Opinion
C090058
01-26-2022
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CHRISTOPHER BLYMYER, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 16F6854)
Duarte, Acting P. J.
A jury found defendant Anthony Christopher Blymyer guilty of committing numerous sex offenses against his two daughters, including 13 counts of forcible rape (Pen. Code, § 261, subd. (a)(2)) and one count of forcible oral copulation (§ 288a, subd. (c)(2)(A)). The jury also found true the multiple victim allegations under the one strike sex offender law. (§ 667.61, subds. (c), (e), (j)(2), (m) & (n).) The trial court sentenced defendant to an aggregate term of 350 years to life.
Undesignated statutory references are to the Penal Code.
Defendant appeals, contending that reversal is required due to prosecutorial misconduct, ineffective assistance of counsel, instructional error, and cumulative error. We disagree and affirm the judgment.
FACTUAL BACKGROUND
J.1 and J.2 both accused defendant, their father, of repeatedly sexually abusing them when they were minors. We summarize the underlying facts below and add facts throughout the opinion where necessary to resolve the issues raised on appeal.
J.1's Testimony
At the time of trial, J.1 was 21 years old. She testified that defendant's sexual abuse began when she was 12 years old and ended when she was around 17 years old. During this time period, defendant raped her approximately two to three times a week. The rapes largely occurred at various locations inside the family home, although there were five or so occasions when the rapes occurred at a residence where defendant worked as a caretaker. J.1 described the rapes as involving defendant placing or forcing his penis inside her vagina. J.1 did not immediately report the abuse because defendant threatened to kill her mother and siblings if she did so.
J.1 and J.2 have an older and a younger brother; defendant is their father. The siblings all share the same mother. The mother and defendant were together for about 20 years but were never married.
Defendant used force to accomplish the rapes and overcome J.1's resistance, including pushing her down, holding her down, punching her, threatening her with a knife, putting his hand over her mouth, and strangling her. He also threatened to hurt himself or other family members with a knife if she did not comply with his sexual demands.
J.1 explained that there were times when the rapes were accompanied by a request for "help" from defendant. For example, on one occasion when she told him to stop and pushed him away, he became angry and said, "[Y]ou need to help me." On another occasion, he threatened to hurt her mother if she refused to "help" him.
J.1 also recalled that there were multiple occasions when defendant came into her bedroom at night and told her that she needed to go to the living room and "help him." If she refused, he would threaten to hurt her or "someone" else with a knife. If she attempted to leave the living room, he would push her to the couch, hold her down, and rape her. When she tried to make noise, he would cover her mouth and tell her to be quiet. In another incident, defendant woke J.1 up at night and held a knife to his own throat when she refused to "help" him. He put the knife down when she begged him to stop, pulled her out of bed, and raped her on the floor of her bedroom.
J.1 decided to report defendant's sexual abuse to her mother when she was 17 years old. At that time, the family was no longer living with defendant and J.2 had recently disclosed defendant's sexual abuse to her mother.
J.2's Testimony
At the time of trial, J.2 was 18 years old. She testified that defendant's sexual abuse began when she was around 13 years old and ended when she was around 14 years old. During this time period, defendant raped her "[p]retty much every day" at various locations inside the family home, including the living room and her bedroom, and once outside the family home at the residence where he worked as a caretaker. There was also one occasion when defendant orally copulated her. J.2 described the rapes as involving defendant rubbing his penis against her vagina, "inside between the lips."
J.2 would always tell defendant to stop but he refused. Defendant told J.2 that if she reported the abuse he would hurt or kill her siblings and mother, rape her mother or sister, or rape her in front of her mother. He also threatened to hurt himself. On one occasion when she "refused a lot," he got really angry, wrapped his belt around his throat, and strangled himself until he "passed out."
J.2 explained that the rapes were often accompanied by a request from defendant to "help [him] out." She said that there were occasions when he would show her a video about aliens or demons and say that something was wrong with his brain; he explained to her that he had a demon inside of him that would tell him to do things he did not want to do and that he needed her help to calm down and go to sleep. On these occasions, she reluctantly agreed to "help" him. She did so because she cared about him and was afraid that he would hurt himself or other members of her family.
J.2 identified the living room as the most common place where the rapes occurred. She explained that defendant came into her bedroom at night, woke her up, took her to the living room, and then raped her. J.2 also described in detail a rape that occurred in the bathroom late at night and another rape that occurred in defendant's bedroom. As relevant here, she noted there was an occasion when she was looking at her phone while defendant was raping her.
When asked, J.2 said that she suspected something was going on between defendant and J.1. She explained that there were times when defendant came into their bedroom at night and she would hear J.1 tell him she did not want to leave the room. Thereafter, J.1 and defendant went to the living room and J.2 could hear J.1 "telling dad to stop."
During her testimony, J.2 recalled two incidents (both uncharged) that occurred before defendant began sexually abusing her. In the first incident, which occurred when she was in the fourth grade, defendant took her into her bedroom, locked the door, and asked her to pull down her pants so he could look at her vagina. In the second incident, defendant brought her into the garage, placed a blanket or sleeping bag on the ground, told her that he wanted to show her what rape was like, and then attempted to persuade her to lie on the ground. J.2 refused to comply with defendant's demands but was too scared to report these incidents.
J.2 disclosed defendant's sexual abuse to her mother when she was 15 years old. At that time, the family was no longer living with defendant and she felt "safe and comfortable enough" to tell her mother about what had happened, although she was scared to do so. At some point before disclosing the sexual abuse to her mother, J.2 told her best friend, G., that defendant was raping her. J.2 made G. promise not to tell anyone.
Sibling Testimony
J.1 and J.2's younger brother, who was 16 years old at the time of trial, testified that there were two or three occasions when he heard J.1 tell defendant to "get off of me" while she and defendant were alone together in another room. The sisters' older brother, who was 23 years old at the time of trial, testified that defendant took each of his sisters into his bedroom alone several times a week and closed the door. He suspected defendant was touching his sisters inappropriately but he never talked to either of them about his concerns. One morning when he was getting a drink of water at 1:00 or 2:00 a.m., he observed defendant on the floor of the living room on top of J.1. She was lying on her back and defendant's hands were on her breasts, preventing her from moving. Defendant repeatedly yelled at him to go back to his room. When he refused to comply, defendant stood up, got in his face, and threatened to throw him into his room. In response, he woke their mother up and went back to his room. J.1 subsequently told him that defendant was touching her inappropriately and she was thankful for what he had done.
Acquaintance Testimony
G., who was 17 years old at the time of trial, testified that there were many times when J.2 woke up in the middle of the night during a sleepover "very scared and upset" and said that defendant had touched her inappropriately. G. explained that she did not report defendant's abuse because she was scared that doing so "would tear [J.2's] family apart." During her testimony, G. recalled an incident where defendant made her feel uncomfortable. When she was about 12 years old, he told her that she "grew boobs."
G.'s father testified that J.2 would cry at his house a couple of times a week because she was having problems at home. G. told him that J.2 would often wake up in the middle of the night crying. Because he was concerned about defendant, G.'s father did not allow G. to spend the night at J.2's house unless the mother was home. His concern was based on comments defendant had made, including defendant saying that G.'s 15-year-old sister had "a nice bosom," his calling G. a "pretty girl," and his asking if G. could "come over" and "help him do stuff" when J.2 was not around.
Other Relevant Evidence
J.1 has a learning disability and read at the fifth-grade level at the time of trial.
Defendant frequently used methamphetamine and "[a]nything" and "everything" would make him mad. In addition to the sexual abuse and other abusive behavior described ante, defendant verbally, emotionally, and physically abused members of his family. Among other things, he whipped J.1, J.2, and his oldest son with a belt, hit and kicked his oldest son, and strangled the mother. He also punched the wall, threw things, threatened to hurt and kill the mother, threatened to hurt his children, and threatened to kill himself. He also forced the mother to have sex with him on occasion.
Following his arrest in this matter, defendant called his then-fiancé from jail; the recorded call was played for the jury. The fiancé can be heard telling her 18-year-old son to, "Be a good boy. Keep your wiener in your pants." Defendant responded by saying, "You know he won't." Shortly thereafter, defendant said, "He'll keep it in her pants like I've been saying," and later added, "How do you think I got in this mess?" (Italics added.)
Defendant's Testimony
Defendant testified on his own behalf at trial; he was the only defense witness. He claimed that he never "beat" his children and that the allegations of sexual abuse were not true. He minimized the incidents of abuse his oldest son testified about and claimed he did not punch his oldest son or whip him with a belt. However, he admitted that he would become angry when his children disobeyed him, grab their arm, and yell at them. He also admitted that his children had seen him become violent, act out in rage, make threats with a weapon, threaten to commit suicide, and hurt their mother. He acknowledged that he had threatened to hurt the mother, and that there was an occasion when he grabbed her and held her down while yelling at her, and that his children were scared of his violent behavior "at times." He admitted he told J.2 that he was going to kill her mother, and he attempted to kill himself in front of J.2 by strangling himself with a belt. He also conceded that he used methamphetamine around his family, but claimed that he was a "nice person" and "sweet and kind to [his] family" when he was on drugs.
Defendant's theory was that his daughters fabricated the sexual abuse allegations following an argument involving J.1's boyfriend, which happened shortly before the family left defendant. Defendant explained that he believed J.1's relationship with the boyfriend was inappropriate and that an argument ensued when the boyfriend refused to leave the family home.
Rebuttal Evidence
J.1's and J.2's recorded pretrial police interviews were played for the jury. The statements they made during their interviews were substantially consistent with their trial testimony, including their description of the sexual abuse, defendant's request for "help," and his threats of harm if they failed to comply with his sexual demands.
DISCUSSION
I
Child Sexual Abuse Accommodation Syndrome (CSAAS) Evidence
At trial, Anthony Urquiza, Ph.D., testified as an expert witness for the prosecution on child sexual abuse, including CSAAS, which explains "common stress reactions" of children who have been sexually abused, including the child's failure to report, or delay in reporting, the abuse. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin).) On appeal, defendant contends the prosecutor committed prejudicial misconduct by leading Dr. Urquiza on a "testimonial excursion" far exceeding the proper use of CSAAS evidence. He argues that the prosecutor's hypothetical questions tracking the facts of this case were improper and require reversal. Recognizing that he may have forfeited his misconduct claim by failing to object, defendant alternatively argues his trial counsel was ineffective. Defendant additionally contends his trial counsel was ineffective because he elicited highly prejudicial statistical evidence from Dr. Urquiza regarding false allegations of child sexual abuse.
As we shall explain, defendant has forfeited his prosecutorial misconduct claim, (People v. Pearson (2013) 56 Cal.4th 393, 426), and his ineffective assistance of counsel claims fail for lack of prejudice (People v. Maury (2003) 30 Cal.4th 342, 389).
A. Additional Background
1. CSAAS Components
Dr. Urquiza, a clinical psychologist at the UC Davis Medical Center, testified that CSAAS was developed in the early 1980s to describe common characteristics and reactions of children who have been sexually abused, in order to educate therapists and dispel misconceptions about how children respond to sexual abuse. He identified and explained the five components of CSAAS: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed and unconvincing disclosure; and (5) recantation or retraction.
First, the secrecy component explains that most sexual abuse occurs in secret and child victims often remain silent about the abuse because it is typically perpetrated by someone who has an ongoing relationship with the child, who is bigger and in a position of power and authority over the child, for whom the child has affection, and who uses threats to induce the victim not to reveal the abuse. Dr. Urquiza explained that children also remain silent about sexual abuse because they are worried about negative consequences from disclosure (e.g., divorce) and/or because they feel ashamed, embarrassed, and/or humiliated by the abuse.
Second, the helplessness component describes how sexually abused children do not feel that they can stop the abuse because their abuser is a trusted, bigger and stronger, adult. It counters the misperception that children will do something to keep themselves sexually safe, which rarely happens. Dr. Urquiza explained that a child in this context is very vulnerable and helpless, and that a history of violence in the family home can aggravate the feeling of helplessness.
Third, the entrapment and accommodation component of CSAAS refers to how victims feel trapped by their abuse and cope by suppressing their feelings and thoughts about the abuse. Dr. Urquiza explained that posttraumatic stress disorder is common in children that have been sexually abused, and that the most common strategy children employ to cope with sexual abuse is "disassociation," which involves disconnecting or detaching from ones thoughts and feelings about the abuse. He noted that disassociation makes it harder for children to remember the details of the abuse, and that minimizing the abuse is part of the disassociation coping strategy.
Fourth, the delayed and unconvincing disclosure component explains that most sexually abused children significantly delay in disclosing the abuse and struggle with the details of the abuse when they do disclose the abuse, such as the amount of times it happened and how long it lasted. Dr. Urquiza explained that while some children may disclose everything during their initial disclosure, others may disclose only a few details about the abuse to gauge whether the adult's reaction is supportive. If the reaction is supportive, the child will feel like they can talk more about the abuse as time goes on. When asked, he stated that it is difficult for children to describe the details of a specific incident of abuse where there have been many instances of abuse.
We do not detail the retraction or recantation component as that is not at issue in this case.
Dr. Urquiza emphasized that CSAAS is an educational tool intended to describe and explain common characteristics and reactions of sexually abused children. He did not say or suggest that CSAAS was a diagnostic tool that can be used to determine whether a child has in fact been sexually abused. He also made clear that he had no knowledge of the facts of this case, and that his job was to educate the jury as to what the research says about children who have been sexually abused.
2. Hypothetical Questions
On direct examination, the prosecutor posed four hypothetical questions to Dr. Urquiza that are challenged on appeal, which we detail next. Where necessary for clarity, we have condensed and modified the relevant exchanges between the prosecutor and Dr. Urquiza.
In the first hypothetical, the prosecutor asked Dr. Urquiza to consider the following scenario: "You have a young woman who states she has been molested by her father since age 12, she [had] . . . sex with him frequently or regularly for several years until she turned 17, she describes sex as his penis in her vagina to the point of ejaculation at times, she said that her father was violent with her and her siblings and mother a lot; she says her father was emotionally abusive towards them and that he had threatened her family, or her, or himself and she did not disclose the sexual abuse until after she was out of the home and living in a safe environment without the perpetrator. And then she testified that she cannot recall the number of times each sexual act occurred or what specific age she was at during the sexual abuse but she is able to provide frequency for example two to three times a week."
The prosecutor's question to Dr. Urquiza was whether the inability of the victim in the hypothetical to recall the specific number of times or the age which the specific acts occurred could be explained in any way by the concept of disassociation that he had talked about. In response, Dr. Urquiza stated: "[Y]es. But it's not just the disassociation. It is the sense of disassociation and the sense of avoidance. Because victims don't want to think about what happened to them. There is no drive to yeah, I got to remember this. It's exactly the opposite. I don't want to remember this and they can't help but remember it. [¶] And so the idea that they would keep track of or memorialize or in some way account for, record the number of events [or] details, . . . that is . . . not reasonable. That is . . . not what victims do. [¶] Can they tell you in that hypothetical that they were abused reliably credibly see it in their heads as they are talking about it, certainly. But some of those things about exact details particularly with nontangible things like how long something lasted or how many times something lasted, or details, those are just very difficult."
Immediately thereafter, the prosecutor asked Dr. Urquiza to consider some additional facts regarding the victim in the first hypothetical: "Let's assume . . . the victim . . . has a developmental disability. Would that affect her ability to accurately recollect and relate specific events of . . . sexual abuse that was ongoing?" Dr. Urquiza responded by stating: "Depends upon what the developmental disability is. In general kids with developmental disabilities are still able to tell you things they are still able to remember, they are still able to give you a description of what happened. I think when you get very low on the . . . intellectual spectrum that is more concerning, but just somebody who happens to have a developmental disability it should not be, well from what we know, there is not as much research on kids with sexual abuse and disclosure and having a disability but they are able to talk and describe what happened to them at least what they saw. Their ability to tell you how many times. I mean if you have an intellectual disability just being able to count out and being able to fully articulate that this happened in April or May, or I was such and such an age [when] it started, yeah that might be somewhat compromised. But it shouldn't impair the fundamental ability to describe what it is that happened or that it may have happened many times. How many times would be tough, but it may have happened many times."
In the second hypothetical, the prosecutor asked Dr. Urquiza to consider the victim from the first hypothetical (i.e., female victim indicating rape by father from ages 12 to 17) and then stated: "[I]f you hear about siblings in the household where the father's abusive, if you have an older sibling let's say for example an older brother would . . . [he] have any type of manifestations of what is happening in the home with his sister?" After Dr. Urquiza indicated that he was unclear as to the prosecutor's question, the prosecutor stated: "I will give you a few more facts. Let's say for example that there are multiple siblings in the home, and there are two sons and two daughters. And the oldest child is a son and the oldest daughter is a victim of abuse from 12 to 17, and then you have another daughter who has been abused for two years, age 13 and 14[, ] and you have a younger brother in an environment in which there is physical and emotional abuse to all of the children and their mother, [and] if the . . . daughters [who] were being abused . . . haven't overtly said anything to their siblings, would the siblings . . . have seen or heard something that causes them some concern [but] they are not quite sure what, would you expect there to be a manifestation in the other children as well?"
After the prosecutor clarified that the question was whether Dr. Urquiza would expect abused siblings to talk to each other about the respective abuse they had endured, Dr. Urquiza stated he did not know but that he had been involved in some cases where that happened with regard to physical abuse. He explained that physical abuse is much more likely to occur when other people are around compared to sexual abuse, so siblings of a sexually abused child may not know about the sexual abuse. When he was asked whether it was common for abused siblings to talk to each other about abuse when they know the other sibling is being abused, Dr. Urquiza stated: "I think there is an inherent reluctance to talk about being sexually abused at least [children] don't want to deal with it, they don't want to talk about it, they don't want to share it with anybody. I have seen, not often, some kids, siblings who talk about being sexually abused. But for the most part they don't want to talk about it. That is the best strategy that they have in dealing with it is not to share that information with anybody."
In the third hypothetical, the prosecutor asked Dr. Urquiza to consider the following scenario: "Let's say you have a child who has been molested for about two years of her life by her father. And when the disclosure is made she is fifteen years old and this has been happening since she was thirteen[, ] and that before the physical acts started occurring[, ] she tells you that her father had [been] . . . 'grooming her' to ga[u]ge her reaction to the sexual abuse. When she does disclose[, ] [she] qualif[ies] her answers [by stating] 'well he rubbed his penis on my vagina, but he didn't penetrate.' Would . . . that be something that you would see in your experience or . . . in the training and in the literature. . . . How would you interpret that?"
Dr. Urquiza responded by stating: "Well first of all, are there behaviors that precede kids actually getting sexually abused or grooming. Absolutely. We know that from the fair amount of research there are things that go on to set the stage to prepare to acclimate a child to being sexually abused. There are also . . . cues that go[] on between people that lead them to believe somebody is sexually interested in them. And that happens with sexual[] abuse too. . . . I use[d] the example a little while ago that . . . kids know everybody goes to bed at nighttime, and it is dark and they are in the room, if . . . they hear footsteps they know what is going to happen. Well that is pretty simple. But there may be a way somebody looks at them, or [there] may be a phrase they use or something and so there are behaviors that occur between two people that set the stage in the mind of the child that they are going to get sexually abused. They know what is going on. That is part of the process of grooming. [¶] It's hard for me to know with regard to your reference to the penis in the vagina, but it didn't go inside. That would suggest that that particular child knew that there was a difference between being 'on' and 'in.' [¶] But at a minimum some awareness of that difference, and an awareness that a penis on a vagina is part of this relationship between those two people. Whether there was more meaning to that, it's hard for me to say."
In the fourth hypothetical, the prosecutor asked Dr. Urquiza to consider the following scenario: "The father is molesting his two daughters, one from age 12 to 17 and the other from age 13 to 14, the father tells the children not to tell anyone or he will hurt them, kill them, hurt their family, their siblings or their mother, and this type of abuse goes on for those . . . years. [¶] Assume that there is also a caring mother in the home, but who has to work a lot to support the family . . . [and] [t]hat there is also physical and emotional abuse by the father towards the daughter and the siblings and the mother."
The question to Dr. Urquiza was, given the facts of the hypothetical, would he "expect the two victimized children to report th[e] sexual abuse to an adult on their own." In response, he stated: "We . . . know by far . . . most kids don't disclose right away. Do some kids disclose soon after the abuse, certainly. But most kids don't disclose right away. So just on the basis of that alone is it likely there is going to be a delay in disclosure, absolutely. [¶] Anything that would . . . increase the amount of power or authority or control o[f] the perpetrator and therefore decrease those same things for the victim would lead to more difficulty in [the victim] being able to disclose. So given all those things you just said it is not surprising in that scenario that it would take [the] victim a long time to . . . disclose."
3. Statistical Evidence Regarding False Allegations
On direct examination, Dr. Urquiza testified as to his expert qualifications and noted that he had personally treated as a therapist "well in excess of one thousand" children that had been sexually abused. On cross-examination, defense counsel elicited testimony from Dr. Urquiza about false allegations of sexual abuse. In response to questioning, Dr. Urquiza stated that he had worked on two cases where he reasonably believed an adult had been falsely accused of sexually abusing a child, one of which involved a false allegation by a child. However, he qualified his answer by noting that it "may be skewed because kids don't come to me because there is a false allegation, they come to [me] because they have been abused" and are "looking for treatment."
When Dr. Urquiza was asked by defense counsel to discuss the research on false allegations of sexual abuse made by children, he indicated that there were around nine to 11 empirical studies on the issue and then stated: "So do kids make false allegations of sexual abuse. Certainly. That does happen. Do they make false allegations of sexual abuse often, no. The research shows that it is . . . very infrequent or rare but it does happen. The range of those . . . studies is as low as one percent of time, as high as six percent of the time. Probably the best of those studies is a Canadian study that oddly was about in the middle, in which they looked at several hundred cases and four percent of the time . . . it [was] determined that a false allegation had been made. . . . [¶] So that fits within my descriptor of very infrequent or rare at four percent. What was interesting in that case in none of those four percent of the cases was it the child who made the allegation that was determined to be false. So the authors of that study felt like the greatest predictor of [a] child making a false allegation was when there is some type of custody dispute between the husband and wife and there is an issue as to . . . who gets the child, who gets custody of the child and in that context an allegation arises about sexual abuse that is determined to be false. [¶] So that is a very brief synopsis of the research literature on that topic."
On redirect examination, the prosecutor asked Dr. Urquiza whether it was common, based on the research, for a child to make a false allegation of sexual abuse. He responded by saying that false allegations are very infrequent or rare, explaining that he uses that "descriptor" because it accurately reflects the one to six percent range of cases where false allegations occur. He stated, "[M]ost of the time when a child makes an allegation of sexual abuse it is not a false allegation." However, he reiterated that false allegations do occur, although not "very often."
4. Jury Instructions
The jury was instructed pursuant to CALCRIM No. 1193 as follows: "You have heard testimony from Dr. Anthony Urquiza regarding [CSAAS]. [¶] Dr. Anthony 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 [J.1's or J.2's] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony."
The jury was also instructed that it alone must decide what the facts are based on the evidence presented, it was the sole judge of the credibility or believability of the witnesses (CALCRIM Nos. 200, 226), and that it must determine the meaning and importance of Dr. Urquiza's expert testimony (CALCRIM No. 332). The jury was further instructed that Dr. Urquiza was asked to give opinions based on assumed facts posed in hypothetical questions, that it was up to the jury to decide whether any assumed fact had been proved, and that, if it concluded an assumed fact was not true, it must consider the effect of the expert's reliance on that fact in evaluating his opinion. (CALCRIM No. 332.)
5. Closing Argument
In closing argument, the prosecutor told the jury that Dr. Urquiza's testimony explained certain aspects of J.2's behavior, such as not providing a lot of detail about the abuse during her initial disclosure and looking at her phone while defendant was raping her. The prosecutor did not argue that Dr. Urquiza's testimony proved defendant was guilty of the charged offenses. Nor did she mention the statistical evidence regarding false allegations of sexual abuse. Instead, she primarily relied on the testimony and pretrial statements of J.1 and J.2 in urging the jury to return guilty verdicts on the charged offenses.
The defense theory was that J.1 and J.2 fabricated the allegations of sexual abuse, and that it was "possible" the mother "orchestrated" the false allegations. In support of his fabrication theory, defense counsel argued that the manner in which the sexual abuse was disclosed and the trial testimony, including J.1's and J.2's description of the abuse (e.g., how often it occurred, what occurred, how long it lasted) and their demeanor on the stand, showed that the allegations of abuse were false. He further argued that the mother was a liar because she had cheated on defendant. Defense counsel pointed out that while Dr. Urquiza testified that false allegations of child sexual abuse are rare, they do occur; and noted that Dr. Urquiza had worked on a case where someone had been falsely accused. Defense counsel urged the jury to believe defendant, arguing that he had testified truthfully when he denied the allegations of sexual abuse. In making this argument, defense counsel asserted that the family moved away from defendant because of the fighting and arguing, not because of any sexual abuse.
In rebuttal argument, the prosecutor told the jury that Dr. Urquiza had explained why it was difficult for children who had been repeatedly sexually abused to remember details of the abuse, including how long it lasted or how many times it occurred, and that it is common for sexually abused children not to disclose everything that happened during their initial disclosure. She reminded the jury that Dr. Urquiza did not know anything about the facts of this case, and argued that J.1's and J.2's behavior was consistent with his description of the CSAAS components. The prosecutor briefly discussed the false allegations and statistical evidence. She pointed out that Dr. Urquiza acknowledged that false allegations of sexual abuse occur, he had been involved in two such cases in his career (which involved treating over 1, 000 children), and that the research shows false allegations of sexual abuse occur in one to six percent of the cases. She also noted that the Canadian study had found that false allegations occur in four percent of the cases, but that the false allegations in those cases were not made by children. The prosecutor did not urge the jury to rely on the statistical evidence as a basis to find defendant guilty, but instead argued that J.1's and J.2's testimony, which was consistent with their pretrial statements about the sexual abuse, was credible and showed that defendant was guilty. In making this argument, she pointed to the similarities in their testimony as to when, where, and how defendant would accomplish the rapes, and the corroborating testimony from the other witnesses. By contrast, she argued that defendant's testimony was inconsistent and not credible, and noted that he had made an incriminating jail call.
B. Alleged Improper Hypothetical Questions
Defendant initially contends reversal is required because the prosecutor improperly elicited inadmissible testimony from Dr. Urquiza in connection with the challenged hypotheticals. As we explain, we find no basis for reversal.
Numerous courts have found expert testimony concerning CSAAS properly admitted in sexual abuse cases. (See, e.g., In re S.C. (2006) 138 Cal.App.4th 396, 418 [collecting cases]; see also McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) Our Supreme Court has explained that expert testimony on the common reactions of child molestation victims "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.] 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.'" (McAlpin, at pp. 1300-1301, fn. omitted; see People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 [where the victim's credibility is placed at issue due to seemingly paradoxical behavior, including a delay in reporting molestation, CSAA evidence is pertinent and admissible to rehabilitate the victim's credibility by showing that his or her reactions are not inconsistent with abuse].)
However, such evidence "is not admissible to prove that the complaining witness has in fact been sexually abused." (McAlpin, supra, 53 Cal.3d at p. 1300.) An expert witness is not allowed to "give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact; in other words, the jury generally is as well-equipped as the expert to discern whether a witness is being truthful." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82; see People v. Duong (2020) 10 Cal.5th 36, 60 [an expert witness cannot express an opinion concerning the guilt or innocence of the defendant].)
Courts have recognized that CSAAS evidence is at risk of being "misapplied as a predictive index by the jury." (See, e.g., People v. Bowker (1988) 203 Cal.App.3d 385, 393 (Bowker).) Thus, the evidence must be tailored to the purpose for which it is being received; it must be "targeted to a specific 'myth' or 'misconception' suggested by the evidence." (Id. at pp. 393-394; see People v. Stark (1989) 213 Cal.App.3d 107, 116 ["the testimony must be limited to exposing the misconception by explaining why the child's behavior is not inconsistent with their having been abused"].)
It is improper for an expert to apply CSAAS to the facts of the case and conclude a particular child was molested. (Bowker, supra, 203 Cal.App.3d at pp. 393-394 [improper for an expert on CSAAS to offer "predictive conclusions," including testimony indicating that child abuse victims" 'should be believed' "].) It is also improper for an expert to generally describe the CSAAS components in a manner that allows the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused. (Id. at p. 393; People v. Gray (1986) 187 Cal.App.3d 213, 218 [expert testimony must be limited to a discussion of victims as a class; the expert must not discuss and diagnosis the witness in the case].)
Citing Bowker, defendant argues the prosecutor's hypotheticals were improper and Dr. Urquiza's responses should not have been admitted. According to defendant, the expert testimony "prejudicially pigeonholed the facts of the case, allow[ing] the jurors to superimpose and apply [CSAAS] and concluded that [J.1 and J.2] were sexually abused." In Bowker, the court found the prosecutor had led the CSAAS expert "on a testimonial excursion which far exceeded the permissible limits" of CSAAS evidence. (Bowker, supra, 203 Cal.App.3d at p. 394.) The expert's transgressions included testifying to facts which "directly coincided" with facts in the case, and constructing a" 'scientific' framework into which the jury could pigeonhole the facts of the case," allowing the jury to "superimpose these children on the same theory and conclude abuse had occurred." (Id. at pp. 394, 395.) The Bowker expert's testimony accounted for nearly 70 pages of reporter's transcript and was "replete with comments designed to elicit sympathy for child abuse victims and solicitations that children should be believed. [The expert] in effect said regardless how inconsistent a child's accounts are, abused children give inconsistent accounts and are credible nonetheless." (Id. at p. 394.) For example, the expert stated," 'It is very important that a young child, say, any age from four to ten, 12 years old, that they be believed.'" (Id. at p. 389.) The expert also testified that, "[W]hile children give inconsistent versions of what happened to them, inconsistency is commonplace and should not invalidate a child's response." (Id. at p. 390.)
We initially conclude defendant has forfeited his claim that the prosecutor committed misconduct by using the challenged hypotheticals to deliberately elicit inadmissible testimony. Defendant did not object on this ground in the trial court and has made no attempt to show that an objection would have been futile. (People v. Seumanu (2015) 61 Cal.4th 1293, 1328, 1334 [failure to object to prosecutorial misconduct may be excused on the ground of futility].) The question for us, then, is whether defense counsel was ineffective for failing to object. A defendant asserting ineffective assistance of counsel must demonstrate (1) that counsel's performance was deficient, i.e., counsel's representation fell below an objective standard of reasonableness, and (2) prejudice from the deficient performance, i.e., there is a reasonable probability that, but for counsel's deficient performance, he would have obtained a more favorable result. (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050; Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694.) We need not decide whether trial counsel's performance was deficient because defendant has failed to show prejudice. (Strickland, at p. 697 [no need to address deficient performance if there is no resulting prejudice].)
Preliminarily, we note that it was proper for the hypothetical questions to bear some relationship to the facts of this case. (Bowker, supra, 203 Cal.App.3d at pp. 393-394 [expert's testimony must aim at a specific myth or misconception suggested by the evidence].) Although the prosecutor's hypotheticals included facts that mirrored the facts of this case, Dr. Urquiza's testimony, in our view, cannot be construed as telling the jury to believe the allegations of sexual abuse. Nor did his testimony impermissibly allow the jury to apply CSAAS to the facts of this case and conclude defendant was guilty. As we discuss next, in the challenged portions of Dr. Urquiza's testimony, he largely testified about common behaviors that can precede child sexual abuse and common reactions of sexually abused children as a class, and at no point did he opine or imply that the victims described in the hypotheticals had been sexually abused. The challenged testimony that related to CSAAS was consistent with Dr. Urquiza's earlier statements describing the components of the syndrome, including secrecy, delayed and unconvincing disclosure, and entrapment and accommodation. His testimony in response to the hypotheticals repeated the concepts of the syndrome in a permissible way.
As for the first challenged hypothetical, the prosecutor provided a scenario that tracked the facts of this case as to the alleged sexual abuse of J.1, defendant's violent and threatening behavior, the manner in which J.1 disclosed the abuse, and J.1's inability to specifically recall how often the sexual acts occurred or her exact age when the acts occurred. The prosecutor then asked Dr. Urquiza whether the inability of the victim in the hypothetical to recall the specific number of times each sexual act occurred and how old she was at the time of the act could be explained by the concept of disassociation. Dr. Urquiza responded in the affirmative and then explained that child victims do not want to think about the sexual abuse or remember the details, but they cannot help but remember. He said that abused children can reliably, credibly see the abuse in their head, although it is very difficult for them to remember exact details, such as how long a sexual act lasted or the details of a specific sexual act. When Dr. Urquiza was asked to consider the additional fact that the victim in the hypothetical had a developmental disability and whether that would affect the victim's ability to accurately recall and relate specific events of sexual abuse, he responded that it depended on the disability. He went on to explain that a developmental disability could comprise a victim's ability to identify when a certain sexual act happened or at what age the sexual abuse began, but that children with a developmental disability would generally be able to give a description of what happened and recall that it happened many times, although it would be difficult for a child to recall how many times it happened. When asked, Dr. Urquiza also noted that children who have been abused over a long period of time have difficulty talking about the details of the abuse due to shame, embarrassment, humiliation, and a feeling that they did something wrong.
As for the second challenged hypothetical, the prosecutor provided a scenario that tracked the facts of this case in a general way as to the alleged sexual abuse of J.1 and J.2, with the added information that the victims in the hypothetical had two brothers and that all the children and their mother had experienced physical and emotional abuse from the perpetrator of the sexual abuse (i.e., father). The prosecutor then asked Dr. Urquiza whether it was common for abused children to talk to each other about the abuse when they know the other sibling is being abused. As relevant here, he responded by stating that children are inherently reluctant to talk about sexual abuse. He explained that while some children do talk to their siblings about sexual abuse, children in general "don't want to talk about it, they don't want to share it with anybody" because that "is the best strategy that they have in dealing with it."
As for the third challenged hypothetical, the prosecutor provided a scenario that tracked the facts of this case in a general way as to the alleged sexual abuse of J.2 and her disclosure of the abuse, with the added facts that the victim in the hypothetical had been groomed by the perpetrator (her father) to gauge her reaction to sexual abuse, and that the victim qualified her answers about the sexual abuse when the initial disclosure occurred. Although unclear, the prosecutor's hypothetical suggested that the victim did not accurately describe the extent or nature of the sexual abuse by stating that the father had rubbed his penis on her vagina but did not penetrate. When Dr. Urquiza was asked to interpret the hypothetical, he explained that there are "behaviors that precede kids actually getting sexually abused or grooming." He did not offer an opinion related to whether the disclosure of the abuse by the victim in the hypothetical was qualified. In response to further questioning, Dr. Urquiza explained that sexually abused children sometimes minimize the abuse as a coping strategy; they provide a "normalized description" of the abuse, which is part of the disassociation process.
As for the fourth challenged hypothetical, the prosecutor provided a scenario that tracked the facts of this case in a general way as to the alleged sexual abuse of J.1 and J.2, with the added facts that the perpetrator (their father) threatened to hurt or kill the victims or other family members if they disclosed the abuse, that the sexual abuse went on for years, and there was also physical and emotional abuse by the father towards all family members. The prosecutor then asked Dr. Urquiza whether he would expect the sexually abused victims to report the abuse "to an adult on their [own]." He responded by saying that most children do not immediately disclose sexual abuse, although some do. He also noted that, under the facts of the hypothetical, it would not be surprising if the victim significantly delayed in disclosing the abuse, since anything that increases "the amount of power or authority or control [of] the perpetrator and therefore decrease those same things for the victim would lead to more difficulty in [the victim] being able to disclose."
We do not see how these particular hypotheticals improperly elicited inappropriate information; however, even were we to assume they were improper and defense counsel's failure to object amounted to deficient performance, we see no prejudice. The jurors were specifically instructed that they could not consider the CSAAS evidence as evidence of the defendant's guilt. (CALCRIM No. 1193.) Rather, they were instructed only to use the CSAAS evidence in deciding whether the victims' conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony. (Ibid.) The jury was further instructed that Dr. Urquiza was asked to give opinions based on assumed facts posed in hypothetical questions, that it was up to the jury to decide whether any assumed fact had been proved, and that, if it concluded an assumed fact was not true, it must consider the effect of the expert's reliance on that fact in evaluating his opinion. (CALCRIM No. 332.) In addition, Dr. Urquiza told the jury that he had no knowledge of the facts of this case and that his "job" was to testify as to what the research has to say about the class of children who have been sexually abused. Moreover, as previously indicated, Dr. Urquiza did not opine or suggest that the victims in the hypotheticals had been sexually abused. Instead, he testified as to what the common reaction of the victim(s) described in the hypothetical would be under the scenario presented. He also indicated that it is common for there to be grooming-type behaviors that precede child sexual abuse.
To the extent the hypotheticals related to the components of CSAAS, Dr. Urquiza's responses had the effect of conveying that the behavior identified in the scenario presented was not inconsistent with children who have been sexually abused, which, as we have described, has been deemed permissible use of CSAAS evidence. And neither Dr. Urquiza nor the prosecutor ever suggested that the jury should use CSAAS evidence to determine whether the victims in this case had in fact been abused. Finally, the evidence supporting defendant's guilt was strong compared to the evidence supporting a contrary result, as we detail below. Notably, defendant's argument here contains no discussion of the strength of the evidence against him.
Under the circumstances of this case, we cannot conclude that defendant was prejudiced by the expert testimony elicited in connection with the challenged hypotheticals. It is not reasonably probable that defendant would have obtained a more favorable result absent such testimony.
C. Statistical Evidence
Next, we address whether reversal is required due to the presentation of statistical evidence regarding false allegations of child sexual abuse. Defendant argues his trial counsel was ineffective for eliciting this inadmissible evidence. We agree that the statistical evidence was inadmissible and should not have been presented. The evidence was subject to objection and should have been disallowed by the trial court.
However, we see no ineffective assistance. As an initial matter, defendant has not shown deficient performance. The record does not disclose that defense counsel had no rational tactical purpose for eliciting the statistical evidence regarding false allegations. (See People v. Mai (2013) 57 Cal.4th 986, 1009 [" 'a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance' "].) Given the strength of the evidence against defendant, defense counsel could have reasonably made the tactical decision to elicit the statistical evidence in an attempt to show that the sexual abuse allegations were false. While Dr. Urquiza testified it was rare for a child to falsely report sexual abuse, his testimony supported an inference that the accusations of abuse against defendant were false, which was consistent with the defense theory of the case. Further, after eliciting the false allegations evidence in cross-examination, defense counsel was the first to mention it in closing arguments, which strongly suggests a tactical purpose for questioning Dr. Urquiza about false allegations of child sexual abuse. But even assuming deficient performance, we conclude defendant suffered no prejudice, as we next explain.
Expert testimony concerning statistical evidence about false allegations of child sexual abuse is inadmissible evidence that goes beyond the permissible scope of CSAAS evidence. (People v. Julian (2019) 34 Cal.App.5th 878, 886 (Julian) [statistical probability evidence improperly invited jurors to presume the defendant was guilty]; People v. Wilson (2019) 33 Cal.App.5th 559, 569-571 (Wilson) [statistical evidence suggested to the jury there was an overwhelming likelihood the victim's testimony was truthful, which invaded the province of the jury.) Both Julian and Wilson were decided shortly before the trial in this case commenced. In both cases, Dr. Urquiza testified as an expert witness for the prosecution. The record does not reflect that either case was brought to the attention of the trial court here. On appeal, defendant argues that reversal is required under Julian, whereas the People rely on Wilson to argue that defendant suffered no prejudice.
In Julian, Dr. Urquiza testified at length concerning the percentage of false allegations made by children in 12 studies. (Julian, supra, 34 Cal.App.5th at p. 883.) He said studies have shown that percentages of false allegations are low. He specifically cited a Denver Department of Social Services study that found only 2.5 percent of sexual abuse allegations were false allegations out of 551 cases. (Id. at p. 883.) He also cited a study of 798 cases in which not a single false allegation was made by a child. (Id. at p. 884.) He testified, "false allegations of sexual abuse by children 'don't happen very often.' 'The range of false allegations that are known to law enforcement or [Child Protective Services] . . . is about as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases that appear to be false allegations.'" (Id. at p. 885.) The defense counsel in Julian did not object to Dr. Urquiza's statistical evidence. (Id. at p. 887.)
The Second Appellate District, Division Four, determined that defense counsel had provided ineffective assistance of counsel by not objecting to the highly prejudicial statistical evidence, thus depriving the defendant of a fair trial. (Julian, supra, 34 Cal.App.5th at pp. 885, 889.) The Julian court concluded that such statistical testimony was improper because it went beyond the scope of permissible evidence of CSAAS, and the effect of the testimony was to improperly suggest the victim (who was 10 years old at the time of trial) was telling the truth and, consequently, the defendant was guilty. (Id. at pp. 886-887.) In finding the testimony prejudicial under the standard for ineffective assistance of counsel claims, the court explained that the nature of the evidence of molestation was weak and there was strong defense evidence, which included, but was not limited to, the defendant denying any touching and the failure of the victim's siblings (ages seven, eight, and 12 at the time of trial) to corroborate the victim's testimony, even though they were supposedly present when the molestation occurred. (Id. at pp. 882, 885, 888.) The court further explained that, "[I]n closing argument, the prosecutor asked the jury to rely on [Dr.] Urquiza's statistical evidence that 'children rarely falsify allegations of sexual abuse.' He reminded jurors that [Dr.] Urquiza 'quoted a Canadian study for over 700 cases, not a single one where there was a false allegation.' The claim that there is a zero percent chance children will fabricate abuse claims replaced the presumption of innocence with a presumption of guilt." (Id. at p. 889.) In determining that reversal was warranted, the court stated: "[Dr.] Urquiza's statistical evidence tipped the scales in favor of the People based on statistical studies that were irrelevant to the issue of [the defendant's] guilt or innocence. It distracted the jury from its duty to decide the properly admitted evidence. [Citation.] Such evidence may not be prejudicial where it occurs in a slight passing reference by the expert. But here the jury was bombarded with it." (Id. at p. 888.) The court faulted defense counsel for questioning Dr. Urquiza in a way that "opened the door to a mountain of prejudicial statistical data that fortified the prosecutor's claim about statistical certainty that defendants are guilty," and for directing the jurors' attention in closing argument to the statistical evidence showing that false allegations are rare. (Id. at p. 889.)
In Wilson, Dr. Urquiza testified that "there was a limited amount of research on the topic of false allegations of child sexual abuse, but that false allegations occur 'very infrequently or rarely,' most often during a child custody dispute. He continued, 'There are a number of studies that talk about the pressures put on children to make a false allegation.' He referred to a 'classic' Canadian study that found 'about 4% of cases in which there was an allegation that was determined to be false,' remarking that '[w]hat was notable [about the study] was that in none of those cases was it a child who made the allegation that was false, it was somebody else,' such as a parent disputing custody." (Wilson, supra, 33 Cal.App.5th at p. 568.) On cross-examination, Dr. Urquiza acknowledged that "it was difficult to determine whether an allegation was false, but that the Canadian study was one of the best available." (Ibid.) He also noted that the 12 to 15 other studies on the subject showed false allegations in a range of one to six percent of cases. (Ibid.) Although the Canadian study found no children making false allegations of sexual abuse, Dr. Urquiza concluded that" 'it's better to say that false allegations do happen, because they do happen, but they happen very infrequently and rarely . . . .' He agreed it was possible for children to have false memories, but there was no data indicating false memories happened frequently. And, in his own career, Dr. Urquiza had come across two cases in which a child alleged sexual abuse that he believed did not occur." (Ibid.)
The First Appellate District, Division Four, concluded that the admission of Dr. Urquiza's testimony was an abuse of discretion, but not prejudicial under the People v. Watson (1956) 46 Cal.2d 818 standard. (Wilson, supra, 33 Cal.App.5th at pp. 571-572.) In finding no prejudice, the Wilson court cited the brevity of the improper testimony, the acknowledgement by Dr. Urquiza that it was difficult to determine whether an allegation was false, and his admission he had come across two cases where he believed the child he treated was making false claims of sexual abuse. (Id. at p. 572.) The court further relied on expert evidence submitted by the defense to rebut Dr. Urquiza's improper testimony. (Ibid.) The defense expert noted that the four percent number reflected only the cases in which there was positive proof a child's allegations were false, there were many specific examples of false memories where children were influenced by adults investigating the alleged crimes or through interviewers using unreliable methods, and that "false accusations are more likely to be the result of outside influences." (Ibid.) Although the prosecutor pointed out in closing argument that the defense expert testified children rarely lie about sexual abuse, she did not mention the statistical evidence and "the jury was instructed that it was the sole judge of the facts and the credibility of witnesses." (Ibid.) In addition, the two victims testified extensively and the jurors could assess their credibility, and other percipient witnesses were called. (Ibid.) Under these circumstances, the court saw "no reasonable probability defendant would have achieved a more favorable result in the absence of the challenged testimony." (Ibid.)
We find this case to be much closer to Wilson than Julian. The victims in this case, who were adults at the time of trial, testified extensively and the jurors were able to assess their credibility. They provided detailed testimony about the sexual abuse that generally corroborated one another and was substantially consistent with their recorded pretrial interviews. For example, as we detailed ante, both victims provided strikingly similar testimony about how defendant would initiate and accomplish the rapes, as well as his threats of harm to the family and self-harm. Further, certain aspects of the victims' testimony was corroborated by their brothers as well as evidence from J.2's best friend and her father. There was also evidence that defendant made several inappropriate comments concerning underage females, including sexually related remarks, and the jury heard a recorded conversation wherein defendant implied that he had been arrested because he could not keep his penis in his pants.
In sharp contrast, in Julian, the 10-year-old victim's reports of abuse were riddled with inconsistencies and there was no evidence corroborating her molestation claim. (Julian, supra, 34 Cal.App.5th at p. 888.) In finding that the case was "heavily contested . . . with strong defense evidence," the Julian court noted that defendant cooperated with police and denied the claims of abuse at trial, a nanny testified that she never saw the defendant touch any of the girls "inappropriately" and that none of the girls ever complained defendant engaged in such conduct, and the defendant did not make any incriminating phone calls from jail. (Ibid.) In addition, the victim's three sisters testified that they did not see any inappropriate behavior from the defendant, one of the sisters thought that the victim "was lying," and another sister could not recall the victim ever saying that the defendant did something to make her "feel uncomfortable." (Id. at pp. 882, 888.)
While the statistical evidence in this case was clearly improper under Wilson and Julian, we cannot say the jury was bombarded with the evidence like the wide-ranging statistical evidence in Julian. Nor can we say that the testimony tipped the scales in favor of the People such that defendant did not receive a fair trial. (See Julian, supra, 34 Cal.App.5th at pp. 883-884, 888-889.) Dr. Urquiza's statistical evidence testimony was very brief in the context of the entire trial (approximately two pages of the more than 600 pages of trial transcript), and although he acknowledged that he been involved in only two cases where he believed a false allegation of sexual abuse had been made, he conceded that his experience was probably "skewed" because he only treated sexually abused children. In closing argument, defense counsel mentioned that Dr. Urquiza had testified that false allegations of child sexual abuse are rare, but noted that such allegations do occur and did not mention any statistics regarding false allegations. He argued that J.1 and J.2 had fabricated the allegations of abuse and he urged the jury to believe defendant's denial of the allegations. While the prosecutor briefly discussed Dr. Urquiza's testimony regarding false allegations and the statistical evidence (including mentioning the Canadian study) in rebuttal closing argument, she did not ask the jury to rely on that evidence in finding defendant guilty. Rather, she urged the jury to believe the testimony of J.1 and J.2 and the evidence that corroborated their claims of abuse. She told the jury that Dr. Urquiza's testimony explained certain aspects of J.1's and J.2's behavior.
Under the specific facts of this case, we conclude that it is not reasonably probable that defendant would have obtained a more favorable result absent the presentation of the improper statistical evidence. Unlike Julian, the defense case was not strong and there were not serious inconsistencies in the allegations of abuse that were not corroborated by other evidence. Here, as we detailed ante, the prosecution's case was strong and the statistical evidence was not used in the same way as in Julian. And defendant's theory as to why the allegations of abuse were fabricated was not credible in view of the evidence adduced by the prosecution. Moreover, the jury was specifically instructed that Dr. Urquiza's testimony could only be considered for purposes of understanding and explaining the behavior of the alleged victims and not as proof that any sexual abuse occurred. (CALCRIM No. 1193.) The jury was also instructed that it alone must decide what the facts are based on the evidence presented, and it was the sole judge of the credibility or believability of the witnesses. (CALCRIM Nos. 200, 226.) We presume the jury understood and followed these instructions. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 83.) Under the circumstances presented, we cannot say defendant suffered prejudice from the statistical evidence.
II
Closing Argument
Defendant contends the prosecutor engaged in prejudicial misconduct on two occasions during closing argument. We disagree. Because we address the merits of defendant's misconduct claims, we need not and do not consider forfeiture or ineffective assistance of counsel.
A. Applicable Legal Principles
"[P]rosecutors have wide latitude to present vigorous arguments so long as they are a fair comment on the evidence, including reasonable inferences and deductions from it." (People v. Leon (2015) 61 Cal.4th 569, 606; see also People v. Jackson (2016) 1 Cal.5th 269, 349 [prosecutors are allowed"' "a wide range of descriptive comment"' "].) A prosecutor" 'may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury.'" (People v. Young (2005) 34 Cal.4th 1149, 1195.)
A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct. Reversal under the federal Constitution is necessary only when these methods infect the trial with such unfairness as to make the resulting conviction a denial of due process. (People v. Salcido (2008) 44 Cal.4th 93, 152.) The misconduct must be significant enough to result in the denial of a fair trial. (People v. Tully (2012) 54 Cal.4th 952, 1009.)
A prosecutor's conduct not rising to the level of a constitutional violation is misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Ledesma (2006) 39 Cal.4th 641, 726.) A violation of state law is cause for reversal only when it is reasonably probable that a result more favorable to the defendant would have occurred had the prosecutor not made the improper comment. (People v. Tully, supra, 54 Cal.4th at p. 1010; People v. Milner (1988) 45 Cal.3d 227, 245, disapproved on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Centeno (2014) 60 Cal.4th 659, 667.)
B. "Classic Abuser" Remark
Defendant initially contends the prosecutor committed prejudicial misconduct in closing argument by improperly stating that he had engaged in "classic abuser" behavior. He argues that the prosecutor's remark constituted an improper personal opinion and belief of his guilt, improper lay and expert opinion as to his guilt, inherently prejudicial profile evidence and opinion, and improper unsworn testimony.
1. Additional Background
During the prosecution's case-in-chief, testimony was elicited from several witnesses regarding an incident that occurred when defendant's family decided to leave him. As the family was driving away from their home without defendant, he chased them down the street, reached inside the window, placed the car in park in the middle of the street, and took the keys. Yelling and screaming ensued. Shortly thereafter, defendant's oldest son punched him in the face when he attempted to get inside the car. Defendant eventually gave the keys back to the mother and she drove off.
On cross-examination, defendant admitted that he took the car keys when his family was attempting to leave him and made a "scene" in the middle of the street. The following exchange then occurred:
"Q. The result of that, by taking her keys when she's in the car in the middle of the street, is you're preventing them from leaving, correct?
"A. From going, yes, correct.
"Q. And your children were crying and scared, right?
"A. Yes, they were.
"Q. And you reached inside the driver window where [the mother] is seated?
"A. Uh-huh.
"Q. And that's when your . . . oldest [son] protected her and punched you in the face?
"A. He did punch me in the eye.
"Q. Right. And then after you were done making your scene, doing what you wanted, then you threw the keys back and let them leave?
"A. You think I wanted to do that?
"Q. If you can answer my question. That's what you did?
"A. I did answer it. You think I wanted to do that?
"Q. It's a yes or no.
"A. No, I didn't want to do that.
"Q. No, it's a yes or no question. That's what you did; isn't that right?
"A. Yes."
In closing argument, the prosecutor stated: "And [defendant] testifies. He scrunches up his face and sniffles. There's no tears. Twenty seconds later it's like stone cold again, angry. It was a little show, because he wants to be in control. He didn't like it -- he doesn't like it when things don't go his way. [¶] When I questioned him from over there with this lectern, he got very upset with me. He wouldn't answer my questions directly, like [defense counsel] said, not one question. I asked him a yes or no and he'd say things like, 'Do you think I wanted to do this?' Classic abuser terminology. They made him do it, right? If only they had behaved, he wouldn't have had to be violent with them." (Italics added.)
2. Analysis
We see no misconduct. The prosecutor's "classic abuser" remark did not exceed the bounds of proper argument. It was a fair comment on the evidence. As detailed ante, the record supports the description of defendant as someone who repeatedly abused members of his family in a physical, verbal, emotional, and sexual manner. When defendant testified, he admitted that his children had seen him become violent, act out in rage, make threats with a weapon, threaten to commit suicide, actually strangle himself to unconsciousness with a belt, and hurt their mother. He also admitted that his children were scared of his violent behavior "at times," and that he would become angry when his children disobeyed him, grab their arm, and yell at them. Further, he acknowledged that he made a "scene" when he attempted to stop his family from leaving him, including chasing them down the street and taking the car keys away from the mother, which made his children scared and cry. On this record, even if we were to conclude that the prosecutor's brief and isolated remark was improper, we see no prejudice to defendant.
C. The "Box" Metaphor
Defendant next contends the prosecutor committed prejudicial misconduct in closing argument by improperly telling the jury that evidence in the "box" (i.e., the evidence presented at trial) proved he was guilty of the charged offenses beyond a reasonable doubt. He argues reversal is required because the prosecutor trivialized and misled the jury regarding the beyond a reasonable doubt standard, which had the effect of conveying he could be convicted under a lesser standard of proof.
1. Additional Background
During jury selection, the prosecutor used a box as a "demonstrative tool" to explain to potential jurors that they may only consider the evidence presented at trial in determining whether defendant was guilty of the charged offenses. The prosecutor explained that all the evidence introduced at trial goes into the box and the jury may only consider that evidence in rendering its verdict. In rebuttal closing argument, the prosecutor stated: "Now, my final comments to you, ladies and gentlemen, we have the box. In the beginning of this case, the box was empty. There was nothing in this box and the presumption of innocence applied. But then the evidence started. [¶] And what do we have in the box now?"
After identifying various evidence that had gone inside the "box" (e.g., testimony of the witnesses, including defendant), the prosecutor concluded her remarks to the jury by stating: "And ladies and gentlemen, evidence was closed yesterday . . . afternoon. The lid went on the box. This, ladies and gentlemen, is the evidence that you get to consider in rendering your verdict. All of [defense counsel's] comments about what about this world of possibilities? That's out here because none of that is evidence inside this box, none of that is evidence in this case. You don't get to consider that. Everything in this box, ladies and gentlemen, proves beyond a reasonable doubt that the defendant is guilty of all 14 counts of raping his daughters and orally copulating [J.2] by force, fear, threats, menace, duress. [¶] He's guilty beyond a reasonable doubt based on the evidence that I presented in this trial, based on his own admissions in his testimony. He is guilty as charged. And I'm asking you to render your verdict accordingly. Thank you."
2. Analysis
We perceive no misconduct. The "box" metaphor utilized by the prosecutor properly advised the jury that it may only decide the issue of guilt based on the evidence presented at trial. (People v. Centeno, supra, 60 Cal.4th at p. 669; CALCRIM No. 200.) The prosecutor also correctly informed the jury that arguments made by counsel are not evidence. (People v. Hill (1998) 17 Cal.4th 800, 845; CALCRIM No. 222.) We find no merit in defendant's contention that the prosecutor trivialized and mislead the jury regarding the beyond a reasonable doubt standard of proof. There is no reasonable likelihood the jury understood or applied the challenged comments in an improper or erroneous manner as defendant claims.
III
Alleged Instructional Errors
Defendant contends the trial court committed prejudicial error in instructing the jury pursuant to CALCRIM Nos. 375, 1191A, and 1191B. We disagree.
A. Additional Background
During trial, the jury heard testimony from J.1 and J.2 about the charged sex offenses as well as many other instances of sexual contact and conduct, as we have described, which we will refer to as the uncharged sex offenses. This evidence was admitted under Evidence Code section 1108 to show defendant had the propensity to commit the charged offenses. The uncharged acts evidence was also admitted under Evidence Code section 1101, subdivision (b) to show motive, absence of mistake or accident, and plan or scheme.
Prior to deliberations, the jury was instructed, pursuant to modified versions of CALCRIM Nos. 375 and 1191A, that the uncharged sex offenses need only be proven by a preponderance of the evidence to be considered for the specific purpose identified in each instruction (e.g., to show defendant had a plan or scheme to commit the charged sex offenses (CALCRIM No. 375) and/or was disposed or inclined to commit the charged sex offenses (CALCRIM No. 1191A)), but that evidence of the uncharged sex offenses alone was not sufficient to prove the defendant's guilt; the People must still prove each charge beyond a reasonable doubt. The jury was also instructed pursuant to a modified version of CALCRIM No. 1191B that evidence of a charged sex offense, if proven beyond a reasonable doubt, was admissible to prove defendant was disposed or inclined to commit the other charged sex offenses, but that such evidence alone was insufficient to prove defendant was guilty of another crime; the People must still prove each charge beyond a reasonable doubt.
B. Analysis
We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Our task is to determine whether the trial court '" fully and fairly instructed on the applicable law." '" (People v. Franco (2009) 180 Cal.App.4th 713, 720.) When a defendant claims an instruction was subject to erroneous interpretation by the jury, we inquire whether the jury was reasonably likely to have misconstrued or misapplied the instruction in the manner asserted. (People v. Covarrubias (2016) 1 Cal.5th 838, 926.) We assume the jurors are capable of understanding and applying the court's instructions. (Ibid.) "In determining the correctness of jury instructions, we consider the entire charge of the court, in light of the trial record." (Ibid.)
We find no merit in defendant's initial contention that CALCRIM No. 375, when considered in conjunction with CALCRIM No. 1191A, lowered the prosecution's burden of proof in violation of his due process rights because the jury could have used the wrong standard of proof (i.e., preponderance of the evidence standard) in finding him guilty of the charged offenses. A similar argument was considered and rejected in People v. Gonzales (2017) 16 Cal.App.5th 494, which interpreted former CALCRIM No. 1191.In that case, the court concluded that CALCRIM No. 1191 did not lower the burden of proof for the charged sex offenses where the victim also testifies to uncharged sex offenses because it "instructs that the uncharged offenses are only one factor to consider; that they are not sufficient to prove by themselves that the defendant is guilty of the charged offenses; and that the People must still prove the charged offenses beyond a reasonable doubt." (Gonzales, at p. 502.) In so concluding, the Gonzales court rejected the argument that when evidence of the uncharged sex offenses comes from the testimony of the victim of the charged sex offenses, instructing that the jury may consider the uncharged sex offenses if the People have proved them by a preponderance of the evidence may result in "the jury misapplying the burden of proof for the charged offenses." (Ibid.) We agree with Gonzales and follow it here.
"In March 2017, CALCRIM No. 1191 was modified to distinguish uncharged offenses offered as propensity evidence from charged offenses offered for that purpose. CALCRIM No. 1191A now applies to the former, while CALCRIM No. 1191B applies to the latter." (People v. Gonzales, supra, 16 Cal.App.5th at p. 496, fn. 1.)
Equally without merit is defendant's contention that the trial court's modified CALCRIM No. 1191B instruction lowered the prosecution's burden of proof in violation of his due process rights by allowing evidence of a charged sex offense, if proven beyond a reasonable doubt, to prove his disposition or propensity to commit the other charged sex offenses. According to defendant, the instruction impermissibly permitted the jury to conclude that because it found him guilty of one count, he must be guilty of the other counts. This claim is foreclosed by People v. Villatoro (2012) 54 Cal.4th 1152.
In Villatoro, our Supreme Court held that Evidence Code section 1108 permits the jury to draw a propensity inference from currently charged sex offenses, and approved a modified version of CALCRIM No. 1191, similar to the instruction given in this case. (People v. Villatoro, supra, 54 Cal.4th at pp. 1164, 1167-1168.) The modified instruction used in Villatoro explained to the jury that "if it decided that defendant had committed a charged sex offense, 'from that evidence' it could conclude that defendant had a disposition to commit the other charged sex offenses, and that based on that decision, the jury could also conclude that defendant was likely to and did commit the other charged sex offenses." (Id, at pp. 1165, 1167.) After Villatoro was decided, CALCRIM No. 1191 was modified to distinguish uncharged sex offenses from charged sex offenses as propensity evidence, and now includes language similar to the instruction given in the Villatoro trial. (See Villatoro, at p. 1167; CALCRIM No. 1191A; CALCRIM No. 1191B.) The Villatoro court held that the instruction properly implemented Evidence Code section 1108 and did not impermissibly lower the standard of proof or otherwise interfere with the presumption of innocence. (Villatoro, at pp. 1164-1165, 1168.)
In view of Villatoro, the trial court did not err in instructing the jury pursuant to CALCRIM No. 1191B. (See People v. Meneses (2019) 41 Cal.App.5th 63, 68.) Because we are bound by Villatoro (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), no further discussion of this issue is required.
IV
Cumulative Error
Defendant contends that to the extent any of his asserted errors are not individually prejudicial, the cumulative effect of the errors requires reversal. We disagree.
" '[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.'" (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) However, even if we aggregate the errors we have found or assumed, we conclude they are not so significant in the context of the entire trial that there is a reasonable probability that they affected the outcome of the proceedings. (See People v. Dykes (2009) 46 Cal.4th 731, 820.) "Defendant was entitled to a fair trial but not a perfect one." (Cunningham, at p. 1009.)
DISPOSITION
The judgment is affirmed.
We concur: Renner, J., Krause, J.