Opinion
E072579
12-11-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE TRINIDAD HUIZAR, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn Kirschbaum and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1700861) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn Kirschbaum and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Jose Trinidad Huizar, guilty of (1) one count of sexually penetrating a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)); (2) three counts of oral copulation by force, violence, duress, menace or fear (former § 269, subd. (a)(4) [eff. through Sept. 19, 2006]); (3) three counts of sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a)); (4) three counts of rape of a child under 14 years of age (§ 269, subd. (a)(1)); (5) one count, concerning a second victim, of committing a lewd and lascivious act upon a child under 16 years of age (§ 288, subd. (c)(1)); and (6) one count, concerning a third victim, of committing a lewd and lascivious act upon a child under 14 years of age (§ 288, subd. (a)). The trial court sentenced defendant to prison for a determinate term of six years eight months, and an indeterminate term of 180 years to life.
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
Defendant raises three issues on appeal. First, defendant contends the trial court erred by denying his suppression motion because (a) the police failed to honor his request for counsel, and (b) his confession was coerced. Second, defendant contends the trial court erred by not sua sponte instructing the jury on the limited use of expert testimony pertaining to child sexual abuse accommodation syndrome (CSAAS). In the alternative, defendant asserts his trial counsel was ineffective for failing to request a limiting instruction pertaining to CSAAS expert testimony. Third, defendant contends the cumulative prejudicial effect of the foregoing alleged errors should result in the reversal of the judgment. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. CRIMES
Defendant was born in 1974. The victim of the majority of defendant's crimes was his daughter, Victim-1, who was born in 1997. Defendant sexually abused Victim-1 from the time she was seven years old until she was 13 years old, i.e., from 2004 to 2010. The abuse ended when defendant's wife/Victim-1's mother (Mother) walked into a bedroom and saw defendant licking Victim-1's abdomen.
After Mother walked into the bedroom, Victim-1 told Mother there had been no other incidents of sexual abuse. In May 2016, when Victim-1 was a senior in high school, Mother asked Victim-1 about the extent of the sexual abuse. Victim-1 cried and said defendant had touched and licked her for one or two years. Victim-1 did not tell Mother about the rapes. Mother filed for divorce.
In January 2017, when Victim-1 was 18 years old, Victim-1 was talking with her aunt and Mother when the topic of child custody arose. Victim-1 learned that defendant wanted custody of Victim-1's siblings. Victim-1 thought that defendant might abuse her siblings particularly because Victim-1's sister was seven years old. Victim-1 cried, and her aunt asked why she was crying. Victim-1 said that defendant raped her. Victim-1's aunt called the police.
Victim-2 was approximately one year older than Victim-1. Victim-2's grandmother lived with defendant and Mother for a period of time. Victim-2 became friends with Victim-1 while visiting Victim-2's grandmother. When Victim-2 was 13 years old, defendant placed his hand on Victim-2's breast. Victim-2 did not tell anyone what happened with defendant because she thought people would not believe her.
When Victim-2 was approximately 14 years old, defendant rubbed Victim-2's genitals, over her clothes, with his hand. Victim-2 did not say anything to Victim-1 about defendant touching her. Victim-2 told her mother about defendant touching her, and Victim-2's mother told Victim-2's grandmother. Victim-2 was scared to tell people about defendant touching her because she thought people would not believe her.
Victim-3 was defendant's goddaughter and Mother's cousin. Victim-3 was approximately two years older than Victim-1. When Victim-3 was approximately 10 years old, she was on vacation at defendant's house. Defendant grabbed Victim-3's breasts over her clothes with his hands. Victim-3 did not tell Victim-1 what happened. Victim-3 thought people would not believe her if she told them what happened.
B. POLICE INTERVIEW
City of Riverside Police Detective Bercian translated for defendant while defendant was interrogated by Detective Bercian and Detective Beler. Defendant understood English but was more comfortable using Spanish. Bercian explained defendant's Miranda rights to him, in Spanish, at the beginning of the interrogation. While informing defendant of his rights, the following exchange occurred in Spanish:
Miranda v. Arizona (1966) 384 U.S. 436, 478-479.
"Bercian: You have the right to have a lawyer present here while we talk. Do you understand?
"[Defendant]: Yes.
"Bercian: Yes? If you want a lawyer but you don't have money, the court will give you one before we speak. Do you understand?
"[Defendant]: That's fine."
Defendant denied abusing Victim-1. Approximately one hour into the interrogation, the following exchange occurred in a mixture of English and Spanish:
"Bercian [in English]: Hm? Was she seven when this started or was she younger?
"[Defendant in Spanish]: Um, in what you read to me, the paper, you were saying first to talk to an attorney and you're not doing it. What you we—you now are reading to me.
"Bercian [in Spanish]: That's if you want.
"[Defendant]: Uh?
"Bercian [in Spanish]: Okay. But, this doesn't have anything—you know what I'll say? Maybe I was wrong, maybe you are a monster, dude."
Bercian and Detective Beler discussed defendant's statement, in English, while in the presence of defendant:
"Bercian: He said, 'The first thing you read to me was about talking to me with a lawyer but you're not doin' it.' And I said, 'Yeah, if you want to.' But you know what, I was wrong, this guy is a monster.
"Beler: He is.
"Bercian: Yes. . . . [¶] . . . [¶] . . . No, he didn't ask for a lawyer.
A video recording of the interrogation shows, at this point, Beler gathering her belongings as though preparing to leave the room.
"Beler: He didn't?
"Bercian: No.
"Beler: Oh.
"Bercian: He just said . . .
"Beler: Maybe . . .
"Bercian: . . . he just said—I don't really care if he wants a lawyer or not.
"Beler: I don't care either.
"Bercian: I'm just saying, he just said, 'The first thing you read me about having a lawyer . . .
"Beler: What . . .
"Bercian: . . . you're not doin' it.' And I said, 'No, it's only if you want to.'
"Beler: . . . what does that mean?
"Bercian: I don't know—I don't know what it means.
"Beler: Okay."
Shortly after that exchange, defendant explained that his children would sleep with him and Mother. Sometimes defendant awoke to Victim-1 grabbing his penis. Defendant believed that when Victim-1 was seven or eight years old she agreed to copulate with him. Defendant said he did not worry about impregnating Victim-1 because he used condoms. Defendant admitted to orally copulating Victim-1 once when she was 13 years old. Defendant admitted having Victim-1 orally copulate him once when she was seven years old and once or twice per week when she was 13 years old.
C. MOTION TO SUPPRESS
The jury was sworn on February 21, 2019. On February 26, defendant filed a motion to suppress statements he made to the police. Defendant asserted that his statement—"Um, in what you read to me, the paper, you were saying first to talk to an attorney and you're not doing it. What you we—you now are reading to me"—was not merely a request for a lawyer but an expression of "an expectation that a lawyer was going to be provided." Defendant further noted that Detective Beler understood defendant's statement as requesting an attorney as demonstrated by her gathering her belongings in order to leave the room.
The People opposed defendant's motion. The People asserted, "In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect 'must unambiguously' assert his right to silence or counsel. It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights." The People explained that a request for clarification of Miranda rights does not "constitute an invocation of the right to remain silent."
The People argued, "[D]efendant never made a clear or unequivocal request for an attorney. After over 58 minutes of speaking with police, he made only a single reference to the word 'attorney,' and he did not indicate that he wanted one. He did not ask to talk to one. His statement, 'you were saying first to talk to an attorney and you're not doing it,' at best, was an attempt at clarifying his earlier Miranda advisement. Detective Bercian then asked the defendant, 'if that's what you want,' but the defendant gave no clear reply. Instead, [defendant] said, 'Uh?' The defendant never responded affirmatively, and he never mentioned the word lawyer again for the remainder of his interview (over 40 more minutes)." The People further argued that Detective Beler's understanding of defendant's statement is not relevant because the analysis is objective, not subjective.
The transcript reflects that Bercian said to defendant, "That's if you want."
On February 27, the trial court held a hearing on defendant's suppression motion. The trial court asked if defendant's "Uh" response was more of a question or more "of an 'uh-huh,' like a 'yes.' " The trial court reviewed the recording of the interrogation. The court said defendant's "Uh" response was not "in the form of a question. . . . It's sort of a grunt. It's not even an 'uh-huh' or a 'huh-uh.' I can't make out one way or the other. It's just a grunting noise. At best, it's maybe acknowledging what Bercian is telling him. [¶] I think that's looking at it in the fairest light from the defense's point of view."
The trial court explained, "I think at best, [defense counsel], he is inquiring of one of the rights he was read. Mr. Bercian then says, 'Well, if that's what you want.' And then there's never an affirmative, unequivocal request made by him." The court went on to explain that defendant had time to think about requesting a lawyer while Bercian and Beler were speaking with one another; however, defendant went on to answer questions without raising the issue of a lawyer again. The trial court explained that if defendant believed a lawyer would be automatically provided, or if he believed he needed to request a lawyer, the point was that defendant continued to answer questions despite being told of his right to have an attorney. The trial court concluded that defendant's statement was ambiguous, but at best it was an inquiry into his Miranda rights. The trial court denied defendant's motion.
After the denial of the motion, defense counsel continued to argue. Defense counsel asserted that in the absence of an express waiver, there was a lack of clarity concerning defendant's "That's fine" response when he was informed of his Miranda rights. The trial court explained one could reasonably understand "that's fine" to mean "he equally understands that right as well. Just like he said he understood the other [rights]." The trial court further explained that there is no requirement of an express waiver of one's rights.
Defense counsel agreed that defendant's "Uh" response was a grunt, but that the detectives' conversation about not caring whether defendant wanted a lawyer could have been understood by defendant as it being futile to request a lawyer. The trial court explained that, to the extent defendant understood the detectives' conversation, which was in English, the detectives said they did not care if defendant wanted an attorney; however, they did not say that an attorney would never be provided. The trial court reasoned that defendant was informed of his right to have an attorney, but defendant "never c[ame] out and clearly state[d]" he wanted an attorney. The trial court again said defendant's motion was denied.
The trial court warned the prosecutor that if the prosecutor used the interrogation at trial, then the prosecutor was running the risk of having any conviction reversed on appeal if the appellate court determined the trial court erred in denying the suppression motion. After the hearing on the motion concluded, the People called Bercian as a witness. During the afternoon recess, which occurred in the midst of Bercian's testimony, the suppression motion was raised again.
Defense counsel explained that he was also asserting defendant's statements should be suppressed because they were "the product of coercion." The trial court found that Bercian's statement—"maybe you are a monster"—was not so coercive or harassing that it would have compelled defendant to confess.
When Bercian's testimony resumed, the prosecutor examined him regarding defendant's confession. Bercian said defendant admitted to copulating with Victim-1. The repeated copulation began when Victim-1 was seven years old and ended when she was 13 years old. Bercian explained that defendant said he did not worry about impregnating Victim-1 because he used condoms when copulating. Bercian testified that defendant admitted to orally copulating Victim-1 once, and that she orally copulated defendant once when she was seven years old and twice per week when she was 13 years old.
DISCUSSION
A. MOTION TO SUPPRESS
1. REQUEST FOR A LAWYER
Defendant contends the trial court erred by denying his suppression motion because defendant invoked his right to counsel by saying, "Um, in what you read to me, the paper, you were saying first to talk to an attorney and you're not doing it. What you we—you now are reading to me." Defendant contends that his statement indicated he expected a lawyer would be provided, which shows he wanted an attorney.
" 'In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect "must unambiguously" assert his right to silence or counsel. [Citation.] It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda, supra, 384 U.S. 436, either to ask clarifying questions or to cease questioning altogether.' [Citations.] Because defendant's statements are undisputed, we independently determine whether he unambiguously asserted his right to counsel." (People v. Suff (2014) 58 Cal.4th 1013, 1068.)
Defendant said, "[Y]ou were saying first to talk to an attorney and you're not doing it." Defendant clearly said Bercian should be doing something about a lawyer, but exactly what defendant expected to be done is unclear. Saying that an unidentified action should be taken regarding speaking with a lawyer is not a clear assertion of one's right to counsel. Accordingly, defendant's statement is not an unambiguous assertion of defendant's right to counsel. Rather, it is a confusing statement of defendant's expectation.
Defendant contends that Beler's belief that defendant requested an attorney demonstrates that a reasonable officer would understand defendant's statement as asserting his right to counsel. There are three reasons we find defendant's reliance on Beler's belief to be unpersuasive. First, the test is objective, not subjective, so Beler's beliefs could be informative but are not decisive. (People v. Gonzalez (2005) 34 Cal.4th 1111, 1125.) Second, when Bercian translated defendant's statement a second time, Beler responded, "[W]hat does that mean," and Bercian replied, "I don't know what it means." In other words, when Beler heard defendant's statement a second time she did not understand defendant's statement as invoking his right to counsel. Third, when Bercian heard defendant's statement, his response was "That's if you want." Bercian, who is a detective, thought defendant's statement was ambiguous regarding speaking with a lawyer as shown by his use of "That's if you want." The "if" indicates defendant's invocation of his right to counsel was unclear to Bercian.
In sum, defendant's statement did not unambiguously assert his right to counsel. Therefore, we conclude the trial court did not err.
2. COERCION
Defendant contends the trial court erred by denying his suppression motion because defendant was coerced into confessing by the detectives calling him a monster and saying they did not care if he wanted a lawyer. The People assert defendant forfeited this issue by failing to raise it in the trial court. The People contend that, in the trial court, defendant argued he was coerced into not invoking his right to an attorney. The People assert defendant did not argue, in the trial court, that he was coerced into confessing. In the trial court, defense counsel said, "In addition, the subsequent statements were not voluntary and the product of coercion." We read that sentence as counsel arguing that defendant's statements admitting his crimes were involuntary. Accordingly, we conclude the issue was not forfeited.
We review the trial court's finding that defendant's confession was voluntary under the independent standard of review. (People v. Holloway (2004) 33 Cal.4th 96, 114.) " 'In determining whether a confession was voluntary, "[t]he question is whether defendant's choice to confess was not 'essentially free' because his will was overborne." ' " (Ibid.) " 'Once a suspect has been properly advised of his rights, he may be questioned freely so long as the questioner does not threaten harm or falsely promise benefits. . . . [I]n carrying out their interrogations the police must avoid threats of punishment for the suspect's failure to admit or confess particular facts . . . . [The police] are authorized to interview suspects who have been advised of their rights, but they must conduct the interview without the undue pressure that amounts to coercion' " (Id. at p. 115.) Pressure is undue when "the accused's abilities to reason or comprehend or resist were in fact so disabled that he was incapable of free or rational choice." (In re Cameron (1968) 68 Cal.2d 487, 498.)
"Factors of significance in assessing the effect of circumstances on the voluntariness of a confession include the mental level and intelligence of the accused [citations]; the amount of physical abuse or psychological pressure to which the accused was subjected [citations]; the existence of a prior coerced confession [citations]; and the existence of any break in the chain of events from the initial application of coercion to the time of confession sufficient to insulate the latter from the coercive influences." (People v. Sanchez (1969) 70 Cal.2d 562, 573; see also People v. Dykes (2009) 46 Cal.4th 731, 752.)
We begin with the psychological pressure factor. Defendant contends the comments about not caring if defendant wanted a lawyer "practically told [defendant] that his Miranda rights were meaningless and that he had no choice but to confess to the accusations." We will assume that defendant was sufficiently proficient in English to understand the detectives' comments.
When defendant said, "[Y]ou were saying first to talk to an attorney and you're not doing it," Bercian responded, "That's if you want." The messages from the detectives were contradictory. On one hand, Bercian clarified defendant's rights and told defendant that an attorney would only be provided if defendant wanted one. On the other hand, the detectives said they did not care if defendant wanted an attorney. Given that Bercian had just clarified defendant's rights, it is difficult to make the leap that the detectives made it futile for defendant to request counsel. The detectives' comments may have been discouraging, but futility is too far a leap in light of Bercian helping defendant to understand his right to counsel.
Moreover, if the detectives' statements—that they did not care if defendant wanted an attorney—are interpreted in the worst light possible, which would be that the detectives had no interest in defendant's right to counsel, then there is not any message conveying that defendant had to confess. Because the detectives did not mention a confession or allude to a confession, we are not persuaded that the detectives pressured defendant into confessing.
Now we turn to the other factors. Defendant worked full time as a truck driver and is nearly bilingual. Defendant's job and language skills indicate he has, at the very least, a reasonable level of intelligence. Defendant does not assert that there was a prior coerced confession. In regard to a break during the chain of events, after the detectives made the comments about defendant being a monster and not caring if defendant had an attorney, the interview continued. Defendant began confessing shortly, but not immediately, after the detectives' comments. Given the foregoing factors, particularly the lack of psychological pressure, we conclude the trial court did not err in denying defendant's motion to suppress. (See People v. Perdomo (2007) 147 Cal.App.4th 605, 619 ["Absent some indication of coercive police activity, an admission or confession cannot be deemed involuntary"].)
B. LIMITING INSTRUCTION
1. PROCEDURAL HISTORY
Dr. Judy Ward (Ward) is a clinical and forensic psychologist. During the prosecutor's direct examination of Ward, the following exchange occurred:
Prosecutor: "[CSAAS] is not intended to be some kind of diagnostic can [sic] tool or, should I say, a tool used to determine whether child abuse or sexual abuse occurred in a certain case?
"[Ward]: Correct. No. No behavior after the fact can be used to determine whether or not sexual abuse occurred because sexual abuse can result in many difference [sic] kinds of behaviors that come after the fact, and sometimes we don't even notice any abnormal behaviors on the child's behalf at all. But child sexual abuse is helpful, and we do know when a child has been abused as to why the children responds [sic] in the ways that they do in reaction to that abuse.
"[Prosecutor]: And so just to clarify for the jury here, you're not here today to talk about whether child sexual abuse occurred in this case; right?
"[Ward]: No.
"[Prosecutor]: You didn't actually evaluate any of the witnesses in this case; correct?
"[Ward]: No, I do not.
"[Prosecutor]: You didn't read any of the police reports in this case; right?
"[Ward]: No.
"[Prosecutor]: You didn't talk to the children; right?
"[Ward]: No."
Ward explained the components of CSAAS: "secrecy, helplessness, entrapment and accommodation, delayed unconvincing disclosure, and recantation or retraction." In regard to delayed disclosure, Ward testified, "The research has found that two thirds of children do not report sexual abused until adulthood." Ward also explained that children sometimes delay reporting until they are away from the abusive situation, such as after the child is "put into foster care and that child knows that they won't have to go back into their abusive home anymore."
On cross-examination, Ward said, "I'm not here to make any statements about this particular case." Also during the cross-examination of Ward, the following exchange occurred:
"[Defense Counsel]: [CSAAS] was never meant to be a diagnostic tool; isn't that correct?
"[Ward]: That is correct.
"[Defense Counsel]: All right. And that's not what you're doing here today?
"[Ward]: Correct."
The trial court instructed the jury with CALCRIM No. 332, which provides, "Witnesses were allowed to testify as experts and to give their 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."
2. CALCRIM NO. 1193
In 2019, which is the year defendant's trial took place, the limiting instruction related to CSAAS expert testimony provided: "You have heard testimony from __________ <insert name of expert> regarding child sexual abuse accommodation syndrome. [¶] __________'s <insert name of expert> testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her). [¶] You may consider this evidence only in deciding whether or not __________'s <insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony."
3. TRIAL COUNSEL
We begin with defendant's alternative argument, in which he asserts his trial counsel was ineffective for failing to request the jury be instructed with CALCRIM No. 1193. The People assert that defense counsel may have requested CALCRIM No. 1193 because the record implies that a discussion concerning jury instructions took place off the record. For the sake of addressing defendant's contention, we will assume that defense counsel did not request CALCRIM No. 1193.
"In order to prevail upon a claim of ineffective assistance of counsel, [defendant] 'must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. . . . [P]rejudice must be affirmatively proved; the record must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " (People v. Jennings (2000) 81 Cal.App.4th 1301, 1318.)
We focus on the prejudice prong of the analysis. (See People v. Brodit (1998) 61 Cal.App.4th 1312, 1333 [prejudice may be addressed first].) CALCRIM No. 1193 informs the jury that an expert's "testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against [him]." (CALCRIM No. 1193.) In Ward's testimony, on both direct and cross-examinations, she said that she was not testifying about the events in the instant case. Specifically, on cross-examination, Ward said, "I'm not here to make any statements about this particular case." Given that Ward repeatedly and explicitly said that her testimony was not about the events of the instant case, there is not a reasonable probability that if the jury had heard the same information in CALCRIM No. 1193 that a different result would have occurred. Therefore, we conclude that defendant has not demonstrated prejudice.
Defendant contends it "is neither the law nor good policy" to find a lack of prejudice on the basis that Ward's testimony, concerning the limits of her opinion, is an adequate substitute for the trial court instructing the jury with CALCRIM No. 1193. Our prejudice analysis follows the harmless error analyses of People v. Mateo (2016) 243 Cal.App.4th 1063, 1074 and People v. Housley (1992) 6 Cal.App.4th 947, 959 (Housley). In Mateo, the appellate court wrote, "Defendant cannot establish a reasonable probability of a more favorable verdict if a limiting instruction had been given. Where, as here, the expert testifies regarding the behavior of abused children as a class, there is little, if any, chance the jury will misunderstand or misapply the evidence. [Citations.] Dr. Jones clearly stated that she had not interviewed or evaluated anyone involved in the case, and that CSAAS was not intended to predict whether a child had suffered abuse." (Mateo, at p. 1074.)
In Housley, the appellate court wrote, "Although the court failed to instruct the jury on the limited use of Dr. Schuman's testimony, this error was clearly harmless and does not require reversal. Dr. Schuman twice told the jury she had not met the victim and had no knowledge of the case. Her testimony was couched in general terms, and described behavior common to abused victims as a class, rather than any individual victim." (Housley, supra, 6 Cal.App.4th at p. 959.) Because we are following the analyses set forth in prior cases, we are not persuaded by defendant's assertion that our analysis fails to follow the law.
Defendant contends he was prejudiced by counsel's failure to request CALCRIM No. 1193 because "the jury may have improperly used the CSAAS evidence and it may have been the decisive factor in the case." Defendant contends the "failure to instruct the jury that the CSAAS expert testimony could not be considered in evaluating the complaining witnesses' credibility likely bolstered the jury's appraisal of their veracity."
CSAAS testimony "is admissible to rehabilitate [the complaining] witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation." (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301.) In the instant case, defendant argued that the abuse allegations were fabricated due to the child custody dispute. Defendant asserted that if the allegations were true, then Victim-1 or Mother would have reported them sooner. Defendant argued that Victim-2 and Victim-3 were also influenced to fabricate their testimony due to their relationships with Mother. Defendant argued, "[T]hese are the cousins in the family [and] they didn't make any allegations at the time these incidents occurred." Thus, defendant called the credibility of the complaining witnesses into question due to the delays in reporting, which means CSAAS testimony could properly be used to evaluate the complaining witnesses' credibility.
In 2019, CALCRIM No. 1193 provided, "You may consider this evidence only in deciding whether or not __________'s <insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony." (Underscore added.) Thus, if the jury had been given CALCRIM No. 1193, it would not have stopped the jury from using the CSAAS evidence to evaluate the complaining witnesses' credibility. In sum, defendant has not demonstrated prejudice. Because prejudice has not been demonstrated, we do not address the remaining prong pertaining to the reasonableness of counsel's conduct.
4. TRIAL COURT
Defendant contends the trial court erred by not sua sponte instructing the jury with CALCRIM No. 1193.
There is a split of authority on the issue of whether a trial court has a sua sponte duty to instruct a jury with CALCRIM No. 1193. (People v. Mateo, supra, 243 Cal.App.4th at p. 1074 [no sua sponte duty]; Housley, supra, 6 Cal.App.4th at p. 959 [courts have a sua sponte duty].) In an unpublished opinion, this court held that trial courts do not have a sua sponte duty to instruct with CALCRIM No. 1193. (People v. Manning (Feb. 16, 2017, E063997) [nonpub. opn.] (2017 Cal. App. Unpub. LEXIS 1396, *20.) Because the opinion is unpublished, we cannot rely upon it as authority to resolve this issue. (Cal. Rules of Court, rule 8.1115(a).)
In our prejudice analysis ante, we concluded that if the jury had been given CALCRIM No. 1193, there is not a reasonable probability that a different result would have occurred. The same prejudice standard, i.e., a reasonable probability, applies to the alleged error by the trial court. (Housley, supra, 6 Cal.App.4th at p. 959.) Accordingly, the same conclusion is applicable when examining whether the trial court's alleged error was prejudicial: If the alleged error had not occurred—if the trial court had sua sponte instructed the jury with CALCRIM No. 1193—there is not a reasonable probability that a different result would have occurred. Accordingly, if the trial court erred, then the error was harmless.
C. CUMULATIVE ERROR
Defendant contends the foregoing alleged errors cumulatively resulted in the denial of his right of due process. We have concluded that the trial court did not err in denying defendant's suppression motion. We also concluded that prejudice was not demonstrated from the failure to instruct the jury with CALCRIM No. 1193. Because there are not multiple errors to cumulate, we will not delve further into the cumulative error issue. (See People v. Duff (2014) 58 Cal.4th 527, 562 ["In the absence of error there is nothing to cumulate"].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. MENETREZ
J.