Opinion
H047418
08-19-2021
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER TECALCO CORTEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 18CR007440
Bamattre-Manoukian, J.
Following a jury trial, defendant Alexander Tecalco Cortez was convicted of two counts of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)) and a count of lewd act upon a child under 14 (§ 288, subd. (a)) against three victims, J.D.1, J.D.2, and J.D.3. The jury also found true the allegations that Cortez had substantial sexual conduct with the victims (§ 1203.066, subds. (a)(8) & (b)) and that the offenses involved multiple victims (§ 667.61, subds. (e)(4) & (j)(2)). The trial court sentenced Cortez to an aggregate term of 75 years to life.
Unspecified statutory references are to the Penal Code.
On appeal, Cortez argues that his convictions must be reversed because the trial court erroneously admitted expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS), the trial court failed to sua sponte instruct the jury on how to use the expert testimony on CSAAS, the combined errors were cumulatively prejudicial, and the administrative fees imposed under sections 1463.07 and 1205, subdivision (d) were unauthorized. We modify the judgment to reflect the amount of and statutory basis for each fine, fee, and penalty assessment imposed by the trial court, strike the fee imposed under section 1463.07, clarify that the fee imposed under section 1205, subdivision (d) is imposed under section 1205, subdivision (e), and reduce the fee imposed under section 1205, subdivision (e). We find no merit in Cortez's other arguments and affirm the judgment as modified.
Cortez also filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In his petition, Cortez argues that defense counsel rendered ineffective assistance when she failed to object to the testimony of two Sexual Assault Response Team (SART) examiners. We have disposed of Cortez's habeas petition by separate order filed this date. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
I. Background
A. The Amended Information
On February 20, 2019, the Monterey County District Attorney's Office filed an amended information charging Cortez with continuous sexual abuse of J.D.1 (§ 288.5, subd. (a); count 1), continuous sexual abuse of J.D.2 (§ 288.5, subd. (a); count 2), and lewd act upon a child under 14, J.D.3 (§ 288, subd. (a); count 3). As to each count, it was alleged that Cortez had substantial sexual conduct with the victims (§ 1203.066, subd. (b)) and was therefore ineligible for probation (id., subd. (d)) and that the offenses involved multiple victims (§ 667.61, subds. (e)(4) & (j)(2)).
Section 1203.066, subdivision (b) defines substantial sexual conduct. Section 1203.066, subdivision (d) provides that probation may only be granted to a person who is convicted of violating section 288 or 288.5 if the factors listed in section 1203.066, subdivision (a) are not met and certain other terms and conditions are met. The jury found the enhancement that Cortez had substantial sexual conduct with the victims to be true under section 1203.066, subdivisions (a)(8) and (b). Section 1203.066, subdivision (a) provides that “probation shall not be granted to” a person who violates section 288 or 288.5 and has substantial sexual conduct with a victim that is less than 14 years of age. (§ 1203.066, subd. (a)(8).)
B. The Trial
1. Overview of the Case
J.D.1 (born 2007) and J.D.2 (born 2004) are sisters, and J.D.3 (born 2011) is their cousin. J.D.1, J.D.2, and J.D.3 have the same grandmother, A.R. A.R. lived with her boyfriend, Cortez, and she frequently babysat the three victims at her house. J.D.1, J.D.2, and J.D.3 all testified that they were sexually abused by Cortez when they visited A.R.'s house. J.D.3 was the first to disclose the abuse.
2. J.D.1's Testimony
At trial, J.D.1 was 12 years old. When she was younger, J.D.1 and her sister, J.D.2, frequently went to A.R.'s house. Cortez touched J.D.1 inappropriately when she was at A.R.'s house.
Cortez first abused J.D.1 when she was in the third or fourth grade. Cortez sexually abused J.D.1 “a lot of times, ” and the abuse occurred nearly every time she went to A.R.'s house. Cortez abused J.D.1 inside A.R.'s bedroom, and he placed his hands underneath J.D.1's clothes and touched her private parts with his fingers.
One time, J.D.1 was sitting on A.R.'s bed watching television when she felt Cortez's penis against her leg. Cortez touched J.D.1's vaginal area, and she felt his penis touch her thigh. Cortez and J.D.1 were both wearing clothes at the time, and J.D.1 felt her thigh become a little wet. J.D.1 felt Cortez's penis touch her leg approximately two or three other times.
J.D.1 was at A.R.'s house when the police were called after J.D.3 disclosed that she had been molested by Cortez. A.R. asked J.D.3 if the allegations were true, and J.D.3 answered yes. A.R. then asked J.D.1 if Cortez had also touched her inappropriately, and J.D.1 answered yes.
Before A.R. asked her about Cortez that day, J.D.1 had never told anyone about what had happened to her because she was scared. J.D.1 did not think that anyone would believe her, and she was concerned about A.R., who was sick at the time. J.D.1 did not suspect that anything inappropriate had happened between Cortez and J.D.2.
3. J.D.2's Testimony
J.D.2 was 15 years old at the time of trial. J.D.2 frequently visited A.R.'s house when she was a child, and she knew A.R.'s boyfriend, Cortez. Cortez started touching J.D.2 inappropriately when she was in the third or fourth grade, and the abuse stopped when she was in the seventh grade. J.D.2 estimated that most of the abuse occurred when she was in the fifth or sixth grade, and all of the abuse took place in A.R.'s house.
Cortez used his hands to touch J.D.2's vaginal area under her clothes, and he rubbed his fingers “in [her] private part.” Cortez sometimes “us[ed] two fingers and... tr[ied] to go deeper.” J.D.2 felt Cortez penetrate her with his fingers twice. Cortez also rubbed his penis “in [her] butt cheeks.”
J.D.2 recalled several specific incidents of abuse. When J.D.2 was in the fifth grade, she went outside A.R.'s house to look for Cortez. Cortez was in a car that was parked outside. J.D.2 asked Cortez if they could go to Taco Bell. Cortez said yes, but before they went, she would have to let him kiss her vagina. Cortez told J.D.2 to lie down in the back of the car in the trunk, and J.D.2 complied. Cortez pulled down J.D.2's leggings and underwear, spread her legs, and “got close and kissed [her vagina].” J.D.2 felt Cortez's mustache between her legs. Afterwards, J.D.2 pulled up her underwear and leggings, walked inside the house, and told her sister, J.D.1, that they were going to Taco Bell. J.D.2 felt sad about what had happened with Cortez because she “didn't want to do it.”
Another incident occurred when J.D.2 was in the fifth grade. When A.R. was away at a nearby store, J.D.2 asked Cortez if they could go to Walmart and get a toy. Cortez said yes, and he told J.D.2 to lie down on A.R.'s bed. Cortez then kissed and licked J.D.2's vagina.
When J.D.2 was in sixth grade, Cortez showed J.D.2 his penis. J.D.2 was outside in A.R.'s backyard when she heard a knock coming from a car that was parked outside. Cortez was inside the car, and he called J.D.2 to come over. Cortez told J.D.2 that she would “see a penis” when she grew up, and he pulled out his penis and showed it to her. J.D.2 was shocked. Cortez said something to her, but she could not remember what he said. J.D.2 recalled that she saw the veins on Cortez's penis.
J.D.2 recalled speaking to someone about this incident and drawing a picture of what she saw that day.
J.D.2 recalled an incident that took place over a weekend when she and her sister stayed with Cortez while A.R. underwent surgery. J.D.1 and J.D.2 watched a movie with Cortez, and J.D.1 fell asleep. J.D.2 felt Cortez “going under [her] clothes rubbing his fingers in [her] vagina.” Cortez pulled J.D.2's “legs and underwear from the back, ” and he grabbed her hands and told her to touch his penis. Cortez's penis was inside his clothes at the time. J.D.2 pulled her hand away, but she felt Cortez “rubbing his penis in the back of [her] butt cheeks.” Cortez rubbed his penis against J.D.2's buttocks from side to side for about a minute and a half. Cortez was breathing heavily while he did so. After a while, J.D.2 felt something “sticky” all over her “butt cheeks.” After Cortez fell asleep, J.D.2 went to the bathroom and saw a clear substance that was drying off on her buttocks. J.D.1 was asleep the whole time.
Cortez touched J.D.2 inappropriately for the last time when she was in the seventh grade. Cortez put his hand underneath J.D.2's underwear and started to rub his fingers around her vaginal area when she was lying down on A.R.'s bed. J.D.2 felt Cortez's fingers go inside her vagina, and it felt like Cortez was pinching the inside of her vagina and was “trying to go deeper.” Cortez asked J.D.2 if it hurt. J.D.2 said no at first, but she later told him that it was starting to hurt. J.D.2 told Cortez to stop, but he did not do so, and it seemed like he “really didn't care” about what J.D.2 said.
J.D.2 never told J.D.1 about what was happening because she was scared that something bad would happen to A.R. A.R. had cancer at the time, and J.D.2 was worried that A.R.'s cancer would get worse. J.D.2 was also scared because she did not think that anyone would believe her. Cortez had been a part of J.D.2's family since J.D.1 was three months old, and J.D.2 thought that the family would believe Cortez over her if she said anything. Once or twice, A.R. was present when Cortez abused J.D.2. However, J.D.2 did not think that A.R. could see what was happening to her.
When Cortez touched her inappropriately, J.D.2 tried to either forget about what was happening or pretend that the abuse was not occurring. J.D.2 told Cortez “no” many times, but he insisted on touching J.D.2. Sometimes Cortez would offer J.D.2 money, like a $20 bill, after he touched J.D.2 inappropriately. J.D.2 estimated that Cortez offered her money approximately five times. Cortez also sometimes sent J.D.2 text messages. Cortez told J.D.2 to delete the text messages and gave her instructions on how to do so.
J.D.2 saw Cortez touch J.D.1 inappropriately when J.D.1 was in the second or third grade. One night, J.D.1, J.D.2, and their brother were sleeping on a couch together. Cortez came over late that evening, and he looked drunk. J.D.2 saw Cortez put his hands near J.D.1's legs, and she heard J.D.1's waist strap snap. J.D.2 saw Cortez's hand moving around J.D.1's private parts. J.D.2 told Cortez to leave J.D.1 alone, and Cortez acted like he did not know what J.D.2 was talking about. The next day, J.D.2 told J.D.1 about what had happened. J.D.2 told J.D.1 to be careful, and J.D.1 became scared. J.D.2 did not tell J.D.1 that she had been abused, and J.D.2 did not tell A.R. or her mother, R.V., about what had happened.
One day, R.V. called J.D.2 and asked her if Cortez had ever touched her inappropriately. At the time, J.D.2 did not know that her cousin, J.D.3, had made allegations against Cortez. After R.V. called J.D.2, J.D.2's aunt drove J.D.2 over to A.R.'s house where she waited with R.V. and J.D.1. J.D.1 told J.D.2 about J.D.3's allegations, and J.D.1 and J.D.2 talked to each other about what had happened to J.D.3.
4. J.D.3's Testimony
At trial, J.D.3 was eight years old. J.D.3 used to frequently go to A.R.'s house, and A.R. used to babysit J.D.3. When A.R. babysat J.D.3, A.R. lived with J.D.3's aunt and several other people. J.D.3 would often see Cortez at A.R.'s house.
J.D.3 recalled several specific incidents of abuse. One time, Cortez “put his private part inside [J.D.3's] butt” when she was inside A.R.'s garage. J.D.3 could not recall if she had her clothes on or off at the time. Several other incidents took place inside A.R.'s room. J.D.3 did not specifically describe what happened with Cortez, but she testified that it hurt and she felt sad afterwards. J.D.3 also saw Cortez's “private part” one day when she was with J.D.2. Afterwards, Cortez handed J.D.2 and J.D.3 some money.
When J.D.3 went to A.R.'s house, she often played with some of the other children that were there, including a girl named J. J.D.3 told J. and J.'s brother that Cortez had abused her. J.D.3 did not tell any adults about what had happened because she was scared.
5. R.V.'s Testimony
R.V. is J.D.1 and J.D.2's mother. R.V. used to bring her daughters to A.R.'s house on Tuesdays, Thursdays, and every other weekend. J.D.1 and J.D.2 would also have sleepovers at A.R.'s house on the weekends. A.R. met Cortez in 2006, and they had been dating for the past 10 years. Cortez had been living with A.R. since 2009.
On August 5, 2018, J.D.1 disclosed to R.V. that Cortez had molested her. At the time, R.V. did not know that any other family members had been abused. J.D.1 said that A.R. had asked her if she had experienced “the same thing [that] had happened with [J.D.3].” R.V. and J.D.1 spoke inside the car while R.V. was driving, and J.D.1 was nervous, crying, and worried when she disclosed the abuse. J.D.1 told R.V. that J.D.3 had also said that something inappropriate had happened with her. When R.V. arrived at her house, she called J.D.2 and asked her if something similar had happened to her. J.D.2 answered yes.
Afterwards, R.V. drove J.D.1 to A.R.'s house and called the police. J.D.2 arrived before the police came. J.D.1 and J.D.2 spoke to each other before the police arrived, and it seemed that the sisters did not know about each other's abuse. J.D.3's family was at A.R.'s house, and J.D.3's family had already made a separate report to the police. When J.D.1 and J.D.2 made their disclosures, A.R. had recently undergone surgery and was still recovering.
Two years before Cortez's trial, R.V. saw suspicious text messages from Cortez on J.D.2's phone. The text messages said that Cortez would give J.D.2 and her sister $5 if they did not tell R.V. anything and that J.D.2 should erase the text messages that Cortez had sent. Cortez also said that he would explain how to erase messages.
One time, R.V. saw Cortez touch the strap of J.D.2's blouse and her skin with his hand. R.V. called out to J.D.2 and told her to move away from Cortez because she did not like what she saw.
6. M.M.'s Testimony
M.M. is J.D.3's mother. J.D.3 stayed at A.R.'s house Monday through Saturday from about 5:00 a.m. to 6:00 p.m. while M.M. went to work in the fields.
On August 5, 2018, M.M. received a phone call from E. E. and her children lived at A.R.'s house, and E.'s children often played with J.D.3. After M.M. spoke with E., M.M. asked J.D.3 if Cortez had hurt her. J.D.3 started to cry and covered her head with a blanket. J.D.3 said she would tell M.M. about what had happened with Cortez, but she did not want M.M. to tell A.R. M.M. again asked J.D.3 if Cortez had hurt her, and she answered yes.
Following J.D.3's disclosure, M.M. called Y., A.R.'s daughter. Y. took M.M. to A.R.'s house, and Y. called the police. In the months preceding J.D.3's disclosure, J.D.3 told M.M. that she did not want to go to A.R.'s house. At the time, J.D.3 did not explain why she did not want to go to A.R.'s house. M.M. did not know that J.D.1 and J.D.2 had also been abused by Cortez.
7. Nurse Jamie Slovenski's Testimony
Jamie Slovenski, a SART forensic examiner for Monterey County and a nurse at Community Hospital, testified as an expert in sexual assault forensic exams.
Slovenski described the procedures that are typically followed when a sexual assault is investigated. First, the police are notified about the sexual assault and conduct an investigation into the alleged crime. The police then request a SART examination. Typically, an interview with the child is conducted before the SART examination, which gives the SART examiner the opportunity to determine the parts of the child's body that should be swabbed for evidence. In cases where an interview is not conducted before the SART examination, the examiner will get information from the parent or the police officer before conducting an examination. During the examination, the SART examiner swabs areas of the child's body that may have been exposed to bodily fluids and takes photographs of genitalia.
On August 5, 2018, Slovenski conducted J.D.3's SART examination. According to Slovenski's notes, M.M. provided the information for the interview portion of the SART examination, and Slovenski did not interview J.D.3 herself.
During the examination, Slovenski took photographs of J.D.3's genitalia. Slovenski observed that J.D.3's genitalia, mainly in the upper clitoral area, was red and swollen. Slovenski did not observe any injuries to J.D.3's hymen, but she saw a tear in J.D.3's perineum, the area between the vagina and the anus. Slovenski conducted an anal exam and noticed that J.D.3 had “quite a significant” visible laceration on her anus. Slovenski took photographs and saw that there were smaller tears that surrounded the larger tear. There was also an abrasion to J.D.3's posterior fourchette, the area between the anus and the vaginal opening that is above the perineum and a little further from the anus. Slovenski examined the interior of J.D.3's anus and found that the tear on the anus was superficial and on the outer folds of the anus.
Slovenski clarified that an abrasion is “an area where the skin has been rubbed but is not completely open.” Images of the injuries sustained by J.D.3 were admitted into evidence and shown to the jury.
Slovenski explained that the redness and swelling on J.D.3's genitalia could be attributed to multiple things: penetration of the genitalia, irritation from soap or her clothing, or poor cleanliness. According to Slovenski, it is possible to get an anal tear from a large bowel movement. However, Slovenski opined that she would expect an injury from a bowel movement to be in the interior of the anus, not the exterior. Based on her training and experience, Slovenski did not believe that the tear on J.D.3's anus was consistent with a large bowel movement. Slovenski believed that J.D.3's anal injuries were consistent with penetration because she had “an exterior injury” that was located in the “typical area” where injuries of that type would occur, and J.D.3 had a perineum abrasion. Slovenski did not believe that the injury to J.D.3's posterior fourchette could have been caused by a bowel movement.
8. Nurse Sheree Goldman's Testimony
Sheree Goldman, a nurse practitioner and the coordinator for the Monterey County Health Department's SART program, testified as an expert in sexual assault forensic examinations.
On September 2, 2018, Goldman conducted a follow up examination on J.D.3. By the time Goldman conducted the follow up examination, the injuries and findings that Slovenski had documented had already healed.
Goldman had previously conducted a photo review of J.D.3's examination by Slovenski, and, based on the photographs, Goldman believed that the injuries that J.D.3 sustained appeared to be painful. Goldman agreed with Slovenski's opinion that J.D.3's injuries were consistent with penetration of her anus. Goldman noted that the injury on the photographs had caused “little tears from stretching, ” the injury was “on the outside going in, not on the inside coming out, ” and “there was some redness like a little bit of abrasion, like rubbing on the outside.”
9. Detective Ciro Barboza
Salinas Police Department Detective Ciro Barboza was present at J.D.1's forensic interview on August 20, 2018. J.D.1 told the interviewer that Cortez had last touched her a month or two before the interview. J.D.1 also said that Cortez had touched her vagina underneath her clothing when she was inside A.R.'s bedroom.
Detective Barboza was also present during J.D.3's forensic examination. During the examination, J.D.3 said that Cortez last abused her approximately two or three days before the examination took place.
10. Dr. Anthony Urquiza's Testimony
Dr. Anthony Urquiza, a licensed psychologist, professor in the Department of Pediatrics at the University of California Davis Medical Center, and director of the Care Center program, testified as an expert in the behaviors of victims of child sexual abuse.
According to Dr. Urquiza, it is “pretty typical” for victims of sexual assault to delay disclosure, and there are misperceptions about why victims may delay disclosure or why they do not resist or fight off the perpetrator. There are also misperceptions that children who are abused will look visibly distressed. There are, however, other ways that victims might respond to being abused that will not cause them to look distressed. Some children will respond fearfully toward their abuser, but many children will not act fearfully toward their abuser because they are sexually abused by someone that they have an ongoing relationship with. Some children may also have a positive, affectionate relationship with their abuser, and they may care about the abuser and may even say that they love their abuser.
Dr. Urquiza testified that children often delay reporting abuse because they are afraid. Many children are abused by someone that they have an ongoing relationship with, and the abuser is often someone who is “bigger, stronger, older, and in a position of power, control and authority” over the child. Some children might be threatened by their abuser and are told that they will be hurt if they disclose the abuse. Sometimes, the threat made to a child is not an overt statement.
Some children may also be afraid of the consequences of making a disclosure. Some children have an ongoing relationship with their abuser and may care about their abuser. Children may also be worried about hurting someone that they care about or hurting their family.
Dr. Urquiza opined that some children delay disclosing abuse because they are afraid that they will not be believed or that they might be blamed for some of the abuse. Some children may not want to feel the shame associated with being sexually victimized. There are research studies that appear to indicate that the closer the relationship between the child and the perpetrator, the longer it takes for the child to report the abuse.
According to Dr. Urquiza, children who have been victimized multiple times learn how to manage their feelings. One way that children manage their feelings is through disassociation or compartmentalization. As a result, some children will speak in a “flat tone devoid of emotion” when discussing their abuse.
Dr. Urquiza testified that there are many reasons why children decide to disclose abuse. Children may have matured, gotten older, and developed a sense of awareness of what is going on and the inappropriateness of the abuse. Sometimes, children may be going to therapy for other reasons and may disclose the abuse to the therapist. Children may have their first boyfriend or girlfriend, which prompts them to start thinking about sexuality or sexual relationships. Children may also disclose the abuse to a best friend, confidant, or someone that they trust. Some children may also have a younger sibling that they grow concerned about.
Dr. Urquiza testified that children as young as two or three years old are able to report about things that they can see-for example, children can report that they were orally copulated or that the perpetrator was on top during the abuse. Children, however, are not as good at reporting intangible things like how long the abuse lasted or the frequency of the abuse.
Dr. Urquiza opined that he would not find it unusual if an older sibling did not try to prevent a perpetrator from abusing a younger sibling. Sometimes siblings do not know that the other sibling is being abused.
According to Dr. Urquiza, “[t]here is no research formula that determines whether somebody has been abused. There is a process. There's only one process I'm aware of to determine whether somebody's been a victim of a crime or guilty or innocent, and that's what we're doing here with regard to a trial.” Dr. Urquiza stated that he would “be against research making any determination as to whether a child has been abused or whether a person is guilty or innocent of a crime. That is really not a place for science or for mental health research.”
Dr. Urquiza testified that the only information he had about the current case was Cortez's name, he had not read any police reports associated with Cortez's case, and he had no knowledge of the allegations that were made against Cortez.
C. Verdict and Sentencing
On August 15, 2019, the jury convicted Cortez of all of the charged counts, two counts of continuous sexual abuse of a child (§ 288.5; counts 1 [J.D.1] & 2 [J.D.2]) and a count of lewd act upon a child under 14 (§ 288, subd. (a); count 3 [J.D.3]). As to all counts, the jury found true the allegations that Cortez had substantial sexual conduct with the victims (§ 1203.066, subds. (a)(8) & (b)) and that the offenses involved multiple victims (§ 667.61, subds. (e)(4) & (j)(2)).
On October 4, 2019, the trial court sentenced Cortez to three consecutive terms of 25 years to life for counts 1, 2, and 3, for an aggregate term of 75 years to life. The trial court also imposed various fines and fees, including a $1, 310 fine under section 290.3.
II. Discussion
A. Admission of Dr. Urquiza's Testimony
Cortez argues that the trial court erred when it admitted Dr. Urquiza's expert testimony on child sexual assault victims. Cortez argues that Dr. Urquiza's testimony, which he characterizes as CSAAS evidence, did not satisfy the Kelly/Frye test, his testimony was irrelevant to the disputed issues at trial, the prosecutor erroneously asked Dr. Urquiza case specific questions, and admitting his testimony was prejudicial and violated his due process rights to a fair trial.
People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013.
1. Background
Before trial, the prosecutor filed a motion in limine seeking “to admit expert testimony about sex assault victims' counter intuitive behavior during [the People's] case in chief to dispel myths and misconceptions about child molestation dynamics and [to] assist the trier of fact in properly evaluating the credibility of alleged victims.” The prosecutor argued that in criminal cases, there are certain myths and misconceptions about sexual assault victims' behavior, including: “1) since the victims did not disclose the molestation immediately, some of the described incidents did not occur or they are less believable; 2) since the victim initially denied, then gradually disclosed the abuse and did not come out with each and every detail to the first adult, some of the molestations did not occur; 3) since the victim did not show obvious trauma when disclosing the molestation to adults, the molestation did not occur; 4) [s]ince the victim did not appear frightened, upset, or traumatized by the abuser's conduct, the molestation did not occur; 5) [s]ince the victim does not know specifics regarding dates and times of the molests, the molests did not occur; and 6) [t]he victim should have been able to do something to protect herself from being molested.”
In his motion, the prosecutor explained that Dr. Urquiza would not opine that the victims suffered from “a ‘child molestation syndrome' or some other syndrome.” Instead, Dr. Urquiza's testimony would be “general and about victims as a class.” The prosecutor also argued, “Dr. Urquiza will testify about a variety of topics concerning victims of child molestation, including the common myths and misconceptions surrounding child sexual abuse discussed above. This kind of testimony is relevant, admissible, and not in any way subject to Kelly Frye.” The prosecutor further argued that “[n]othing about [the prosecution's] proffered expert testimony is diagnostic of abuse, or the fact a molestation did occur.”
Cortez filed a motion in limine seeking “to exclude testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS).” In his motion, Cortez argued that CSAAS evidence was inadmissible to prove that abuse occurred because it did not meet the Kelly/Frye test, CSAAS “may be used only to rebut a defendant's attack on the credibility of the alleged victim based on a specific ‘myth' or ‘misconception' suggested by the evidence, ” CSAAS evidence may easily be misapplied by the jury, and a cautionary jury instruction will not prevent a jury from misapplying CSAAS evidence.
On August 12, 2019, the trial court denied Cortez's motion in limine seeking to exclude CSAAS testimony. The trial court stated: “The court will allow the testimony of Dr. Urquiza in a limited fashion. And I don't think we have to go into on [sic] the record because I'm not concerned it's going to be expanded, but essentially, it cannot be about the facts of the case, these particular victims. We're talking about broad broad [sic] generalities, and that will all be flushed out during his testimony.” The trial court further stated that it would provide a limiting instruction “to assist the jurors as to how to evaluate [Dr. Urquiza's] testimony.” The trial court then granted the prosecutor's motion in limine seeking to admit Dr. Urquiza's expert testimony.
The trial court also granted Cortez's motion to have all motions in limine be deemed trial objections to preserve the issues for appeal.
2. Forfeiture
The Attorney General argues that Cortez has forfeited his claims of error pertaining to Dr. Urquiza's testimony because his motion in limine sought to exclude “CSAAS evidence, ” but the prosecutor made it clear that Dr. Urquiza would not be testifying about CSAAS and Dr. Urquiza never referenced CSAAS during his testimony. Cortez argues that his motion in limine was specific enough to preserve his appellate claims. As we explain, we agree with Cortez and conclude that his motion in limine preserved his appellate arguments with the exception of his claim that Dr. Urquiza's testimony was too case specific.
Under Evidence Code section 353, subdivision (a), “[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” “The purpose of this rule ‘is to encourage a defendant to bring any errors to the trial court's attention so the court may correct or avoid the errors and provide the defendant with a fair trial.' ” (People v. Carrillo (2004) 119 Cal.App.4th 94, 101.) Accordingly, an objection is sufficient so long as it “fairly apprises the trial court of the issue it is being called upon to decide.” (People v. Scott (1978) 21 Cal.3d 284, 290 (Scott).) “A properly directed motion in limine may satisfy the requirements of Evidence Code section 353 and preserve objections for appeal. [Citation.] However, the proponent must secure an express ruling from the court.” (People v. Ramos (1997) 15 Cal.4th 1133, 1171 (Ramos).)
On appeal, Cortez primarily raises four challenges to the trial court's admission of Dr. Urquiza's testimony: (1) Dr. Urquiza's testimony failed to meet the Kelly/Frye test; (2) the evidence was irrelevant to any material issue, and the prosecutor did not show that the jurors held misconceptions about child sexual abuse victims, (3) Dr. Urquiza's testimony was too case specific, and (4) admission of the testimony violated due process principles.
In his pretrial motion in limine, Cortez sought “to exclude testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS).” Cortez specifically argued that CSAAS evidence was inadmissible to prove that abuse occurred because it did not meet the requirements of the Kelly/Frye test, CSAAS “may be used only to rebut a defendant's attack on the credibility of the alleged victim based on a specific ‘myth' or ‘misconception' suggested by the evidence, ” CSAAS evidence may easily be misapplied by the jury, and a cautionary jury instruction will not prevent a jury from misapplying CSAAS evidence. Although Cortez's motion in limine referred to CSAAS evidence multiple times, Dr. Urquiza never mentioned the syndrome by name when he testified at trial. In fact, the prosecutor also specifically argued in his motion in limine that Dr. Urquiza would not opine that the victims suffered from a “ ‘child molestation syndrome' or some other syndrome.”
However, despite this apparent disconnect between Cortez's motion and Dr. Urquiza's proffered testimony, the trial court clearly understood that Cortez's motion in limine referred to Dr. Urquiza's expert testimony. The trial court characterized Cortez's motion in limine seeking to exclude CSAAS evidence as a motion “to exclude the testimony about child sexual abuse accommodation syndrome” and denied the motion after stating that it would “allow the testimony of Dr. Urquiza in a limited fashion.” Moreover, we agree with Cortez that Dr. Urquiza's expert testimony on myths and misconceptions about child sexual assault victims is substantively the same as CSAAS evidence. (See People v. Wells (2004) 118 Cal.App.4th 179, 188 [CSAAS testimony “ ‘has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation' ”].) Hence, Cortez's motion seeking to exclude CSAAS evidence “fairly apprise[d] the trial court” that he challenged the admission of Dr. Urquiza's expert testimony. (Scott, supra, 21 Cal.3d at p. 290.)
In this case, Cortez's motion in limine specifically argued that CSAAS evidence-in other words, Dr. Urquiza's testimony-did not satisfy the requirements of the Kelly/Frye test, and he has therefore preserved this argument for appeal. We also conclude that Cortez has preserved his appellate argument that Dr. Urquiza's testimony was irrelevant. In his motion in limine, Cortez specifically argued that the defense would not be raising the issue of the victims' delay in reporting; therefore, there would be “nothing for the CSAAS evidence to rebut.” The substance of Cortez's objection was that the CSAAS evidence would not be relevant to the material issues raised at trial. Accordingly, Cortez's relevancy argument was presented to the trial court in his motion in limine, and he has not forfeited his argument on appeal. (Scott, supra, 21 Cal.3d at p. 290.)
Cortez also argues that Dr. Urquiza's testimony improperly tracked the facts of the case and was case specific. Although Cortez's motion in limine sought to exclude all CSAAS evidence, Cortez did not raise this specific argument. He also did not object when Dr. Urquiza responded to the prosecutor's case specific questions at trial. Thus, we find that he has forfeited this claim by failing to make a specific objection below. (Ramos, supra, 15 Cal.4th at p. 1171.) However, as we explain below, even if we assume that Cortez did not forfeit his appellate arguments pertaining to this claim, we find them to be without merit.
In his motion in limine, Cortez argued that a cautionary jury instruction would not prevent the jury from misapplying CSAAS evidence and further argued that the impropriety of CSAAS evidence is most apparent “ ‘where the expert's testimony applies the CSAAS theory to the facts of the case and concludes that the victim was molested.' ” (Italics added.) Thus, Cortez argued in his motion in limine that CSAAS evidence that is used to prove that a victim was molested would be improper; he did not specifically argue that case specific testimony was by itself inadmissible.
Finally, Cortez argues that the admission of Dr. Urquiza's testimony violated his due process rights. Cortez did not object to Dr. Urquiza's testimony on due process grounds in his motion in limine or when Dr. Urquiza testified. Cortez, however, has not forfeited his argument that the trial court's asserted error in admitting Dr. Urquiza's testimony over the objections that he made in his motion in limine “had the additional legal consequence of violating due process.” (People v. Partida (2005) 37 Cal.4th 428, 435 [defendant who objected to admission of evidence under Evid. Code, § 352 preserved argument that admitting evidence over Evid. Code, § 352 objection had additional consequence of violating due process].) However, “to the extent [Cortez] asserts a different theory for exclusion than he asserted at trial, that assertion is not cognizable.” (Id. at p. 438.)
3. Kelly/Frye Test
First, Cortez argues that the trial court erred when it admitted Dr. Urquiza's testimony because it failed to meet the Kelly/Frye test. We find no merit in Cortez's arguments because Dr. Urquiza's testimony is not the type of evidence that is subject to Kelly/Frye.
“ ‘Under the Kelly/Frye test, when expert testimony based on a new scientific technique is offered, the proponent of the testimony must first establish the reliability of the method and the qualifications of the witness. “Reliability of the evidence is established by showing ‘the procedure has been generally accepted... in the scientific community in which it developed....' ”' ” (People v. Munch (2020) 52 Cal.App.5th 464, 472 (Munch).) “Appellate courts review de novo the determination that a technique is subject to Kelly.” (People v. Jackson (2016) 1 Cal.5th 269, 316.)
Recently, the Second Appellate District concluded in Munch, supra, 52 Cal.App.5th 464 that CSAAS evidence is not subject to the Kelly/Frye test. Munch determined that the CSAAS evidence was not a “new experimental scientific evidence ‘ “not previously accepted in court.”' ” (Id. at p. 472.) CSAAS evidence “has been ruled to be properly admitted by the courts of this state for decades.” (Ibid.; People v. McAlpin (1991) 53 Cal.3d 1289, 1300 1301 (McAlpin).) Furthermore, the nature of CSAAS evidence is the type that meets the “ ‘traditional standards for competent expert opinion, without need for additional screening procedures [under Kelly/Frye]' ” because it is “ ‘based on [the expert's] clinical experience with child sexual abuse victims and on [his or] her familiarity with professional literature in the area.' ” (Munch, supra, at p. 473.) The Munch court also observed “the CSAAS evidence was not being used as scientific proof that a child had, in fact, been abused.” (Ibid.)
Cortez argues that in In re Sara M. (1987) 194 Cal.App.3d 585, the Third Appellate District found that CSAAS evidence must meet the Kelly/Frye test. Sara M. is distinguishable. There, the CSAAS evidence was introduced as evidence that the child victim had been abused. (Sara M., supra, at p. 592.) In this case, the evidence was introduced to dispel myths and misperceptions about child sexual assault victims, not to prove that the victims were abused.
Like the testimony offered in Munch, Dr. Urquiza's testimony was not offered to prove that the victims were molested. In fact, Dr. Urquiza testified that he did not know any details about the current case aside from Cortez's name. He also testified that there was no process, aside from a criminal trial, to determine whether a child has been abused. As the Munch court noted, CSAAS has been properly admitted in courts for many years. (Munch, supra, 52 Cal.App.5th at p. 472.) Moreover, Dr. Urquiza's testimony was not new experimental scientific evidence; it was based on his experiences with child sexual assault victims and his professional knowledge of the published literature in the subject area of child sexual assault. (Id. at p. 473.)
Therefore, Dr. Urquiza's testimony was not subject to the Kelly/Frye test.
Cortez argues that recent authority casts doubt on whether CSAAS testimony passes the Kelly/Frye test for purposes other than explaining delayed reporting where there is no rational explanation for the delay. Cortez cites to several out of state decisions including State v. J.L.G. (2018) 234 N.J. 265 and King v. Commonwealth (Ky. 2015) 472 S.W.3d 523. Munch considered J.L.G. and noted that the decision relied in part on a scholarly article that has since been challenged. (Munch, supra, 52 Cal.App.5th at pp. 470 471.) Moreover, King is a Kentucky decision, and, as the Munch court observed, Kentucky “falls within the tiny minority of jurisdictions that do not recognize CSAAS.” (Munch, supra, at p. 472.)
4. Admissibility of CSAAS Evidence
Cortez argues that Dr. Urquiza's testimony was not relevant to a disputed material issue at trial. He also argues that the evidence should have been excluded because jurors no longer hold myths or misconceptions about child sexual assault victims. We disagree and determine that the trial court did not err in admitting the testimony because the credibility of the victims was placed at issue.
i. General Legal Principles and Standard of Review
CSAAS “evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested.” (People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker).) The California Supreme Court has held that similar evidence is admissible for this purpose. (People v. Humphrey (1996) 13 Cal.4th 1073, 1088 [evidence of battered women's syndrome]; McAlpin, supra, 53 Cal.3d at pp. 1300 1301 [evidence about parental reluctance to report child molestation].)
Expert testimony is admissible if it is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) “ ‘The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.' ” (People v. Brown (2014) 59 Cal.4th 86, 101.)
Nonetheless, only relevant evidence is admissible. (Evid. Code, § 350.) “ ‘Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.) “The trial court has broad discretion to determine the relevance of evidence [citation], and we will not disturb the court's exercise of that discretion unless it acted in an arbitrary, capricious or patently absurd manner.” (People v. Jones (2013) 57 Cal.4th 899, 947.) However, we apply a de novo standard of review to the extent that Cortez argues that CSAAS evidence is inadmissible for all purposes. (See People v. Gonzales (2018) 6 Cal.5th 44, 49 [questions of law are reviewed de novo].)
ii. Relevance
First, Cortez argues that Dr. Urquiza's testimony was irrelevant to the facts of the case because of the myths and misconceptions that he addressed were inapplicable. Cortez further argues that defense counsel represented prior to trial that she would not be arguing that the victims' delay in disclosure bore on their credibility, and defense counsel followed through with her representation and “embraced a theme of confusion” in her closing argument.
Defense counsel argued in her motion in limine that the CSAAS evidence should be excluded because “[t]he defense in this case will not be raising the issue of the witness's delay in reporting.”
Despite embracing a theme of confusion, the substance of defense counsel's argument was that the victims' anomalous behaviors bore on their credibility. During closing argument, defense counsel argued, “The thing that was confusing about [J.D.2's] statements was, number one, she never reported ever [sic] despite the fact that these incidents stopped two years prior. So it would be three years from this month. So for years it had not been going on. She also told you, strangely enough, that she witnessed what she believed was an incident between Mr. Cortez and her younger sister [J.D.1]. She did nothing.” Moving on to J.D.1, defense counsel argued, “[J.D.1] didn't remember a lot of things and that was a little bit confusing because, as just regular people, we would think you might remember some of these things.” Defense counsel also argued, “It was interesting and confusing on why the [victims] didn't speak with each other” despite frequently being together in the same house. In essence, defense counsel suggested to the jury that the victims should not be believed because J.D.2 delayed disclosure, J.D.1 could not recall certain details, and none of the victims spoke to each other about the abuse.
Accordingly, Dr. Urquiza's testimony was relevant to the case because the credibility of the victims was placed at issue. It is established that CSAAS evidence is admissible to show “that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested.” (Bowker, supra, 203 Cal.App.3d at p. 394.) Although the prosecutor did not specifically identify specific myths or misconceptions that were to be disabused by Dr. Urquiza's expert opinion, “[i]dentifying a ‘myth' or ‘misconception' has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim's credibility is placed in issue due to paradoxical behavior, including a delay in reporting a molestation.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744 1745 (Patino).)
Cortez argues that Dr. Urquiza's testimony was irrelevant because there was no evidence that jurors held relevant misconceptions about child sexual assault victims, and jurors or the public at large no longer hold the misconceptions that CSAAS purports to address.
Expert opinion testimony, however, is admissible if it is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) Although the subjects that CSAAS evidence addresses may be more familiar to the public than it was in the past and some jurors may have some knowledge about child sexual abuse, “[m]ost jurors, fortunately, have been spared the experience of being the parent of a sexually molested child.” (McAlpin, supra, 53 Cal.3d at p. 1302.) “ ‘[T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission.... [E]ven if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would “assist” the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when “the subject of inquiry is one of such common knowledge that men [or women] of ordinary education could reach a conclusion as intelligently as the witness.”' ” (Id. at pp. 1299 1300.) Dr. Urquiza had extensive experience with child sexual assault victims, and the trial court did not abuse its discretion when it concluded that Dr. Urquiza's expert testimony could assist the jury.
We are also not persuaded by Cortez's reliance on cases from other jurisdictions that have found CSAAS evidence to be inadmissible. For example, Cortez relies on Commonwealth v. Dunkle (1992) 529 Pa. 168, which concluded that there was no “clear need for an expert to explain [behaviors exhibited by sexually abused children] to a jury” because those types of behaviors, such as omitting horrid details of incidents, are “well within the common knowledge of jurors.” (Id. at p. 184.) However, after Dunkle was decided, the Pennsylvania Legislature enacted a statute that expressly permitted this kind of expert testimony. (42 Pa. C.S. § 5920, subd. (b)(2).) Dunkle is also against the weight of California authority, including this court's decision in People v. Perez (2010) 182 Cal.App.4th 231, that finds CSAAS evidence admissible. (E.g., Patino, supra, 26 Cal.App.4th at pp. 1744 1745; People v. Housley (1992) 6 Cal.App.4th 947, 955 956 (Housley).)
Likewise, we are not convinced by Cortez's argument that California courts have become more discriminating about the need for an expert to disabuse a jury of myths or misperceptions about child sexual assault victims. Cortez relies on People v. Robbie (2001) 92 Cal.App.4th 1075, where the prosecutor questioned an expert witness with hypothetical questions that tracked the defendant's conduct, and the expert testified that such behaviors were “typical of a particular kind of criminal.” (Id. at p. 1084.) Robbie concerned the improper admission of evidence that profiled a defendant, not evidence that disabused myths or misperceptions related to a victim's behavior. (Ibid.) Cortez also relies on People v. Sandoval (2008) 164 Cal.App.4th 994, where the trial court excluded testimony on marital relations and sex, including “make up sex, ” after concluding that the concept of “make up” sex was within the common knowledge and experience of jurors. (Id. at pp. 1002 1003.) The Sandoval court distinguished the proffered expert testimony from CSAAS evidence, noting that the expert testimony on “make up” sex was not admitted to rehabilitate the complaining witness, the evidence did not relate to behavior of the victim that was inconsistent with the crime, and the defense failed to identify a myth or misperception held by the jury that needed to be addressed. (Id. at p. 1002.)
In sum, we find no merit in Cortez's claim that Dr. Urquiza's testimony was irrelevant and should have been excluded.
Citing People v. Julian (2019) 34 Cal.App.5th 878 and People v. Wilson (2019) 33 Cal.App.5th 559, Cortez also argues that courts have begun to restrict the scope of Dr. Urquiza's expert testimony. Julian and Wilson, however, concerned the admission of Dr. Urquiza's testimony about the statistical rate of false allegations of child sexual assault. (Julian, supra, at p. 885; Wilson, supra at p. 568.) Cortez himself acknowledges that such evidence was not introduced in this case.
iii. Case Specific Questions
Next, Cortez argues that the trial court improperly admitted Dr. Urquiza's response to case specific questions that were posed by the prosecutor. For example, Cortez points out that the prosecutor asked Dr. Urquiza about why a child may be afraid and not report abuse and whether it would be unusual if an older sibling did not try to prevent a younger sibling from getting abused. We previously found this claim forfeited. However, even if we assume that the claim was preserved, we find that no error occurred.
We acknowledge that the prosecutor asked Dr. Urquiza questions that tracked the facts of the case, and “the better practice is to... avoid testimony which recites either the facts of the case at trial or obviously similar facts.” (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1384 (Gilbert).) Testimony that recites the facts of the case or obviously similar facts may render it more likely that the jury will use the evidence for an improper purpose-“to prove that the victim was in fact abused....” (Id. at p. 1383.)
In this case, no evidentiary error occurred. Dr. Urquiza's answers to the prosecutor's questions were properly limited to his “observations concerning the behavior of abused children as a class.” (Gilbert, supra, 5 Cal.App.4th at p. 1384.) His testimony did not suggest that the victims fit “ ‘certain defined characteristics which are generally exhibited by abused children.' ” (Id. at p. 1383.) Moreover, Dr. Urquiza testified that the only thing that he knew about this case was Cortez's name, he had not read any of the police reports associated with the case, and he did not know any of the specific factual allegations that were involved. (See Housley, supra, 6 Cal.App.4th at pp. 955 956 [finding it “unlikely the jury would interpret [the expert's] statements as a testimonial to [the victim's] credibility” because the expert testified he had not met the victim and did not know the facts of the case].) Dr. Urquiza also testified that there was no research or process, aside from a criminal trial, that could determine whether a child has been abused.
Based on the substance of Dr. Urquiza's testimony, we conclude that the jury would not have improperly implied that he had diagnosed the victims as suffering from abuse or that he believed that the victims had in fact been abused. Accordingly, we find that the trial court did not abuse its discretion in admitting this testimony.
iv. Due Process
Finally, Cortez argues that admission of Dr. Urquiza's testimony violated his federal and state constitutional right to due process. He argues that the trial court only provided the generic expert witness instruction, CALCRIM No. 332, and did not further instruct the jury on how to use Dr. Urquiza's testimony. We find no violation of Cortez's due process rights.
“The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair.” (People v. Falsetta (1999) 21 Cal.4th 903, 913.) Although the trial court did not specifically instruct the jury on how to use Dr. Urquiza's testimony, his testimony was within the parameters of admissible evidence. Dr. Urquiza testified about misperceptions about child sexual assault victims, his testimony was limited to discussing child sexual assault victims as a class, and he testified that he was not familiar with the facts of the case or the victims. (See Bowker, supra, 203 Cal.App.3d at p. 394 [CSAAS evidence admissible solely to show “victim's reactions as demonstrated by the evidence are not inconsistent with having been molested”]; Gilbert, supra, 5 Cal.App.4th at p. 1384 [CSAAS should be limited to “observations concerning the behavior of abused children as a class”].) Because Dr. Urquiza did not impermissibly testify that the victims' allegations were true or that the victims were sexually assaulted, we do not agree with Cortez's assertion that absent a limiting instruction, the jury “could only have been tempted to use [Dr. Urquiza's] testimony as a predictive tool.”
Accordingly, the admission of Dr. Urquiza's testimony did not render Cortez's trial fundamentally unfair in violation of due process principles. (See Patino, supra, 26 Cal.App.4th at p. 1747 [admission of CSAAS evidence does not render trial fundamentally unfair]; see also Estelle v. McGuire (1991) 502 U.S. 62, 69 70 [admission of evidence of battered child syndrome does not violate due process clause of the Fourteenth Amendment].)
Moreover, even if the claim is not forfeited, we would reject it on the merits. Under Evidence Code section 352, evidence should be excluded if its “probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice.” (Id., subd. (b).) We have concluded that Dr. Urquiza's testimony was probative. Furthermore, we have also concluded that admission of the evidence was not unduly prejudicial absent a limiting instruction because Dr. Urquiza's testimony was limited to sexual assault victims as a class, he testified that he did not know anything about the case, and he testified that there was no process to determine if a person was a victim of sexual assault aside from a trial. Thus, it would not have been an abuse of discretion to admit the evidence under Evidence Code section 352. (People v. Kipp (2001) 26 Cal.4th 1100, 1121 [applying abuse of discretion standard of review to trial court's ruling under Evid. Code, § 352].) In his opening brief, Cortez argues that “[t]he expert testimony was more prejudicial than it was probative and also violated [Cortez's] right to due process.” The Attorney General characterizes this argument as a separate claim under Evidence Code section 352. Cortez, however, does not cite to Evidence Code section 352 in his argument and does not argue that the trial court abused its discretion under Evidence Code section 352. Thus, to the extent Cortez's argument is distinct from his claim that admission of the evidence violated his due process rights, we find that it is forfeited. (See Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1084, fn. 16 [failure to support point with reasoned argument forfeits it on appeal].)
B. Failure to Instruct Jury on Use of Dr. Urquiza's Testimony
Cortez argues that the trial court erred when it failed to instruct the jury on the limited purpose for which it could use Dr. Urquiza's expert testimony. The Attorney General argues that the trial court did not have a sua sponte duty to instruct the jury on how to use Dr. Urquiza's testimony, and even if the trial court erred, any error was harmless. We conclude that even if we assume that the trial court erred, Cortez cannot demonstrate prejudice.
1. Background
At the hearing on the motions in limine, the trial court granted the prosecutor's motion to admit Dr. Urquiza's testimony. When doing so, the trial court stated that it would provide a limiting instruction “to assist the jurors as to how to evaluate [Dr. Urquiza's] testimony.”
Later, the jury was instructed with CALCRIM No. 332, the generic instruction on expert witnesses. CALCRIM No. 332 states: “Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. [¶] You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
The trial court, however, did not provide specific instructions to the jury on how to use Dr. Urquiza's expert testimony.
2. General Legal Principles and Standard of Review
“When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Evid. Code, § 355, italics added.) Generally, “although a court should give a limiting instruction on request, it has no sua sponte duty to give one.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.) Failure to request a limiting instruction typically forfeits the issue on appeal. (People v. Sánchez (2016) 63 Cal.4th 411, 460.) “We review independently the question of whether the trial court has a duty to give a particular jury instruction.” (People v. Mateo (2016) 243 Cal.App.4th 1063, 1071 (Mateo).)
The Courts of Appeal are divided on whether a trial court is required to sua sponte give a limiting instruction when expert testimony on CSAAS is introduced at trial. In Housley, supra, 6 Cal.App.4th 947, the First Appellate District held “that because of the potential for misuse of CSAAS evidence, and the potential for great prejudice to the defendant in the event such evidence is misused, it is appropriate to impose upon the courts a duty to render a sua sponte instruction limiting the use of such evidence. Accordingly, in all cases in which an expert is called to testify regarding CSAAS we hold the jury must sua sponte be instructed that (1) such evidence is admissible solely for the purpose of showing the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested; and (2) the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true.” (Id. at pp. 958 959.)
However, in Mateo, supra, 243 Cal.App.4th 1063, the Second Appellate District rejected Housley's holding that a limiting instruction is required whenever there is expert testimony on CSAAS and concluded that “[t]he [limiting] instruction need only be given if requested.” (Mateo, supra, at p. 1074.)
3. Prejudice
Assuming without deciding that the trial court erred in failing to sua sponte instruct the jury on the limited use of Dr. Urquiza's testimony, we find that any error was harmless under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Mateo, supra, 243 Cal.App.4th at p. 1074 [applying Watson standard of harmless error to trial court's failure to provide limiting instruction on CSAAS evidence].) Cortez cannot establish that had a limiting instruction been given to the jury, it is reasonably probable that he would have received a more favorable verdict. (Ibid.; Watson, supra, at p. 836.)
As we previously observed, Dr. Urquiza's testimony concerned child sexual assault victims as a class, he made it clear in his testimony that he had no knowledge about the facts of the case, and he stated that there was no process that could determine whether a child was sexually abused aside from a criminal trial. Therefore, it was unlikely that the jury would misapply the evidence and use it as evidence that the victims were abused. (Housley, supra, 6 Cal.App.4th at pp. 955 956.)
Furthermore, the evidence against Cortez was relatively strong. There were three victims, and the victims all described similar incidents of sexual assault committed by Cortez in A.R.'s house that commenced when the victims were of similar age-both J.D.1 and J.D.2 testified the abuse started when she was in third or fourth grade, and J.D.3 was eight years old at the time of trial. There was no evidence that the victims had a motive to lie about the abuse. J.D.2's testimony about receiving text messages from Cortez was corroborated by R.V.'s testimony that she saw messages from Cortez on J.D.2's phone. J.D.2 and J.D.3 both testified that Cortez offered them money after doing something inappropriate. Furthermore, J.D.3's SART examination found injuries in her anal area that were consistent with penetration, and the SART examination corroborated J.D.3's testimony that Cortez “put his private part inside [J.D.3's] butt” when she was inside A.R.'s garage.
Additionally, the prosecutor did not urge the jury to consider Dr. Urquiza's testimony for an improper purpose during closing argument. During closing argument, the prosecutor referenced Dr. Urquiza's testimony but cited it as evidence that could explain why the evidence was not inconsistent with abuse. The prosecutor argued that Dr. Urquiza's testimony “touched on” the fact that a child that has been molested multiple times will not remember every single molestation. The prosecutor further argued that he did not have Dr. Urquiza testify “to prove something, to prove that these kids are or are not victims, ” and Dr. Urquiza's testimony was there “to help [the jury] understand that some of the red flags highlighted by the Defense aren't really red flags.” In other words, the prosecutor appropriately urged the jury to use Dr. Urquiza's testimony “for the purpose of showing that the [victims'] reactions as demonstrated by the evidence are not inconsistent with having been molested.” (Bowker, supra, 203 Cal.App.3d at p. 394.)
Accordingly, we conclude that Cortez was not prejudiced by any error due to the trial court's failure to instruct the jury on how to use Dr. Urquiza's testimony. (Mateo, supra, 243 Cal.App.4th at p. 1074; Watson, supra, 46 Cal.2d at p. 836.)
C. Cumulative Prejudice
Cortez argues that the cumulative prejudice arising from the trial court's erroneous admission of Dr. Urquiza's testimony and failure to provide a limiting instruction on how to use Dr. Urquiza's testimony warrants reversal of his convictions. The California Supreme Court has stated that “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. Hill (1998) 17 Cal.4th 800, 844.) In this case, we assumed that even if the trial court erred when it failed to sua sponte give a limiting instruction on Dr. Urquiza's expert testimony, any error was harmless. We rejected Cortez's claim that the trial court erred when it admitted Dr. Urquiza's testimony. Thus, in the absence of more than one error, Cortez's claim of cumulative prejudice fails.
In a separate petition for habeas corpus, Cortez raises a claim of ineffective assistance of counsel arising from defense counsel's failure to object to the two SART examiners' opinions. Cortez asks that this court also consider any prejudice from that error in considering his claim of cumulative prejudice on direct appeal. This argument is more properly raised in Cortez's habeas petition, which considers matters outside the appellate record and raises an argument that he did not raise on appeal. (See In re Reno (2012) 55 Cal.4th 428, 483 [“if a [habeas] petitioner has a previously unraised claim based on newly discovered evidence that was not reasonably discoverable at the time of trial (or even the first habeas corpus petition), the cumulative prejudice flowing from that single error, when combined with the prejudice from other errors already raised and rejected on appeal for lack of individual prejudice, could rise to a level at which a court could conclude the petitioner was denied a fair trial, even if no single error required reversal”].)
D. The Administrative Fees
Cortez argues that the administrative fees imposed under sections 1463.07 and 1205, subdivision (d), which total $80, are unauthorized and should be stricken. The Attorney General concedes that the fee imposed under section 1463.07 should be stricken but argues that the fee imposed under section 1205, subdivision (d) was actually imposed under section 1205, subdivision (e) and should be reduced, not stricken. We agree with the Attorney General.
1. Background
At sentencing, the trial court imposed a $1, 310 fine under section 290.3, which included a $300 base fine. The trial court did not specify the amount of and the statutory basis for the penalty assessments during the sentencing hearing. The abstract of judgment states that Cortez is ordered to “[p]ay a fine of $1, 310.00 per PC290.3” and does not contain a breakdown of the associated penalty assessments and administrative fees. According to the probation report, the $1, 310 fine was broken down into a base fine of $300 under section 290.3 and various penalty assessments and administrative fees, including a $25 fee under section 1463.07 and a $55 fee “per 1205(d).” Cortez did not object to the imposition of the fines and fees below.
2. Analysis
Preliminarily, we observe that the abstract of judgment states that Cortez is ordered to “[p]ay a fine of $1, 310.00 per PC290.3” and does not contain a breakdown of the associated penalty assessments and administrative fees.
“Although... a detailed recitation of all the fees, fines, and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment.” (People v. High (2004) 119 Cal.App.4th 1192, 1200.) However, “in cases where the amounts and statutory bases for the penalty assessments have been set forth in a probation report, a sentencing memorandum, or some other writing, the court could state the amount and statutory basis for the base fine and make a shorthand reference in its oral pronouncement to ‘penalty assessments as set forth in the' probation report, memorandum, or writing....” (People v. Hamed (2013) 221 Cal.App.4th 928, 939 940.)
In this case, the trial court did not orally state that it was incorporating the penalty assessments described in the probation report, but the parties rely on the detailed list of fines and fees set forth in the probation report. Moreover, the trial court signed and acknowledged that it had read and considered the probation report. Thus, we find that it is appropriate to modify the abstract of judgment to reference the fines and fees that are listed in the probation report, including the breakdown of fines, penalty assessments, and administrative fees.
In his opening brief, Cortez states that the abstract of judgment did not contain a breakdown of the $1, 310 fine imposed under section 290.3, “[b]ut the probation report, however, did” provide a breakdown of the fine and its associated penalty assessments and administrative fees. According to the probation report, there was a $300 base fine under section 290.3 and the following penalty assessments and administrative fees: “(Penalty assessments total $930.00 and include: (1) $300.00 per PC 1464(a)(1); (2) $210.00 per GC 76000(a)(1); (3) $60.00 per PC 1465.7; (4) $150.00 per GC 70372[]; (5) $60.00 per GC 76000.5; (6) $30.00 per GC 76104.6(a)(1)[]; and (7) $120.00 per GC 76104.7[]. Administrative fees total $80.00 and include (1) $25.00 per PC 1463.07; and (2) $55.00 per 1205(d)[.])”
Next, we address Cortez's challenge to the $25 fee imposed under section 1463.07. The Attorney General concedes that the fee should be stricken because it applies only to a person who is “arrested and released on his or her own recognizance upon conviction of any criminal offense related to the arrest other than an infraction” (§ 1463.07), and the record does not reflect that Cortez was ever arrested and released on his own recognizance. Although Cortez did not object to this fee below, the imposition of the fee was an unauthorized sentence and we order the $25 fee stricken. (People v. Soto (2016) 245 Cal.App.4th 1219, 1229 1231 (Soto).)
Finally, Cortez argues that the trial court erroneously imposed a $55 fee under section 1205, subdivision (d). Cortez argues that section 1205, subdivision (d) does not set forth a fee, and if the trial court meant to impose the fine described under section 1205, subdivision (e), the maximum fine is $30 because there is no indication that Cortez was paying his fines by installment accounts. The Attorney General argues that the trial court intended to impose a fee under section 1205, subdivision (e) and concedes that the fee should be reduced to $30.
Section 1205 “applies to any violation of any of the codes or statutes of this state punishable by a fine or by a fine and imprisonment.” (§ 1205, subd. (c).) In this case, Cortez's conviction for violating section 288, subdivision (a) is punishable by a fine and imprisonment. (§ 288, subds. (a), (e)(1).) Thus, a fee under section 1205 applies to Cortez's case. Section 1205, subdivision (d) does not set forth a fee, but section 1205, subdivision (e) does. Accordingly, it appears that the probation report's reference to section 1205, subdivision (d) was a clerical error, and the fee should have been imposed under section 1205, subdivision (e). We therefore modify the judgment to reflect that the fee was imposed under section 1205, subdivision (e), not subdivision (d). (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [clerical errors can be corrected at any time].)
We also determine that the $55 fee must be reduced to $30. Section 1205, subdivision (e) provides that “[t]he defendant shall pay to the clerk of the court or the collecting agency a fee for the processing of installment accounts.” Section 1205, subdivision (e) does not contain a limitation on the fee that may be imposed on installment accounts. Section 1205, subdivision (e), however, also states that “[t]he defendant shall pay to the clerk of the court or the collecting agency the fee established for the processing of the accounts receivable that are not to be paid in installments. The fee... shall not exceed thirty dollars ($30).” Here, there is nothing in the record to reflect that the trial court ordered Cortez to pay his fines and fees in installments. Therefore, imposition of a fee above $30 under section 1205 was an unauthorized sentence, and we will reduce the fee imposed under section 1205 to $30. (Soto, supra, 245 Cal.App.4th at pp. 1233 1234.)
III. Disposition
The clerk of the superior court is directed to modify the abstract of judgment to reflect the amount of and statutory basis of the fines, fees, penalty assessments, and administrative assessments listed in the probation report, to strike the $25 fee imposed under Penal Code section 1463.07, to reduce the $55 fee imposed under Penal Code section 1205, subdivision (d) to $30, and to modify the fee imposed under Penal Code section 1205, subdivision (d) to reflect that it is imposed under Penal Code section 1205, subdivision (e). The clerk of the superior court is further directed to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
WE CONCUR: ELIA, ACTING P.J.DANNER, J.