Opinion
G060202
08-30-2021
THE PEOPLE, Plaintiff and Respondent, v. CARLOS HUMBERTO CORTEZ, Defendant and Appellant.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano and Melissa A. Meth, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Santa Clara County, No. C1758063 Kenneth Paul Barnum, Judge. Affirmed.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano and Melissa A. Meth, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
A jury convicted appellant Carlos Humberto Cortez of one count of oral copulation of a child 10 years old or younger (count 1), and two counts of a lewd act on a child under 14 (counts 2 and 3). (Pen. Code, §§ 288.7, subd. (b); 288, subd. (a).) He was acquitted of a third lewd act charge (count 4). The trial court sentenced appellant to a 10 year determinate prison term, plus a consecutive indeterminate term of 15 years to life. Sundry fines and fees were imposed.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends: His conviction on one of the lewd act counts (count 3) was not supported by substantial evidence; the trial court prejudicially erred by allowing expert testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS); and CALCRIM No. 1193, the standard limiting jury instruction when CSAAS-related testimony is introduced, is legally flawed. As to his sentence, appellant contends the trial court prejudicially erred by imposing fines and fees without first conducting a hearing on his ability to pay them. Finally, appellant requests we independently review the complaining witness' confidential school records to determine whether the trial court erred by denying their release and, if so, remand the matter for a hearing to determine whether a new trial is warranted.
We reject appellant's three substantive contentions, as well as his ancillary challenge to the fines and fees imposed as part of his sentence. There are no school records in the appellate record, nor is there anything to indicate they were preserved in the trial court; in other words, there is nothing we can review. The judgment is therefore affirmed.
FACTS
We need not lay out the underlying facts in exhaustive detail. Additional facts relevant to the specific issues appellant raises are developed more fully in the discussion below. In all instances, the facts are presented in the light most favorable to the jury's verdicts. (People v. Abilez (2007) 41 Cal.4th 472, 504.)
During 2009 and 2010, appellant lived in an apartment with Maria M. and her three children, one of whom was her daughter K.D., who was born in November 2000. During the summer of 2010, there was a baby shower and pool party for a neighbor in the apartment complex. Appellant did not attend the party, and stayed in the apartment. During the party, K.D. and two of her younger cousins went back to the apartment to change into their bathing suits. The cousins returned to the pool while K.D. was still changing.
K.D. was 18 when she testified at trial in January 2019.
Appellant called K.D. into the kitchen. He asked her to sit on the table and she did. She was wearing a two-piece bathing suit. Appellant pulled down her bathing suit bottoms and knelt down in front of her. With his head between her legs, he licked the “surface” of her vagina. She said it was the area just above where “the crack begins.” Although she did not have pubic hair at the time of the incident, she said it was the same area where her pubic hair would later grow.
Appellant licked K.D. all around that area, “down to where the crack starts.” He asked her what she felt, but she just felt his tongue. At some point, he stopped, and she pulled her bottoms back up and returned to the party. She did not tell anyone what had happened.
Appellant touched K.D. sexually on other occasions as well. K.D. shared a bedroom with her brothers. Her older brother slept in one bed, with K.D. and her younger brother in the other. However, if her older brother spent the night elsewhere, she would sleep alone in his bed. She said there were several times when she was asleep in her brother's bed that she would wake up and feel her pajama bottoms being taken off, and appellant's tongue on her vagina.
K.D. could not recall many of the details of these incidents. She said she also sometimes had nightmares about appellant, and when she woke up, she would not be sure if anything really happened. However, she insisted she knew he actually entered her bedroom and touched her on more than one occasion.
K.D. specifically remembered the last time appellant touched her sexually, again while she was alone in her brother's bed. Early one morning, she awoke to appellant touching her breasts while he was kneeling next to the bed. She was clothed, but his hands were under her shirt and touching her nipples.
K.D. said she “just had enough of what had been going on, ” and told appellant “to stop and get out of [her] room.” As appellant was leaving, K.D. told him she was going to tell her mother. He told her to shut up, and left the room. K.D. got up, put a chair under the doorknob to prevent him from coming back in, and went back to sleep.
Later that morning, K.D. heard her mother trying to get into the room. She had taken appellant to the bus stop around 5:30 a.m., and when she returned to the apartment, she went to check on the children. The door was blocked, so she knocked. K.D. opened the door and told her mother appellant had entered her bedroom that morning and begun touching her breasts. K.D. was crying and told her mother it had happened four or more times before. K.D. told her she had not said anything earlier because appellant had told her he was not doing anything wrong.
In her testimony, K.D. also said she had not told her mother earlier because she was embarrassed, and did not want to ruin her mother's relationship with appellant. After telling her mother, she said she did not talk about it again until years later when she told her therapist. “It was something I wouldn't talk about.... [W]hen I had told [her mother] I decided, like, I don't want anyone to know, so I am just going to try to forget it, like, get it out of my memory.”
On cross-examination, K.D. admitted that at first she did not tell her cousins, her aunt, her brother, or her mother what she said had happened. She also could not remember exactly what she or appellant were wearing during the final incident, or other collateral details about the other nighttime incidents.
Maria M. testified K.D. did not want anyone to know about the abuse, so she too did not tell the police. She ended her relationship with appellant, and moved out of the apartment a few days later. Maria M. said that before K.D.'s disclosure, appellant had told her that in a prior relationship, he had been accused of an incident similar to what K.D. later described. He told Maria M. he went to jail for three to four months but then was found “innocent.” She said she had believed him, and let him move in before she really got to know him.
After K.D. told her mother about the abuse, K.D. changed. Maria M. said K.D. acted frightened, never wanted to be alone, and would cry during school. K.D. testified she was depressed and had suicidal thoughts during this time. When K.D. got to high school, the school recommended Maria M. take her to a counselor.
In June 2016, K.D. began seeing a therapist, Maria Guzman. At their first session, Guzman asked K.D. about her background and if she had experienced any trauma. K.D. told Guzman she had been molested by her mother's ex-boyfriend multiple times when she was 9 or 10. Guzman said K.D. was very emotional and crying when she discussed it, and she cried about it on multiple subsequent occasions. Guzman reported the abuse to the Department of Child and Family Services, who then reported it to the police. In July 2016, K.D. was interviewed by a police officer, and said she was now willing to discuss the abuse because she was older now and wanted to go through with the process to get “justice.”
Dr. Blake Carmichael testified as an expert about CSAAS. He explained CSAAS is a term used to help describe and explain some of the myths and misperceptions regarding how children react to and report sexual abuse. He emphasized it is not a diagnostic tool to determine whether a child was in fact abused. There are five kinds of characteristic aspects to CSAAS: secrecy; helplessness; entrapment or accommodation; delayed, conflicted, or unconvincing disclosure; and retraction or recantation. He explained how these characteristics often manifested, and how abused children frequently behaved counter-intuitively to what the average layperson might expect. Carmichael said he was not familiar with the facts of K.D.'s case, and had not spoken to any of the involved parties or witnesses.
Pursuant to Evidence Code section 1108, the prosecutor introduced evidence of a child annoyance case from 2008. Appellant was living with a woman with several children, including her 14-year-old daughter, J.D. J.D. was almost 15 and had talked to her mother about wanting a car, which appellant overheard. One night, J.D. was in the kitchen washing dishes while her mother was out. Appellant walked up close to her and told her he would get her a car if she had sex with him. J.D. was uncomfortable and afraid of what appellant might do since her mother was not home, so she told appellant she would think about it. She saw him again later that night and he asked her again to think about it. J.D. told a neighbor about appellant's proposition, and at her neighbor's urging, J.D. told her mother and later that night they called the police. Appellant was subsequently tried and acquitted of charges arising from this incident.
In the defense case, appellant called a character witness. In about 2013, appellant rented a room from Graciela A. and lived there until he was arrested in this case. She was a single parent with 21- and 4-year-old daughters. She said she never saw appellant act inappropriately toward her daughters, and did not believe appellant was the type of person who would engage in sexual acts with children.
Appellant also testified. He denied ever touching K.D. He worked long hours and the children were asleep when he left for work in the morning and again by the time he returned home at night. He was never alone with the children, including during the baby shower/pool party. He did not go into the children's bedroom at night and K.D.'s older brother never spent the night away from the apartment. Appellant said he and Maria M. did not break up because of K.D.'s accusations; instead it was because she was in love with someone else. They argued a lot about money and were evicted from the apartment because they stopped paying rent. After they broke up, Maria M. threatened to have him put in jail and to have him deported. Appellant also denied the 2008 incident with J.D. He said J.D., her mother, and a friend testified against him at a trial, but he was acquitted.
DISCUSSION
1. Sufficiency of the Evidence as to Count 3
Appellant's offenses can be described as comprising two bookend offenses - the first pool party incident (count 1) and the last incident when K.D. finally stood up to appellant and told him to stop (count 2) - with count 3 and count 4 (for which appellant was acquitted) lying somewhere in between. The prosecutor explained her theory of the case to the jury similarly: “[K.D.'s] strongest memories are that first time and the last time, and that makes sense, because the first time is the first time it happened. It is the thing that you remember.... [¶] The last time. She remembers that because that's when it ended. She put that chair up [to] the door and she said [enough].” In addition, the nature of the abuse was different in that final incident, because “that is when [appellant] was touching her nipple [and she] is under 14.”
“Counts 3 and 4, that is for all the other times that [appellant] went into that bedroom where she was asleep to molest her.” The prosecutor conceded K.D. did not know “how many times were real and how many times were nightmares, ” but she emphasized that K.D. “knows that it happened more than one time....” She explained K.D. had testified “she would have nightmares so she could never be sure the exact number, which ones are nightmares and which ones were real, but she knows at least one more - at least more than one was real... because she knows she woke up and he was there. She woke up to [appellant] pulling down her pants, and woke up to [appellant's] mouth on her vagina.”
As noted, the jury convicted appellant on count 3, but acquitted him on count 4. The issue is pellucid: the jury found at least one lewd touching occurred between the first and last offenses, and appellant contends there was insufficient evidence to sustain such a finding. We are not persuaded.
A. Standard of Review
“In evaluating a claim regarding the sufficiency of the evidence, we review the record ‘in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]” (People v. Westerfield (2019) 6 Cal.5th 632, 713; Jackson v. Virginia (1979) 443 U.S. 307, 319.) “‘[W]e review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime... beyond a reasonable doubt.'” (People v. Penunuri (2018) 5 Cal.5th 126, 142, quoting People v. Zamudio (2008) 43 Cal.4th 327, 357.) “‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.'” (Ibid.)
“‘We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]” (People v. Covarrubias (2016) 1 Cal.5th 838, 890.) Thus, “[a] reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”' the jury's verdict. [Citation.]” (People v. Zamudio, supra, 43 Cal.4th at p. 357.) Simply put, appellant “bears an enormous burden” to prevail on a sufficiency of the evidence claim. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
B. Analysis
In cases involving repeated instances of child molestation, generic testimony regarding molestations may constitute substantial evidence to sustain a conviction. (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).) “[A]s long as the victim specifies the type of conduct involved, its frequency, and that the conduct occurred during the limitation period, nothing more is required to establish the substantiality of the victim's testimony.” (People v. Matute (2002) 103 Cal.App.4th 1437, 1446.)
Appellant argues K.D.'s testimony was insufficiently detailed to support a conviction on count 3. However, “[a]dditional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction.” (Jones, supra, 51 Cal.3d at p. 316.) This is because “the particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction.” (Id. at p. 315; see People v. Matute, supra, 103 Cal.App.4th at pp. 1443, 1447 [sufficient evidence to support multiple convictions even though victim's testimony lacked specific details of the time and circumstances of each count].)
Here, K.D. specified the “kind of act” (Jones, supra, 51 Cal.3d at p. 316): appellant licking her vagina. She testified to the “number of acts committed with sufficient certainty to support each of the counts” (ibid.): she described “more than one” such acts, any one of which would support the charge alleged in count 3. And she was “able to describe the general time period in which these acts occurred... to assure the acts were committed within the applicable limitation period” (id. at pp. 316, 321): they occurred during the time between the offenses charged in count 1 and count 2. “Nothing more is required to establish the substantiality of the victim's testimony in child molestation cases.” (Id. at p. 316.)
The jury was given a unanimity instruction with regard to counts 3 and 4, telling them in part: “The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense....” (Italics added; see CALCRIM No. 3501.) We presume the jury followed their instructions, and appellant does not suggest otherwise. (See People v. Edwards (2013) 57 Cal.4th 658, 746.)
Had K.D. testified she was unsure whether all of the nighttime molests were instead merely nightmares, appellant's argument would have traction. But she didn't. And although she may not have been sure exactly how many occasions were real, she was adamant it was more than one. Moreover, she also remembered it only happened when her brother was away, and she was sleeping in his bed and not her own. Whether her testimony in this regard was believable goes to the weight it is to be given, which is a matter for the jury and not for us to reweigh on appeal.
“[I]f an information charged two counts of lewd conduct during a particular time period, the child victim testified that such conduct took place three times during that same period, and the jury believed that testimony in toto, its difficulty in differentiating between the various acts should not preclude a conviction of the two counts charged, so long as there is no possibility of jury disagreement regarding the defendant's commission of any of these acts.” (Jones, supra, 51 Cal.3d at p. 321.) So too here. And “although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described.” (Ibid.)
Thus, K.D.'s testimony that, on more than one occasion, she was awakened to find appellant had pulled down her pajama bottoms and was licking her vagina, was sufficient to support a conviction on count 3. (Cf. People v. Tompkins (2010) 185 Cal.App.4th 1253, 1261 [sufficient evidence supported conviction for two counts of digital penetration where minor testified it happened “once, maybe twice” and investigator testified victim previously recalled two to three occasions].)
Appellant testified nothing happened, and defense counsel argued K.D. was either dreaming or she and her mother had invented the whole story as way to get back at appellant. But we are not free to reform a jury's verdict simply because the testimony could support a contrary finding. (People v. Jackson (2016) 1 Cal.5th 269, 345.) “Whether a reasonable trier of fact could reach a different conclusion based upon the same facts does not mean the verdict is not supported by sufficient evidence.” (People v. Mora and Rangel (2018) 5 Cal.5th 442, 490.) Substantial evidence supports the jury's verdict on count 3.
2. CSAAS Evidence and CALCRIM No. 1193
A. Additional Background
The prosecutor brought a pretrial motion to admit expert testimony regarding CSAAS, and in doing so stated such testimony would “not be offered to prove that a sexual assault occurred, and the admonition provided in the jury instructions ([s]ee CALCRIM [No.] 1193/CALJIC [No.] 10.64) will prevent the jury from considering the testimony for any impermissible purpose.” Defense counsel filed a similar motion to exclude CSAAS testimony, on the grounds it was “irrelevant and an inappropriate area for expert testimony.” In the alternative, counsel argued that any relevance CSAAS testimony might have was outweighed by its prejudicial effect and, even if admissible, it should be limited to rebuttal and not allowed in the prosecutor's case-in-chief. At the motion hearing, counsel additionally asked the court to “admonish” the jury, “limit” the CSAAS testimony, and specifically requested a limiting instruction be given. In the end, the trial court ruled CSAAS testimony would be allowed, although strictly limited in scope and substance, and that it would instruct the jury with CALCRIM No. 1193.
Appellant offered his own two-page limiting instruction, which the trial court said “look[ed] like it is a transcript of a judge talking to the jury, ” but the court “chose not to give it.” Appellant's proposed instruction is not part of the record.
The prosecutor called Dr. Carmichael as her CSAAS expert witness. After his qualifications were established, but before his substantive testimony began, the trial court preinstructed the jury with a modified CALCRIM No. 1193: “[Dr. Carmichael'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 [K.D.], the alleged victim of the abuse, whether her conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony.”
B. CSAAS Evidence
Appellant first contends the trial court abused its discretion by allowing any expert testimony regarding CSAAS because such evidence should be inadmissible. Thus, he tells us we “should join the well-reasoned decisions” of a handful of “sister jurisdictions and hold that CSAAS evidence is inadmissible for all purposes.” In People v. Munch (2020) 52 Cal.App.5th 464 (Munch), our colleagues in Division Six of the Second District addressed this same claim, and examined these supposedly “well-reasoned decisions, ” and found it and them less than persuasive. (Id. at pp. 469-472.) We agree with the Munch court, and therefore decline appellant's invitation.
Appellant does not discuss the great majority of jurisdictions in which, like California, CSAAS testimony is admissible when properly limited and juries are instructed accordingly. When appellate counsel advance arguments based on extra-jurisdictional surveys of reported decisions, it behooves them to disclose both favorable and unfavorable decisions. (Cf. People v. Phea (2018) 29 Cal.App.5th 583, 605, fn. 15 [attorneys have an ethical obligation to advise the court of legal authority that is directly contrary to a claim being pressed].)
CSAAS is not new. (See People v. Bowker (1988) 203 Cal.App.3d 385, 389, fn. 3 [dates to at least 1983].) In California, trial courts may admit CSAAS evidence to disabuse jurors of five commonly held “myths” or misconceptions about child sexual abuse. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin).) And while CSAAS evidence is not admissible to prove sexual abuse occurred, it has for decades been admissible for the limited purpose of assisting the fact-finder in evaluating the credibility of an alleged victim of child sexual abuse. (See, e.g., People v. Julian (2019) 34 Cal.App.5th 878, 885; People v. Mateo (2016) 243 Cal.App.4th 1063, 1069; People v. Perez (2010) 182 Cal.App.4th 231, 245; People v. Sandoval (2008) 164 Cal.App.4th 994, 1001-1002; In re S.C. (2006) 138 Cal.App.4th 396, 418; People v. Wells (2004) 118 Cal.App.4th 179, 188; People v. Yovanov (1999) 69 Cal.App.4th 392, 406-407; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745; People v. Housley (1992) 6 Cal.App.4th 947, 955-956; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450; People v. Archer (1989) 215 Cal.App.3d 197, 205, fn. 2; People v. Stark (1989) 213 Cal.App.3d 107, 116; People v. Bowker, supra, 203 Cal.App.3d at pp. 393-394; People v. Gray (1986) 187 Cal.App.3d 213, 217-220; People v. Roscoe (1985) 168 Cal.App.3d 1093, 1097-1100.) No published California decision has held to the contrary.
Thus, although “expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused [, ] it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident - e.g., a delay in reporting - is inconsistent with his or her testimony claiming molestation. [Citations.] ‘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.'... [Citation.]” (McAlpin, supra, 53 Cal.3d at p. 1300-1301, fn. omitted; see Munch, supra, 52 Cal.App.5th at p. 466 [“CSAAS evidence is a valid and necessary component of the prosecution case in matters involving child abuse”].)
In McAlpin, our Supreme Court did not directly address the admissibility of CSAAS expert testimony but discussed it when considering the admissibility of similar evidence - expert testimony regarding the behavior of a molested child's parent. (McAlpin, supra, 53 Cal.3d at pp. 1299-1302.) The McAlpin court relied on the admissibility of CSAAS testimony to explain its conclusion the trial court properly admitted expert testimony on why a parent might not immediately report sexual abuse of his or her child. (Ibid.) In doing so, the Supreme Court cited with approval several Court of Appeal decisions that had upheld the admission of CSAAS expert testimony. (Id. at pp. 1300-1301 & fn. 4.).
Similarly, in People v. Humphrey (1996) 13 Cal.4th 1073 (Humphrey), the Supreme Court analogized to CSAAS evidence in concluding expert testimony regarding battered women's syndrome was relevant and admissible to explain behavior patterns that might otherwise appear unreasonable to the average person, and to disabuse jurors of several commonly held misconceptions. (Id. at p. 1088.) Facing a similar question in People v. Brown (2004) 33 Cal.4th 892, the Supreme Court noted the relevance and admissibility of expert testimony in order to dispel common misconceptions about how an alleged domestic violence victim should behave. In its analysis, the Supreme Court once again relied on Court of Appeal decisions upholding the admissibility of CSAAS expert testimony and McAlpin. (Id. at pp. 905-907.)
Our Supreme Court's discussions in McAlpin, Humphrey, and Brown of the admissibility of CSAAS expert testimony are persuasive dicta. (People v. Wade (1996) 48 Cal.App.4th 460, 467 [“Dicta of our Supreme Court are highly persuasive”]; Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169 [“When the Supreme Court has conducted a thorough analysis of the issues and such analysis reflects compelling logic, its dictum should be followed”].) While appellant relies on a smattering of cases from other jurisdictions that have held CSAAS evidence inadmissible, these cases are neither binding nor persuasive, and they do not convince us to break from established California authority. (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 175.) Indeed, the overwhelming majority of states are in alignment with California, and permit CSAAS expert testimony for some purpose. (See Munch, supra, 52 Cal.App.5th at pp. 469-472 [examining several out of state cases]; id. at p. 472 [concluding “the vast majority of jurisdictions” are consistent with California]; see also King v. Commonwealth (Ky. 2015) 472 S.W.3d 523, 534-535 (dis. opn. of Abramson, J.) [compiling cases and concluding 41 states and several federal circuit courts admit CSAAS expert testimony for some purposes].) Accordingly, we decline to depart from well-settled California law that CSAAS expert testimony is admissible to disabuse jurors of common misconceptions regarding sexually abused children's behavior.
Taking a slightly different tack, but one completely inconsistent with his first argument, appellant also contends the trial court abused its discretion by allowing CSAAS testimony because there is no evidence the jurors had any preconceived ideas about child molest that needed to be dispelled by expert testimony. In other words, he argues it was unneeded in this case because jurors already know how children react to being molested. Thus, he would have us believe CSAAS is so unscientific and unreliable as to be categorically inadmissible while, at the same time, its subject matter is so well-known that jurors do not need expert testimony to assist them in this regard.
In support, appellant again refers us to the “[c]ourts of other jurisdictions and commentators [that] have acknowledged that the public no longer holds the presumed misconceptions CSAAS purports to address, ” although he cites only three court decisions. He also cites the august authority of “hundreds of episodes of Law and Order SVU, which deals with victims of sex offenses, [and which] have made these crimes and the reactions of children to those crimes well known.” Indeed.
Appellant misleadingly cites People v. Robbie (2011) 92 Cal.App.4th 1075 (Robbie), a case involving profile evidence of rapists, which had been admitted to show the defendant was indeed a rapist. Moreover, the Robbie court specifically distinguished McAlpin, noting that the“evidence in McAlpin was not admitted for this improper purpose.” (Id. at p. 1087.) His reference to Commonwealth v. Dunkle (Penn. 1992) 529 Pa. 168, 602 A.2d 830 (Dunkle), superseded by statute as stated in Commonwealth v. Jones (Penn. 2020) 240 A.3d 881, 895, is also flawed because after the case was decided, the Pennsylvania Legislature passed a law specifically “providing for the admissibility of this type of expert testimony.” (Commonwealth v. Olivo (Penn. 2015) 633 Pa. 617, 127 A.3d 769, 780.) In other words, Dunkle is no longer the law in that state. Finally, appellant cites State v. J.L.G. (2018) 234 N.J. 265, 190 A.3d 442, a roundly-criticized case the Munch court found “involve[d] an aberrant view of CSAAS.” (Munch, supra, 52 Cal.App.5th at p. 470.) Suffice it to say we are not persuaded by this “authority.”
First, appellant did not raise this challenge in the trial court, so the claim is forfeited. (Evid. Code, § 353; People v. Edwards, supra, 57 Cal.4th at p. 709.) Had appellant wanted to argue expert testimony was unneeded in this regard, he could have requested an evidentiary hearing at which the prosecution would have been required to present evidence as to the necessity of expert testimony, and defense counsel could have attempted to show otherwise. (See Evid. Code, §§ 402, 403, & 801, subd. (a).) He didn't.
Second, appellant's anecdotal references to some of the responses of the prospective members of the jury during voir dire is not determinative of whether CSAAS is “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).) Moreover, neither is it probative of whether the twelve individuals who ultimately comprised the jury in this case were or were not so enlightened as to have no need for such expert testimony. Rather, it is enough that a juror “might hold” misconceptions “about how a child reacts to a molestation.” (People v. Patino, supra, 26 Cal.App.4th at p. 1744.)
In any event, even assuming the jurors had some idea of how molested children often behave, the admissibility of expert opinion is a question of degree and jurors need not be wholly ignorant of the opinion's subject matter in order to justify its admission. (McAlpin, supra, 53 Cal.3d at p. 1299.) Instead, “‘even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would “assist” the jury [and] will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when “the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness”' [citation].” (Id. at p. 1300, italics added.)
Given the fact CSAAS evidence has been properly offered by expert testimony for over three decades in the great majority of jurisdictions in this country, and in California with the approval of our Supreme Court, we are in no position to declare it is no longer needed. (Munch, supra, 52 Cal.App.5th at p. 466 [it is “a valid and necessary component of the prosecution case in matters involving child abuse”].) And even if general awareness of child sexual abuse has increased over time, we are not persuaded the public's understanding of its intricacies has reached a point where CSAAS evidence cannot possibly assist a jury.
“The trial court has broad discretion in deciding whether to admit or exclude expert testimony..., and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.” (People v. McDowell (2012) 54 Cal.4th 395, 426.) There was no abuse of discretion here.
C. CALCRIM No. 1193
The trial court preinstructed the jury twice regarding CSAAS, once during Dr. Carmichael's testimony, and again before closing arguments began. On the second occasion, the court stated: “You've heard testimony from Dr. Blake Carmichael regarding [CSAAS]. Dr. Carmichael'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 [K.D.'s] conduct was not [in]consistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony.” (See CALCRIM No. 1193.) The jury was also told: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.” (See CALCRIM No. 303.)
Appellant contends the trial court abused its discretion by instructing the jury with CALCRIM No. 1193 because, as worded, the instruction “effectively instructs the jury that CSAAS evidence and the expert testimony may be used to determine whether the victim's claims are true.” Not so.
1. Standard of Review
“A claim of instructional error is reviewed de novo. [Citation.] An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. [Citation.] In reviewing a claim of instructional error, the court must consider whether there is a reasonable likelihood that the trial court's instructions caused the jury to misapply the law in violation of the Constitution. [Citations.] The challenged instruction is viewed ‘in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.' [Citation.]” (People v. Mitchell (2019) 7 Cal.5th 561, 579; People v. Richardson (2008) 43 Cal.4th 959, 1028, abrogated on other grounds by statutory repeal in People v. Nieves (2021) 11 Cal.5th 404, 535 [we examine a challenged instruction in the context of all instructions, and not in “artificial isolation”].) We must assume jurors are intelligent persons, capable of understanding and correlating all the jury instructions which are given. (People v. Covarrubias, supra, 1 Cal.5th at p. 915.) And, as noted, we further presume the jury followed the court's instructions. (People v. Edwards, supra, 57 Cal.4th at p. 746.)
2. Analysis
In People v. Gonzales (2017) 16 Cal.App.5th 494 (Gonzales), the expert witness testified: “CSAAS is not a tool to help diagnose whether a child has actually been abused.... [I]f it is not known whether a child has been abused, CSAAS is not helpful in determining whether a child has, in fact, been abused. The purpose of CSAAS is to understand a child's reactions when they have been abused.” (Id. at pp. 503-504.) And just as here, the Gonzales jury was instructed with CALCRIM No. 1193, limiting the purpose for which the jury could use the expert's testimony. (Id. at p. 503.)
Just as appellant does here, the Gonzales defendant argued “it is impossible to use the CSAAS testimony to evaluate the believability of [the victim's] testimony without using it as proof that [the defendant] committed the charged crimes.” (Gonzales, supra, 16 Cal.App.5th at p. 503.) The court rejected the contention, and concluded the expert's “testimony made it clear CSAAS evidence is not evidence [defendant] did anything... [and] CALCRIM No. 1193 was proper and did not violate due process.” (Id. at p. 504.)
In Munch, supra, 52 Cal.App.5th 464, the same court further explained its holding in Gonzales: “[W]e rejected these [same] contentions in People v. Gonzales [citation]. There we said, ‘The purpose of CSAAS is to understand a child's reactions when they have been abused. [¶] A reasonable juror would understand CALCRIM No. 1193 to mean that the jury can use [the expert's] testimony to conclude that [the child's] behavior does not mean she lied when she said she was abused. The jury also would understand it cannot use [the expert's] testimony to conclude [the child] was, in fact, molested. The CSAAS evidence simply neutralizes the victim's apparently self-impeaching behavior. Thus, under CALCRIM No. 1193, a juror who believes [the expert's] testimony will find both that [the child's] apparently self-impeaching behavior does not affect her believability one way or the other, and that the CSAAS evidence does not show she had been molested. There is no conflict in the instruction.' [Citation.]” (Munch, supra, 52 Cal.App.5th at p. 474; see Gonzales, supra, 16 Cal.App.5th at p. 504 [the instruction “simply neutralizes the victim's apparently self-impeaching behavior”].) So too here.
Appellant's response to Gonzales in his reply brief is succinct if not particularly pithy: It “was incorrectly decided.” He does not mention Munch, even though it was decided before appellant's reply brief was filed.
The trial court instructed the jury to “[p]ay careful attention to all of [the] instructions and consider them together” (CALCRIM No. 200). It admonished the jury that “certain evidence was admitted for a limited purpose, ” and to “consider that evidence only for that purpose and for no other” (CALCRIM No. 303, italics added). And, with CALCRIM No. 1193, it told the jury the CSAAS evidence was not evidence appellant molested K.D., and to consider that evidence “only” for the limited purpose of determining whether K.D.'s conduct was inconsistent with the conduct of a child who had been molested “and in evaluating the believability of her testimony” about her molestations. We presume the jury followed the court's instructions, and appellant offers nothing to rebut that presumption.
While it is true that evidence for evaluating an alleged molestation victim's believability may ultimately assist the jury in determining whether to credit his or her statements that molestations did occur, the same may be said of any evidence that is admitted solely on the issue of a witness' credibility. But that does not mean it lessens the burden of proof. (See, e.g., prior consistent statements under Evid. Code, § 1236.)
“[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” (Boyde v. California (1990) 494 U.S. 370, 378.) “Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” (Id. at pp. 380-381.)
Expert CSAAS testimony “is admissible to rehabilitate [a] witness' credibility when the defendant suggests that the [witness'] conduct after the incident... is inconsistent with his or her” molestation claims. (McAlpin, supra, 53 Cal.3d at p. 1300.) CALCRIM No. 1193 properly limits the jury's consideration of that testimony to its permissible purpose, and no other. It is not reasonably likely the jury understood CALCRIM No. 1193 as allowing it to impermissibly use the evidence to determine the molestations occurred. Rather, the jury most likely understood the instruction as permitting it to consider the CSAAS evidence solely to evaluate K.D.'s credibility in light of the evidence she did not disclose her molestations to anyone other than her mother for many years, that she did not even tell her mother despite appellant repeatedly molesting her, and only finally did so when she had “had enough.” Similarly, the jury likely used the CSAAS testimony to help explain why she could not recall very many details about the molests, and how that might seem inconsistent with the conduct of a child who had been molested multiple times.
CALCRIM No. 1193 has been held to not violate due process or misapply the burden of proof. (Gonzales, supra, 16 Cal.App.5th at pp. 503-504; Munch, supra, 52 Cal.App.5th at p. 474.) We agree with those decisions and further hold CALCRIM No. 1193 fairly instructed the jury on the proper use - and limitations on the use - of Dr. Carmichael's CSAAS testimony in this case. There was no instructional error, and the trial court therefore did not abuse its discretion by instructing with CALCRIM No. 1193.
In the end, appellant's contentions that CSAAS evidence should be inadmissible, and that CALCRIM No. 1193 improperly instructs the jury it may use CSAAS evidence to evaluate the truth of the victim's testimony, are essentially arguments McAlpin was wrongly decided. We are bound to follow McAlpin. (K.R. v. Superior Court (2017) 3 Cal.5th 295, 308; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d. 450, 455.) But even if we were not, we would still find it conclusively persuasive. (See Munch, supra, 52 Cal.App.5th at pp. 466 [“the reasoning of McAlpin is as valid today as it was in 1991”].)
3. Fines, Fees, and People v. Dueñas
A. Additional Background
At the sentencing hearing, after discussing the prison sentence to be imposed, defense counsel made a single “comment” on the issue of the fines and fees to be assessed: “With regard to the restitution fine, I'd ask that the Court not to impose the [Probation Officer's] recommended $10,000 and, instead, impose the [statutory minimum] $300 restitution fine. [Appellant] is indigent [and] does not have the ability to pay. [¶] With that, I'd submit.” She did not offer any evidence to support appellant's claim of indigency. She made no mention of nor objection to the other fines and fees, and the prosecutor did not weigh in at all.
According to the probation officer's presentencing report, no financial information or verifiable prior employment history was obtained from appellant because “[a]t the request of [appellant's] attorney, [appellant] was not interviewed.”
The court apparently granted counsel's request, because it imposed the statutory minimum $300 restitution fine (§ 1202.4, subd. (b)). It also imposed and suspended a parole revocation fine of $300 (§1202.45), a court security fee of $120 (§ 1465.8), a criminal conviction assessment of $90 (Gov. Code, § 70373), a $129.75 criminal justice administration fee (Gov. Code, § 29550 et seq.), and a $300 sex offender fine, with a $430 penalty assessment (§ 290.3). In addition, the court “waive[d]” appellant's attorney fees. The court made no formal finding on appellant's ability to pay any of the fines and fees, and none was requested.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), appellant now contends the trial court violated several of his constitutional rights by ordering him to pay any fines and fees, although he does not discuss them in any detail despite the fact the applicable analysis varies. In any event, we find no reason to disturb the trial court's order and we reject appellant's generic Dueñas-based claim.
B. Analysis
As a preliminary matter, we note that unlike the defendant in Dueñas, appellant objected to only one of the fines and fees he now challenges on appeal: the restitution fine. And at his request the recommended $10,000 fine was reduced to the statutory minimum of $300. His appellate challenge to the $300 restitution fine is therefore affirmatively waived because he received exactly what he asked for: a $9,700 reduction in his restitution fine.
As to the other fines and fees, the specter of forfeiture arises from his failure to object. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 [Dueñas challenge forfeited by failure to object to the fines and assessments at sentencing]; People v. Torres (2019) 39 Cal.App.5th 849, 860 [same]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464 [same]; see also People v. Trujillo (2015) 60 Cal.4th 850, 856 [forfeiture after failing to challenge a probation fee order]; People v. Aguilar (2015) 60 Cal.4th 862, 864 [same]; People v. McCullough (2013) 56 Cal.4th 589 [same for jail booking fee]; People v. Scott (1994) 9 Cal.4th 331, 351-354 [to preserve a sentencing issue for appellate review the defendant must generally raise it in the trial court].) Under these circumstances, appellant has forfeited his right to challenge his remaining fines and fees on appeal.
Forfeiture notwithstanding, because appellant raises an ineffective assistance of counsel claim in the alternative, we address appellant's Dueñas claim and conclude it also fails on the merits. In Dueñas, the court ruled imposing financial penalties on a criminal defendant without a prior determination of an ability to pay violates due process. While recognizing the state has a legitimate interest in imposing revenue-raising fees on people who break the law, the court stated, “Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further [any] legislative [policy], and may be counterproductive.” (Dueñas, supra, 30 Cal.App.5th at p. 1167.) Indeed, the court found the financial consequences at issue in that case did little more than punish the defendant for being poor and diminish her chances of ever successfully completing probation. (Id. at pp. 1166-1172.) Accordingly, Dueñas held, as a matter of first impression, that trial courts must conduct an ability-to-pay hearing before imposing such financial burdens on a criminal defendant. (Ibid.)
In Dueñas, however, the defendant was a poor, mentally and physically challenged homeless woman who suffered an array of “cascading consequences” because she could not afford to pay various fines and fees that had repeatedly been leveled against her for committing minor offenses related to her indigency. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) Not only did she lose her driver's license, she was subjected to additional jail time and the prospect of civil collection efforts, all because she lacked the means to pay off her original financial obligations arising from earlier cases. (Id. at pp. 1161-1164.) Given that her criminal history stemmed largely from her basic lack of monetary resources, the Dueñas court determined there was no rational basis for subjecting her to yet more financial burdens in her current case, and therefore the trial court's reluctant decision to do so violated due process.
A number of courts have criticized the soundness of the Dueñas ruling. Some have also rejected the premise that due process is the appropriate measure by which the constitutionality of criminal fines and fees should be assessed. (See, e.g., People v. Kingston (2019) 41 Cal.App.5th 272, 279-281, agreeing with People v. Hicks (2019) 40 Cal.App.5th 320 [Dueñas improperly expanded the boundaries of due process]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 [“Dueñas was wrongly decided” and should have based its analysis on the Eighth Amendment's excessive fines clause instead of the due process clause]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034 (conc. opn. of Benke, J.) [same]; People v. Caceres (2019) 39 Cal.App.5th 917, 920, 928 [declining to apply Dueñas' “broad holding” beyond its “unique facts”]; People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844 [same].) We need not weigh in on those issues, because even assuming Dueñas was correct, appellant has not demonstrated the trial court violated his due process rights by failing to ascertain his ability to pay before ordering him to pay the de minimis fines and fees at issue in this case.
Unlike the Dueñas defendant, however, there is nothing here to suggest appellant's convictions were attributable to any financial penalties he may have been ordered to pay in any prior case. That is a key point of distinction from Dueñas, in which the financial penalties triggered by the defendant's initial crimes had severe consequences on her daily life and actually created the conditions that contributed to her current offenses. (See People v. Caceres, supra, 39 Cal.App.5th at pp. 923, 928 [distinguishing Dueñas on that basis]; People v. Kopp, supra, 38 Cal.App.5th at p. 95 [same].)
We also note that, having been sentenced to a determinate term of 10 years to be followed by an indeterminate term of 15 years to life, appellant will have plenty of time to pay his fines and fees by working in prison. (People v. Johnson (2019) 35 Cal.App.5th 134, 139 [idea a defendant cannot afford to pay $370 while serving a three-year prison sentence is “unsustainable”]; People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [“Wages in California prisons currently range from $12 to $56 a month”]; see People v. Oliver (2020) 54 Cal.App.5th 1084, 1101.) Therefore, any trial court error in failing to ascertain appellant's ability to pay the other fines and fees was harmless at worst. (Ibid.) If the fines and fees “remain unpaid at the end of [appellant's prison term], the trial court will have to decide whether it was due to his indigence or to a lack of bona fide effort. At this point in time, however, due process does not deny [appellant] the opportunity to try.” (People v. Hicks, supra, 40 Cal.App.5th at p. 329.)
Appellant argues for the first time on appeal that the fines and fees imposed in this case were constitutionally excessive under the Eighth Amendment. Again, forfeiture notwithstanding, the contention fails. Appellant bases his claim on Timbs v. Indiana (2019) 586 U.S. __ (Timbs). However, that case is singularly inapt. In Timbs, the only issue was whether the Eighth Amendment's excessive fines clause was incorporated into the Fourteenth Amendment's due process clause, and therefore equally applied to the states. (Timbs, supra, 586 U.S. at p. __ [139 S.Ct. at pp. 686-687].) The Indiana Supreme Court had not even addressed whether the civil forfeiture of Timbs' $42,000 Land Rover was excessive in light of the underlying facts. Instead, it held that the excessive fines clause constrains only federal action, and is therefore inapplicable to the states. (Id. at p. __, .) Reversing and holding that it is, the high court also did not address whether the “fine” imposed in Timbs' case was excessive, and instead remanded the matter to the Indiana Supreme Court to make that determination. (Id. at p.__ .) Appellant has provided no relevant authority supporting his position that the minimal fines and fees imposed in this case were constitutionally excessive in relation to either the gravity of his offenses or his economic situation. We therefore find this claim is also without merit.
For these same reasons, any failure on trial counsel's part in not objecting to each and every one of the smaller fines and fees was not prejudicial, and therefore did not amount to constitutionally ineffective assistance of counsel. (Wiggins v. Smith (2003) 539 U.S. 510, 521; Strickland v. Washington (1984) 466 U.S. 668, 687-696; see People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407, fn. 4 [Watson harmless error standard “is substantially the same as the prejudice prong” of Strickland]; Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050 [same].)
4. K.D.'s School Records
Appellant's trial counsel apparently issued a pretrial subpoena duces tecum for K.D.'s school records from the East Side Union High School District in San Jose, and when they arrived in court, she made a motion to unseal and release them. We say “apparently, ” because neither the subpoena nor the school records are part of the appellate record.
The superior court docket entry from the day of the motion hearing, September 13, 2018, indicates unspecified records were received from the school district, and the motion to release those records was denied without prejudice to it being renewed later in the trial court. On December 13, 2018, appellant's trial counsel renewed her request to release the school records. The trial court stated it had reviewed the records, and described them as being “what she needed to go through high school, ” “her grades on the results in the California Standard Test, how she was each year, there's an eye test, vision test, one record about having asthma, ” and a “transcript” from Overfelt High School in San Jose. “Other than that, there's no other relevant information.”
The court asked defense counsel, “What [d]o you want to do?” and she simply said, “Submit.” The prosecutor remarked: “[G]iven the court's in camera review, those documents are not relevant. So[, ] the People object.” The court said, “They have no relevance in my mind, ” to which defense counsel merely said, “Thank you, your Honor.”
The court then concluded the hearing by stating: “So they'll be left in the Court's file. If at any time you want to revisit the issue, I'll be glad to, but right now, I'm reflecting [sic] that they're reviewed by the Court on December 13th, 2018, and not released for copying, which is reflected that [sic] on the outside and put my initials next to it. I will delay returning them to [the school district] until the end of the trial, using Evidence Code section 1560(d). So[, ] either returned or destroyed, but they'll be in the file during trial if something should happen that you wish to renew your motion.” (Italics added.) Nothing indicates the motion was ever renewed, or that the school records were preserved as court exhibits or ever released to the parties.
“Subdivision (a) of Education Code section 49076 limits public access to ‘pupil records' generally: ‘A school district shall not permit access to pupil records to a person without written parental consent or under judicial order....'” (Cuff v. Grossmont Union High School Dist. (2013) 221 Cal.App.4th 582, 592.) The trial court determines whether there is good cause to disclose a child's confidential school records. (Cf. Kling v. Superior Court (2010) 50 Cal.4th 1068, 1074-1075 [trial court maintains control over subpoenaed documents].) In this context, we review the trial court's determination of a lack of good cause for an abuse of discretion, i.e., whether it was “arbitrary or capricious.” (People v. Pelayo (1999) 69 Cal.App.4th 115, 122.)
However, there are no school records in the appellate record or any suggestion they were retained by the trial court. Similarly, the trial court docket does not reveal what happened to them. Simply put, we have nothing to review.
Evidence Code section 1560, subdivision (d) provides in part: “Records that are original documents and that are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received. Records that are copies may be destroyed.” With nothing to indicate otherwise, we must presume the trial court did as it said it would, and either returned the subpoenaed records to the school district or destroyed them. (See Evid. Code, § 664 [“It is presumed that official duty has been regularly performed”]; People v. Sullivan (2007) 151 Cal.App.4th 524, 549 [trial courts are presumed to have followed applicable law]; Fergus v. Songer (2007) 150 Cal.App.4th 552, 565 [same presumption applies to court clerks].)
“[O]ur review on a direct appeal is limited to the appellate record. [Citations.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1183.) Moreover, it is the appellant's burden to develop a record sufficient to ensure review of his or her claims. (People v. Carter (2003) 30 Cal.4th 1166, 1215.) Nothing shows appellant made any attempt in the trial court to preserve K.D.'s school records for appellate review, nor has he subsequently done anything to produce them.
The only evidence of what was contained in K.D.'s records is the trial court's brief verbal description: “what she needed to go through high school;” “her grades on the results in the California Standard Test, how she was each year, there's an eye test, vision test, one record about having asthma;” and a “transcript from Overfelt High School... [o]ther than that, there's no other relevant information.”
With nothing else to review, we cannot say the trial court acted arbitrarily and capriciously by denying appellant access to K.D.'s school records. Appellant's request for remand is therefore meritless.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FYBEL, J., MARKS, J. [*]
[*] Judge of the Orange Super. Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.