Filed 12/12/19 P. v. Gravestock CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JOEL GRAVESTOCK,

Defendant and Appellant.

A154491

(Napa County

Super. Ct. No. CR180558)

Defendant Joel Gravestock appeals his convictions on two counts of committing a lewd act upon a child under age 14 (Pen. Code, § 288, subd. (a)), based on his admitted conduct of squeezing his 12-year-old stepdaughter Jane Doe’s breasts and touching her pubic bone while giving her a massage in his locked bedroom. The only issue at trial was whether, in committing those acts, defendant had the requisite lewd intent. On appeal, he contends he was prejudiced by the improper introduction of testimony and the closing argument concerning the Child Sexual Assault Accommodation Syndrome (CSAAS), and that his counsel provided ineffective assistance in addressing that issue. Although we conclude that most of the CSAAS testimony was irrelevant and should not have been admitted, there is no realistic possibility that this evidence affected the outcome of trial. Defendant acknowledged his improper acts and the explanation he offered to negate sexual intent was inherently implausible and unaffected by the CSAAS testimony. We shall make one relatively inconsequential change in the sentence imposed but otherwise affirm the judgment.

Factual and Procedural History

Defendant and Cheryl Gravestock met while working together as nurses. Defendant is also a certified personal trainer. When they married in 2011, Cheryl already had two children: Jane Doe, twelve years old at the time of the July 2016 incident, and a son who was nine. Defendant and Cheryl had two children together who, in July 2016, were aged three and four. Until February 2016, defendant and the children lived in Cheryl’s house. Cheryl and defendant then separated; defendant bought a condominium but continued to live mostly in Cheryl’s house.

1. The Events of July 31, 2016
2.
On July 31, 2016, Cheryl worked a shift that ended at 11:30 p.m. and left Jane and the younger children at her home with defendant. He took the children to a gym, putting the younger ones in daycare while he and Jane worked out. Jane’s back and legs were sore. Afterward, defendant and the children planned to swim in the pool at his condominium. Defendant took the children to Marshalls to find Jane a new swimsuit that she needed because her mother felt her present suit showed cleavage. Not finding one that she liked, they bought a sports bra and spandex shorts, as well as some body lotion that Jane wanted.

Back at defendant’s condominium, Jane asked defendant for a massage because her back and head hurt. While the younger children watched a video, he began the massage alone with Jane in his bedroom. Jane had changed into her new sports bra and spandex shorts. In the bedroom music was audible, although testimony conflicted as to whether defendant turned the music on or it came from the younger children’s video.

Jane lay on the floor on her stomach and defendant knelt over her with a knee on each side of her body, applied lotion, and massaged her back and shoulders for less than a minute. He asked where it hurt, and she pointed to her lower back. The evidence conflicted as to whether, as she lay on her stomach, they also discussed her muscles.

Defendant told her to roll over, and he began massaging her legs and stomach. He then put both his hands under her bra, grabbed her breasts, and squeezed them for a few seconds. He said, “I didn’t know they were that big.” Jane felt “really uncomfortable” and “confused.” Defendant resumed the massage and, seconds later, touched Jane’s pubic bone through her shorts, while saying something about her pubic bone that she could not recall. At that point, one of the other children tried to open the bedroom door, and Jane got up to open it and found it locked. She had not locked the door and at trial defendant denied having done so. Jane left the room and sat in the bathroom, shocked and upset.

Defendant took Jane’s siblings to the pool and Jane eventually joined them. Jane testified that defendant spoke to her: “I can’t remember his exact words, but he did say he saw me more as a girlfriend figure than as a daughter figure.” This made Jane “very uncomfortable.” Defendant later took the children to Cheryl’s house for dinner. Afterward, sensing that Jane was upset, defendant apologized and told her that “he shouldn’t have done what he did.”

As bedtime neared, Jane, still upset, called a friend, who told her to call her mother. Jane did so. When Jane told Cheryl what defendant had done, Cheryl immediately returned home and ordered defendant out of the house. She asked him what he had done. He was “crying” and “remorseful.” After defendant admitted having touched Jane inappropriately, Cheryl called 911. Police officers took defendant away and recorded an interview with him. The detective who interviewed defendant also recorded a forensic interview that night with Jane, while one of the responding officers recorded an interview with Cheryl.

Defendant was charged with and tried on two counts of committing a lewd act upon a child under age 14 (§ 288, subd. (a)).

3. Percipient Testimony
4.
The jury heard live testimony from Cheryl and the recording of her police interview the night of the incident. In that interview, Cheryl said that she had asked defendant how he had touched Jane and that he “told me that he had touched her boobs and touched her pubic bone.” Cheryl also told the officer that Jane had conveyed to her that defendant had touched her breasts and her pubic bone. At trial Cheryl testified that defendant told her only that he had touched Jane’s breasts; she did not recall him saying that he had touched her pubic bone. Cheryl’s testimony was ambiguous as to whether she recalled Jane telling her that night that defendant had touched her pubic bone.

Cheryl told the officer that defendant had said, “I don’t know what I was thinking[;] I have no idea what . . . I was thinking.” At trial, she testified that he said, “ ‘have mercy. I never should have done that. I don’t know why I did that.’ ” Cheryl never said that defendant told her that night that he had been trying to assess Jane’s cup size in order to find a swimsuit that would assuage her concerns about Jane displaying cleavage, or that he had touched Jane’s pubic bone in the course of explaining how her abdominal muscles work.

Although defendant never resumed living with Cheryl, and they divorced, Cheryl testified that she still loved and felt compassion for him, co-parented with him, and had a “close” relationship with him and his family. She testified that defendant often fixates on tasks to an unusual degree. She testified that she had told defendant that Jane’s swimsuit gave her cleavage, and that Jane needed a new suit. She felt that this conversation could have led defendant to fixate on finding Jane a new suit, and that such a fixation could have led him to squeeze her breasts without a sexual intent. She admitted, however, that defendant never mentioned the swimsuit that night.

Jane’s testimony about the massage was largely consistent with her recorded interview. Although Cheryl testified that Jane told her on the phone that night that defendant had asked if he could “assess her breasts,” Jane testified that she was “positive” that defendant never asked to assess her cup size. Jane also testified that defendant touched her pubic bone “right after” her breasts: “Right after he had grabbed my breasts he—I don’t know if anything happened in between, but he had touched my pubic bone and then—he said something, but I can’t remember what he said.” She testified that she had not expressed concern to defendant about losing her six-pack; although defendant had talked to her about her muscles, “this was never brought up during this situation.” She did not recall him telling her that the abdominal muscles “tie in there at the pubic bone.”

Defendant denied having had any sexual intent in touching Jane. He explained that he is “very task oriented.” When he told Cheryl that morning that he planned to take the children swimming, she had been “really emphatic” that Jane not wear the swimsuit she then owned, so he decided to get her a new one. After they failed to find an acceptable suit at Marshalls and bought the sports bra and shorts instead, he decided to order her a new suit later online. He tried to explain the swimsuit motive to Cheryl that night, but he finds it hard to speak under stress, and she angrily talked over him.

At his condominium, defendant testified, Jane came into his bedroom to get the Wi-Fi password, then complained of a headache and asked him to give her a massage, which he had previously done to alleviate headaches and muscle pain. He did not know if the door was locked, but he did not lock it. His youngest son often played with doors and sometimes locked them. The only music playing came from the movie he had turned on for the younger children.

During the massage, defendant testified, he was “doing an anatomy thing, telling her which muscles I was working on.” When Jane rolled over, defendant noticed that her breasts were not perceptible in her sports bra, despite Cheryl’s concern over cleavage, so he asked if he could assess her cup size “and she said sure.” He then “reached under her sports bra and really just was assessing her volume” for a “very brief” time, “then I pulled my hands out, and then she said something about her six-pack.” Jane had been working over the summer on getting a six-pack and had been proud of her progress, but she expressed concern that day that she had recently undone that progress by eating junk food. Defendant responded that she could not lose muscle definition so quickly, and told her to do a crunch to flex her abdominal muscles. He then touched her pubic bone: “I was telling her about origin and insertion points[, s]o I followed the muscle down, you know, to where it inserts. It was part of that process.”

After the massage, defendant felt uncomfortable and realized that his conduct had been “definitely inappropriate,” so he tried to “have a dialogue” with Jane to “find out where she was at.” He realized that, over the past year, their “relationship dynamics had shifted, and she was seeing me as like a friend . . . or like a girlfriend,” adding that he used the latter term because it was “the only thing she’d be familiar with,” as she “hadn’t ever had a boyfriend.” He gave examples of Jane having treated him like one of her friends rather than a parent—gossiping with him, describing struggles with her mother, and having him buy her makeup. At the pool, defendant testified, he told Jane that he felt that, in trying to avoid competing with her father, “I feel like I’ve been treating you like a girlfriend instead of a daughter.”

5. CSAAS Evidence
6.
Before trial, the People moved in limine for leave to offer expert testimony by Napa Police Sergeant Todd Shulman about CSAAS, which identifies behaviors often seen in children who have reported sexual abuse (and in members of their families). While acknowledging that CSAAS testimony is inadmissible to prove that a child was in fact abused, the prosecutor argued that such testimony is admissible to dispel common misconceptions about the behavior of minor victims of sexual abuse that may bias jurors’ assessments of a child’s credibility. Here, she argued, such testimony was needed to prevent jurors from improperly doubting Jane’s credibility based on her failure to call the police, her delay of approximately eight hours in reporting the abuse to her mother, having stayed with defendant during those eight hours, and a “[v]ictim[’s] feeling of self-blame, guilt, and fear.” The prosecutor also deemed the testimony necessary to prevent jurors from giving undue weight to Cheryl’s continued support of defendant, and to dispel the myth that child molesters are typically strangers. Defendant responded that a delay of only eight hours does not justify CSAAS testimony and that Jane had no continued contact with defendant after she reported the abuse and expressed no self-blame, guilt, or fear in her recorded interview. Defense counsel acknowledged that CSAAS testimony was admissible to explain that Cheryl’s continued support of defendant was not atypical for parents whose children report abuse by family members, so long as the jury was allowed to hear Cheryl’s explanation of why she had come to believe defendant’s account. The court granted permission to present the CSAAS testimony.

In his brief testimony, Sergeant Shulman acknowledged that he was unfamiliar with the facts of this case and then described CSAAS in general terms, as “basically something that helps you understand children who have been sexually abused or molested and sort of how they process that, very generally speaking.” It “help[s] to explain some common misunderstandings or common myths that people might have with respect to these types of cases.” He described “a cluster of observed behaviors . . . seen frequently in children that are sexual assault molest victims,” including “a delayed or conflicted disclosure of the abuse.” He testified that children usually do not report abuse immediately, but after a delay ranging from hours to years; that family members to whom a child discloses abuse often report it and initially cooperate with authorities, but then cease cooperating; and that a child’s account of abuse is often incomplete at first and evolves each time they describe the event.

In closing argument, the prosecutor reviewed each element of CSAAS that Sergeant Shulman had discussed (whether relevant to the case or not). After summarizing the central theme that “children and their families . . . might not usually act in the way you would expect them to [act] under these circumstances,” she noted that they “might still spend time with the abuser, act normal for a period,” and “even reconcile [and] become uncooperative with the legal process.” She recounted Shulman’s testimony that sexual abuse “usually” happens within the family; that a child recounting abuse does not always cry or exhibit emotion; and that a child can delay reporting abuse for hours, weeks, months, or years. “In this case, we see a delay of a number of hours, and [Jane] told you flat out, I didn’t know what to think, I didn’t know what to do. That makes perfect sense. It all adds up with what Sergeant Shulman told you.”

The prosecutor said that Sergeant Shulman had described how “victims of these types of crimes suppress their feelings”: “Sometimes they might believe . . . they’re going to be held responsible or they’ve done something wrong, so they’re reluctant to tell; or [they feel] a fear of not being believed. And that kind of resonated with me, especially given [Jane]’s comment that she didn’t know if it would be considered, sort of fits right in with this testimony that you heard.” Finally, the prosecutor noted that Shulman had discussed “grooming” and “how somebody might establish a close emotional relationship with a child or even a close physical relationship with a child, test the boundaries,” adding that “[s]ometimes it could be a number of years before a line is crossed.” She concluded her review of Shulman’s testimony by stating, “So all of those things are things that you saw play out during the course of this case and in this particular fact pattern.”

4. Sentencing

The jury found defendant guilty on both counts. The court imposed the low term of three years on count one, and imposed an identical sentence on count two, but stayed its execution under section 654. Defendant timely appealed.

Discussion

1. Defendant forfeited his contention that CSAAS evidence is not scientifically reliable.

Defendant contends that it was error to admit any CSAAS testimony because the scientific community does not generally accept CSAAS, so the evidence fails to satisfy the first stage of the Kelly/Frye test (sometimes just called the Kelly test) for determining the admissibility of scientific evidence. Defendant forfeited that claim, however, by failing to raise it below and by failing to make an offer of proof supporting the essential factual premise, that the relevant scientific community does not accept the syndrome.

Defendant asserts that the issue is purely one of law, citing People v. Stevey (2012) 209 Cal.App.4th 1400, 1410. That decision holds that whether a scientific theory is generally accepted is a mixed question of fact and law, and that a court of appeal “ ‘ “review[s] the trial court’s determination with deference to any and all supportable findings of ‘historical’ fact or credibility, and then decide[s] as a matter of law, based on those assumptions, whether there has been general acceptance.” ’ ” (Ibid.) Defendant states that a reviewing court “must take those historical facts and decide as a matter of law whether there has been general acceptance.” But there are no “historical facts” before us, as the defendant offered no evidence and the trial court made no findings on this subject. We are unable to consider the issue on the record before us.

2. The court did not abuse its discretion in allowing Sergeant Shulman to testify.

Defendant contends the trial court abused its discretion in concluding that Sergeant Shulman was qualified to offer expert testimony about CSAAS. We may find such an abuse only if the evidence shows that an expert “clearly lacks qualification.” (People v. Pearson (2013) 56 Cal.4th 393, 445.) Defendant argues that while Shulman’s training and experience qualified him as an expert on investigating allegations of child sexual abuse, he had no academic training in the psychological theory of CSAAS, having attended a single, two-hour professional-education class on the topic for police officers, read about CSAAS, heard expert witnesses testify about it, and observed its effects “in many victims that [he had] interviewed over the years.” Defendant contends that Shulman was a mere surrogate presenting the views of the real experts he had heard discussing the topic.

We do not agree. Defendant cites decisions involving experts asked to opine on topics outside their field (e.g., People v. Pearson, supra, 56 Cal.4th at pp. 445–446) or on a topic within their general field that they had not studied (e.g., People v. DeHoyos (2013) 57 Cal.4th 79, 128), as well as police officers asked to give case-specific opinions requiring them to apply principles of anatomy or medicine to a set of facts (e.g., People v. Davenport (1995) 11 Cal.4th 1171, 1206–1207, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Fierro (1991) 1 Cal.4th 173, 223–224). Sergeant Shulman was not asked to apply principles of psychology to a set of facts, but rather to summarize in general terms a syndrome that, while developed by psychologists, serves mainly to formalize empirical observations about behaviors commonly seen among children who report sexual abuse, and among those children’s family members. Shulman had extensive training and experience interviewing and investigating such people. Even if no psychologist had published a paper systematizing those observations as a “syndrome,” Shulman’s experience working with such children qualified him to provide expert opinions on those subjects. Shulman was not a surrogate repeating others’ views on a topic on which he lacked personal expertise.

3. CSAAS testimony was of limited relevance.

The California Supreme Court has explained how and why CSAAS evidence is admissible: “[E]xpert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such 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. [Citations.] ‘. . . The great majority of courts approve such expert rebuttal testimony.’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin).) Despite that language, some courts have since held, as the Attorney General notes, that a prosecutor may offer CSAAS testimony not only in rebuttal, but anticipatorily, in the prosecution’s case-in-chief. (See, e.g., People v. Patino (1994) 26 Cal.App.4th 1737, 1745.) But in each case the Attorney General cites, CSAAS testimony was admitted after the defendant had challenged the child’s credibility—usually via cross-examination during the case-in-chief—based on conduct that CSAAS could help explain. (Id. at p. 1743 [CSAAS testimony “is pertinent and admissible if an issue has been raised as to the victim’s credibility.”]; People v. Housley (1992) 6 Cal.App.4th 947, 956, disagreed with on another ground in People v. Mateo (2016) 243 Cal.App.4th 1063, 1073–1074; People v. Sanchez (1989) 208 Cal.App.3d 721, 735–736; People v. Bergschneider (1989) 211 Cal.App.3d 144, 159–160, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 1015, 1028.) The Attorney General cites no decision approving the “anticipatory” use of CSAAS evidence in a case in which the defendant not only never questioned the credibility of the child’s allegations, but had unequivocally admitted those allegations.

That was the situation here. Defendant argues that Jane’s eight-hour delay in reporting the abuse to her mother is not a delay that would cause a juror unfamiliar with the typical behavior of children who report sexual abuse to doubt her credibility. We doubt that a reporting delay of mere hours could ever necessitate expert testimony to educate jurors about how children often delay reporting sexual abuse, especially when the minor was not in contact with the parent or an authority figure during that relatively short interval. But even if such a delay might justify such testimony in other cases, the testimony unquestionably was irrelevant and unnecessary here for the simple reason that the credibility of what Jane told her mother was never disputed. Defendant consistently admitted—to Cheryl, to the police, and at trial—that he had touched Jane as she reported. Defendant never challenged the credibility of Jane’s account, based on delay or otherwise, and expressly confirmed the core of her testimony. The only element of the offenses in dispute was defendant’s intent—to which Jane did not testify and as to which CSAAS has no bearing.

There were some differences in details of the encounter as testified to by Jane and by defendant, but none went to the critical elements of the offense or was suggested by anyone to bear on Jane’s credibility. There were differences as to whether defendant put music on in his room, whether they talked during the massage about Jane’s six-pack, and whether defendant asked to “assess her cup size” before grabbing her breasts. But the Attorney General does not suggest that the CSAAS factors had any bearing on the evaluation of those differences. The fact that children often delay reporting abuse was patently irrelevant.

There were, to be sure, limited matters on which Sergeant Shulman’s testimony had some bearing. Defendant brought out in cross-examination that Jane’s direct testimony included specifics that she did not mention in her prior interviews—that defendant turned on the music before the massage, and that afterwards at the pool he told her that he looked at her more as a girlfriend than as a daughter. Shulman explained that it was not uncommon for details to come out piecemeal, and that disclosure of abuse is often “not an event” but “a process” in which a child’s initial report is “usually very tentative and very vague,” but as she “start[s] to talk to people in authority . . . , more details start emerging . . . .”

Similarly, Sergeant Shulman’s CSAAS testimony was relevant to the evaluation of Cheryl’s testimony in support of defendant’s claim that his touching of Jane’s breasts was not sexually motivated. Shulman explained how family members of children who report abuse often support the criminal process at first but then resume a relationship with the defendant and cease supporting that process. While jurors could assess for themselves the credibility of a typical witness who claimed to believe defendant’s “fixation” defense, CSAAS testimony could help jurors decide how much weight to give to the fact that Cheryl claimed to believe that account. Most jurors “have been spared the experience of being the parent of a sexually molested child.” (McAlpin, supra, 53 Cal.3d at p. 1302.) Just as many jurors would “on the basis of their intuition alone . . . tend to believe that a parent of a molested child . . . would promptly report the crime” (ibid.), so too would jurors tend to expect a parent to be less likely than a neutral observer to accept a defendant’s facially improbable claim of innocent intent. Such jurors might infer that, if a parent did come to believe such a claim, the claim must be true—especially if, as here, the parent had a relationship with the defendant of a sort that usually affords unique insight into a person’s state of mind and truthfulness. Expert testimony about common parental responses to the unusual experience of having a child report sexual abuse by a family member could thus help jurors assess the credibility of a witness in the position in which Cheryl found herself—a position that is fortunately beyond the experience of most jurors.

7. The overwhelming evidence of guilt precludes a finding of prejudice.
8.
Although there was no justification for much of the CSAAS testimony, there is no likelihood that this irrelevant evidence affected the outcome of the trial. Defendant admitted that, while giving Jane a massage alone in his bedroom, he squeezed her bare breasts and, seconds later, touched her pubic bone through her spandex shorts. His innocent explanations—that his “fixation” on finding Jane a swimsuit led him impulsively to “assess her cup size” by squeezing her bare breasts, and that her concern over her six pack led him to explain her abdominal musculature, thus touching her pubic bone—strained credulity. The fact that he did one “right after” the other—or, as he puts it, “in quick succession”—rendered both explanations even less plausible. Moreover, Jane’s testimony was inconsistent with these unlikely explanations, and further reason for disbelief was the unlikelihood that defendant’s three-year-old son had locked the bedroom door, as defendant suggested, and his later statement to Jane that he was “treating her like a girlfriend.” In all events, Sergeant Shulman’s testimony could not reasonably have been understood to bear upon whether defendant’s acts were performed with or without lewd intent.

The parties dispute whether error in the admission of the irrelevant testimony is subject to the strict harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, or the reasonable-probability-of-a-more-favorable-result standard of People v. Watson (1956) 46 Cal.2d 818, 836. We conclude that any error was harmless under either standard. The record permits no reasonable doubt but that the outcome of the trial would have been the same had the CSAAS testimony been excluded.

9. Any inadequacy in defense counsel’s performance was also harmless.
10.
Defendant contends that his counsel provided ineffective assistance by failing to elicit testimony from Sergeant Shulman that CSAAS evidence does not reflect whether a child was in fact sexually abused, and by failing to object to comments by the prosecutor that could have been understood to indicate that Shulman’s testimony tended to prove defendant’s guilt. Defense counsel also failed in his closing argument to point out that limitation on the use of CSAAS evidence. We question the Attorney General’s contention that “Shulman’s testimony made clear that CSAAS was not a diagnostic tool,” and we agree that statements made by the prosecutor in closing could have been understood to mean that the CSAAS testimony showed that Jane had been molested. Neither Shulman nor the prosecutor explicitly explained the limited purpose for which the testimony could properly be considered. To the contrary, the prosecutor argued that Shulman had “[t]alked a lot about how victims of these types of crimes suppress their feelings” and may fear that they did something wrong or will be held responsible, adding that this testimony “resonated with me, especially given [Jane]’s comment that she didn’t know if it would be considered, [which] sort of fits right in with [Shulman’s] testimony.” (Italics added.) It was improper to describe Shulman as having testified about how “victims of these types of crimes” react. The most obvious interpretation of the prosecutor’s remark was that, because Jane experienced concerns similar to those experienced by “victims of these types of crimes,” she too must be a victim of such a crime. But “[t]he particular aspects of CSAAS are as consistent with false testimony as with true testimony.” (People v. Patino, supra, 26 Cal.App.4th at p. 1744.) As indicated above, CSAAS evidence may be used to dispel misconceptions about how children reporting sexual abuse typically act, but such evidence may not be used to prove that claimed abuse did in fact occur. (McAlpin, supra, 53 Cal.3d at pp. 1300–1301.) Given the prosecution evidence and argument, we perceive no tactical reason for defense counsel having failed to bring this distinction to the attention of the jury in one way or another.

Nonetheless, even if defense counsel was deficient in this respect, the shortcoming provides no basis for reversal. To secure relief based on ineffective assistance, a defendant must show not only that counsel’s performance fell short of an objective standard of reasonableness under prevailing norms of the profession, but also that the deficiency caused him prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687–688, 691–692.) Prejudice has not been shown. The trial court did instruct jurors not to use CSAAS evidence to support an inference that “defendant committed any of the crimes,” but “only in deciding whether or not [Jane]’s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of his [sic] testimony.” In addition to the normal presumption that the jury followed the instructions (People v. Ervine (2009) 47 Cal.4th 745, 776), for the reasons discussed above, we are confident the outcome of trial would have been no different had counsel made appropriate objections or emphasized in closing argument the limited significance of the CSAAS testimony.

11. The sentence under the second count should not have been stayed under Penal Code section 654, but remand is unnecessary.
12.
The Attorney General contends that the trial court abused its discretion under section 654 in staying defendant’s sentence on one of the two counts of conviction, because these two acts of touching Jane were divisible and did not constitute a single course of conduct that may be punished only once. (See People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6 [“[M]ultiple sex acts committed on a single occasion can result in multiple statutory violations. Such offenses are generally ‘divisible’ from one another under section 654, and separate punishment is usually allowed.”]; People v. Alvarez (2009) 178 Cal.App.4th 999, 1006 [Section 654 is “of limited utility to defendants who commit multiple sex crimes against a single victim on a single occasion.”].) The Attorney General asks us to remand for the trial court to determine whether to make the sentence on count two concurrent or consecutive. Defendant contends that the court did not abuse its discretion under section 654 but that, if it did, remand is unnecessary because the trial court’s intent to impose a concurrent sentence is already clear in the record.

The Attorney General is correct as to section 654. Each of defendant’s lewd acts was “separate and distinct” and neither was “necessary to accomplish the other[].” (People v. Alvarez, supra, 178 Cal.App.4th at p. 1007.) But defendant is correct that resentencing is unnecessary. At the sentencing hearing, after asking the court to impose a midterm sentence of six years’ imprisonment on count one, the prosecutor addressed count two as follows: “I think, given [defendant’s] lack of . . . criminal history and the nature of the case . . . , [that] imposing [sentence on] [c]ount 2 either concurrently, or if the Court feels it’s appropriate to stay it under [section] 654, I think that’s . . . wholly appropriate and reasonable, taking into account [mitigating] factors.” The court imposed the low term of three years’ imprisonment on count one and added, “With regard to the second count, also a [violation of section] 288(a) on the same date, I’ll impose the same three years but stay it pursuant to . . . section 654.”

Although the trial court did not expressly state that it was imposing the sentence on count two concurrently, it necessarily conveyed that intention by imposing a full low-term sentence of three years on that count, rather than imposing one-third of the midterm sentence (i.e., two years), as it would have been required to do had it intended the sentence to be consecutive. (§ 1170.1, subd. (a).) A remand for resentencing would thus serve no purpose, as the trial court has already determined that the sentence on count two should be concurrent. We will remand solely for the purpose of correcting the abstract of judgment.

Disposition

The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect imposition of a concurrent three-year prison term on count two, not stayed under section 654.

POLLAK, P. J.

WE CONCUR:

STREETER, J.

BROWN, J.