Opinion
H049788
07-31-2024
THE PEOPLE, Plaintiff and Respondent, v. BULMARO GUTIERREZ CASTILLO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C1881207)
Danner, J.
A jury convicted Bulmaro Gutierrez Castillo of sex offenses committed against two minor victims over a multiyear period and found true multiple-victim enhancements. The trial court sentenced Castillo to an aggregate term of 230 years to life in prison.
On appeal, Castillo contends that the trial court abused its discretion by admitting evidence of child sexual abuse accommodation syndrome (CSAAS) and erred by instructing the jury in accordance with CALCRIM No. 1193 that CSAAS evidence could be considered to evaluate the credibility of the complaining witnesses. Castillo also contends the trial court erred in instructing the jury in accordance with CALCRIM No. 1191B that it could draw propensity inferences from Castillo's charged sexual offenses.
For the reasons stated below, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Charges
In July 2021, the Santa Clara County District Attorney filed a first amended information (information) charging Castillo with oral copulation or sexual penetration of Miranda Doe, a child 10 years of age or younger, by a person 18 years of age or older (Pen. Code, § 288.7, subd. (b); count 1), four counts of lewd or lascivious acts on Miranda Doe, a child under 14 years of age, by force, violence, duress, menace, or fear (§ 288, subd. (b)(1); counts 2-5), aggravated sexual assault of Ashley Doe, a child under 14 years of age and seven or more years younger than the defendant (§ 269, subd. (a)(5); count 6), and four counts of lewd or lascivious acts on Ashley Doe, a child under 14 years of age, by force, violence, duress, menace, or fear (§ 288, subd. (b)(1); counts 710). The information further alleged, as to all eight counts of lewd and lascivious acts (counts 2-5 &7-10) that Castillo had committed the offenses against multiple victims (§ 667.61, subd. (j)(2)).
Unspecified statutory references are to the Penal Code.
B. Evidence Presented at Trial
1. Prosecution Evidence
a. Lay Witnesses
Ashley Doe was born in September 2001 and was 19 years old at the time of trial. Ashley's mother has a sister named Olivia. Ashley's aunt Olivia and Castillo were "on and off" romantic partners for about 10 years, starting when Olivia was 16 or 17 years old, and have two children together. Through her aunt, Ashley has known Castillo her entire life.
We refer to each victim's relatives by first name to protect their privacy interests. (See Cal. Rules of Court, rule 8.90(b)(4), (11).)
Ashley was 12 years old the first time Castillo sexually assaulted her. She was at Castillo's house for a Valentine's Day party. Ashley had lain down in her cousin Juliet's bedroom and was playing a video game on a cell phone when Castillo came into the room. Ashley did not think anything of it since she knew him and trusted him. She was lying on her stomach with her elbows propped on the bed. Castillo leaned over her and put his hands underneath her shirt and bra and began rubbing her chest and nipples. He moved one of his hands to the waist of her pants and reached his hand inside her pants and underwear. He began touching her vaginal area with his fingers and "rubbing it in a circular motion." He "didn't stick anything in" but continued touching her. She was "frozen," "couldn't move," and "couldn't speak." He left the room after about five minutes. She "didn't know what had happened" and did not tell anyone.
Sometime after, while Ashley was in the seventh grade, her family needed a place to live and moved in with Castillo and his family. Castillo at the time lived with his exwife Brenda and her daughter Juliet. It was a two-bedroom house and Ashley and her brothers slept in Juliet's room while Ashley's mother slept on the couch. Ashley's family lived with Castillo for approximately five months. During that time, Castillo touched Ashley "[a]lmost every night" late at night, after midnight. He would come into Juliet's bedroom and touch her "whole body" and put his fingers in her vagina. Sometimes she tried wrapping herself in blankets "like a burrito" and telling him "no" but it did not stop him. She felt "[p]owerless." One of the mornings after he touched her he came into the room and put $20 under her pillow.
One time, she was sleeping, and Castillo picked her up and carried her to his bedroom and laid her on the bed. Brenda was not in the room. He touched Ashley "all over [her] body." He was "rubbing" and "grabbing" her breasts and "[p]utting his fingers inside" her vagina. Ashley was "crying silently." He reached into a drawer to get a condom and put it on his penis. He tried but was not able to insert his penis into her vagina, he then put his fingers inside her anus.
Ashley also recalled around 10 times that Castillo placed her hand on his penis and moved it "up and down" stroking himself with her hand. He would not let her pull her hand away.
One day Ashley's mother saw Castillo come out of the room where Ashley had been. She later asked Ashley if Castillo had done anything or had ever touched her. Ashley said no because she was scared that her family would have nowhere to live and would have to sleep in their car again if she told the truth. Ashley's family later moved into their own place. In 2015, between Ashley's eighth grade and freshman year, she told her best friend Alice about what happened and later told her mother and aunt Olivia.
Alice has been friends with Ashley since they were 10 years old. When Alice was 13 years old, Ashley told Alice that her uncle (Castillo) had sexually assaulted her. Ashley was "crying" and "panicking." They told Ashley's mother and spoke with the police that same day.
Miranda Doe was born in March 2009 and was 12 years old at the time of trial. Miranda lives in San Jose with her mom, her stepdad, and her uncle. Castillo is Miranda's other uncle, her mother's brother. Castillo lived at Miranda's house for some time when Miranda was about eight years old, toward the end of her second grade year and the beginning of third grade. He slept on the couch downstairs. His girlfriend Yesenia often slept over as well. Castillo helped take care of Miranda when Miranda's mother was working and would sometimes pick up Miranda from school.
When he lived with Miranda's family, Castillo touched Miranda on her "chest," her "butt," and "[i]n [her] front" (vagina). One time she was watching TV in her mother's room and Castillo came in the room. He began "grabbing" her chest over her clothes and touching her butt. He took her pants and underwear off. It happened "[e]very time that [they] were alone." He would touch her vagina with his fingers and "rub" between the lips. It made her "uncomfortable." He did this more than five times.
Castillo would "tell [Miranda] to do things that [she] didn't want to do." He "made [her] touch his private part" (penis). He would take her hand and put it on his penis and move it "top to bottom." "White" came out of his penis. This happened more than two times. He also kissed Miranda on the lips more than three times.
Another time on the couch downstairs he "put it [his penis] in her butt." This happened during the day when she left her room to go downstairs. He told her the next day to wear a "dress" because she had been wearing jeans, but she did not listen to him. Miranda did not tell anyone because she "didn't know what to say and [she] didn't have any proof." Castillo also told her "not to tell" her mom and that he would not buy her things if she told.
Jessica is Miranda's mother. Jessica's brother, Castillo, came to live with them when Miranda had just turned seven years old. Sometimes Miranda would be home with Castillo and her older siblings but there were times that she was alone with Castillo. The first time Jessica learned of Miranda's allegations against Castillo was when the police came to their house in December 2017. The police had received a call from Miranda's school. Shortly before that, Miranda had told Jessica that she "didn't really feel comfortable with [Castillo]" and asked if Jessica could try to pick her up at school. When Miranda did not explain why, Jessica asked Miranda's siblings "to keep a closer eye to try to observe what was going on."
b. Expert Witness
The prosecution called Dr. Blake Carmichael, a licensed clinical psychologist at the University of California, Davis CAARE (Child and Adolescent Abuse Resource and Evaluation) Center, to testify as an expert witness on CSAAS.
Dr. Carmichael explained that the concept of CSAAS originated with an article written by Dr. Roland Summit in the early 1980s and was intended to educate people about myths and misconceptions relating to the way victims of child sexual abuse might respond to abuse or disclose information after being abused. Dr. Carmichael testified that CSAAS is not a diagnostic tool. He explained, "There's no such checklist that determines a kid being abused or not. People tried to develop those. They don't work." Rather, "it's more of a tool to help educate people to better understand."
Dr. Carmichael discussed five components of CSAAS: secrecy; helplessness; entrapment or accommodation; delayed, conflicted, or unconvincing disclosure; and recantation or retraction. He testified that not all five categories under CSAAS are present in every case of child sex abuse and reiterated that there is "no checklist to use to say abuse happened or not."
With respect to the first CSAAS component, secrecy, Dr. Carmichael testified that when a child is abused by a known, trusted adult, whom the child may also rely on for care, the child may fear disruption to that relationship or to the family and maintain the secret even without overt coercion by the adult.
The second CSAAS component, helplessness, responds to the perception that a child will try to fight off their abuser. Instead, Dr. Carmichael explained that the position of the "smaller, weaker, certainly more vulnerable" child and the "bigger, stronger, more authoritative person adult perpetrator" renders the child helpless, especially if the child relies on that adult for protection or as a role model, and more so when the child is told to" '[o]bey authority'" and" '[l]isten to adults.'" The child's feeling of helplessness may be exacerbated if the child thinks they will not be believed if they disclose the abuse, or that the people around them will be upset.
With respect to the third CSAAS component, entrapment and accommodation, children develop coping strategies when "trapped" in a sexual relationship that they do not have the power to stop. These can include behavioral strategies wherein a child might try to avoid situations or locations where the abuse typically occurs, might wear an extra set of pajamas to bed, pretend to be asleep, or freeze to "make themselves appear less available." Cognitive strategies include "avoidance" and "disassociation" during which children "kind of pull back from the reality of what's happening or try to tune out what's happening." These cognitive strategies may help a child "try[] to ignore or not think about what's happened" and "immerse themselves in other things -- studies, sports, other relationships -- even enjoy time spent with their perpetrator in other things, because those are part of their relationship too." Dr. Carmichael explained that it is not inconsistent for a child to continue spending time with the perpetrator.
With respect to the fourth CSAAS component, delayed, conflicted, or unconvincing disclosures, Dr. Carmichael explained that there is a misconception that children will disclose sexual abuse quickly or right away. The reality is that children who are sexually abused may delay disclosure by months or years, or may never disclose. Children may also disclose only incrementally due to their uncertainty about how the disclosure will be received and because they may remember more as they begin to talk about their experience. Unconvincing disclosure addresses the reality that children who have been sexually abused often provide inconsistent and sometimes conflicting information about the abuse. Such inconsistencies may be attributed to the child's developmental stage and limited ability to describe abstract concepts like time, sequence, order, and duration, as well as the challenge of recounting and differentiating events that were similar and happened more than once.
Dr. Carmichael did not know the specific charges against Castillo and had not reviewed any police reports or transcripts, interviewed any of the witnesses, spoken to law enforcement, or heard or reviewed any of the witnesses' testimony. He testified that he was not in court to provide an opinion about whether someone was or was not sexually abused but had testified to help educate about misconceptions that are still present regarding child sexual abuse.
2. Defense Evidence
At trial, Castillo introduced the testimony of two criminal defense investigators for the public defender's office regarding their investigative efforts into the allegations by Miranda Doe and Ashley Doe. Castillo also introduced the testimony of a City of San Jose police detective who responded to a call for an investigation in January 2015 regarding Ashley's allegations against Castillo.
Castillo testified in his own defense and denied sexually abusing Miranda Doe and Ashley Doe. He explained that during the time that Ashley's family lived with him and his wife and her daughter in 2014, he had a small gardening company and also made money by selling marijuana. Castillo sold marijuana in large quantities (10 pounds to 100 pounds) to smaller distributors. He also sold methamphetamine. As a distributor for "bigger people," Castillo was subject to "rules" including that he not use drugs, rape women, or hurt children. He testified that if a person in his position hurts children, "[t]hey're killed."
Castillo testified that he never held a Valentine's Day party or had any family birthdays or other parties near Valentine's Day. Ashley's mother Edith knew that Castillo sold drugs when she came to stay with him along with her five children. Edith knew Castillo was on probation for a prior drug sales conviction and threatened to report him to probation if he did not give her money; but he did not give her money. Sometime after Edith moved out of the house with Ashley and her other children, Castillo heard from his daughter that the police were coming to the house. He took the drugs and money from the house and left. When he returned, the keys to the car and car he had left parked at the house were gone, along with a number of phones and tablets, and the area where he kept the drugs and money had been ransacked. He could not call the police and report the incident as a robbery because he was on probation. He believes Edith wanted to get him into trouble.
Castillo asked his sister Jessica Castillo, Miranda's mother, if he could stay with her. He continued his gardening work as well as drug sales. Castillo asked Jessica to hold money for him. He gave the money to her in "plastic bags." Castillo was arrested and served time in 2016 related to his drug sale activities. After his release from custody in 2017, he returned to live with his sister Jessica and continued selling methamphetamine. He slept in the living room. Jessica worked a lot and sometimes Castillo would be home with Miranda or with Miranda and her older siblings.
Castillo testified that in December 2017, Jessica was holding about $180,000 in cash for him. He told her he would need the money "soon" because he was thinking about moving into a house or apartment to have more privacy. Shortly after, Jessica called Castillo to ask if he knew why the police had come to the house. Castillo never returned to the house. He hid from the police by staying in his car or in hotels until February 2018, when the police apprehended him on the current charges as well as on drug-related charges. During the time that he was away from the house, Castillo unsuccessfully tried to get his money back from Jessica.
3. Closing Arguments
During closing arguments, the prosecutor argued that a finding "beyond a reasonable doubt that the defendant committed one or more of the crimes against one of the girls" allows the jury to "use that evidence as propensity evidence that [the defendant] was more likely than not to commit that crime against the second victim." She argued that "[e]ach victim supports and corroborates the other victim, as long as you [the jurors] find them beyond a reasonable doubt."
With respect to the expert testimony, the prosecutor maintained that the defense would try to "rely on . . . biases, sympathies, and misconceptions" and ask the jurors "to not believe Miranda or Ashley because they had some inconsistent statements, because what they have to tell you is not, word-for-word exactly what they said two [or] three years ago." The district attorney referred the jury to Dr. Carmichael's testimony "to explain some of these things" but also urged the jury to use "common sense" in evaluating "how human memory works."
In the defense's closing argument, defense counsel argued that Castillo was "very honest" about making his living as a drug dealer, even though his admissions could "put him at some legal peril," and how being flush with cash "made him a target." Defense counsel further argued that the testimony of Ashley and Miranda was not credible given numerous inconsistencies and other factors including the number of people living in the homes at the time and sharing rooms and space, making it unlikely that Castillo could have committed the sexual assaults unnoticed.
C. Jury Instructions
In addition to standard instructions on evaluating witness testimony, the presumption of innocence, and considering evidence admitted for a limited purpose, the trial court issued the instructions at issue here, including CALCRIM No. 1193 and CALCRIM No. 1191B. We describe the instructions in the context of the analysis of each issue, post.
D. Jury Verdict and Sentencing
The jury found Castillo guilty as charged on all counts and found true the multiple-victim enhancements as to counts 2-5 and 7-10.
The trial court sentenced Castillo to consecutive terms of 15 years to life on counts 1 and 6, and 25 years to life on counts 2-5 and 7-10, for an aggregate term of 230 years to life in prison.
II. DISCUSSION
Castillo makes three arguments on appeal. He contends the admission of CSAAS evidence was unreliable and unconstitutional. He challenges the jury instruction related to CSAAS evidence as a misstatement of the law that lowers the prosecution's burden of proof. Castillo also asserts that the jury instruction on propensity evidence allowed the jury to make improper propensity inferences related to the charged offenses.
A. CSAAS Evidence and CALCRIM No. 1193
Castillo contends that CSAAS evidence is fundamentally unreliable, and the trial court abused its discretion in admitting it in violation of Castillo's constitutional rights. Castillo also contends the trial court erred in instructing the jury with CALCRIM No. 1193 because it misstates the law regarding the application of CSAAS evidence and improperly allows jurors to use such evidence to determine if he sexually abused Ashley and Miranda, reducing the prosecution's burden of proof and violating Castillo's constitutional rights.
1. Additional Background
The prosecutor moved in limine to present expert testimony regarding CSAAS. The prosecutor asserted that CSAAS testimony "is commonly used to disprove common myths and misconceptions about children's reactions to sexual abuse" and "will assist the trier of fact in assessing the credibility of the complaining witness." The prosecutor asserted that the testimony "will not be offered to prove that a sexual assault occurred, and the admonition provided in the jury instructions . . . will prevent the jury from considering the testimony for any impermissible purpose."
Defense counsel moved to limit the testimony on CSAAS. The defense's motion argued that courts have excluded testimony about CSAAS because it is not a scientific tool that meets Kelly-Frye standards but a therapeutic tool, the evidence of which is limited to rehabilitating a complaining witnesses' credibility in response to a defense argument that the child's behavior was inconsistent with having been abused. Defense counsel requested that the court order the CSAAS witness (1) not testify" 'that a particular report of alleged abuse is credible'" because a victim displays certain characteristics; (2) not comment on "the particular facts of the present case" or a very similar hypothetical; (3) not "offer hearsay statements from children"; and (4) not offer statistical testimony regarding the frequency of false child sexual abuse claims, or how often an abuser is a person familiar to the child.
The prosecutor did not object to the limitations sought by the defense. The trial court noted that the prosecution's motion had identified "the four things that the cases say an expert can talk about" and did not order any further limits.
In another colloquy with the trial court before Dr. Carmichael's testimony, defense counsel questioned the relevance of the proposed expert testimony where there was no recantation at issue. The prosecutor explained that recantation is only one of "five different areas" of testimony and "just part of the general testimony that the expert gives. Not all the areas are completely on point . . . to this specific case, but they do help the jury to assist them in understanding." Defense counsel responded, "the expert shouldn't be testifying about something that's irrelevant."
As set forth ante, Dr. Carmichael testified regarding CSAAS and its use as a tool to counter misconceptions about child sexual abuse victim behavior. He expressly testified that CSAAS is not a diagnostic tool. During Dr. Carmichael's testimony, defense counsel objected to a question by the prosecutor about whether it was "uncommon" for a child to continue being around the person who has molested them. After hearing further argument outside the presence of the jury, the trial court directed the prosecutor to rephrase the question to avoid phrases like "common."
The trial court instructed the jury in accordance with CALCRIM No. 1193, as follows: "You have heard testimony from Dr. Blake Carmichael regarding child sexual abuse accommodation syndrome. [¶] Dr. Carmichael's testimony about child sexual abuse accommodation syndrome 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 Ashley's conduct and Miranda's conduct were not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony."
2. Legal Principles
"While CSAAS evidence is not relevant to prove the alleged sexual abuse occurred," California courts have long held such evidence admissible in child sexual abuse cases to "disabuse jurors of five commonly held 'myths' or misconceptions about child sexual abuse." (People v. Lapenias (2021) 67 Cal.App.5th 162, 171 (Lapenias).) Such evidence" 'is needed to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.'" (People v. McAlpin (1991) 53 Cal.3d 1289, 1301 (McAlpin); see also People v. Gonzales (2017) 16 Cal.App.5th 494, 504 (Gonzales) ["The purpose of CSAAS is to understand a child's reactions when they have been abused."].) California courts have held that expert testimony regarding CSAAS "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." (McAlpin, at p. 1300; see also Gonzales, at p. 503.) Thus, "it is well established in California law [that] CSAAS evidence is relevant for the limited purpose of evaluating the credibility of an alleged child victim of sexual abuse." (Lapenias, at p. 171.)
3. Admissibility of CSAAS Testimony
Castillo contends that CSAAS evidence should be inadmissible because it is unreliable and "will always support the conclusion that abuse actually occurred." (Underscoring and capitalization omitted.) Castillo asserts that the admission of this evidence violated his right to due process under the federal and state constitutions. He further argues that he was denied effective assistance of counsel to the extent that defense counsel failed to properly object to the admission of the CSAAS evidence and preserve his claims of error for appellate review.
The Attorney General counters that Castillo forfeited his claim by failing to object generally to the expert testimony. The Attorney General further asserts that Castillo has failed to demonstrate defense counsel's deficient performance as to Dr. Carmichael's testimony and, regardless, any error was harmless.
a. Forfeiture
Beginning with the threshold issue of forfeiture, Castillo acknowledges that although defense counsel objected to certain aspects of Dr. Carmichael's testimony, he did not object to the admission of the CSAAS evidence in its entirety on the ground that it is unreliable. He maintains, however, that given the state of the law, a broad objection to the admission of the CSAAS evidence would have been futile.
It is settled law that "challenges to the admission of evidence must be preserved for appellate review with a timely and specific objection at trial." (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.) To preserve the issue for appeal, the objection in the trial court must be" 'on the ground sought to be urged on appeal.'" (People v. Raley (1992) 2 Cal.4th 870, 892; Evid. Code, § 353.) The specific objection requirement "must be interpreted reasonably, not formalistically." (People v. Partida (2005) 37 Cal.4th 428, 434 (Partida).) Its purpose is "that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling." (Id. at p. 435; see also People v. Perez (2020) 9 Cal.5th 1, 7 (Perez).) A narrow exception to the forfeiture doctrine exists in that"' "[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." '" (Perez, at pp. 7-8.)
Given the various grounds for challenging the evidence that Castillo raises on appeal, his failure to object to the admission of CSAAS evidence is not excused as futile. As Castillo points out, while California courts have continuously upheld the admission of CSAAS evidence for specified purposes, its admissibility remains the subject of continuing legal challenges-both within and outside of California. (See, e.g., People v. Munch (2020) 52 Cal.App.5th 464, 472 (Munch) [rejecting as "not meritorious" the defendant's admissibility challenge to CSAAS evidence under the Kelly/Frye rule and based on purported trends in other states to disallow CSAAS].) Castillo's evidentiary and due process challenge to the admission of CSAAS evidence is not derived from a recent or unforeseen change in the law and was therefore available at trial. (Cf. People v. Edwards (2013) 57 Cal.4th 658, 705.) Because Castillo could have made these arguments before the trial court, enabling the prosecutor to lay additional foundation if necessary and allowing the trial court to consider the full scope of the objection (Perez, supra, 9 Cal.5th at p. 7), we do not excuse the failure to object on futility grounds.
Nevertheless, while Castillo did not object to the admission of the CSAAS evidence on the same ground raised on appeal, defense counsel's effort to limit the scope of Dr. Carmichael's testimony rested on many of the same underlying questions about reliability. The defense's motion in limine noted courts' prior rulings limiting CSAAS testimony insofar as it does not conform to the rules for the admission of expert witness testimony. Defense counsel further questioned the relevance of the expert testimony during the trial and criticized the prosecutor's representation that Dr. Carmichael's testimony was admissible even though not all five areas of his expert testimony were necessarily relevant to the case. Interpreted reasonably, defense counsel's arguments sought to limit the CSAAS evidence as much as possible and invited the trial court to do so. (Partida, supra, 37 Cal.4th at p. 434.) We decline to apply forfeiture under these facts and turn to the merits of Castillo's evidentiary challenge.
b. Admissibility of CSAAS Evidence
We review a trial court's decision to admit evidence for an abuse of discretion. (Lapenias, supra, 67 Cal.App.5th at p. 170.) Under the abuse of discretion standard, we review the trial court's legal conclusions de novo and may reverse the trial court's application of the law to the facts only if we find that the court acted in an arbitrary and capricious manner. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.)
Castillo argues that "CSAAS evidence cannot possibly be limited to dispelling myths surrounding child sexual abuse" because "the syndrome has no fixed characteristics" and "the victim's behavior will always fit" the syndrome. For example, Castillo points out that a child's immediate disclosure fits the syndrome, as does a child's delayed disclosure. Thus, he maintains that under CSAAS, "any conceivable behavior is a behavior consistent with a child abuse victim. [¶] Given this reality, the jury cannot possibly avoid using CSAAS to support whatever version of events the victim in any given case describes."
Castillo asserts that even though California courts have accepted the admissibility of CSAAS evidence, courts have also acknowledged "inherent problems" with it. However, the cases that Castillo relies upon do not support his contention that the evidence should be deemed wholly inadmissible. Rather, each of the cases cited by Castillo emphasized the specific and limited purpose of CSAAS evidence and the potential prejudice to a defendant if the testimony exceeds the scope of admissible CSAAS evidence. (See, e.g., People v. Housley (1992) 6 Cal.App.4th 947, 958 [holding that a sua sponte jury instruction limiting the use of CSAAS evidence is proper given "the ultimate question of whether abuse actually occurred"]; People v. Patino (1994) 26 Cal.App.4th 1737, 1744 [noting that because "particular aspects of CSAAS are as consistent with false testimony as with true testimony[,] . . . the admissibility of such testimony must be handled carefully by the trial court"].)
In People v. Mateo (2016) 243 Cal.App.4th 1063, the Court of Appeal disagreed with Housley's determination that a limiting instruction is required sua sponte in all cases involving expert testimony on CSAAS. (Id. at p. 1074.) The court explained that statutory and decisional law dictates that an instruction "need only be given if requested." (Ibid.) Mateo also disagreed with the proposition that CSAAS testimony is unusually susceptible to being misunderstood and misapplied by a jury. It reasoned that where "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." (Ibid.)
Castillo argues that the California Supreme Court's holding in McAlpin on the proper use of CSAAS evidence to rebut public misconceptions should not be read as "directly h[olding] that CSAAS evidence is admissible in California." Castillo asserts that more recent Court of Appeal decisions in Lapenias and Munch reaffirming the admissibility of CSAAS evidence failed to evaluate whether those public misconceptions underlying the rationale for allowing CSAAS evidence at trial continue to exist. Castillo also cites cases from other states identifying the potential for misuse of CSAAS evidence or barring its admission entirely. (See, e.g., King v. Commonwealth (Ky. 2015) 472 S.W.3d 523, 528-532 [rejecting the admissibility of CSAAS evidence]; State v. Ballard (Tenn. 1993) 855 S.W.2d 557, 563 [same]; State v. J.L.G. (2018) 234 N.J. 265, 308 [holding expert testimony about CSAAS to be generally disallowed, with limited exceptions for testimony about delayed disclosure].) Castillo urges this court to "join the well-reasoned decisions of these other jurisdictions and hold that CSAAS evidence is inadmissible for all purposes, or at least for very limited ones."
We disagree with Castillo's reading of McAlpin. The California Supreme Court in McAlpin cited with approval those Court of Appeal decisions extending the high court's rule concerning the admissibility of evidence of" 'rape trauma syndrome'" to the child sexual abuse context. (McAlpin, supra, 53 Cal.3d at p. 1300.) Our high court reasoned that CSAAS evidence-inadmissible to prove the alleged sexual abuse but admissible to rehabilitate the credibility of the child witness and to explain conduct that appears inconsistent with his or her testimony claiming molestation-applies equally to explain a parent's conduct in failing to report the molestation. (Id. at p. 1301.) The court further explained that such evidence would" 'assist the trier of fact' (Evid. Code, § 801, subd. (a)) by giving the jurors information they needed to objectively evaluate [the mother]'s credibility" and "was clearly relevant (id., § 210) because it tended to rehabilitate the testimony of [the victim's mother] as a corroborating witness." (Id. at p. 1302.) Thus, under McAlpin, CSAAS evidence is admissible for those stated purposes.
Lapenias and Munch reiterate this understanding. The appellate court in Lapenias cited McAlpin as authority for the relevance and admissibility of the CSAAS evidence. (Lapenias, supra, 67 Cal.App.5th at p. 171.) What is more, the court expressly rejected contentions made here by Castillo. It disagreed with the assumption that CSAAS evidence is unnecessary" 'because the public no longer harbors misconceptions about the behavior of sexually abused children.'" (Id. at p. 172.) It also rejected the argument that CSAAS evidence is inadmissible under the Kelly rule, explaining that the "theory of CSAAS is not new" (id. at p. 173) and "does not purport to provide a definitive truth" but responds to public misconceptions about abuse. (Ibid.)
In Munch, the appellate court rejected similar claims that CSAAS evidence was irrelevant and no longer needed to address presumed misconceptions. (Munch, supra, 52 Cal.App.5th at pp. 468, 473.) The court explained that the defendant's claims were "not meritorious because courts have long recognized the well-established relevance, necessity, reliability, and importance of this evidence." (Id. at p. 472.) The court in Munch also declined to follow out-of-state cases like State v. J.L.G. and King v. Commonwealth. The Munch court noted that these decisions remain in the minority and "the vast majority of jurisdictions . . . have rendered decisions that are consistent with McAlpin." (Ibid.)
We agree with the conclusions reached in Lapenias and Munch and decline Castillo's invitation to reexamine the admissibility of CSAAS evidence for those limited purposes agreed upon by California courts. Our Supreme Court has recognized that such evidence may be relevant, useful, and admissible, and we are bound to follow the Supreme Court's legal determination. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity); accord, People v. Johnson (2012) 53 Cal.4th 519, 527528 (Johnson).) We therefore conclude that the trial court did not abuse its discretion in admitting the CSAAS evidence.
c. Due Process
Castillo contends that admission of the CSAAS evidence amounted to a denial of state and federal due process because it allowed the jury to make unsupported inferences that Ashley and Miranda were credible based solely on Dr. Carmichael's testimony. We disagree.
"Generally, a court's compliance with the rules of evidence does not violate a defendant's right to due process." (Lapenias, supra, 67 Cal.App.5th at p. 174.) As explained in Lapenias, "reviewing courts have routinely held the admission of CSAAS evidence does not violate due process." (Ibid.)
Castillo has not provided any legal authority that would support this court drawing a different conclusion. Although he contends that the evidence allowed the jury to draw impermissible inferences, the general nature of Dr. Carmichael's testimony (in which he expressly disavowed any knowledge of the case or its details) and the instruction to the jury limiting its use of the expert testimony guarded against the jurors utilizing the evidence impermissibly. We conclude that the admission of the evidence did not violate Castillo's due process rights.
4. CALCRIM No. 1193
Castillo asserts the trial court erred in instructing the jury with the pattern CSAAS jury instruction, CALCRIM No. 1193. We review a claim of instructional error de novo to ascertain whether the instruction accurately states the applicable law. (People v. Ramirez (2023) 98 Cal.App.5th 175, 218 (Ramirez); People v. Mitchell (2019) 7 Cal.5th 561, 579.) We consider the challenged instruction" '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.'" (People v. Rivera (2019) 7 Cal.5th 306, 326.) We assume that jurors understand and follow the court's instructions. (People v. Ortiz (2023) 96 Cal.App.5th 768, 816 (Ortiz).)
Castillo contends that CALCRIM No. 1193 misstates the law regarding the application of CSAAS evidence and improperly allowed the jurors to use such evidence to determine that he sexually abused Ashley and Miranda, thereby reducing the prosecution's burden of proof and violating his constitutional rights. Castillo maintains that despite his failure to object to the instruction at trial, his claim is cognizable on appeal because an erroneous jury instruction affects a defendant's substantial rights.
We agree that although defense counsel did not object to the giving of the challenged instruction, we may review the merits of Castillo's claim because he contends the instruction affects his substantial rights. (See People v. Grandberry (2019) 35 Cal.App.5th 599, 604; People v. Gomez (2018) 6 Cal.5th 243, 312; § 1259.)
Turning to the merits of Castillo's claim, California courts have upheld the language of CALCRIM No. 1193 as accurately informing the jury of the limited use of CSAAS evidence. (See Gonzales, supra, 16 Cal.App.5th at p. 504; Lapenias, supra, 67 Cal.App.5th at pp. 175-176; Ramirez, supra, 98 Cal.App.5th at p. 219; Ortiz, supra, 96 Cal.App.5th at p. 816; Munch, supra, 52 Cal.App.5th at p. 474.)
Nevertheless, Castillo maintains that CALCRIM No. 1193 violates the limitation prohibiting the use of CSAAS evidence to prove that the sexual abuse allegation is true. He contends that while most of CALCRIM No. 1193 comports with this limit, the last part of the instruction misstates the law by allowing the jurors to consider the testimony in evaluating a victim's believability. Castillo argues that this sentence effectively instructed the jurors that they could rely on counterintuitive victim behavior to bolster the credibility of the victims and support an inference of guilt, contradicting the parameters for use of the evidence. He asserts that the instruction also fails to inform the jury of the limits for use of CSAAS evidence by not including language specified in People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker), which a prior version of the pattern jury instruction (CALJIC No. 10.64) had included.
The last two sentences of the CALCRIM No. 1193 instruction read, "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 Ashley's conduct and Miranda's conduct were not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony."
We are not persuaded by Castillo's argument and do not agree the existing precedent is incorrectly decided. The CALCRIM No. 1193 instruction expressly told the jury that Dr. Carmichael's testimony regarding CSAAS "is not evidence that the defendant committed any of the crimes charged against him" and could be used only for the stated limited purposes. Thus, the instruction explicitly precluded the use of the proffered CSAAS evidence "to conclude inferentially from the victims' conduct and Dr. [Carmichael]'s testimony" that Castillo committed the charged crimes. (Ortiz, supra, 96 Cal.App.5th at p. 816.) The inclusion in CALCRIM No. 1193 of an instruction that the jurors could not consider CSAAS evidence as proof that Castillo committed the charged crimes would not provide any reasonable juror grounds to believe the CSAAS evidence could be used in the way Castillo suggests. "We presume the jurors understood and followed the instructions." (Lapenias, supra, 67 Cal.App.5th at p. 180.)
Moreover, we review the instruction in light of the entire record. (See Gonzales, supra, 16 Cal.App.5th at p. 504.) Dr. Carmichael testified that CSAAS is not a diagnostic tool and there is no "checklist" to determine whether child abuse occurred. He explained that attempts to use CSAAS to "go backwards" and determine if a child had been abused reflects a "misunderstanding or misappl[ication]" of the CSAAS research. Rather, he testified that he teaches CSAAS to help "understand child reactions to sexual abuse." The instruction must be understood in the context of this testimony and defense counsel's arguments that each girl's testimony was inconsistent with other independently verifiable circumstances.
The appellate court in Gonzales explained the relevance of the expert's testimony in addressing the claim of instructional error. Like Dr. Carmichael, the expert in Gonzalez testified that "if 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." (Gonzales, supra, 16 Cal.App.5th at pp. 503-504.) The Gonzales court explained that 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" and also "cannot use [the expert]'s testimony to conclude [the child] was, in fact, molested." (Id. at p. 504.) "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 selfimpeaching 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." (Ibid.)
We agree. The instruction's direction that the jurors may consider Dr. Carmichael's testimony in evaluating the believability of Ashley and Miranda allowed the jury to weigh any apparently contradictory or self-impeaching evidence in the context of what CSAAS teaches about child sex abuse victims. That the behavior of an alleged victim is not inconsistent with having been a victim of sexual abuse does not necessarily mean the alleged victim's conduct is per se consistent with such victimization. (Ortiz, supra, 96 Cal.App.5th at p. 816 ["[T]he last sentence of the instruction did not compel a conclusion that the victims' conduct was consistent with being a sexual abuse victim."].) Moreover, although the assessment of an alleged sexual abuse victim's "believability" may assist the jury in determining whether to credit the victim's testimony that the abuse occurred, the same can be said of any evidence that is admitted as relevant to a witness's credibility.
We are also not persuaded that CALCRIM No. 1193 misstates the law because it does not expressly instruct the jury on the assumptions underlying CSAAS. Bowker does not dictate otherwise. In Bowker, the Court of Appeal articulated a rule that the jury "must be instructed" that expert testimony "should not be used to determine whether the victim's molestation claim is true." (Bowker, supra, 203 Cal.App.3d at p. 394.) Castillo acknowledges that the instruction here did that. The Bowker court further explained that "[t]he jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury. CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience. [Citation.] 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." (Ibid.)
Castillo asserts that CALCRIM No. 1193 does not inform the jurors as directed by Bowker. This argument infers too much from the decision's discussion about CSAAS. That discussion elaborated on the court's holding by explaining that the jurors "must understand" the basis for CSAAS but does not specify any additional required instruction. (Bowker, supra, 203 Cal.App.3d at p. 394.) Castillo offers no legal authority to suggest that Bowker's discussion of CSAAS's baseline assumptions is prescriptive or requires the current pattern jury instruction to adopt the language from the case or revert to the prior language of CALJIC No. 10.64.
In sum, Dr. Carmichael's testimony adequately explained for the jury the origins of CSAAS and clarified that any efforts to use CSAAS to "diagnose[]" sexual abuse were misdirected and inconsistent with its purpose. Dr. Carmichael furthermore emphasized that he had not met the alleged victims, did not know the facts of the case, and was not opining on whether the minors were victimized. These statements emphasized the narrow purpose of Dr. Carmichael's testimony and provided the jury with an understanding of CSAAS evidence consistent with the instruction on the law, which told the jurors that Dr. Carmichael's testimony could not be considered as evidence that Castillo "committed any of the crimes charged against him."
We are not persuaded there is a reasonable likelihood that the jurors misapplied the instruction and used the CSAAS evidence as affirmative proof of the truth of the charges or to lessen the prosecution's burden of proof beyond a reasonable doubt. (Ortiz, supra, 96 Cal.App.5th at p. 816.) We conclude that the trial court did not err in instructing the jury with CALCRIM No. 1193, nor did the court violate Castillo's constitutional rights by giving the instruction. (Ortiz, at p. 816; see also Gonzales, supra, 16 Cal.App.5th at p. 504; Lapenias, supra, 67 Cal.App.5th at p. 175.)
B. Propensity Evidence and CALCRIM No. 1191B
Castillo contends the trial court erred by instructing the jury on the use of propensity evidence pursuant to CALCRIM No. 1191B. Castillo acknowledges that the California Supreme Court approved of the instruction in People v. Villatoro (2012) 54 Cal.4th 1152, 1156 (Villatoro)), and that this court is bound by that decision. (Auto Equity, supra, 57 Cal.2d at p. 455.) Seeking reconsideration of that issue in the Supreme Court, Castillo asserts that CALCRIM No. 1191B misstates the law by allowing the admission of improper propensity evidence.
1. Additional Background
Although defense counsel objected to the prosecutor's proposed summary of the CALCRIM No. 1191B instruction in her closing argument slides (which the prosecutor then rectified), Castillo did not object to the giving of the CALCRIM No. 1191B instruction.
The trial court instructed the jury in accordance with CALCRIM No. 1191B, as follows: "The People presented evidence that the defendant committed the crimes of [¶] Penal Code [s]ection 288.7(b) - [o]ral copulation or sexual penetration of a child 10 years of age or younger, in Count 1 (Miranda Doe); [¶] Penal Code [s]ection 269[, subdivision] (a) - [a]ggravated sexual assault on child under the age of 14 years and seven or more years younger than the defendant in Count 6 (Ashley Doe); [¶] Penal Code [s]ection 288[, subdivision] (b)(1) - [l]ewd and lascivious act on a child by force, violence, duress, menace and fear charged in Counts 2-5 (Miranda Doe) and Counts 710 (Ashley Doe).
"If the People have proved beyond a reasonable doubt that the defendant committed one or more of these crimes, you may, but not are required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit and did commit the other sex offenses charged in this case.
"If you find that the defendant committed one or more of these crimes, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of another crime. The People must still prove each charge and allegation beyond a reasonable doubt."
2. Analysis
As a preliminary matter, Castillo contends his claim is not forfeited on appeal because any objection by defense counsel to the instruction would have been futile under Villatoro. (Perez, supra, 9 Cal.5th at pp. 7-8.) The Attorney General counters that Castillo forfeited the issue on appeal by failing to object at trial. We decline to resolve the forfeiture argument, because the trial court's instruction was not legally erroneous under binding precedent. (Ramirez, supra, 98 Cal.App.5th at p. 221.) We review Castillo's claim of instructional error de novo. (Id. at p. 218; see pt. II.A.4., ante.)
Castillo relies on the concurring and dissenting opinions in Villatoro to argue that allowing the jury to consider charged crimes as evidence of the defendant's propensity to commit other charged crimes violates a longstanding prohibition against allowing the jury to conclude that "that because it found the defendant guilty of one count, he must be guilty of the others." (Villatoro, supra, 54 Cal.4th at p. 1170 (conc. &dis. opn. of Corrigan, J.).) Castillo further argues the CALCRIM No. 1191B instruction is inconsistent with the legislative purpose of Evidence Code section 1108 and confuses the important distinction between principles allowing for the consideration of evidence relevant to multiple counts and disallowing consideration of one verdict to influence another. (See Villatoro, at pp. 1175, 1178 (conc. & dis. opn. of Corrigan, J.).)
In light of the majority's holding in Villatoro, Castillo cannot show that the trial court erred in instructing the jury in accordance with CALCRIM No. 1191B. In Villatoro, our high court considered whether Evidence Code section 1108, which creates a narrow exception to the ban on character evidence in cases involving sexual offenses, permits the jury to infer propensity to commit charged sexual offenses from evidence of other charged sexual offenses. (Villatoro, supra, 54 Cal.4th at p. 1156.) The defendant in Villatoro was charged with five counts of rape involving different victims under similar circumstances. (Id. at pp. 1156-1159.) The trial court modified the pattern instruction on propensity evidence (which explains to a jury that it may consider a defendant's uncharged sexual offense as evidence of his or her propensity to commit a charged sexual offense) to permit the jury to consider the defendant's charged sexual offenses as evidence of his propensity to commit the other charged sexual offenses. (Id. at p. 1158.) The modified instruction "clearly told the jury that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity." (Id. at p. 1168.)
Our high court, in a split decision, rejected the Villatoro defendant's challenges to the modified instruction. The majority held, "in authorizing the jury's use of propensity evidence in sex offense cases, [Evidence Code] section 1108 necessarily extends to evidence of both charged and uncharged sex offenses." (Villatoro, supra, 54 Cal.4th at p. 1162; see also id. at p. 1164.) Regarding the trial court's giving of the modified jury instruction, the majority noted that the modified instruction guarded against the risk that the jury would apply an impermissibly low standard of proof (id. at p. 1168) and that the trial court "implicitly conducted" the required Evidence Code section 352 analysis (ibid.). The majority thus concluded that the trial court did not err in giving the modified instruction, though it declined to decide "whether courts should give such an instruction in the future." (Id. at p. 1169.)
Here, in challenging the CALCRIM No. 1191B instruction, Castillo repeats the general concerns raised by the concurring and dissenting justices in Villatoro about extending Evidence Code section 1108 to permit a propensity inference for charged crimes. These issues were squarely addressed by the majority in Villatoro and are binding on this court. (Auto Equity, supra, 57 Cal.2d at p. 455; Johnson, supra, 53 Cal.4th at pp. 527-528.) What is more, a panel of this court recently considered and rejected a similar challenge to the giving of the CALCRIM No. 1191B instruction in Ramirez, supra, 98 Cal.App.5th at page 222.
The CALCRIM No. 1191B instruction given by the trial court in this case contained the same language and required the same standard of proof (beyond a reasonable doubt) as the modified instruction approved in Villatoro. (See Villatoro, supra, 54 Cal.4th at pp. 1167-1168.) Under these circumstances, we conclude the trial court did not err in instructing the jury that if it found beyond a reasonable doubt that Castillo committed one or more of the charged sexual offenses, it could conclude from that evidence that defendant was disposed or inclined to commit sexual offenses, including that he was likely to commit and did commit the other sex offenses charged in this case, while still requiring proof beyond a reasonable doubt as to each count. (See id. at p. 1169; Ramirez, supra, 98 Cal.App.5th at p. 222.)
C. Cumulative Prejudice
Castillo contends that the alleged instructional errors and admission of CSAAS evidence were cumulatively prejudicial. However, having concluded that Castillo has not shown error in his claims on appeal, we reject his claim of cumulative prejudice. There is no prejudicial error to cumulate. (See People v. Hensley (2014) 59 Cal.4th 788, 818.)
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: Grover, Acting P. J. Bromberg, J.