Filed 1/23/20 P. v. Darbouze CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE
THE PEOPLE,

Plaintiff and Respondent,

v.

JEAN MAX DARBOUZE,

Defendant and Appellant. B287958

Los Angeles County

Super. Ct. No. LA083387

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph A. Brandolino, Judge. Affirmed as modified with directions.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

When defendant Jean Max Darbouze saw his 17-year-old daughter, J.D., with a teenage boy on their apartment complex’s basketball court, he responded by punching her, kicking her, and stomping on her. Then, back in their apartment, defendant brutally whipped J.D. with a cable and threatened to put a bullet in her head. After an interlude to keep an appointment with his optometrist, defendant beat J.D. with a vacuum cleaner attachment, then raped her. Defendant was convicted of torture, child abuse, criminal threats, and rape. On appeal, he raises a variety of challenges to evidence of his prior abuse of J.D. and the expert testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS), most of which have been rejected by the California Supreme Court, and all of which we reject.

Defendant also contends we should stay his sentence for child abuse under Penal Code section 654 and asks us to correct an error in the abstract of judgment. The People properly concede both points, and we agree. We therefore modify the judgment to stay count 2 and its related enhancements and to reduce the sex offender fine to a statutorily-authorized amount. As modified, we affirm. We remand the matter with directions to correct the abstract of judgment.

PROCEDURAL BACKGROUND

By amended information dated March 3, 2017, defendant was charged with rape of a child older than 14 (Pen. Code, § 261, subd. (a)(2); count 1); child abuse (Id., § 273a, subd. (a); count 2) with great bodily injury (Id., § 12022.7, subd. (a)); torture (Id., § 206; count 3); and criminal threats (Id., § 422, subd. (a); counts 4 & 5). As to count 1, the information alleged that defendant personally inflicted great bodily injury and torture in the commission of the offense. (Id., § 667.61, subds. (a) & (d).) As to counts 1, 2, and 3, the information also alleged defendant personally used a deadly weapon. (Id., § 667.61, subds. (b) & (e)). Defendant pled not guilty and denied the allegations.

After a jury trial at which he testified in his own defense, defendant was convicted of all counts. The jury found the allegations for counts 2 and 3 true, but found the allegations for count 1 not true.

The court denied defendant’s motion for a new trial, and sentenced him to an aggregate determinate term of 16 years and a consecutive indeterminate term of seven years to life. The court selected count 1 as the base term and sentenced defendant to the high term of 11 years. The court imposed two years eight months for count 2—one-third of the four-year midterm for count 2 plus one-third of the three-year term for the great-bodily-injury enhancement and one-third of the one-year term for the weapon enhancement—to run consecutively. The court imposed eight months—one-third the midterm of two years—for each of counts 4 and 5, to run consecutively. For count 3, the court imposed an indeterminate life sentence plus one year for the weapon enhancement, to run consecutively.

Defendant filed a timely notice of appeal.

FACTUAL BACKGROUND

1. Prosecution Evidence
2.
2.1. Defendant Abuses J.D. in New Hampshire
2.2.
Defendant’s daughter J.D. was born in 1997. Defendant and J.D.’s mother divorced when J.D. was two years old. After the divorce, J.D. wasn’t allowed to speak with her mother much, and didn’t see her more than once a month. During elementary school, J.D. lived with her father in New Hampshire. Defendant had remarried, and in 2005, he had a son, M.D., with his new wife. But that marriage ended the same year.

When J.D. was a toddler, defendant began to discipline her by grabbing her, punching her, and kicking her. He also hit her with a belt, sometimes making her remove her clothes to increase the pain from the blows. As she got older, defendant started beating J.D. with whatever objects were close at hand—cable wires, vacuum parts, scissors, pens, and keys.

Defendant first raped J.D. when she was 14 years old, the morning of a class field trip to an amusement park to celebrate the end of the school year. The school bus was scheduled to leave at 8:10 a.m., but around 8:00 a.m., when J.D. asked defendant for lunch money, he said she couldn’t go on the trip because she would be around boys. J.D. told her father that she really wanted to go with her friends and that the bus was leaving, but defendant responded, “If you want to go, this is what you have to do.”

He put $40 on the dresser, made J.D. get on his bed, and told her to pull her pants down. J.D. climbed onto the bed and pulled down her shorts and underwear as she’d been instructed. Defendant took out his penis, got on top of J.D., and inserted his penis into her vagina. The rape lasted about 10 minutes.

When it was over, J.D. stood up, took the $40 from the dresser, and ran to catch her bus—but the bus was already gone. A neighbor had to drive her to school.

Defendant raped J.D. regularly after that—but he never called it sex. Instead, he said he was “checking” to make sure she was still a virgin. Defendant used “checking” as a form of punishment or as a price J.D. had to pay for something she wanted, like going to the mall. Sometimes, defendant made J.D. choose her punishment—checking or the belt. Defendant used a condom “here and there.” When he didn’t wear one, he either ejaculated on the floor or ejaculated inside J.D., then made her take the morning after pill.

In 2011, defendant married a Haitian woman named Eveline. Two years later, in 2013, the family moved from New Hampshire to Ontario, California to pursue J.D.’s singing career. J.D. and defendant moved first, and Eveline joined them a few months later.

2.3. The Abuse Continues in California
2.4.
In Ontario, defendant decided that instead of attending high school, J.D. would do a self-directed, online homeschooling program while she pursued her singing career. He drove J.D. to Los Angeles every day to go to studios or shows, introduced her to people in the music industry, and started a record label with a cousin and J.D. But defendant also raped J.D. more frequently in California, and he continued to use beatings and sex as forms of punishment.

In November 2014, the family moved from Ontario to Woodland Hills, and defendant got stricter. J.D. was not allowed to go outside or to the pool; when she wasn’t studying online, she was supposed to be singing or practicing her choreography. And, instead of sleeping with his wife, defendant started sleeping in J.D.’s bed.

In December 2014, J.D.’s half-brother M.D. came to Woodland Hills for a two-week visit. He slept in J.D.’s room, at the foot of her bed. Twice during his trip, M.D. awoke to the sound of his father, defendant, having sex with J.D.—events M.D. recounted to the jury in detail. M.D. also testified that he heard J.D. screaming as defendant beat her and saw defendant beat E.D., defendant’s son with Eveline. M.D. was afraid of defendant.

Nevertheless, M.D. told J.D. what he had seen. At first she denied that anything had happened, but M.D. persisted, and said they should tell the police. J.D. cried and begged him not to tell anyone. She explained that defendant was a private investigator and had told her that girls always make up rape stories and nobody ever believes them. It was a warning defendant had been giving J.D. for years.

2.5. Events of January 22, 2015
2.6.
The events of January 22, 2015, formed the basis of all the charged counts in this case.

That day, defendant left the condominium for an appointment with Eveline and E.D. Once they were gone, J.D. went outside and let her friend Drew L. into the complex.

Drew and J.D. went to a basketball court next to the pool, then went to Drew’s car to have sex. Drew used a condom. When they were done, they returned to the basketball court.

Around 2:00 or 3:00 p.m., defendant approached J.D. from behind, punched her in the face and stomach, and kicked her to the ground. He yelled at her, hit her, punched her, and stomped on her with his boots. The beating left bruises on J.D.—including Timberland boot prints on her legs and body.

Defendant dragged J.D. from the basketball court by her shirt and shoulder. He took her phone, and told her to “get in the house before I kill you.” He warned, “I’m about to beat you up. I’m about to kill you. You don’t know what I’m about to do to you.” J.D. was scared. Defendant had never threatened to kill her before; she thought his threats were serious because he was furious that she was with someone unsupervised—angrier than she’d ever seen him.

Back in the condo, defendant dragged J.D. to her room, shut the door, and left. J.D. thought he was going to get a gun—but instead, he returned with television cable wires with “a prick on them at the end.”

Defendant used the wires to whip J.D. on the back and arms. As he whipped her, he told her, “All boys want from you, especially that one, especially Drew—he’s a big singer—of course all he wants from you is sex.” He asked, “Is that what you guys did? Is that what you guys did?” Then he said, “I’m going to have you show me. Don’t worry. I’m going to have you show me if you did.”

J.D. tried to hide under the blankets on her bed, but defendant ripped the covers off and held her so she could not run. As he whipped her, defendant threatened, “I’m going to kill you. You’re lucky I haven’t killed you already.” He reminded her that he had a gun—and said he would shoot her in the head.

J.D was bleeding from the back and both arms. She had bruises on her legs from being kicked on the basketball court. The cables left marks on the bedroom wall and visible scars on J.D.’s arm that still hurt at the time of trial.

Defendant finally stopped whipping J.D. because he had to leave for the eye doctor. He told J.D. to put on a sweatshirt and come with him.

On the drive to the optometrist, defendant asked J.D. questions about Drew. If he didn’t like her answer, he punched her. When they reached the optometrist, J.D. sat in the lobby and cried. The receptionist asked what had happened, but J.D. didn’t tell her; she was too scared of defendant.

The beating resumed when they got home. Eveline and her mother tried to intervene, but defendant told them to get out of the way before he hit them too. J.D. had never seen defendant threaten them before.

Defendant yelled at J.D. and ordered her to clean and vacuum the whole house. If she missed a spot, he hit her with the vacuum holder. When she finished, he told her to cover the carpet with plastic wrap. He said the plastic would let him hear her footsteps if she tried to leave her room.

Meanwhile, J.D. secreted a duffle bag filled with clothes in a trash bag and stored it near the bushes outside under the guise of throwing away debris. She knew that if she didn’t leave that night, defendant would kill her.

After Eveline and her mother went to bed, defendant returned to J.D.’s room. He was holding a piece of the vacuum in his hand and used it to hit J.D. a few times. Defendant said she was going to show him what she wanted to do with boys, and he was going to give her what the boys wanted from her. Defendant ordered J.D. to take off her clothes. Then, he raped her; it was the roughest he had ever been. He forced her to have sex with him in a variety of positions, with and without a condom. After he ejaculated onto the carpet, defendant said, “You’re lucky I didn’t kill you tonight.” Then he went to bed.

J.D. waited for defendant to fall asleep, then jumped out the window and ran down the street. She hitchhiked to a friend’s neighborhood and knocked on doors until she found the right house.

J.D told her friend that her father had raped her that night—and multiple times over the years. She took off her sweater and pants and showed her friend the bruises on her arms and legs. The injuries looked fresh: They were red, purple, and swollen. A wound on J.D.’s thigh was still bleeding. J.D was hysterical; her body was shaking, and she cried for about 90 minutes.

Meanwhile, J.D.’s mother—who J.D. had called on the way to the friend’s house—had notified the UCLA Rape Center, which sent a taxi for J.D. J.D. underwent a sexual assault exam and spoke with a nurse and police officers, who, in turn, testified at trial.

2.7. Investigation
2.8.
On January 24, 2015, detectives arrived to search the Woodland Hills condo. They collected biological samples from the carpet and wall of J.D.’s bedroom, which were later matched to defendant’s DNA.

The samples collected from the rape kit were generally inconclusive. The external genital swap was consistent with a mixture of at least two unrelated men. Defendant was the secondary male contributor.

Developmental psychologist Susan Hardie testified for the prosecution as an expert on CSAAS. She explained that CSAAS is a model that explains how children who are sexually abused by a powerful adult may accommodate the abuse and delay disclosure or report it inconsistently. It explains why children may not reach out for help.

3. Defense Evidence
4.
Defendant testified that he did not rape J.D. On January 22, 2015, he found J.D.’s clothes on the basketball court—but his daughter wasn’t with them. Instead, defendant found her on the racquetball court having sex with Drew. Defendant admitted that he slapped J.D. in the face and hit her twice with a belt, but denied her remaining allegations.

Defendant explained that after coming back from the optometrist, he told J.D. that he was going to delete her music videos from YouTube. She responded: “You destroyed me. I’m going to destroy you.” And indeed, when J.D. left the stand after testifying, she motioned to defendant with her eye and smiled. She told him, “I destroy you.”

Defendant’s pastor and several of defendant’s friends and family members also testified on his behalf, as did several experts:

◦ a forensic nurse testified that J.D’s medical reports did not establish nonconsensual penetration with certainty;
◦
◦ a retired emergency room doctor testified that J.D.’s injuries, though consistent with being whipped with a cord, wires, or belts, were not life-threatening;
◦
◦ a DNA consultant disagreed with the conclusion that defendant was the minor contributor to the sample from J.D.’s external genital swab.
◦
Finally, Dr. Mitchell Eisen, a CSAAS expert, testified that CSAAS evidence was not scientific or diagnostic, and it could not be used to distinguish honest people from liars. Adolescents, he explained, “lie for the same motivations, and, roughly, [at] the same rate as any other adult population … .”

CONTENTIONS

Defendant argues: Evidence Code sections 1108 and 1109 are unconstitutional; the court’s admission of prior-acts evidence under those statutes was an abuse of discretion and violated his due process rights; instructing the jury with the related instructions, CALCRIM Nos. 852 and 1191, reduced the prosecution’s burden of proof; the expert testimony about CSAAS was irrelevant and violated the Kelly/Frye rule governing admissibility of scientific evidence; his attorney was ineffective for not objecting to the CSAAS testimony; the CSAAS instruction, CALCRIM No. 1193, reduces the prosecution’s burden of proof; count 2 (child abuse) and its related enhancements must be stayed under Penal Code section 654 because they were part of the same continuous course of conduct as count 3 (torture); and we should correct a clerical error in the abstract of judgment.

DISCUSSION

1. Admission of the propensity evidence did not violate defendant’s due process rights.
2.
“Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. [Citation.] However, the Legislature has created exceptions to this rule in cases involving sexual offenses [citation] … .” (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) Section 1108 “allows evidence of the defendant’s uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendant’s disposition to commit such crimes.” (People v. Reliford (2003) 29 Cal.4th 1007, 1009.) Section 1109 allows evidence of uncharged domestic violence for the same reason. (People v. Brown (2000) 77 Cal.App.4th 1324, 1333–1334.)

Not all such evidence is admissible, however. Under section 352, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (See People v. Avila (2014) 59 Cal.4th 496, 514–515.)

In conducting its analysis, the court should consider the evidence’s “nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).) Some of these factors are expressly set forth in section 352; others are relevant to those considerations.

2.1. Proceedings Below
2.2.
Over defense objection, the court allowed J.D. to testify about the years of physical and sexual abuse to which defendant had subjected her. The court explained: “It appears that the prior abuse gives context to what is charged in this case. So, it’s highly relevant. It explains why—or it gives a reason why—the conduct that’s alleged in this case would have occurred. And so I do think it’s highly relevant, and I do think it satisfies a 352 analysis.” Given that the evidence was “highly relevant,” the court concluded any problems with it were germane to its weight, not its admissibility.

The court explained that it understood the countervailing concerns: “I don’t [admit the prior crimes evidence] lightly. I understand the potential prejudice—but I don’t think it’s undue prejudice … .” In addition, “other than the fact that [J.D] was younger, it doesn’t seem like anything that’s alleged that happened before, what happened before is not any worse—well, when I say worse, I mean shocking, you know—than what’s alleged in the current charges. And again, that may be part of the court’s analysis in determining whether there’s undue prejudice. But [the prior acts are] no worse—or no more shocking—than what’s being alleged [in the charged counts].”

2.3. Sections 1108 and 1109 are constitutional.
2.4.
Defendant contends the trial court violated his right to due process of law when it allowed the jury to consider his uncharged physical abuse of J.D. as evidence that he was likely to commit, and did commit, child abuse and torture (§ 1109) and to use evidence of uncharged sexual abuse of J.D. to find he was likely to commit, and did commit, rape (§ 1108). He acknowledges, however, that the California Supreme Court, in Falsetta, supra, 21 Cal.4th 903, rejected the argument that section 1108 was unconstitutional, and that the court’s reasoning in that case compels the same conclusion for section 1109. (See, e.g., People v. Cabrera (2007) 152 Cal.App.4th 695, 704; People v. Villatoro (2012) 54 Cal.4th 1152, 1162, fn. 4.)

We are bound by the Supreme Court’s opinions on these statutes. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 (Auto Equity Sales).) Accordingly, we conclude sections 1108 and 1109 are constitutional.

2.5. The propensity evidence was properly admitted under section 352.
2.6.
Under sections 1108 and 1109, prior-acts “evidence is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant’s disposition to commit the charged sex offense or other relevant matters. [Citation.] The court’s ruling admitting the evidence is reviewed for abuse of discretion. [Citation.]” (People v. Cordova (2015) 62 Cal.4th 104, 132.) A court abuses its discretion with a ruling that falls beyond the bounds of reason, or where the ruling is arbitrary, capricious, or patently absurd. (People v. Fuiava (2012) 53 Cal.4th 622, 663.)

Defendant purports to raise “as-applied” and section 352 challenges to the evidence admitted under sections 1108 and 1109—but offers us little beyond generalized attacks on propensity evidence. For example, defendant contends his “argument to the jury was undermined by the avalanche of uncharged evidence spanning a period of years and occurring in multiple locations that had to only be proved by a preponderance of the evidence.” But defendant does not address any specific evidence or explain which prior acts should have been excluded and why. Consequently, there is little to distinguish this argument from his facial challenge to sections 1108’s and 1109’s propensity inferences. Given the all-or-nothing choice defendant presents us, we conclude the court did not abuse its discretion in admitting evidence of defendant’s past physical and sexual abuse of J.D.

In general, the prior-acts evidence admitted here was similar enough to the charged offenses that the uncharged behavior tended to corroborate J.D.’s testimony. The prior acts involved the same victim, the same types of violence, the use of similar objects, and similar surrounding circumstances as the charged beating and rape. (See People v. Hoover (2000) 77 Cal.App.4th 1020, 1029 [“Particularly in view of the fact that the subject evidence involved defendant’s history of similar conduct against the same victim, the evidence was not unduly inflammatory.”].)

Nor was the prior abuse worse or more shocking than the allegations in this case. For example, both the prior and current crimes involved defendant’s use of physical and sexual violence to punish J.D. for her perceived interest in boys or sex. In 2014, defendant punched J.D. in the face at the mall, punched her repeatedly during the drive home, threw his boot at her, and told her while raping her that she “just want[ed] to be with boys.” In this case, defendant was charged with brutally beating, whipping, and raping J.D. after he saw her on the basketball court with a teenage boy.

Taken as a whole, the court did not abuse its discretion in admitting the prior acts evidence.

3. CALCRIM Nos. 852 and 1191 properly state the law.
4.
Defendant contends CALCRIM Nos. 852 and 1191, concerning the jury’s use of the propensity evidence admitted under sections 1108 and 1109, confused and misled the jury about the prosecution’s obligation to prove the charged crimes and enhancements beyond a reasonable doubt. He acknowledges, however, that the California Supreme Court has approved substantially similar instructions. (People v. Villatoro, supra, 54 Cal.4th at p. 1168 [similarly modified CALCRIM No. 1191]; People v. Reliford, supra, 29 Cal.4th at pp. 1012–1016 [precursor to CALCRIM No. 1191]; see People v. Johnson (2008) 164 Cal.App.4th 731, 738–740 [CALCRIM Nos. 852 and 1191 are similar in all material respects].)

We are bound by the Supreme Court’s view of this issue. (See Auto Equity Sales, supra, 57 Cal.2d 450.) Accordingly, we conclude CALCRIM Nos. 852 and 1191 properly state the law.

5. The CSAAS Evidence
6.
Defendant contends the prosecution’s reliance on expert testimony concerning CSAAS violated his right to due process of law because the evidence was irrelevant to the facts of this case, the public no longer holds the misconceptions the testimony was admitted to address, and CSAAS does not satisfy the requirements of the Kelly/Frye rule governing admissibility of scientific evidence. Since trial counsel’s failure to object forfeits these issues on appeal, he argues he received constitutionally defective assistance of counsel.

6.1. Defendant forfeited his challenge to the CSAAS evidence.
6.2.
The rules of evidence are not self-executing. We may not reverse a judgment or verdict based on “the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion[.]” (§ 353, subd. (a).) This rule exists to give the trial court a concrete legal proposition to pass on, to allow the proponent of the evidence an opportunity to cure the defect, and to prevent abuse. (People v. Partida (2005) 37 Cal.4th 428, 434.)

Defendant concedes trial counsel did not object to the CSAAS-related testimony, thereby forfeiting his challenges to it on appeal, but argues that failure amounted to ineffective assistance of counsel.

6.3. Ineffective Assistance of Counsel
6.4.
Under either the federal or state Constitution, the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).) To establish ineffective assistance of counsel, defendant must satisfy two requirements. (Id. at pp. 690–692.)

First, he must show his attorney’s conduct was “outside the wide range of professionally competent assistance.” (Strickland, supra, 466 U.S. at p. 690.) Then, he must demonstrate the deficient performance was prejudicial—i.e., there is a reasonable probability that but for counsel’s failings, the result of the proceeding would have been different. (Id. at p. 694.) “It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different.” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)

Claims of ineffectiveness must usually be “raised in a petition for writ of habeas corpus [citation], where relevant facts and circumstances not reflected in the record on appeal, such as counsel’s reasons for pursuing or not pursuing a particular trial strategy, can be brought to light to inform” the inquiry. (People v. Snow (2003) 30 Cal.4th 43, 111.) “There may be cases in which trial counsel’s ineffectiveness is so apparent from the record that appellate counsel will consider it advisable to raise the issue on direct appeal. There may be instances, too, when obvious deficiencies in representation will be addressed by an appellate court sua sponte.” (Massaro v. United States (2003) 538 U.S. 500, 508.) But those cases are rare.

Typically, if “the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation. [Citations.]” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) These arguments should instead be raised on collateral review. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.)

6.5. Admission of Expert Testimony
6.6.
To be admissible, expert opinion must satisfy the following requirements:

◦ the subject of the opinion is sufficiently beyond common experience that the testimony would assist the trier of fact (§ 801, subd. (a));
◦
◦ the witness is qualified as an expert on that subject through sufficient “special knowledge, skill, experience, training, or education” (§ 720, subd. (a));
◦
◦ the expert’s opinion is based on matter of a type on which an expert may reasonably rely in forming an opinion (§ 801, subd. (b)); and
◦
◦ if the expert’s opinion is based on a new or novel scientific technique, that technique satisfies the requirements of the Kelly/Frye rule.
◦
Whether the subject of the testimony is sufficiently beyond common experience “ ‘is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would “assist” the jury. It will be excluded only when it would add nothing at all to the jury’s common fund of information, i.e., when “the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.” ’ [Citation.]” (People v. McAlpin (1991) 53 Cal.3d 1289, 1299–1300 (McAlpin); § 801, subd. (a).)

A trial court’s decision “to admit expert testimony ‘will not be disturbed on appeal unless a manifest abuse of discretion is shown.’ [Citation.]” (McAlpin, supra, 53 Cal.3d at p. 1299.)

6.7. The CSAAS testimony was relevant and beyond common experience.
6.8.
Defendant acknowledges the California Supreme Court has held that expert testimony on CSAAS “is admissible to rehabilitate [a victim’s] credibility when the defendant suggests that the child’s conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. [Citations.]” (McAlpin, supra, 53 Cal.3d at pp. 1300–1301.) He contends, however, that the testimony here was irrelevant to address recanting because “[n]o witness in this case appears to have recanted” and inadmissible to address delayed disclosure because “the world has changed” since the CSAAS model was introduced in 1983. We disagree.

As to the first point, defendant is mistaken. J.D. did, indeed, recant. When she was in Haiti in 2016, J.D. spoke on the phone with a member of the defense team. She told the person that her story wasn’t true, and her mother told her to fabricate it. On cross-examination, defense counsel elicited the details of that statement. J.D. told the defense investigator that defendant was very strict; he wanted her to focus on her music career instead of her boyfriend. On January 22, 2015, they got into an argument because defendant did not want her to spend time with her friends; he hit her—but he did not leave any marks. J.D. called her mother, who told her to run away to a friend’s house. When J.D. arrived at the friend’s house, she spoke to her mother again; her mother said she’d call the UCLA rape center. But, J.D. told the investigator, she had never had sexual contact with her father. In short, J.D. told the investigator her mother had told her to lie to ensure defendant would go away.

After eliciting these statements on cross-examination, defense counsel emphasized them during closing argument, arguing they showed J.D. was an untrustworthy liar. As such, defendant placed recanting at issue, and the prosecution was entitled to introduce CSAAS testimony to explain J.D.’s behavior. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744–1745.)

As to defendant’s second point, we cannot assume, as defendant suggests, that the average juror is familiar with Law and Order: Special Victims Unit (NBC 1999–present) or that that long-running police procedural has acquainted the average juror with children’s reactions to sex crimes. Regardless, even if defendant is right that expert testimony about CSAAS was unnecessary because the public no longer expects children to report sex abuse immediately, we are bound by the Supreme Court’s contrary views on that topic until the court chooses to revisit them. (See Auto Equity Sales, supra, 57 Cal.2d 450.)

Accordingly, we reject defendant’s claim that his attorney should have objected on relevance or common-knowledge grounds.

6.9. The CSAAS evidence did not implicate Kelly/Frye.
6.10.
Defendant also contends his attorney should have objected to the CSAAS testimony on the ground that it was “ ‘junk science’ ” that did not satisfy the Kelly/Frye rule. We disagree.

In Kelly, the California Supreme Court adopted the test set out in Frye, supra, 293 F. at p. 1014, which requires a party proffering expert opinion testimony based on a new scientific technique to establish the technique’s reliability and acceptance within the relevant scientific community before the testimony will be allowed. (Kelly, supra, 17 Cal.3d at p. 30.) By its terms, the Kelly/Frye rule only applies to new scientific techniques. The question of whether the subject of the testimony satisfies the general acceptance test is reviewed de novo. (Kelly, at p. 39.)

Courts’ decisions about whether Kelly/Frye applies to CSAAS testimony have typically depended on whether the testimony is offered as direct evidence of a defendant’s guilt or for another purpose, such as to rehabilitate a victim’s credibility when she has recanted her story or delayed reporting. When offered for the former purpose, as a predictive tool, courts have applied Kelly/Frye and excluded the testimony. (See, e.g., People v. Bowker (1988) 203 Cal.App.3d 385, 389–395; In re Sara M. (1987) 194 Cal.App.3d 585, 590–595; In re Christine C. (1987) 191 Cal.App.3d 676, 679.) When offered for the latter purpose, as in this case, however, the Kelly/Frye reliability standard does not apply because the testimony does not concern a new scientific method of proving that molestation has occurred. (See, e.g., People v. Wells (2004) 118 Cal.App.4th 179, 187–190; People v. Gray (1986) 187 Cal.App.3d 213, 218–220.)

Here, because the CSAAS testimony was not offered to prove the charged crimes, Kelly/Frye does not apply, and we reject defendant’s argument that counsel should have objected to the CSAAS testimony on that basis.

7. The CSAAS instruction was proper.
8.
Next, defendant challenges the court’s instruction on the proper uses of the CSAAS testimony.

The court instructed the jury with CALCRIM No. 1193 as follows: “You have heard testimony from Susan Hardie and Mitchell Eisen regarding child sexual abuse accommodation syndrome. Their 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 [J.D.]’s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony.” (Italics added.)

As discussed, expert testimony about CSAAS is “not admissible to prove the complaining witness has in fact been sexually abused,” but is admissible “to disabuse jurors of commonly held misconceptions of child sexual abuse and the abused child’s seemingly self-impeaching behavior. [Citation.]” (People v. Gonzales (2017) 16 Cal.App.5th 494, 503 (Gonzales).) In particular, it “is admissible to rehabilitate [a complaining] witness’s credibility when the defendant suggests that the child’s conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation.” (McAlpin, supra, 53 Cal.3d at p. 1300.)

Defendant contends the last clause of CALCRIM No. 1193 impermissibly allowed the jury to use the CSAAS testimony to determine whether J.D. was telling the truth. Therefore, he argues, the instruction reduced the People’s burden of proof and deprived him of the right to a fair trial. The court should instead have used CALJIC No. 10.64, which more precisely explains the ways in which the jury may use this evidence. We independently review whether a challenged jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)

Our colleagues in Division Six rejected a similar argument in Gonzales, a case defendant fails to address. There, the defendant claimed that “the misleading language of CALCRIM No. 1193 allowed the CSAAS testimony to be used as proof that [the victim] was molested,” because it was “impossible to use [that] testimony to evaluate the believability of [the victim’s] testimony without using it as proof that [the defendant] committed the charged crimes.” (Gonzales, supra, 16 Cal.App.5th at p. 503.)

Division Six disagreed, emphasizing that “the instruction must be understood in the context of [the expert’s] testimony” that “CSAAS is not a tool to help diagnose whether a child has actually been abused” but instead is meant to explain children’s “reactions when they have been abused.” (Gonzales, supra, 16 Cal.App.5th at pp. 503–504.) Thus, a reasonable juror could rely on CSAAS testimony to conclude the victim’s “behavior [did] not mean she lied when she said she was abused”—thereby “neutraliz[ing] the victim’s apparently self-impeaching behavior”—without also relying on that testimony as evidence that the victim was actually molested. (Id. at p. 504.)

Defendant offers us no reason not to follow Gonzales, with whose reasoning we agree. Thus, we conclude that the trial court did not err by giving CALCRIM No. 1193.

9. Count 2 and its related enhancements must be stayed under Penal Code section 654.
10.
Defendant contends his sentence for count 2 (child abuse) should have been stayed under Penal Code section 654 because the acts on which that count was based arose from the same course of conduct as the acts supporting count 3 (torture). The People properly concede the point, and we agree.

10.1. Legal Principles and Standard of Review
10.2.
Under Penal Code section 654, a criminal defendant may not be punished for more than one offense arising from a single act or indivisible course of conduct. (Pen. Code, § 654, subd. (a).) Thus, if each of defendant’s crimes was merely incidental to or was committed to facilitate a single objective, he may receive only one punishment. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Instead, the proper procedure is to impose a sentence “under the provision that provides for the longest potential term of imprisonment” (Pen. Code, § 654, subd. (a)), and stay the sentences on all other counts arising from the same criminal act (People v. Correa (2012) 54 Cal.4th 331, 337).

Whether a course of conduct is divisible depends on the actor’s intent and objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) That issue is a question of fact for the trial court. (People v. Porter (1987) 194 Cal.App.3d 34, 38.) We uphold all implied or express factual determinations supported by substantial evidence. (People v. Brents (2012) 53 Cal.4th 599, 618.) While the question of whether defendant harbored a “single intent” within the meaning of section 654 is generally a factual one, however, the “ ‘applicability of a statute to conceded facts is a question of law.’ [Citation.]” (People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.)

10.3. The torture and the child abuse were part of the same continuous course of conduct.
10.4.
Defendant was charged in count 3 with committing torture on or about January 22, 2015. In count 2, he was charged with committing child abuse on or about the same day. The jury convicted defendant of both counts and found the deadly-weapon allegation for both counts true. As to count 2, the jury also found the great-bodily-injury allegation true. At sentencing, the court opted to run count 2 and its related enhancements consecutively to the remainder of the sentence. The court explained, “I have considered counsel’s argument under 654. I do think that the events are such that the court can make all the terms consecutive, and I’m inclined to do so.” Based on the prosecution’s theory of the case, this was error.

During closing argument, the prosecutor argued that the child abuse charge was based on “[w]hipping and beating and hitting and kicking and yelling and humiliating by calling everyone you know … .” In addressing the torture charge, she argued: “Torture is a continuous crime. Everything that happened that day is part of this torture count. When the defendant is whipping [J.D.] and beating her and then takes her out in the car and demands she tell him of the tawdry details about her interlude with Drew and then brings her back and makes her clean the house and makes her vacuum and beats her when she does something wrong. That’s trying to obtain someone’s consent though the later sexual act through force [or] fear. That’s certainly acting with a sadistic purpose in intending to inflict pain on someone in order to experience pleasure himself at her expense. That is revenge.” The prosecutor also relied on the whip marks and body bruises to establish torture.

In short, the prosecutor argued that the acts constituting child abuse—whipping, beating, kicking, hitting, and humiliating—also constituted torture. Accordingly, separate punishment for count 2 and its related enhancements is forbidden under Penal Code section 654. We therefore modify the judgment to stay them.

11. The $500 sex offender fine must be reduced to $300.
12.
“In passing sentence, the court has a duty to determine and impose the punishment prescribed by law.” (People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1589.) An unauthorized sentence may be challenged “for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court.” (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)

Penal Code section 290.3, subdivision (a), provides for fines of $300 “upon the first conviction” of a qualifying sex crime and $500 “upon the second and each subsequent conviction[.]” Because defendant was convicted of one count subject to this fine—and had no convictions for prior sex offenses—he had one qualifying first conviction. (People v. O’Neal (2004) 122 Cal.App.4th 817, 822.) Therefore, he was eligible for one $300 fine. (People v. Walz (2008) 160 Cal.App.4th 1364, 1371.) Here, however, the court imposed a $500 fine for count 1—an amount unauthorized by statute.

We therefore modify the judgment to reduce the count 1 fine to $300, the statutorily-authorized amount. (People v. Valenzuela (2009) 172 Cal.App.4th 1246, 1249–1250.)

13. The trial court must correct a clerical error in the abstract of judgment.
14.
In a criminal case, the oral pronouncement of a sentence constitutes the judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471.) “An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, courts may correct clerical errors at any time, and appellate courts may order correction of an abstract of judgment that does not accurately reflect the oral pronouncement of sentence. (Id. at pp. 185–188.)

Here, the court awarded defendant 1,074 days of custody credit—934 days of actual credit and 140 days of conduct credit. The abstract of judgment correctly reflects the actual days of credit (934) and the total days of custody credit (1,074)—but lists only 14 days of conduct credit. Therefore, as the People properly concede, the abstract must be corrected to reflect the court’s actual award of 140 days of conduct credit. (See People v. Mitchell, supra, 26 Cal.4th at pp. 185–188 [discussing the importance of correcting inaccurate abstracts of judgment on appeal].) We order the court to do so upon remand.

DISPOSITION

Defendant’s sentence is modified to stay count 2 and its related enhancements under Penal Code section 654 and to reduce the sex offender fine for count 1 to $300. As modified, we affirm. Upon issuance of the remittitur, the trial court is directed:

1. to correct the abstract of judgment to reflect 140 days of local conduct credit,

2. to amend the abstract of judgment and the minute order of January 5, 2018, to reflect the judgment as modified, and

3. to send a certified copy of the corrected/amended abstract of judgment to the Department of Corrections and Rehabilitation.

The clerk of this court is directed to send a copy of the opinion and remittitur to the Department of Corrections and Rehabilitation. (Cal. Rules of Court, rule 8.272(d)(2).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

DHANIDINA, J.