about boys. When defendant looked at S.D., he would eye her up and down in a “perverted” way. S.D. once told M.L. that she was afraid of defendant.

E.G. testified that she was M.L.’s mother and knew S.D. E.G. took M.L. to visit S.D. at S.D.’s apartment because S.D. had not been to school for a week or so and M.L. was worried. When they arrived, K.D. said, “ ‘Tell your friends what you did.’ ”

Majaleth Torres testified that she managed the apartment complex where K.D., S.D., and C.D. lived. Torres thought S.D. was a “liar.” Torres never suspected that K.D. was being physically abused. Torres did not think K.D. had a good relationship with her daughters. K.D told Torres that S.D. was “always lying to her” and that C.D. covered for S.D.

Torres stated that she sometimes saw S.D. and defendant together. After November 2015, Torres noticed a change in S.D.’s relationship with defendant. Torres saw S.D. pull defendant close to her or hug him when they were walking to the parking lot. S.D. put her arms around defendant’s neck and pulled him toward her chest. S.D. and defendant did not appear to have a father-daughter relationship.

Torres testified that defendant never gave her a reason to believe he was violent and he never hung around the apartment complex with violent people. On the date of defendant’s arrest, K.D. told Torres that she had been verbally abused. K.D. also told Torres that S.D. said she was never really abused.

C. Defendant’s Testimony

Defendant testified that he met K.D. in 2009, right after he moved to the United States. He moved in with K.D. in November 2010. His relationship with K.D. began to change in January 2016. There was no longer any trust and they were fighting more. The fights were verbal. He talked with K.D., S.D., and C.D. about his plans to move out at the end of the lease in February.

Defendant testified that he told K.D. he wanted to have a son with her and they argued about his desire to have more children because she did not initially tell him that she could not have any more children. They discussed adoption. Defendant never told K.D. that he did not want to have daughters. K.D. wanted a boy. He did not consider himself to be a father figure to S.D. and C.D. because they never called him “Dad” and he never played that role. K.D. set the rules for the girls and she made it clear it was her responsibility to raise them.

Defendant stated that he never forced K.D. to have sex with him or orally copulate him. Defendant was never physically abusive toward K.D. and never hit her with a knife.

Defendant testified that K.D. told him he would regret it if he ever did anything to S.D. K.D. made up her testimony because she was upset about his relationship with S.D.

Defendant stated that he never touched C.D. inappropriately. He was working on Halloween 2015 and did not take the girls anywhere. Defendant was unaware that C.D. had any issues with their relationship.

Defendant testified that in October 2015, his relationship with S.D. “became more intimate” and was more like boyfriend-girlfriend. They sent text messages to each other and began hugging and kissing each other. They had consensual sex for the first time in the beginning of November. They were in the living room on one couch while C.D. was on the other couch. They had consensual sex another time in November when defendant went into the bedroom and S.D. came over to him. They had consensual sex once more in December. During this time period, defendant continued to take S.D. to school and pick her up. He never forced S.D. to have sex with him.

Defendant testified that he learned S.D. was pregnant on February 15, 2016. When S.D. arrived home with K.D., C.D., and K.D.’s sister and brother-in-law, K.D. immediately started screaming at defendant and hitting him. He tried to leave the apartment. He was not trying to escape, but wanted to leave because it was too noisy and they were insulting him and beating him.

On cross-examination, defendant testified that he was 31 years old. S.D. turned 14 in September 2015. Defendant was entrusted to take S.D. and C.D. to and from school and to care for them while K.D. was at work. K.D. is angry that he had a relationship with S.D. C.D. is lying because she wants him to be punished for his relationship with S.D.

Defendant admitted that he was ordered not to have any contact with K.D., but he repeatedly called her from jail.

D. Rebuttal Evidence
E.
Deputy District Attorney Luis Ramos testified that he reviewed requests for U visas as part of his job duties. He was unaware of a request for a U visa in this case.

Victim Advocate Margarita Villa testified that she became K.D.’s advocate soon after the case was referred to the police. The topic of a U visa had never come up in her discussions with K.D.

F. Charges, Verdicts, and Sentence
G.
Defendant was charged with two counts of forcible rape of a minor age 14 or older and inflicting great bodily injury in the commission of the offenses (§§ 261, subd. (a)(2), 667.61, subds. (a), (d), (l); counts 1-2); two counts of forcible sexual penetration of a minor age 14 or older (§ 289, subd. (a)(1)(C); counts 3-4); 11 counts of committing a lewd or lascivious act on a minor under age 14 (§ 288, subd. (a); counts 5-12, 16-18); four counts of child endangerment involving unjustifiable pain and suffering (§ 273a, subd. (b); counts 13-15, 19); forcible rape (§ 261, subd. (a)(2); count 20); forcible oral copulation (§ 288a, subd. (c)(2); count 21); two counts of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a); counts 22-23); two counts of misdemeanor battery on a spouse or person in a dating relationship (§§ 242, 243, subd. (e); counts 24-25); and misdemeanor contempt of court (§ 166, subd. (a)(4); count 26). It was also alleged as to counts 1 through 12 and 16 through 18 that defendant committed the offense against more than one victim. (§ 667.61, subds. (b), (e)).

A jury found defendant guilty of counts 1 through 12 and 26 and found true the allegation that defendant inflicted great bodily injury in the commission of count 1. The jury acquitted defendant of counts 13 through 25, but convicted him of the lesser included offenses of battery (§ 242; lesser included offense of count 20), assault with intent to commit oral copulation by force (§ 220; lesser included offense of count 21), and assault (§ 240; lesser included offense of count 22).

The trial court sentenced defendant to an aggregate term of 41 years plus life without the possibility of parole.

III. DISCUSSION

A. Record Review
B.
Defendant requests this court to independently review S.D.’s sealed education and medical records to determine if the trial court properly withheld them from disclosure. The Attorney General does not oppose defendant’s request.

1. Background

Defendant filed three pretrial motions for the release of subpoenaed medical and education records pertaining to S.D. First, defendant sought the disclosure of hospital records regarding S.D.’s pregnancy and the disclosure of S.D.’s academic, disciplinary, and attendance records from two local high schools. The prosecution opposed the motion. The trial court found that defendant had failed to establish good cause for the release of S.D.’s school records “at this stage of the proceedings,” but tentatively ruled after its preliminary review of the medical records that it would “disclose everything that is relevant to [S.D.’s] credibility” after it performed a second in camera review. It is unclear from the record which documents were ultimately disclosed after the hearing.

Second, defendant sought the disclosure of additional medical records for S.D., S.D.’s mental health records from “EPS,” the Campbell Union High School District psychologist’s records for S.D., and S.D.’s education records. The prosecution did not oppose disclosure. The trial court noted that the medical records received by the court were privileged, but released the records subject to a protective order based on the lack of objection to their disclosure. The court indicated that it had not received anything in response to the subpoenas served on several medical facilities and schools, and continued the hearing on those records to a later date.

At the subsequent hearing, the trial court stated that it had received S.D.’s mental health records from Santa Clara Valley Medical Center and the Campbell Union High School District. The prosecution objected to release of the records, and the court deferred its review of the records to the trial judge.

Third, defendant moved for the disclosure of education and psychological records subpoenaed from the Campbell Union High School District and mental health records subpoenaed from “EPS.” The motion was heard by the trial judge. The trial court stated that after conducting an in camera review, “some records . . . appear to be relevant . . . [to] the credibility of one of the complaining witnesses. And as a result, [it would] release both sets of records to [defendant].”

2. Analysis

In People v. Hammon (1997) 15 Cal.4th 1117, 1128, the California Supreme Court declined to “extend the defendant’s Sixth Amendment rights of confrontation and cross-examination to authorize pretrial disclosure of privileged information.” However, the court also recognized that “[w]hen a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon . . . to balance the defendant’s need for cross-examination and the state policies the privilege is intended to serve. [Citation.]” (Id. at p. 1127.)

We have reviewed the subpoenaed records pertaining to S.D. Most of the records were disclosed to defendant, including medical records, mental health records, and education records, but the trial court did not disclose some of S.D.’s medical and education records. After reviewing the records that were not disclosed, we conclude that the trial court did not err in implicitly ruling that there was no information in the records that could have been used to impeach S.D. or to support the defense theory. The nondisclosed medical records contained S.D.’s statement that she had been raped by her mother’s boyfriend, which was consistent with S.D.’s trial testimony. The nondisclosed education records did not include any information relevant to the issues at trial.

C. CSAAS Evidence
D.
Defendant contends that the trial court abused its discretion when it admitted the CSAAS evidence. Defendant argues that the evidence was irrelevant because the record did not establish that jurors held misconceptions about children’s behavior after sexual abuse; the evidence improperly bolstered S.D.’s testimony; and the expert’s testimony improperly linked CSAAS to the facts of this case. Defendant also contends that the evidence’s admission violated his right to due process and a fair trial. The Attorney General counters that defendant has forfeited this claim because he failed to object to the evidence at trial and that in any event, the trial court did not abuse its discretion when it admitted the expert’s testimony.

1. Trial Court Proceedings
2.
The prosecution moved in limine to present CSAAS evidence. The prosecution asserted that CSAAS evidence is generally admissible “when the victim’s credibility is attacked by a defendant’s suggestion that the victim’s conduct after the incident is inconsistent with his or her testimony claiming the molestation.” The prosecution argued that the evidence was relevant here because the victims kept the abuse secret, their disclosure of the abuse was delayed, they experienced helplessness due to K.D.’s work schedule and reliance on defendant, and there was evidence of entrapment and accommodation.

In his motions in limine, defendant requested the trial court to hold a hearing to determine the admissibility of Dr. Urquiza’s testimony. Defendant argued that “the relevancy of the testimony is dependent upon the testimony of the complaining witness, whether or not the jury needs any clarification[,] or whether the defense is insinuating or attacking the [complaining witness’] credibility based on one of the subjects that [the prosecution] proposes the witness to testify to. [¶] So at this point, . . . [defendant] would suggest or request that we delay a finding on this until after the complaining witnesses testify.”

The trial court delayed its ruling on the admissibility of CSAAS evidence until after the complaining witnesses had testified.

The prosecution called Dr. Urquiza as a witness after K.D., S.D., C.D., and S.D.’s school psychologist testified. Defendant did not object and there was no explicit ruling by the trial court regarding the admissibility of CSAAS evidence preceding Dr. Urquiza’s testimony.

After Dr. Urquiza’s testimony concluded, the trial court noted that “there was some question, did the prosecution, perhaps, drill down and become too case-specific during the direct examination of the doctor.” The court determined that “the prosecution did not drill down too deep” and that “it seem[ed] to the Court, necessary to do that in order to establish the relevance of that evidence in the first place.” The court found that “the prosecution [was] restricted with respect to the presentation of such testimony to those portions of [CSAAS] that are actually applicable to this case,” which were “delayed reporting, secrecy, helplessness, and entrapment and accommodation.” The court observed that Dr. Urquiza testified at least twice that he did not know anything about the facts of the case, did not know the individuals involved, and was not there to suggest that a sexual offense had occurred. The court concluded that the testimony fell “within the boundaries of proper CSAAS testimony.” When the trial court asked the parties whether they wanted to add anything, both declined.

3. Forfeiture
4.
“ ‘A party desiring to preserve for appeal a challenge to the admission of evidence must comply with the provisions of Evidence Code section 353, which precludes reversal for erroneous admission of evidence unless: “There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated to make clear the specific ground of the objection or motion.” ’ [Citation.] A properly directed motion in limine may satisfy the requirements of Evidence Code section 353 and preserve objections for appeal. [Citation.] However, the proponent must secure an express ruling from the court.” (People v. Ramos (1997) 15 Cal.4th 1133, 1171 (Ramos).)

Here, defendant raises three challenges to the trial court’s admission of the CSAAS evidence, namely: (1) the record did not establish that jurors held misconceptions about children’s behavior after sexual abuse; (2) the evidence improperly bolstered S.D.’s testimony; and (3) the expert’s testimony improperly linked CSAAS to the facts of this case.

Arguably, defendant raised the first challenge during the trial court’s hearing on the motions in limine when he argued that the relevance of the evidence was dependent, in part, on “whether or not the jury need[ed] any clarification” of children’s post-molestation behavior. However, defendant requested that the trial court delay its ruling on the CSAAS evidence’s admission until after the victims had testified, and then failed to “preserve the issue for appeal” because he “did not[] renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself.” (People v. Holloway (2004) 33 Cal.4th 96, 133.) Thus, we determine that defendant’s claim that the trial court improperly admitted CSAAS evidence because the record did not establish that jurors’ held misconceptions of molested children’s behavior was forfeited.

We also conclude that defendant’s claim that the evidence improperly bolstered S.D.’s testimony was not preserved for appeal. Defendant did not raise this issue in his motion in limine pertaining to CSAAS evidence, nor did he argue it at the hearing on the in limine motions or object on that basis at trial. Thus, the claim has been forfeited. (See Ramos, supra, 15 Cal.4th at p. 1172 [Evidence Code section 353 “require[s] sufficient specificity of evidence and legal grounds for the opposing party to respond if necessary, for the trial court to determine the question intelligently, and for the appellate court to have a record adequate to review for error”].)

We will assume based on the trial court’s comments after Dr. Urquiza testified that defendant’s claim that the expert’s testimony improperly linked CSAAS to the facts of this case was raised below and preserved for appeal. The court noted that an issue had been raised about whether the prosecution’s questions were “too case-specific,” but determined that the evidence fell “within the boundaries of proper CSAAS testimony.” Thus, we will assume from the trial court’s statements that the court was responding to a motion to strike the testimony based on the case specificity of the expert’s testimony, preserving the issue on appeal. (See Ramos, supra, 15 Cal.4th at p. 1172 [“ ‘Evidence Code section 353 does not exalt form over substance’ ”].)

5. Legal Principles
6.
California courts have held that CSAAS evidence is admissible to disabuse jurors of commonly held misconceptions about child sexual abuse. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin); People v. Gonzales (2017) 16 Cal.App.5th 494, 503; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino); People v. Housley (1992) 6 Cal.App.4th 947, 955-956 (Housley); People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383-1384 (Gilbert), superseded on other grounds by CALJIC No. 10.41, as recognized in People v. Levesque (1995) 35 Cal.App.4th 530, 536-537; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450; People v. Stark (1989) 213 Cal.App.3d 107, 116-117; People v. Bowker (1988) 203 Cal.App.3d 385, 393-394 (Bowker).) CSAAS “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.” (Bowker, supra, at p. 394.) The need for CSAAS evidence arises when the defendant attacks the child’s credibility by suggesting that the child’s conduct after the incident, such as a delay in reporting, is inconsistent with the child’s testimony claiming molestation. (McAlpin, supra, at p. 1300.) Importantly, however, CSAAS evidence may not be offered to prove that a child’s molestation claim is true. (Ibid.)

“ ‘The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.’ [Citation.]” (People v. Brown (2014) 59 Cal.4th 86, 101.) “[W]e will not disturb the court’s exercise of that discretion unless it acted in an arbitrary, capricious or patently absurd manner [citation].” (People v. Jones (2013) 57 Cal.4th 899, 947.)

7. Analysis
8.
Defendant contends that the trial court abused its discretion in admitting the CSAAS evidence because the prosecution’s questions elicited testimony that “too closely tracked the facts of this case.” For example, Dr. Urquiza testified that most children do not immediately disclose molestation because they feel helpless and that children do not usually fight off the perpetrator or scream. Dr. Urquiza stated that perpetrators engage in behavior to promote nondisclosure, such as threatening the victim with harm to themselves or to other household members or telling the victim that no one will believe them. Dr. Urquiza also testified that the closer the victim is to the perpetrator, the longer it takes the victim to disclose, and that children disclose abuse in a piecemeal fashion rather than disclosing everything that happened at once.

Although some of the complained-of testimony corresponded to S.D.’s conduct and the facts of this case, we conclude that the jury would not have improperly implied from Dr. Urquiza’s testimony that he had diagnosed S.D’s abuse or that he believed S.D. had been abused. Dr. Urquiza’s testimony about CSAAS was directed to the behavior of children as a class and their common reactions to sexual abuse, rather than to the particular victims in this case. Dr. Urquiza testified that he did not know the facts of the case, had not spoken to the victims or defendant, and had not read the police reports. He also made clear that CSAAS was an educational, not diagnostic, tool. Thus, it was “unlikely the jury would interpret [the expert’s] statements as a testimonial to [the victims’] credibility.” (Housley, supra, 6 Cal.App.4th at pp. 955-956.)

Moreover, the trial court explicitly instructed the jury that “Dr. Urquiza’s testimony about Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not the conduct of [S.D.] and [C.D.] was not inconsistent with the conduct of someone who has been molested and [to] evaluate the believability of their testimony.” This admonishment removed the possibility that the jury might misunderstand Dr. Urquiza’s testimony or the proper use of CSAAS evidence.

For these reasons, we conclude that the trial court did not abuse its discretion when it admitted the CSAAS evidence.

9. Due Process
10.
Defendant contends that the admission of CSAAS evidence violated his federal constitutional right to due process.

However, “[t]he admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair. [Citations.]” (People v. Falsetta (1999) 21 Cal.4th 903, 913.) The CSAAS evidence admitted here was relevant to the issues presented in the case and, as it was properly limited, did not render defendant’s trial fundamentally unfair. (See Patino, supra, 26 Cal.App.4th at p. 1747 [the admission of CSAAS evidence at trial does not render the trial fundamentally unfair]; see also Estelle v. McGuire (1991) 502 U.S. 62, 69-70 [the admission of relevant evidence of battered child syndrome does not violate the due process clause of the Fourteenth Amendment].)

For all of these reasons, we conclude that the trial court properly admitted the CSAAS evidence.

E. Instruction on CSAAS Evidence
F.
Defendant contends that the trial court erred when it instructed the jury with CALCRIM No. 1193 because it “effectively instructs . . . that CSAAS evidence and the expert testimony may be used to determine whether the victim’s claims are true.” Defendant also contends that his trial counsel was constitutionally deficient when she failed to object to the instruction. The Attorney General counters that the instruction “actually told the jury it could not use that testimony as ‘evidence that the defendant committed any of the crimes charged against him’ ” and that the instruction correctly stated the law. The Attorney General does not argue that defendant’s claim has been forfeited.

The trial court instructed the jury pursuant to CALCRIM No. 1193 as follows: “You have heard testimony from Dr. Anthony Urquiza regarding [CSAAS]. Dr. Urquiza’s testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not the conduct of [S.D.] and [C.D.] was not inconsistent with the conduct of someone who has been molested and [to] evaluate the believability of their testimony.”

When we review a purportedly erroneous instruction, we consider “ ‘ “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” ’ ” (People v. Richardson (2008) 43 Cal.4th 959, 1028 (Richardson).) We consider the instructions as a whole and “ ‘assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]” (Ibid.)

We determine that it is not reasonably likely jurors understood CALCRIM No. 1193 as permitting the use of CSAAS evidence for the improper purpose of proving that S.D. and C.D. were abused by defendant. (See Richardson, supra, 43 Cal.4th at p. 1028.) As given by the trial court, CALCRIM No. 1193 was a cautionary instruction that specifically warned jurors that they must not consider CSAAS testimony as evidence that the defendant committed the offense. It then informed jurors that they may use CSAAS evidence to evaluate whether the alleged victims’ behavior that appeared to be inconsistent with molestation was actually not inconsistent. To the extent that CALCRIM No. 1193 allowed jurors to consider the CSAAS evidence in their evaluation of S.D.’s and C.D.’s credibility, the instruction was proper because the evidence was relevant and admissible as S.D.’s and C.D.’s credibility had been attacked. (See McAlpin, supra, 53 Cal.3d at pp. 1300-1301; Gilbert, supra, 5 Cal.App.4th at p. 1383.)

Thus, we conclude that defendant’s claim regarding CALCRIM No. 1193 is without merit.

G. Consciousness of Guilt Instruction Based on the Fabrication of Evidence or Trying to Obtain False Testimony
H.
Defendant contends that the trial court erred when it instructed the jury with CALCRIM No. 371, regarding consciousness of guilt based on the fabrication of evidence or trying to obtain false testimony, because the instruction was not supported by substantial evidence. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129 [“It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case”].) Defendant also contends that the instruction violated his due process rights because it contained “an irrational permissive inference” and it “improperly shifted the balance of instructions against the defense.” (Capitalization and bold omitted.) The Attorney General counters that the claim has been forfeited and that the evidence of defendant’s 41 jail calls to K.D. sufficiently supported the instruction.

The trial court instructed the jury with CALCRIM No. 371 as follows: “If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.”

Defendant asserts that he may challenge the instruction on appeal despite his failure to object to it below because the instruction affected his substantial rights. Alternatively, defendant contends his trial counsel was ineffective for failing to object to the instruction.

We may review a claim of instructional error that affects the defendant’s “substantial rights” with or without a trial objection. (§ 1259; see People v. Cage (2015) 62 Cal.4th 256, 285.) Whether we review defendant’s claim of instructional error under section 1259 or under the rubric of his ineffective assistance of counsel claim, we must determine whether any error was prejudicial. (See People v. Ramos (2008) 163 Cal.App.4th 1082, 1087; Strickland v. Washington (1984) 466 U.S. 668, 695, 697 (Strickland).) Thus, even if we assume the instruction was not supported by substantial evidence, we would need to determine whether there is a reasonable probability that the result of defendant’s trial would have been different had the trial court not given the instruction. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Mitchell (2008) 164 Cal.App.4th 442, 465 (Mitchell) [“ ‘Substantial rights’ are equated with errors resulting in a miscarriage of justice under . . . Watson”]; Strickland, supra, at p. 695.)

A number of factors show that defendant was not prejudiced by the trial court’s instruction on consciousness of guilt based on the fabrication of evidence. First, the challenged instruction was not mentioned during closing arguments, and the prosecutor did not argue that defendant fabricated evidence or that the jury should infer his guilt on that basis. Second, the challenged instruction made it clear that the jury was to determine “[i]f” defendant tried to fabricate evidence; the instruction did not suggest that there was evidence defendant tried to fabricate evidence. Third, the jury was instructed that “[s]ome of the[ ] instructions may not apply” and that jurors should not “assume” that by giving a particular instruction, the trial court was “suggesting anything about the facts.” Thus, if the evidence did not support the consciousness of guilt instruction, “we presume that the jury concluded that the instruction[] did not apply to [defendant] and it should not infer a consciousness of his guilt.” (People v. Nunez and Satele (2013) 57 Cal.4th 1, 49.) Fourth, the instruction pursuant to CALCRIM No. 371 could be viewed as benefitting defendant because it told the jury that any effort defendant may have taken to fabricate evidence was not, by itself, sufficient to establish his guilt. (See People v. Johnson (1992) 3 Cal.4th 1183, 1235 [addressing CALJIC No. 2.06, predecessor to CALCRIM No. 371].)

In sum, there is no reasonable probability that the result of defendant’s trial would have been different had the trial court not instructed the jury on consciousness of guilt. (See Watson, supra, 46 Cal.2d at p. 836.) Thus, defendant cannot establish that his substantial rights were affected by the instruction or that his counsel was constitutionally deficient for failing to object to it. (See Mitchell, supra, 164 Cal.App.4th at p. 465; Strickland, supra, 466 U.S. at p. 695.)

I. Cumulative Error
J.
Defendant contends that his convictions must be reversed due to cumulative prejudice. Because there are no errors to cumulate, defendant’s claim fails. (See In re Reno (2012) 55 Cal.4th 428, 483; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)

IV. DISPOSITION

The judgment is affirmed.

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

ELIA, ACTING P.J.

MIHARA, J.

People v. AguilarMozo

H044591