Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE403471
Mihara, J.
Defendant Ryusuke Ushikoshi was charged with two counts of continuous sexual abuse of a child under the age of 14 (counts 1 & 3 - Pen. Code, § 288.5, subd. (a)), lewd and lascivious acts on a child under the age of 14 (count 2 - Pen. Code, § 288, subd. (a)), false imprisonment (count 4 - Pen. Code, §§ 236, 237), and spousal battery (count 5 - Pen. Code, §§ 242, 243, subd. (e)). Following trial, the jury found defendant guilty of counts 1, 4, and 5, and not guilty of counts 2 and 3. The trial court sentenced him to 12 years in state prison.
On appeal, defendant contends: (1) the prosecutor committed misconduct; (2) trial counsel was ineffective for failing to object to the admission of evidence of child sexual abuse accommodation syndrome; (3) the trial court erred in failing to instruct the jury on lesser included offenses; and (4) cumulative error requires reversal. We find no error requiring reversal and affirm the judgment.
Defendant has also filed a petition for writ of habeas corpus, which we have considered with this appeal. We dispose of his habeas petition by separate order.
I. Statement of Facts
A. Prosecution Case
Defendant, his wife (Wife), and their four children, H., R., K., and S., came to the United States from Japan in December 1999 in order to find help for H., their eldest son, who was severely autistic. They settled in Sunnyvale, California
On March 24 or 25, 2004, Wife bought an Xbox video game player for their children without defendant’s permission. When defendant discovered the purchase, he began arguing with Wife. He eventually grabbed her arm, put it behind her back, and told her to go into the garage. Defendant also told her that he was going to send her back to Japan without the children. S. and R. joined their mother in the garage to demonstrate their support.
On March 30, 2004, the principal at R’s elementary school, received a letter that had been written by Wife. Wife asked that R., who was then in the sixth grade, be allowed to go on a field trip. He had been excluded based on his misbehavior. Based on the contents of the letter, the principal was concerned that there was physical abuse in the home. The principal contacted the police.
Officer Toshio Oki interviewed Wife on March 30, 2004. With the assistance of an interpreter, she told him that defendant had physically forced her into the garage a few days earlier. When he asked whether defendant was ever violent with their children, she replied that defendant forced the children to sleep with him while she slept on the couch. She also described an incident in which K. was crying for help as defendant tried to force him to sleep in bed with him. Wife was unsuccessful in pulling K. away from defendant. She stated that S. used to be his target, but that the three sons were now the targets. When Officer Oki asked her why defendant forced his sons to sleep with him, she replied that defendant understood that it was taboo for a father to sleep with his daughter in America. She also stated that defendant liked to touch his sons, and she “assume[d]” that it was “a sexual thing.”
Officer Oki testified that he interviewed R. the following day. R. confirmed that defendant had slapped his mother and twisted her arm. He also stated that his mother slept on the couch, while the children were forced to sleep with defendant. According to R., his father slept with his leg over R.’s body. The children would sometimes try to escape from defendant, and R. could hear his siblings “screaming,” and he knew that they “were being touched by his father based on the sounds that the bed made.” R. knew that it was bad for defendant to touch his penis, and he recalled five occasions when defendant “grabbed his penis with his hand,” and R. did not want to sleep with him anymore. R. did not like it when defendant touched his penis and he tried to escape. Defendant also “liked to lick their ears.” R. told Officer Oki that when his sister was in the bedroom with defendant, he could not enter the room because the door was always locked.
Officer Oki next interviewed S., who was then seven years old. She reported that sometimes defendant made her sleep with him. When S. was asked where defendant touched her, she talked about her head, her arms, and her tummy. When she was asked whether defendant touched her private parts, she pointed to her crotch and stated, “‘I think he touched here.’” She also told Officer Oki that sometimes her brothers were forced to sleep with defendant.
Detective Kathryn Lee Debeaubien, who worked in the crimes against children unit of the Sunnyvale Department of Public Safety, testified that she sat in on the interviews that Officer Oki conducted with the three children. She stated that they did not tape record R.’s first interview. Detective Debeaubien also testified that she interviewed S., K., and R. on April 8, 2004, and the interviews were videotaped. The taped interviews were shown to the jury.
In the taped interview, S. stated that defendant touched her twice on her “weenie” and bottom, because he loved her. He touched her bottom, “like tap on [her] back,” when she did something that was not allowed. He also grabbed her hand, put her in bed with him, and fell asleep. She took baths with defendant when her mother did not know the American rule that girls could not be in the bathtub with boys. He sometimes touched her “weenie” over her pajamas. It happened about three or four times on defendant’s bed. Defendant sometimes did the same thing with S.’s brothers. When defendant grabbed her, K. saved her by putting his socks in front of defendant. S. sometimes jumped on defendant to save K. According to S., K. does not like sleeping with defendant. Defendant touched her bottom by holding her upside down and tapping her. Defendant sent her to the garage when she got into trouble. When they took baths together, they would play with water guns. Defendant touched her shoulders in the bathtub, because it was so crowded. The last time defendant touched her “weenie” and butt was when she was six.
K. told Detective Debeaubien that he did not like defendant because he took away a card and sometimes he was mean. He referred to defendant putting his mother in the garage because she bought the Xbox. Defendant touched K., but he didn’t like it. K. explained that defendant lies on him when he chases him, and that defendant wanted to sleep with him. K. did not like it when defendant hugged him, tried to tickle his feet, or licked and bit his ears. Defendant also grabbed K.’s arms. K. told his mother that he didn’t like it, and she told defendant to stop.
R. told Detective Debeaubien that defendant touched him when he was drunk. Defendant slept on top of R. and his siblings. The last time that defendant touched R.’s penis, defendant locked the door. Defendant put his leg over R., licked his ears, and kissed his cheeks. R. told him that he did not like it. While R. struggled, defendant told him to stay. Defendant squeezed his penis two or three times for “[l]ike five minutes.” R. told defendant, “Stop it,” and after a few minutes he did. R. told his mother that he did not want defendant touching his penis. She told him to stay away from defendant when he was drunk. R. stated that defendant touched his siblings, because he could hear them shout for help. Wife would then get a screwdriver to open the door. Defendant forced the person nearest to him to sleep with him. Defendant also squeezed R.’s penis in the bathtub and told him that he had a small penis. Defendant kissed R. on the lips and slapped his butt with his hand. R. never observed that defendant had an erection. Defendant squeezed his penis from the time that he was eight or nine until he was 12. R. stated that defendant made him sleep with him about 20 times, and he squeezed his penis about half of those times.
At another point in the interview, R. stated that defendant squeezed his penis for a couple of minutes “[a]bout five or more” times. Later, R. stated that defendant squeezed his penis about 15 or more times in the bathtub, or “[m]aybe less maybe, I don’t know.”
Wife testified that she did not work outside the home. She described her argument with defendant over the Xbox. Defendant eventually grabbed her arm, put it behind her back, and told her to go to the garage. Defendant also told her that he was going to send her back to Japan without the children. Wife had previously told the police that defendant twisted her arm so hard that she thought it would break. She also wrote a letter in which she stated that defendant pushed her into the garage. Wife told a social worker in May 2003 that defendant had previously hit and pinched her.
Wife also testified that she spoke with the police and wrote a letter when defendant was out of the country. Though she stated that defendant took her credit cards and bank card, she neglected to state that she had checks. Wife denied that defendant violently forced the children to sleep with him. She explained that parents and children sleep together in Japan. She claimed that her statements to Officer Oki were not translated accurately. She acknowledged that R. sometimes did not like to sleep with defendant. Wife did not believe that defendant touched R. in bed, and she told R. that defendant was not the type of person that would touch a penis in bed. She believed that it would have been wrong for defendant to have done so. After Wife explained to S. the difference between the types of touching, S. understood that defendant did not touch her intentionally. Wife told her children that there were mistakes in the police reports and that they should correct these mistakes when they testified.
Wife also testified there were times when the children enjoyed taking baths with defendant. However, after R. became embarrassed about bathing with defendant and his brothers when his friends were visiting, Wife then discussed with him the importance of maintaining their cultural traditions. According to Wife, defendant was the “boss.” Wife wrote a letter to R.’s teacher in which she stated that defendant pushed her into the garage. She exaggerated the incident, because she wanted to create sympathy for her son so that he could go on a field trip. Wife testified that K. suffered from a type of autism, an auditory processing disorder, and an auditory memory disorder. Wife did not believe that defendant had done anything wrong, even though she sent an e-mail to the police in which she stated that she told her children that defendant was arrested due to his “wrong actions” towards them and that they were to keep the matter a secret.
S., who was then eight years old, testified that defendant touched her vagina to clean it when she was young. She acknowledged that she told the police that defendant touched her vagina in the bedroom, but she later remembered that he did not do so. She took baths with defendant and her brothers. She heard her brothers calling out to her from defendant’s bedroom. When she entered the room, defendant and her brothers were laughing and playing. When they were wrestling, sometimes it hurt, but most of it was fun.
K., who was then 10 years old, testified that defendant never touched him when he was with defendant in defendant’s bedroom. When he took showers and baths with defendant, defendant did not touch him. He denied telling his mother that defendant was lying on him and he did not like it. K. admitted that he was trying to help defendant, because he did not want him to go to jail.
R., who was then 13 years old, testified about his parents’ argument over the Xbox. He denied that he ever slept alone with defendant. Defendant’s legs sometime accidentally touched him when they slept together. Defendant never touched him on purpose. Defendant never touched his penis, licked his ears, or rubbed his cheeks when they were in bed. Defendant licked his ears before they came to America. He explained that he was “very nervous” and “exaggerated stuff that didn’t really happen” when he spoke to Detective Debeaubien. He never told her that defendant touched his penis. He told her that defendant touched his penis in the bath for five minutes, but it was really one or two seconds. Defendant occasionally locked the bedroom door with R. and his siblings inside the bedroom. Defendant would sometimes preclude R. from leaving the master bedroom, because he wanted R. to massage his feet, back, or shoulders. Defendant never squeezed his penis in the bath, but would “just pull for fun” about seven times in a year. “[I]t could have hurt” but he did not think so. R. testified that he exaggerated when he told Detective Debeaubien that defendant squeezed his penis. Defendant made fun of how small R.’s penis was. R. saw defendant pull on K.’s penis about once every six months. He did not think that he ever told Wife that he did not like it when defendant touched his penis. He denied that defendant ever kissed him on the lips. He explained that if he had testified at the preliminary hearing that defendant had done so, he was nervous, his English was poor, and he exaggerated. R. did not know whether K. would hide from defendant, because he did not want to sleep with him. He did not think that Wife ever told him to hide from defendant when he was drinking. R. did not remember whether he and Wife discussed the police reports before the preliminary hearing. When R. realized that other families did not take baths together, he began taking showers before defendant got home.
R. testified that defendant kissed him on the lips when they “went to like, restaurant or something or in the house.”
Carl Lewis, a criminal investigator with the district attorney’s office, testified as an expert on child sexual abuse accommodation syndrome (CSAAS). He explained that this syndrome is neither a diagnosis nor a condition, but rather a description of behaviors in child sexual abuse cases. These behaviors include: secrecy; helplessness; entrapment and accommodation; delayed, conflicted and unconvincing disclosure; and retraction. After describing these behaviors, Lewis noted that investigators in child sexual abuse cases use this information to explain why a victim’s response is not inconsistent with having been sexually abused.
Richard Ferry, a marriage, family, and child counselor, testified as an expert in the field of domestic violence and the experiences of battered women. He listed the categories of abusive conduct that constituted domestic violence: financial exploitation; isolation; turning the children against the spouse; verbal and emotional abuse; making threats; harassment and stalking; and physical violence. Battered women tend to have more depression and anxiety, and rely on the defenses of denial and minimization. They also may view the abuse as normal and may make excuses for the abuser. According to Ferry, it is very common for victims of domestic violence to withdraw their accusations of abuse.
B. Defense Case
Defendant testified on his own behalf. He and Wife argued about their children’s education. Defendant wanted the family to return to Japan so that the children could study Japanese, while Wife wanted to remain in the United States. Defendant also described the argument about the Xbox, conceding that he grabbed and twisted her arm, and ordered her to the garage. He told the social worker that he pinched Wife’s arm.
Defendant testified that he bathed with his family every night when he was a child. It was common in Japan for a father to wash his children and for the children to wash their father. Defendant touched the boys’ genitals when he washed them. Defendant told R. that his penis was small but it would get bigger as he grew. According to defendant, Japanese culture is more accepting of child nudity.
Defendant also slept with his children, which was customary in Japan. Defendant denied licking his children’s ears or touching R.’s genitals while they were in bed. However, he licked their ears, rubbed their cheeks, and bit their fingers while they were wrestling. He would sometimes “poke” the boys’ genitals to get their attention or to bond with them. He denied squeezing R.’s penis while they were wrestling. Defendant denied talking to his children about their testimony.
Defendant did not recall ever being alone with R. in his bedroom. Defendant locked the bedroom door once when R. was watching television in the room, because defendant had argued with Wife. He told R. not to open the door, because he did not want Wife to enter the room. He denied locking the door when he was alone in bed with R. He denied licking R.’s ear while they were sleeping together. He acknowledged that it would be wrong to touch his son’s penis while in bed with him. He did not touch his children for sexual gratification.
Kazuko Behrens testified as an expert in Japanese culture and society, specifically on parent-child developmental relationships. According to Behrens, bathing is significant in Japanese culture for purification of the body and soul. It is a means for parents to strengthen their bond to their children. It is very common for a father to bathe with his children in Japan. Often the father might poke or pull his children’s genitals in a “joking way and playful way.” When the child reaches puberty, it is less common for the child to bathe with his or her parents. Co-sleeping is a very common practice in Japan. It would be uncommon for a father to kiss his nine-year-old son on the lips. It would be unusual for a father to purposefully touch his daughter’s genitals while they were in bed.
Takay Teshima testified that he had worked with defendant for more than 20 years. He had never seen defendant exhibit an unusual interest in children. According to Teshima, defendant had an excellent reputation for honesty.
Toshihiko Ushikoshi, defendant’s brother, testified that he took baths with his father and defendant until he was 12 or 13 years old. He also slept in the same bed with his father. When he was younger, his father washed and poked his penis.
C. Rebuttal
Harumi Befu testified as an expert on Japanese culture. According to Befu, naked bonding or skinship includes parents bathing with their children. This practice does not normally involve touching genitals. If “it does happen in joking manner, in a positive relationship, the kids might just smile, giggle, and that would be it and it would be a part of this bonding relationship, but if the child dislikes doing it, that’s quite a different matter.” Children sleeping with their parents is a common practice in Japan. In Japan, the father’s authority is “undisputable.” Child sexual abuse is illegal in Japan. It is rare for a parent to lick a child’s ears. It is “morally disapproved” for a father to kiss his son on the lips.
II. Discussion
A. Prosecutorial Misconduct
Defendant first contends that the prosecutor committed prejudicial misconduct by questioning Wife about her opinion of defendant’s guilt.
On direct examination, the prosecutor asked Wife about the argument involving the Xbox. After Wife testified, “I get the impression from your questions that you are trying to throw bad impressions on my husband, and I feel very sad, so I don’t want to answer your question,” the trial court declared her an adverse witness to the prosecution, and allowed the prosecutor to ask leading questions. The prosecutor later asked Wife questions about whether defendant forced their children to sleep with him. He asked, “And the times [R.] didn’t like [sleeping in the same bed with your husband] was because your husband was touching him; right?” Wife replied, “About touching, because I don’t believe my husband touched [R.].” The prosecutor also elicited from her that she told K. that his father would not be the kind of person who would do sexual things to a child. The following colloquy then occurred: “[Prosecutor]: Ma’am you said this afternoon that you do not believe that your husband would touch your children for a sexual reason; right? [¶] A. Yes, I did. [¶] Q. When you talked to Officer Oki in March of 2004, you said that you assumed he was touching them for a sexual reason; right? [¶] A. I don’t think so. When I talked to Oki, no interpreter, and my operation was -- interpretation was different. Because of my English, the English that I used, it was -- there was a difference between the Japanese culture versus American culture, so the way that I expressed myself might have cause him to believe in the wrong way. [¶] From the name Oki, I got an impression that he is Japanese. [¶] . . . [¶] Q. Ma’am, I’m going to ask you a much more specific question because I believe there might have been some confusion about my last one. When you spoke with Officer Oki and he was using an interpreter over the speaker phone, you told him that you thought your husband touched your children for a sexual reason; right? [¶] A. I don’t think I said that.”
On redirect examination, the prosecutor continued to ask Wife about her prior statements. “[Prosecutor]: Q. Is that a copy of the E-mail you sent to Detective Debeaubien? [¶] A. Yes, it is. [¶] Q. And is it that you told your children to keep their father’s arrest a secret or to keep what he had done wrong to them a secret? [¶] A. I instructed my children to keep the fact that their father was arrested a secret. May I tell you the reason for that? [¶] Q. Well, I’m not asking that question right now. You said in the E-mail that you told your children that their father was arrested this morning due to his wrong action to them and they may not tell anybody about that matter, to keep it secret. That’s what you -- is that what you told your children? [¶] A. I think it’s a little different from truth, because the way I used my vocabulary was wrong, and I wasn’t too sure clearly which words to use, and so I’m not trying to change my testimony, but I wanted to tell the jury that due to lack of my English abilities, I was not able to express myself well. [¶] Q. Ma’am, you wrote what’s printed in People’s Exhibit 3; right? [¶] A. Yes, I did. [¶] Q. And that’s what you told your children, is that their father was arrested because of his wrong actions to them and they may not tell anybody about the matter and to keep it secret; right? [¶] . . . [¶] [Court tells witness to respond to question.] [¶] [Prosecutor] Q. Did you tell your children, as you said in this E-mail, that their father was arrested due to his wrong action to them and they may not tell anybody about that matter, to keep it secret? [¶] A. What I actually told them was that -- the fact that their father was arrested should be kept secret because if the opposite side is the police, so if I do anything rebellious -- well, if I did anything extra, I would be --well, I don’t know what to say. [¶] Q. Ma’am, are you saying that -- as I understand what you’re saying, you only told your children to keep the arrest of their father a secret; is that right? [¶] A. Yes, it is correct. [¶] Q. And you didn’t tell your children that their father had done anything wrong because that’s not what you believe. You never believed your husband had done anything wrong. [¶] A. Yes; exactly.”
Later, the prosecutor called Officer Oki to elicit further evidence of Wife’s prior statements. “[Prosecutor] Q. Did you ask [Wife] why she thought her husband forced the sons to sleep with him? [¶] A. I did. [¶] Q. And what did she say to that? [¶] A. She said that Mr. Ushikoshi understands it is taboo for a father to sleep with his daughter in America, so he forces the sons to sleep with him. [¶] Q. Did you ask her why he forces the sons to sleep with him? [¶] A. I did. [¶] Q. What did she say? [¶] A. Originally, she told me she did not know why -- or I’m sorry. May I go back? Actually, when I asked her why Mr. Ushikoshi forces the sons to sleep with him, she said he likes to touch them. [¶] Q. And did you ask her why he likes to touch them? [¶] A. I did. [¶] Q. And is that the point she said she didn’t know? [¶] A. Correct; originally, her response was she didn’t know why he would want to touch them. [¶] Q. Did you ask her that question again after you got ‘I don’t know?’ [¶] A. I did. [¶] Q. What was her answer at that point? [¶] A. She said she assumes it is a sexual thing. [¶] . . . [¶] Q. And just so I’m clear on that -- on the last question that I asked you, you said [Wife] assumes it was a sexual thing, were you looking at your report to refresh your recollection as to what she said about that? [¶] A. Yes, sir.”
Defendant contends that the prosecutor committed misconduct by eliciting inadmissible evidence as to Wife’s opinion about defendant’s guilt. Acknowledging that trial counsel failed to object or request a mistrial, defendant claims that his counsel rendered ineffective assistance.
“To find ineffective assistance of counsel a court must determine that counsel’s performance was deficient, falling below an objective standard of reasonableness . . . under prevailing professional norms [citations], and that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. [Citation.]” (People v. Williams (2006) 40 Cal.4th 287, 304 (Williams), internal quotation marks omitted.)
Here, there is nothing in the record to support defendant’s claim that the prosecutor sought to present evidence that he knew was inadmissible. (People v. Chatman (2006) 38 Cal.4th 344, 380.) Evidence Code section 780 authorizes the jury to consider any matter bearing on a witness’s truthfulness, including demeanor, bias, prior inconsistent statements, and attitude. Wife testified she did not believe that defendant touched R., thus indicating that she thought he was innocent. Based on this testimony, the prosecutor was entitled to attack her credibility by eliciting evidence of her prior inconsistent statements to Officer Oki and Detective Debeaubien. The challenged evidence also demonstrated Wife’s bias and the influence that she exerted on her children prior to their testimony. Since the prosecutor did not engage in misconduct, trial counsel did not render ineffective assistance by failing to object.
Relying on Crawford v. Washington (2004) 541 U.S. 36 (Crawford), defendant also contends that Wife’s statements and letters were inadmissible hearsay and violated the Sixth Amendment right of confrontation. In Crawford, the United States Supreme Court held that a criminal defendant’s Sixth Amendment right to confrontation entitles him or her to the opportunity to cross-examine an unavailable witness prior to the admission of “testimonial” hearsay. (Id. at p. 68.) Here, most of Wife’s statements were testimonial, that is, in response to police interrogations. (Ibid.) However, the Crawford analysis is inapplicable, because Wife testified at trial, and thus her statements were subject to cross-examination.
Defendant next argues that the prosecutor committed misconduct in asking the jury to speculate that defendant had coerced Wife and the children into recanting when the prosecutor knew that defendant had not done so.
A prosecutor is given wide latitude to comment on the evidence, including reasonable inferences to be drawn from it. (People v. Wharton (1991) 53 Cal.3d 522, 567 (Wharton).) “A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial court with such unfairness as to make the conviction a denial of due process. [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citations.]” (People v. Espinoza (1992) 3 Cal.4th 806, 820, internal quotation marks omitted.)
“‘To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’” (People v. Earp (1999) 20 Cal.4th 826, 858 (Earp), quoting People v. Price (1991) 1 Cal.4th 324, 447.)
After defendant was arrested, the trial court issued a protective order prohibiting him from contacting Wife and their children. At the preliminary hearing, Wife testified that she signed a document in which she sought an emergency protective restraining order, but she did not understand what it was. The prosecutor asked her whether she had told the police that she did not want contact with defendant because she was afraid of him. Wife replied that the police misunderstood and she was not afraid of defendant. The trial court later modified the order allowing defendant supervised visitation with the children in the presence of a licensed therapist. This order prohibited any suggestions concerning the underlying case during visitation. However, the modified order did not prohibit defendant from contacting Wife.
During his opening argument, the prosecutor discussed the discrepancies between R.’s statements to the police and his testimony at the preliminary hearing and trial. The prosecutor argued: “Why do I say he didn’t tell the truth at the preliminary hearing and here at trial? Well, now he’s had the pressure to recant from Mom, and you heard that through him talking about how he talked with his mother about the case beforehand. You could really feel it in his testimony about the struggle he was going through on the stand; the struggle he was going through on the stand to talk about what happened to him, . . . [¶] He’s in the terrible position that his mother has told him, ‘You know what; I’ve gone over this police report with you, this summary that Detective Debeaubien wrote, and you know what, your father isn’t that type of person that would do what you’ve described. He’s not that person to do what you described, and so you have to go in there and’ – [Wife]’s words -- ‘bravely correct what’s down here.’ [¶] And you saw him struggling with that, and that’s why he started to cry right then because he is in a terrible position. He’s under that pressure to recant from his mom, and I put to you, also his dad; also the defendant. Why do I say that the defendant has put pressure on him to recant? Well, let’s think about this family. Let’s think about this family as described, the dynamics of this family by [Wife]. You know, she talked about the fact that . . . you know, when she made a decision that was contrary to something that he wanted, she felt bad about that because she had gone contrary to his desires. [¶] So do you think in this most important matter for their family where they’ve been in contact, numerous phone contacts over the last couple of weeks, months, year, year and a half since this came to light, that [Wife] would have any conversation with her kids about this case without having cleared it with the defendant first? Do you think that would possibly happen? [¶] R. is a dutiful son, and a family with a father who’s the boss -- and that meant for him a lot of things.”
The prosecutor made similar references throughout opening and closing arguments. He argued: “[w]hat’s he convinced his wife and children to say about the case;” “[a]nd he tailored his testimony to how his wife -- and I put to you he had coached his kids to talk about what happened . . .;” “[s]hould the defendant get the benefit of not just terrorizing his kids and his wife in the house but in getting all this together to put a fraud on you, and does he get the benefit of that too[.]”
Even assuming that the prosecutor’s statements constituted misconduct, an admonition would have cured any harm. (Earp, supra, 20 Cal.4th at p. 858.) Thus, defendant’s claim has been forfeited. (Ibid.)
Defendant’s claim also fails on the merits. Wife testified that she had told her children that they should correct the mistakes in the police reports when they testified. Thus, the prosecutor reasonably argued that Wife had persuaded her children to recant. Wife also testified that defendant was “the head of the household, and he’s the center. He’s the boss, so he’s greater.” She explained that “that’s Japanese traditional, the way how the family is. In Japanese, we say this is a family style.” Wife acknowledged that she had spoken to defendant five or six times in the month preceding trial. Given Wife’s extremely deferential relationship to defendant, it was not misconduct for the prosecutor to draw the inference that Wife had consulted with defendant about persuading their children to recant their accusations. (Wharton, supra, 53 Cal.3d at p. 567.)
Defendant asserts that the trial court informed the jury that it did not trust Wife’s testimony. The trial court stated: “I will state for the record that these children have obviously been influenced by somebody, and I don’t know if it was the father, I don’t know if it was the mother, but their testimony here was extraordinarily different from their statements that they gave to the detective, and their testimony at the preliminary examination was also very different from what they stated to the detective, and, you know, the jury will make its own decision about credibility.” Contrary to defendant’s claim, the trial court’s comments were made outside the presence of the jury.
B. Child Sexual Abuse Accommodation Syndrome (CSAAS)
Defendant next argues that trial counsel rendered ineffective assistance in failing to object to the evidence of CSAAS.
As previously stated, ineffective assistance of counsel is established when counsel’s performance falls “below an objective standard of reasonableness . . . under prevailing professional norms [citations], and that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. [Citation.]” (Williams, supra, 40 Cal.4th at p. 304, internal quotation marks omitted.)
Prior to trial, defense counsel stipulated to the admissibility of evidence of CSAAS. Lewis testified that he had qualified as an expert on CSAAS in approximately 120 other cases. He testified that CSAAS is a description of behaviors in child sexual abuse cases. According to Lewis, these behaviors include: secrecy; helplessness; entrapment and accommodation; delayed, conflicted, and unconvincing disclosure; and retraction. He explained that secrecy occurs when the perpetrator reinforces the child’s sense of isolation by directing him or her not to tell anyone. The child may display helplessness, because he or she is unable to resist the perpetrator’s advances, and the child’s early attempts to disclose the abuse are rejected or dismissed by caretakers. Lewis described how the child may accommodate his or her behavior to deal with his or her sense of entrapment, that is, since the child feels trapped by the circumstances, he or she finds “a way to exist day to day,” though there may be changes in mood or school performance. The child may also delay disclosure or make inconsistent statements about the abuse. In addition, the child may retract or minimize allegations of abuse when others, such as family members, tell the child that he or she has created trouble. Lewis also testified that these behaviors might explain why a victim’s response is not inconsistent with having been sexually abused. However, Lewis did not relate any of these behaviors to R., K., or S.
Following Lewis’s testimony, the trial court instructed the jury regarding how evidence of CSAAS was to be viewed. “Evidence has been presented to you concerning Child Sexual Abuse Accommodation Syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim’s molestation claim is true. Child Sexual Abuse Accommodation Syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred and seeks to describe and explain common reactions of children to that experience. [¶] As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt. You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim’s reactions, as demonstrated by the evidence, are not inconsistent with their having been molested.”
The trial court repeated this instruction at the end of the case.
In People v. Gilbert (1992) 5 Cal.App.4th 1372 (Gilbert), this court discussed the parameters of expert testimony in a case involving the sexual abuse of a child. “In a case of alleged child sex abuse, it has been concluded that expert testimony from which it may be inferred that the victim manifests certain defined characteristics which are generally exhibited by abused children is not admissible, and may not be used by the jury, to prove that the victim was in fact abused on this occasion. But in such a case such expert testimony is admissible to rehabilitate [the victim’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. . . . [¶] Because the line between impermissible use of expert testimony to prove the child was abused, and permissible use of such testimony to explain the emotional antecedents of abused children’s seeming self-impeaching behavior . . . is by no means a bright one, the better practice is to limit the expert’s testimony to observations concerning the behavior of abused children as a class and to avoid testimony which recites either the facts of the case at trial or obviously similar facts.” (Id. at pp. 1383-1384, internal quotation marks and citations omitted.
This court also summarized the requirements for the admission of such evidence. “‘[T]he evidence must be tailored to the purpose for which it is being received. . . . [A]t a minimum the evidence must be targeted to a specific “myth” or “misconception” suggested by the evidence. . . . In the typical criminal case, . . . it is the People’s burden to identify the myth or misconception . . . .’” (Gilbert, supra, 5 Cal.App.4th at p. 1384.) However, the People need not expressly state which evidence is inconsistent with a finding of sexual abuse. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.) “It is sufficient if the victim’s credibility is placed in issue due to the paradoxical behavior . . . .” (Ibid.) In addition, the trial court must instruct the jury that “the expert’s testimony is not intended and should not be used to determine whether the victim’s molestation claim is true. . . . The evidence is admissible solely for the purpose of showing that the victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested.” (Gilbert, at p. 1384.)
Claiming that that the prosecution failed to identify a particular myth that CSAAS evidence was designed to dispel, defendant argues that the evidence was irrelevant. He claims that R. did not delay in telling his mother about defendant’s behavior and that R.’s recantation was explained by evidence that Wife had urged him to change his testimony.
We reject this argument. R.’s credibility was clearly at issue due to his behavior, and Lewis’s testimony about CSAAS could provide the jury with an explanation of these behaviors. R. demonstrated helplessness, that is, he was unable to resist defendant’s advances and his early attempts to disclose the abuse were dismissed by Wife. R.’s disclosure was also conflicted as evidenced by the inconsistent statements he made about the abuse. R. also retracted or minimized his allegations of abuse in response to Wife’s statements to him. Since the evidence of CSAAS was relevant, and therefore admissible, a reasonably competent attorney would not have objected to its admission on the ground of relevancy.
Defendant next contends that CSAAS is “junk science,” because it is not supported by empirical studies. He also claims that the public no longer has misconceptions about the behavior of children who have been sexually abused, and thus the basis for allowing CSAAS evidence no longer exists.
CSAAS evidence is routinely admitted in child sexual abuse cases. (See People v. Brown (2004) 33 Cal.4th 892, 905-906.) To the extent our Supreme Court has recognized that such evidence may be relevant, useful, and admissible in a given case, as an intermediate appellate court, we are in no position to rule otherwise. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.) Since the trial court admitted the evidence under the authority of our Supreme Court, any objection by trial counsel to the admission of CSAAS testimony would have been futile. Accordingly, defendant has failed to demonstrate that trial counsel rendered ineffective assistance when he did not challenge the admission of this evidence.
C. Jury Instructions
Defendant also argues that the trial court erred in failing to instruct the jury on battery and assault as lesser included offenses of continuous sexual abuse of a child.
The trial court has a sua sponte duty to give jury instructions on the general principles of law that are relevant to the issues raised by the evidence even when the defendant has not made a formal request. (People v. Blair (2005) 36 Cal.4th 686, 744.) This duty encompasses “giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citations], but not when there is no evidence that the offense was less than charged. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) One of the tests to determine whether an offense is necessarily included in the charged offense is the elements test. (People v. Lopez (1998) 19 Cal.4th 282, 288.) Under this test, “if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (Ibid.)
In order to commit the offense of continuous sexual abuse of a child, the defendant must: (1) either reside in the same home with or have recurring access to a child; and (2) engage in three or more acts of substantial sexual conduct or lewd and lascivious conduct with a child under the age of 14 years over a period of time not less than three months. (Pen. Code § 288.5, subd. (a).)
At issue here is whether the elements of battery are included in the elements of a lewd and lascivious act on a child. Penal Code section 288, subdivision (a) provides that “any person who willfully and lewdly commits any lewd or lascivious act, . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . .” A defendant may be convicted under section 288 even though he or she did not touch the victim. (People v. Austin (1980) 111 Cal.App.3d 110, 112-114 [the defendant compelled the child to remove her clothing, thus touching her own body].)
“A battery is any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, § 242.) The touching of the victim must be “willful,” which means “simply a purpose or willingness to commit the act . . . .” (Pen. Code, § 7, subd. (1).) In order to satisfy the element of “‘force or violence,’” any “‘harmful or offensive’” touching, no matter how slight, is sufficient. (People v. Pinholster (1992) 1 Cal.4th 865, 961.)
The People argue that a battery is not a lesser included offense of a lewd act, because a lewd act may be constructively committed while a battery may not. This argument was rejected in People v. Thomas (2007) 146 Cal.App.4th 1278 (Thomas). In that case, the court explained: “[I]f a defendant compels the victim to touch himself or herself in a harmful or offensive manner, then the defendant would be guilty of battery under a constructive touching theory. This conclusion is not inconsistent with People v. Marshall, supra, 15 Cal.4th 1. Marshall held that ‘a battery cannot be accomplished without a touching of the victim.’ (Id. at p. 38.) Marshall did not consider whether the touching could be constructive. The Court concluded that battery was not a lesser included offense of attempted rape because attempted rape could be committed without any touching of the victim whatsoever, such as where the defendant sought the victim’s submission to a rape at gunpoint but the victim escaped ‘without having been touched.’ (Id. at p. 39.) Like battery, lewd acts requires ‘a “touching” of the victim.’ (People v. Martinez, supra, 11 Cal.4th at p. 444; see also People v. Austin, supra, 111 Cal.App.3d at p. 113.) We perceive no basis to conclude that the touching can be constructive under section 288 but not under section 242. We conclude that battery is a lesser included offense of lewd acts.” (Thomas, at p. 1293.) We agree with the Thomas analysis and holding.
The People correctly concede that an assault is a lesser included offense of continuous sexual abuse of a child. An assault is an attempt to commit a battery coupled with the present ability to do so. (People v. Elam (2001) 91 Cal.App.4th 298, 308.)
We next consider whether there was sufficient evidence to support a jury’s determination that the defendant was guilty of either battery or assault. (People v. Elize (1999) 71 Cal.App.4th 605, 615.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instruction on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” (Breverman, supra, 19 Cal.4th 142, 162, quoting People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.)
Here, R. testified that defendant pulled on his penis in the bath to tease him. He denied that defendant intentionally touched or squeezed his penis. R. explained that he told the police that defendant had pulled his penis in the bath and that he had exaggerated the length of time that he did it. R. also testified that he did not discuss his father’s conduct with his friends, because he did not want his friends to think that he was a “disgusting person.” Based on this testimony, the jury could have concluded that defendant touched R.’s penis, which was offensive to R., but that the touching was not sexual. Thus, since there was sufficient evidence of battery and assault, the trial court erred in failing to instruct the jury on these lesser included offenses.
When the trial court errs by failing to instruct on a lesser included offense, the judgment must be reversed if it is reasonably probable that the jury would have returned a different verdict absent the error. (People v. Rogers (2006) 39 Cal.4th 826, 868.)
In addition to R.’s testimony at trial, his prior inconsistent statements were admitted into evidence. R. told Officer Oki that defendant grabbed his penis on five occasions, which he did not like. R. told Detective Debeaubien that defendant squeezed his penis for “like five minutes,” two or three times. He also stated that defendant made him sleep with him about 20 times, and he squeezed his penis about half of those times. In order to convict defendant of the charged offense, the jury was required to find that defendant touched R.’s penis with lewd intent. Thus, the jury necessarily rejected R.’s trial testimony, and found his initial statements to the police were more credible. Based on this record, it is not reasonably probable that the jury would have convicted defendant of either battery or assault if the trial court had properly instructed on these lesser included offenses.
D. Cumulative Error
We have concluded that there was error, but found it harmless. Therefore, defendant’s claim that the cumulative effect of the errors was prejudicial has no merit.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.