Opinion
H044721
10-10-2019
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER KELCH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1516599)
Defendant Christopher Kelch was convicted by jury trial of four counts of aggravated sexual assault on a child (Pen. Code, § 269). The trial court sentenced defendant to a term of 60 years to life.
On appeal, defendant contends that (1) the trial court erroneously admitted evidence of uncharged offenses under Evidence Code section 1108, (2) the trial court prejudicially erred by not striking improper lay opinion testimony as to the veracity of the victim's claims against defendant, (3) the trial court prejudicially erred in admitting expert testimony on child sexual abuse accommodation syndrome (CSAAS) and in instructing on the use of that testimony, (4) the prosecutor committed prejudicial misconduct in closing argument by misstating the burden of proof, and (5) the cumulative effect of these errors violated defendant's due process rights under the Fifth, Sixth, and Fourteenth Amendments. We find no reversible error and affirm.
I. Background
A. Charged Offenses
The victim in this case, Ashley Doe, was 17 years old at the time of trial. She met defendant when she was five years old. Ashley went to defendant's house almost every weekday during the summer to play with her two friends. The mother of one of her two friends watched the girls during the day. Because the friend's mother worked during the day in her home office, defendant helped to watch them. During the 12-week period Ashley spent at the house that summer, defendant repeatedly molested and raped her. Ashley specifically recalled only three incidents.
On the first occasion, defendant brought Ashley into the guest bedroom and told her he wanted to "play dress-up with [her]." When Ashley undressed, defendant picked her up and threw her on the bed. Ashley was scared. Defendant held Ashley down around her collarbone and "tried to keep [her] quiet, and he started rubbing all over [her] body." Defendant also touched her vagina, grabbed her chest, rubbed in between her vaginal lips with his fingers, and kissed her with an open mouth. Ashley struggled and tried to move, but defendant pressed on her chest to hold her down. Ashley felt scared and did not know what was happening; she assumed it was supposed to happen because someone who loved her would not hurt her. When defendant stopped, he told her to continue playing and to not tell anyone what happened.
On another occasion when Ashley was playing dress-up, defendant took off her clothes and told her to keep quiet. He "forcefully threw [her] on the bed" and "held [her] down by the throat." He pushed down "really hard . . . around [her] vocal chords [sic] to the point where . . . [she] couldn't make nose [sic] and . . . couldn't breathe very well." He then put his penis inside her vagina. He told her to "be quiet and not say anything." It "hurt a lot[;]" Ashley's "stomach started hurting really bad." Defendant ejaculated on her stomach, wiped it off, and told her to go play.
During the last incident that Ashley specifically remembered, defendant again told her to "come play dress-up . . . and [she] went with him." He again forcefully placed her on the bed, held her down by the throat, and put his penis inside her vagina. Ashley tried "to make a little bit more noise[,]" but in an aggressive and angry tone "he started calling [her] names" like "stupid and . . . a whore." He then ejaculated on her stomach, wiped it off, and "told [her] to get dressed and keep playing and not say anything." Ashley was "really scared . . . but didn't really know what to do."
Although Ashley only specifically recalled three distinct incidents, she remembered that he touched her "pretty often," about half the times she visited her friend's house. Ashley described her memory of what defendant did as "really blurry," explaining that she "tried to block it out as much as [she] can." Each incident followed roughly the same pattern: defendant would tell her he wanted to play dress-up and then he would tell her to change. The next thing Ashley knew, she was on the bed and he was on top of her trying to hold her down. It was difficult for her to distinguish between different incidents as some incidents "blurred together." Her memory was limited to "bits and pieces."
B. Uncharged Offenses
1. Defendant's Daughters
J. was married to defendant from 1994 to 2004. They had three children together—R. and two younger girls. Before defendant married J., he told her that he was "sexually attracted to little girls." He said he was "most attracted to little girls between the ages of approximately eight and 12." During their marriage, J. observed defendant looking at child pornography, including a magazine depicting nude children who appeared to be between the ages of nine to 13. J. also found a picture on defendant's computer of two nude girls, who also appeared to be between the ages of nine and 13, sitting on an older child's lap.
In 2004, J. noticed that her daughters "poked and prodded their vaginas with toys and with their fingers excessively when changing their diaper, when undressing, even during play time." She told them to stop. This continued for "three to four weeks." J. eventually asked her daughters "why they kept doing that?" Based on what they told her, she confronted defendant. J. sought and was given custody of the three children. As part of the custody proceedings, defendant admitted in an agreed judgment "to having tendencies toward pedophilia," and he agreed that "he shall engage in counseling with a licensed counselor."
Defendant's and J.'s daughter, R. Doe, was 21 years old at the time of trial. R. lived with defendant from the time she was born until she was seven years old. When R. was about five years old, defendant removed his pants and R.'s pants, and told her to "hold his penis." While she held his penis, he inserted his finger into her vagina. Defendant continued "to slide his finger back and forth through [her] vagina, [which] was painful at the time." Defendant eventually removed his finger and masturbated. Defendant instructed R. not to tell her mother. Defendant's conduct with R. continued for two years, occurring about one to three times per month.
Defendant often showed R. videos of young girls performing oral sex on older men. On one such occasion, defendant asked R. "to do what the little girl did in the video." R. refused. This occurred "[a]lmost every time [defendant] put his finger inside [R.'s] vagina," but each time she refused to perform oral sex.
On another occasion, defendant called R. into the living room. He removed his pants, her pants, and sat her on his lap. Defendant told R. to hold his penis while he inserted his fingers into her vagina. Afterward, he took her to the bathroom, where she saw a white substance coming out of his penis. Years later, she recognized the substance as semen.
When R. was about seven years old, she was brought into defendant's computer room, where he pulled down her pants and underwear. Defendant picked up a three-to-four-inch screw or nail and told her to put it in her vagina. R. refused; she was "worried that the nail or screw was going to severely and permanently damage [her] body."
When R. was "[b]etween six and seven years old," on at least two occasions, defendant used a video camera to record R. masturbating with her younger sister, who was "[b]etween two and three years old" at the time. One time, defendant told R. to hold the camera while he sat on the floor with R.'s younger sister and inserted his fingers into the younger sister's vagina. R. saw defendant insert his fingers into her younger sister's vagina "many times" throughout this time period—at least five or six times.
2. Emily Doe
Emily Doe was 18 years old at the time of trial. She met defendant when she was five years old, when defendant and her mother started dating. Emily, Emily's mother, defendant, and Emily's younger sister lived in the same household together in California.
When Emily was five years old, she was lying in bed in her mother's bedroom when defendant touched her vagina with his fingers. Emily was confused and uncomfortable. Defendant kissed her on the lips and rubbed her vagina, but did not insert his fingers into her vagina. Defendant told Emily not to tell anyone, warning her that he would go to jail and her mother would be taken away, and that it would be her fault if her sister grew up without parents.
Emily's mother and defendant later moved the family to another state. While in this other state, defendant touched Emily "every other day." Defendant began to put his mouth on Emily's vagina, make her hold his penis, and kiss her with an open mouth. He also pushed Emily to perform oral sex on him. She often refused because it "felt gross to have his penis in [her] mouth[;]" it "made [her] gag" and she "didn't like that." Defendant later began to touch Emily's buttocks and insert his finger into her anus. On one such occasion, Emily crawled into her mother's bed, where defendant also slept. Defendant "started to touch [her] on [her] vagina." He then told her "that we're going to try something new, and he started to insert one of his fingers into [her] anus." On another occasion, he put his penis into her anus. She complained that it "hurt a lot" and she "didn't like it." Even though she complained, he continued, saying: " 'Just a little bit more. It's going to be okay.' "
On another occasion, Emily was lying in bed in her mother's room while defendant touched her vagina. Defendant then "spread [her] legs and inserted his penis just a little bit because it really hurt." Emily told him it hurt, "[a]nd it didn't really last very long, but he pulled his penis out, and he ejaculated on the bed." Emily was in pain for "[a]bout the next day or so [and] it burned when [she] would pee."
In another incident, defendant had Emily's younger sister "lay down over a chair so that her front side was facing up." Defendant "told [Emily] to put [her] mouth on [her sister's] vagina." Emily did not want to, but defendant "kept telling [her] it was okay." After Emily put her mouth on her sister's vagina, defendant did the same.
The last incident from her childhood that Emily specifically recalled involved a visit to defendant's father's house. Emily "wanted something from him," and she "told him [she] would do anything to get what [she] wanted." She "went under the covers and . . . started to give him oral sex because that was one thing that [she] refused to do to him." Defendant stopped her "because [they] were at his dad's house."
When Emily was nine years old, she started to grow public hair. Defendant told her they "had to stop [doing anything sexual] because [she] was starting puberty, and something bad could happen if [they] continued."
Months after this incident, Emily told her mother what happened. Her mother told her not to tell anyone about what happened, especially her biological father. Six months later, Emily's mother died, and she went to live with her biological father, whom she then told about what defendant had done. Although unaware of the details of the prosecution, Emily was "aware that [defendant] was prosecuted in [the other state] and California for what he did to [her]."
The prosecutor later entered into evidence certified records of conviction for two cases, one arising in Santa Clara County and the other in the other state.
The California documents reflected convictions for violating Penal Code section 288 (committing lewd or lascivious acts on a child under 14).
II. Discussion
A. Evidence Code Section 1108
Defendant contends that the trial court prejudicially erred in allowing J. and R. to testify about prior uncharged sexual offenses. Defendant does not challenge the admission of Emily's testimony.
1. Background
The prosecution sought admission of evidence of prior uncharged sexual offenses under Evidence Code section 1108. Defense counsel opposed the admission of this evidence.
Subsequent statutory references are to the Evidence Code unless otherwise specified.
At the in limine hearing, the trial court considered whether to allow J. to testify that she had found child pornography in defendant's possession. Relying on People v. Avila (2014) 59 Cal.4th 496 (Avila), the court permitted the testimony. The court explained that, like in Avila, the possession of child pornography was relevant to show propensity and defendant's "state of mind, the fact that he has that attraction [to young girls] and would later act on it."
The court also admitted defendant's prior statements that he had "tendencies towards pedophilia" and that he was sexually attracted to young girls. With respect to having tendencies towards pedophilia, the court explained that the statement was in "a certified document. It is signed by defendant. I will admit it as an admission of the defendant. It's relevant to, again, his state of mind and tendency to act on those tendencies, which would corroborate the testimony of those witnesses." The court did not provide specific reasoning for its admission of defendant's prior statement that he was attracted to young girls.
As to R.'s testimony, the court concluded: "The bulk of it does come in under section 1108. I think there's portions that actually fall under section 1101 as well . . . . A lot of that is very similar to the allegations in this case." Addressing a specific challenge to R's testimony—that defendant told her to "put a screw or a large nail into her vagina"—the court acknowledged the "prejudicial effect" of the testimony, but determined "it is probative because the allegations in this case against the named victim . . . are ones that include force." The prejudicial effect was lessened, the court observed, because R. did not put the nail or screw inside her vagina. The court concluded that R.'s testimony was probative and "the probative value is not outweighed by the prejudicial effect, given the allegations in the current case of force and violence."
The jury was instructed that it may consider evidence of uncharged conduct if the prosecution "proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses." And, if jurors "decided that the defendant committed the uncharged offenses," they may, "but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses." Jurors were further instructed that such a conclusion "is only one factor to consider with all the other evidence" and "is not sufficient by itself to prove the defendant is guilty of aggravated sexual assault of a child . . . ." In addition, the trial court instructed the jury that "certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other."
2. Analysis
Section 1108 permits the admission of evidence of a defendant's commission of an uncharged sexual offense in a current sex offense prosecution. (§ 1108, subd. (a).) The admissibility of evidence under section 1108 is subject to section 352. (§ 1108, subd. (a); People v. Lewis (2001) 25 Cal.4th 610, 637.) "This court reviews the admissibility of evidence of prior sex offenses under an abuse of discretion standard. [Citation.] A trial court abuses its discretion when its ruling 'falls outside the bounds of reason.' [Citation.]" (People v. Wesson (2006) 138 Cal.App.4th 959, 969 (Wesson).)
Under section 352, "[t]he evaluation of the potential for prejudice must consider numerous factors, including '[the prior sex offense's] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.' [Citation.] Other relevant factors include whether the uncharged acts are more inflammatory than the charged conduct, the possibility the jury might confuse the uncharged acts with the charged acts and seek to punish the defendant for the uncharged acts, and the time required to present the evidence of the uncharged acts." (People v. Daniels (2009) 176 Cal.App.4th 304, 316-317 (Daniels).)
a. R.'s Testimony
Defendant contends that the conduct testified to by R. "bore little resemblance to the offense charged in the case." He notes that the instant offense involved "violence, force, name-calling, and vaginal and anal penetration, [and] there is no evidence that any of these things occurred with [R.]" He asserts that without expert testimony, "the jury could only speculate as to the connection, if any, between the uncharged acts and the charged ones." He also maintains that "[i]n light of Emily's testimony, which [he] does not challenge on appeal, [R.]'s testimony was also cumulative."
In general, any dissimilarity of the uncharged offense to the charged offense does not compel exclusion of the evidence. (People v. Cordova (2015) 62 Cal.4th 104, 133 (Cordova).) " ' "[T]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108." ' [Citation.]" (Ibid.) "[A]ny dissimilarities in the alleged incidents relate only to the weight of the evidence, not its admissibility." (People v. Hernandez (2011) 200 Cal.App.4th 953, 967 (Hernandez).)
Here, the uncharged offenses described by R. bore some important similarities to the charged offenses: the abuse occurred inside the home; it involved young girls of similar age; it involved defendant's position of trust and authority; and it involved threats of violence against the victim. In that respect, R.'s testimony that defendant asked her to "put a screw or a large nail into her vagina" was probative because it involved a disregard for causing pain. These similarities "permitted the inference that defendant had a propensity to commit such sex offenses, including the charged crime." (Cordova, supra, 62 Cal.4th at p. 134.) Given the noted similarities and the fact that all of the conduct described by R. consisted of sex offenses, the jury could rationally infer, in the absence of expert testimony, that if defendant committed the uncharged offenses against R., then he was disposed or inclined to commit the charged offenses.
Defendant claims that R.'s testimony was prejudicial because it "was a lot more precise and confident than Ashley's testimony." He asserts it was more inflammatory because the incident with the nail or screw "inflamed [the jury's] passions against [defendant] in an intense and negative way." He also notes that R. is his biological daughter, "thus bringing up the strong social taboo against incest."
We disagree with defendant's contentions that the testimony was so inflammatory and prejudicial as to weigh in favor of exclusion. That R.'s testimony was confident and precise made her testimony precisely the type of evidence contemplated by section 1108, as it permitted the jury to learn about defendant's possible disposition to commit sex crimes. "By their very nature, sex crimes are usually committed in seclusion without third party witnesses or substantial corroborating evidence. The ensuing trial often presents conflicting versions of the event and requires the trier of fact to make difficult credibility determinations. Section 1108 provides the trier of fact in a sex offense case the opportunity to learn of the defendant's possible disposition to commit sex crimes." (People v. Falsetta (1999) 21 Cal.4th 903, 915.) In addition, we agree with the trial court that the evidence concerning the nail or screw was not particularly inflammatory because R. did not comply with defendant's request. Finally, as to the evidence of incest, assuming it was inflammatory, that aspect of defendant's conduct with R. was less inflammatory than the charged conduct, which involved the violent rape and molestation of a young child.
Defendant argues that the uncharged acts were remote, which would weigh against admission. He notes that the "uncharged acts occurred sixteen years before trial." The trial court believed that the remoteness weighed in favor of excluding the evidence; we disagree. As defendant acknowledges, although the uncharged acts occurred 16 years before trial, they nonetheless occurred "two years before the underlying facts of this case." Thus, although there was a large gap of time between the time of trial and when the uncharged offenses took place, the time gap between the charged offenses and uncharged offenses was small. "Remoteness of prior offenses relates to 'the question of predisposition to commit the charged sexual offenses.' [Citation.]" (People v. Branch (2001) 91 Cal.App.4th 274, 285.) The concern is that "a substantial gap between the prior offenses and the charged offenses means that it less likely that the defendant had the propensity to commit the charged offenses." (Ibid.) Given there was no substantial gap between the prior offenses and the charged offenses, this concern is not present in this case.
Defendant also maintains that the jury was "almost certainly distracted" by R.'s testimony because they were told that defendant had not been punished for the uncharged conduct. He asserts that the prosecution reminded the jury that defendant's conduct had never been punished. Thus, he contends there "was a significant danger that the jury was tempted to punish [defendant] . . . for what he allegedly did to [R]."
We do not find that the admitted evidence here created a significant danger that the jury would be tempted to punish the defendant for the uncharged conduct. This risk is more likely to arise in a circumstance where the uncharged conduct was more serious or inflammatory than the charged conduct. (People v. Frazier (2001) 89 Cal.App.4th 30, 42 (Frazier).) Here, the uncharged conduct described by R., as a whole, was far less inflammatory than the charged sexual offenses. In addition, the jury instructions, which emphasized the limited role of the uncharged conduct with respect to the charged offenses, further reduced the risk. (Ibid. [finding risk jury might punish defendant for uncharged conduct to be counterbalanced by applicable jury instructions].)
Defendant contends that the uncharged conduct consumed an undue amount of time. He notes that R.'s testimony "spanned 59 pages of reporter's transcript," which combined with J.'s testimony, accounted for 20 percent of the trial, as measured by the length of the reporter's transcript.
We are not convinced that the transcript pages are determinative of the amount of time spent or of whether that time was unduly consumed. The record shows that R. was sworn in and took the witness stand at 11:30 a.m. R. was excused at 2:40 p.m. Accounting for the lunch break, her testimony consumed about one hour and 30 minutes of the trial time. In contrast, on the next day, the complaining witness, Ashley, was sworn in at 11:43 a.m. She was excused at 3:02 p.m. Accounting again for the lunch break, her testimony consumed a little over two hours of trial time. Under the circumstances, we cannot say that R.'s testimony resulted in an undue consumption of time, given that the testimony was otherwise relevant and probative of defendant's disposition.
We also do not combine the time spent for R.'s testimony and J.'s testimony, as defendant does, because the relevant question here is not whether J.'s and R.'s testimony should have been admitted, but rather whether R.'s testimony alone was admissible.
Finally, defendant argues that R.'s testimony was largely cumulative in light of Emily's testimony. We do not agree. R.'s testimony was not merely cumulative of the other uncharged acts because, unlike the other uncharged acts, R.'s testimony included the incident involving the nail or the screw. The threatened violence, and its relation to the charged offenses, gave it unique probative value on the issue of defendant's propensity toward violent sexual conduct. Nor could R. have testified solely to the incident involving the nail or screw. The other offenses described by R. provided important context that the incident involving the nail or screw was sexual in nature.
We conclude the trial court did not abuse its discretion in allowing the admission of defendant's uncharged conduct on R. (Daniels, supra, 176 Cal.App.4th at pp. 316-317; Wesson, supra, 138 Cal.App.4th at p. 969.)
b. J.'s Testimony
Defendant argues that the court abused its discretion in allowing J. to testify to defendant's possession of child pornography. He contends it was not probative as to whether he was predisposed to commit violent sexual assault and rape. He notes that the young girls in the child pornography were described as being between nine and 13, which was older than the victim in this case.
We disagree. In Avila, supra, 59 Cal.4th at p. 519, the court found no abuse of discretion in the trial court's admission of evidence that the defendant possessed child pornography. The court determined the evidence was "probative of [the] defendant's intent to commit lewd acts on the young murder victim in this case." (Ibid.) The evidence, in other words, was relevant and probative as to the defendant's sexual interest in children. (Ibid.) The court also noted approvingly that the trial court "took steps to minimize any prejudicial effect by excluding the pornographic materials themselves and only permitting a witness to describe those materials." (Ibid.)
Here, the evidence that defendant possessed child pornography had some tendency in reason to show that defendant was predisposed to engage in the charged offenses. (Avila, supra, 59 Cal.4th at p. 519.) As in Avila, J.'s testimony about the child pornography was limited to a description of the materials, thus minimizing any prejudicial effect. (Ibid.) To the extent the child pornography involved girls older than the victim in this case, any dissimilarities in age "relate only to the weight of the evidence, not its admissibility." (Hernandez, supra, 200 Cal.App.4th at p. 967.)
Defendant relies on People v. Page (2008) 44 Cal.4th 1 (Page). In Page, the court questioned the admission of pornographic magazines, observing that they had very little probative value. (Id. at p. 40.) We find Page factually distinguishable. Page involved the admission of a description of 55 " 'hard-core' " or " 'triple-X' " pornography magazines and 58 " 'soft-core' " pornography magazines, all featuring models who were over 18 but depicted to look younger. (Id. at p. 13.) Some magazines were admitted into evidence. (Ibid.) In contrast, the instant case involved only a brief description of defendant's possession of child pornography, none were admitted into evidence, and the pornography identified by J. was not voluminous.
As to remoteness, defendant contends the possession of child pornography was remote in time and thus weighed in favor of excluding the evidence. We disagree for the same reasons we articulated earlier. Although the possession was remote relative to the trial, it occurred around the time of or before the charged conduct in this case. This factor weighed in favor of admission.
Defendant argues that the uncharged acts "confused the jurors because they were unaware whether [defendant] was ever punished for possessing child pornography." Given that the description of the child pornography was much less inflammatory than the charged conduct, the danger of confusion or temptation to punish defendant for this conduct was slight. (Frazier, supra, 89 Cal.App.4th at p. 42.)
Finally, the testimony regarding the child pornography possession did not consume an undue amount of time. The discussion of the child pornography on direct examination was brief and elicited no cross-examination. This factor too weighed in favor of admission.
We conclude the trial court did not abuse its discretion in admitting J.'s testimony that defendant possessed child pornography. (Daniel, supra, 176 Cal.App.4th at pp. 316-317; Wesson, supra, 138 Cal.App.4th at p. 969.)
B. Defendant's Prior Statements
Defendant challenges the court's admission of his prior statements that he was attracted to young girls and had pedophilic tendencies. During trial, the court allowed J. to testify that defendant stated he was sexually attracted to young girls. The court also admitted defendant's statement from the out-of-state custody proceeding, in which he stipulated "to having tendencies toward pedophilia . . . ." The statements were admitted as party statements under section 1220 and as relevant to defendant's state of mind.
Defendant contends that the statements were not relevant to the charged offenses and were prejudicial under section 352. He also argues the statements "should have been excluded as pure character evidence" pursuant to section 1101, subdivision (a), and that the statements do not otherwise meet the requirements of section 1101, subdivision (b).
" 'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) However, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) Under section 352, " 'prejudicial' is not synonymous with 'damaging,' but refers instead to evidence that ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues. [Citations.]" (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) We will not disturb the trial court's exercise of its discretion unless it was made " 'in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Powell (2018) 6 Cal.5th 136, 162.)
Here, defendant's statements were relevant since they were highly probative of defendant's sexual interest in young girls. Because they were defendant's own statements, they were uniquely probative in confirming not only the testimony describing the charged offenses, but also the testimony concerning the uncharged offenses. Thus, they had some "tendency in reason" to prove a disputed fact that was of consequence to the proceeding. Neither of the statements was so unique as to evoke an emotional bias against defendant. Nor did the admission of the statements consume an undue amount of time.
Defendant contends that the statements were inadmissible under section 1101 because subdivision (b) allows only evidence that a defendant "committed a crime, civil wrong, or other act" to prove a defendant's state of mind, not statements. (Italics added.) We disagree. Section 1101, subdivision (b) permits "the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent . . . ) other than his or her disposition to commit such an act." Section 1101, subdivision (b) is not limited to conduct; "it embraces also 'other acts.' " (People v. Harris (1978) 85 Cal.App.3d 954, 958.) Such acts include statements, which are verbal acts. (People v. Rodriguez (1986) 42 Cal.3d 730, 756-757.)
In this case, defendant's prior statements were admissible under section 1101, subdivision (b) for the non-character purpose of establishing motive. Defendant was charged with aggravated sexual assault on a child. Defendant's prior statements showed he had an attraction to young girls and admitted that he had tendencies towards pedophilia. The evidence was therefore relevant to defendant's motive to commit the charged offenses because the jury could have concluded that his sexual attraction to young girls and his pedophilic tendencies motivated him to commit the charged offenses. Accordingly, we reject defendant's contention that the statements were inadmissible under section 1101.
C. Improper Lay Opinion
Defendant argues that the trial court violated his jury trial and due process rights because it allowed a witness to testify regarding whether the witness believed Ashley's claims to be true. Defendant asserts that the error was prejudicial and requires reversal. The Attorney General contends that the trial court properly exercised its discretion in admitting the challenged testimony because it was necessary for a clear understanding of the testimony.
1. Background
Dominic was Ashley's boyfriend when he was 15 and she was 14. In 2013, Ashley told Dominic that someone had molested and raped her as a child. Dominic was the first person she told.
During direct examination, the prosecutor tried to clear up a misunderstanding with respect to Dominic's testimony. When Dominic first spoke to the police detective, he informed the detective that Ashley had already told her mother about what defendant had done. This conflicted with his testimony at trial that he was the first person she told. Dominic explained that he had misspoken to the detective. What Ashley had told him was that "she thought her mother might have an idea" as to what happened, and he mistakenly communicated that as a certainty.
During cross-examination of Dominic, defense counsel elicited a series of responses regarding Ashley's reputation for truthfulness. Defense counsel asked Dominic whether "Ashley was not always honest with you during your relationship?" Dominic responded, "That is true." Defense counsel continued: "And you told the police that she's not the most honest person; right?" Again, Dominic responded, "That's true."
Defense counsel also asked Dominic about his relationship with Ashley. Dominic agreed that Ashley was his "first love," that she "holds a very special place in [his] heart," that he is "very protective of her," and that he is "a protective kind of person" in general. Dominic also agreed that he likes "to feel like [he is] helping [Ashley]."
Defense counsel then asked Dominic to clarify what Ashley had communicated about her mother's knowledge of the abuse. He asked: "In your statement to police you said that Ashley had told you that her mom already knew [about the allegations] when she disclosed to you; is that right?" Dominic replied, "Yes." Defense counsel then asked: "And then you also said but that turned out not to be the case, that her mom didn't know any of this?" Dominic replied, "Yes." Defense counsel continued: "Okay. At the time you were speaking to the police did you believe [Ashley] had told you something that was not true?" Dominic answered, "No."
On redirect examination, the prosecutor asked, "When you told [the detective] that Ashley was not the most honest person, what did you mean by that?" Dominic explained that Ashley would sometimes be less than honest to avoid blame. The prosecutor continued: "And you believe that she's being honest about what happened to her?" Defense counsel objected, but the trial court overruled. Dominic responded: "I believe fully that she's not lying about this." Defense counsel moved to strike Dominic's response and requested a sidebar.
At the sidebar, defense counsel explained, "my objection is that it did call for something that is outside of his personal knowledge, that it also invades the province of the jury to be the fact finder in this case, and that it bolsters inappropriately another witness's testimony." The court disagreed, noting that defense counsel had asked Dominic about Ashley's history of lying. The court explained that defense counsel had opened the door to the line of questioning: "[B]ecause he had been questioned as to his state of mind of believing she lied about certain things, it was relevant to put that in context of whether or not he thought she was lying about this."
The jury was instructed that Dominic's testimony "was admitted for a limited nonhearsay purpose, namely, to establish the fact of, and the circumstances surrounding, the disclosure of the assault to others. You should consider that evidence for that purpose and for no other."
2. Analysis
"Lay opinion about the veracity of particular statements by another is inadmissible on that issue." (People v. Melton (1988) 44 Cal.3d 713, 744 (Melton).) However, "[a] lay witness is occasionally permitted to express an ultimate opinion based on his perception, but only where 'helpful to a clear understanding of his testimony' [citation], i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. [Citations.]" (Id. at p. 744.)
We need not decide whether the trial court erred by not striking the challenged testimony. In our view, the admission of the challenged statement was harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson). In People v. Riggs (2008) 44 Cal.4th 248, 300 (Riggs), an investigator made numerous statements reflecting his opinion that the defendant was guilty. The Supreme Court concluded that the error was harmless under Watson. (Ibid.) The Riggs court stated that the investigator's comments "did not present any evidence to the jury that it would not have already inferred from the fact that [the investigator] had investigated the case and that defendant had been charged with the crimes." (Ibid.) Further, "[t]here was no implication from the questions or answers that [the investigator's] opinions were based upon evidence that had not been presented to the jury. [Citation.]" (Ibid.) The court concluded: "[W]e see nothing in the record that would lead us to conclude that the jury was likely to disregard the instructions it received concerning its duty to decide issues of credibility and guilt based upon its own assessment of the evidence, not the opinions of witnesses." (Ibid.)
Similarly, here, the jury was instructed to consider Dominic's testimony "for a limited nonhearsay purpose, namely, to establish the fact of, and the circumstances surrounding, the disclosure of the assault to others." They were further instructed to "consider that evidence only for that purpose and for no other." In addition, Dominic gave no indication that his opinion about the veracity of Ashley's accusations was based on evidence that was not presented to the jury. Finally, Dominic made clear in his testimony that he cared for and supported Ashley, leaving little doubt that he believed her. It is difficult to imagine that Dominic's acknowledgment of that fact could somehow have affected the outcome of the trial. (Riggs, supra, 44 Cal.4th at p. 300.) On this record, it is not reasonably probable that the result would have been more favorable to defendant if the challenged statement had not been admitted. (Watson, supra, 46 Cal.2d at p. 836.)
Defendant argues that the error here violated his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process, which would require review for prejudice under the federal standard. We reject that argument and follow our state Supreme Court in applying our state's standard of review. (Melton, supra, 44 Cal.3d at p. 745 [applying Watson standard to error in admitting witness testimony as to the veracity of another's statements]; accord Riggs, supra, 44 Cal.4th at pp. 300-301.)
Defendant's reliance on United States v. Sanchez-Lima (9th Cir. 1998) 161 F.3d 545 (Sanchez-Lima) is misplaced. In Sanchez-Lima, the court concluded it was reversible error to permit a Border Patrol agent to testify over objection that "based on his training and experience, [a witness and fellow Border Patrol agent] was telling the truth" during his post incident interview. (Id. at p. 548.) The agent, in other words, relied on the authority of his "training and experience" to bolster statements made by a fellow agent. This makes Sanchez-Lima similar to cases that have found reversible error where an expert witness testified "that 99.5% of children tell the truth," and in the expert's experience he "had not personally encountered an instance where a child had invented a lie about abuse." (E.g., Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 737.) In contrast, in the instant case, Dominic made the challenged statement as someone who supported and wanted to protect Ashley; the statement was not imbued with the imprimatur of authority or expert precision. And the jury was instructed to use Dominic's testimony only for a limited purpose. Under these circumstances, Dominic's testimony that he believed Ashley could not have prejudiced defendant.
D. CSAAS Evidence
Defendant argues that the trial court abused its discretion in admitting CSAAS evidence. He contends it is generally unreliable and should be inadmissible for all purposes. Even if admissible under some circumstances, he asserts it was not admissible in this case because the record clearly established that none of the jurors harbored any preconceived ideas about victims of child sexual abuse. He also contends that the prosecutor's questions, and the expert's responsive testimony, impermissibly mirrored the facts of this case.
1. Background
The prosecutor moved in limine to admit expert CSAAS evidence. Defense counsel requested exclusion. The trial court granted the motion and allowed the CSAAS evidence. The trial court determined the expert could testify as to "the myth . . . of the late report . . . [,] the issues related to someone continuing to see or go back to an abuser, late disclosure, and the reporting itself, which really falls under . . . unconvincing disclosure." Defense counsel requested that the court give a limiting instruction prior to the CSAAS expert's testimony.
Prior to the CSAAS testimony, the court gave the requested limiting instruction and instructed the jury pursuant to CALCRIM No. 1193: "I am going to advise the jury that you will be hearing testimony from [Dr. Blake] Carmichael regarding [CSAAS]. [Dr.] Carmichael's testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not Ashley's conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony."
At trial, Dr. Carmichael testified as an expert on CSAAS. He was not involved in the investigation of the present case. Carmichael explained that CSAAS is not a diagnostic tool to prove that sexual abuse occurred, but is an educational tool used to dispel common myths about sexual abuse and the way children react to sexual abuse.
There are five categories of CSAAS: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicted, or unconvincing disclosure; and (5) retraction. Carmichael testified that it was common for child sexual abuse victims to allow abuse to continue for a long time, to delay reporting the abuse, to continue to return to the abuser's home, and to keep their emotions hidden even after reporting the abuse.
2. Analysis
Defendant argues that "CSAAS evidence should be held inadmissible in California for all purposes." Defendant cites cases from other states that bar CSAAS evidence as irrelevant and unduly prejudicial, but he acknowledges that California courts have long rejected this argument and permitted the admission of CSAAS evidence.
"The governing rules are well settled. First, the decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.' [Citations.] Second, 'the admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. . . . [E]ven if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness" ' [citation]." (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300 (McAlpin).)
" '[CSAAS] expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.' " (McAlpin, supra, 53 Cal.3d at p. 1301.) There are, of course, limitations on the use of CSAAS evidence. "First, the CSAAS evidence must be addressed to a specific 'myth' or 'misconception' suggested by the evidence. [Citation.] Second, 'if requested the jury must be admonished "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." ' " (People v. Housley (1992) 6 Cal.App.4th 947, 955 (Housley).)
In this case, the trial court could have reasonably concluded in its discretion that expert testimony about CSAAS evidence would be helpful to assist the jury by disabusing the jurors of commonly held misconceptions about child sexual abuse victims. Expert testimony is admissible if it will add to the jury's knowledge about a subject. As a result of Carmichael's experience in the field, he had considerably more knowledge than jurors had about the behavior of alleged child sexual abuse victims. Thus, Carmichael's testimony on this subject would assist the jurors in understanding such behavior. The evidence raised issues concerning three of the five categories of behaviors addressed by the CSAAS testimony: Ashley's report of abuse did not occur until many years after the alleged abuse; she continued to return to the home where defendant abused her; and her description of the abuse was arguably unconvincing. Carmichael's testimony gave the jury important background information about how child sexual abuse victims may react to the abuse so that the jury could understand " 'the emotional antecedents of abused children's seemingly self-impeaching behavior.' " (McAlpin, supra, 53 Cal.3d at p. 1301.) We reject defendant's claim that the trial court abused its discretion in admitting the expert testimony on CSAAS.
Defendant maintains that CSAAS evidence "supports the conclusion that a child has been sexually abused in every case, regardless of how the child behaves." The trial court gave the limiting instruction requested by defense counsel, and this instruction precluded the jurors from using the CSAAS testimony as evidence that Ashley had been abused. Since "[j]urors are presumed to understand and follow the court's instructions" (People v. Holt (1997) 15 Cal.4th 619, 662), we reject defendant's claim that the jurors were likely to use the CSAAS evidence for improper purposes.
Defendant also argues that the CSAAS evidence was unnecessary in this case because the jury questionnaires indicated none of the jurors had any preconceived notions about how victims of child sexual abuse should act. This, he asserts, was confirmed during voir dire, as none of the potential jurors indicated they had "any preconceived ideas or notions of how a child would [or should] act . . . ." Defendant identifies no requirement that the prosecutor demonstrate that any individual juror does or does not hold preconceived notions about child sexual abuse. As we have explained, the CSAAS evidence was admissible to assist the jury in understanding an area outside of their common knowledge. (McAlpin, supra, 53 Cal.3d at pp. 1299-1300.)
Finally, defendant asserts that Carmichael's testimony should have been excluded because the prosecutor asked hypothetical questions which closely tracked the facts in this case and improperly suggested that Ashley had been sexually abused. Although defendant asserts the trial court abused its discretion by allowing hypothetical questions, he did not object to them at trial. His failure to do so forfeited the issue. (People v. Partida (2005) 37 Cal.4th 428, 433-434.) Even overlooking forfeiture, we do not agree that the prosecutor's questions or Carmichael's responsive testimony was improper. The prosecutor's questions were general in nature and invited Carmichael to elaborate on certain aspects of the CSAAS model relevant to misconceptions suggested by the evidence. Carmichael, in turn, testified in greater detail to behaviors common in abused children that also happened to be exhibited by Ashley. There was nothing improper about this. Indeed, to be admissible, CSAAS testimony must be "addressed to a specific 'myth' or 'misconception' suggested by the evidence." (Housley, supra, 6 Cal.App.4th at p. 955.) Thus, when CSAAS testimony is properly admitted, the prosecutor's questions and the expert's testimony will necessarily mirror the facts of the case to some extent.
E. CALCRIM No. 1193
Defendant contends the trial court prejudicially erred in instructing the jury with CALCRIM No. 1193 because this instruction impermissibly permitted the jury to use CSAAS testimony as evidence that the complaining witness's testimony was true. This allowed "CSAAS evidence [to be used] to prove the defendant's guilt." He argues "[t]here is no practical distinction . . . between 'Ashley is believable' and 'Ashley's claims are true.' "
As previously noted, defendant requested that the court give CALCRIM No. 1193, and the court did so, before the expert witness testified. Defendant did not object to the version of CALCRIM No. 1193 that the court gave or ask for any modification of it.
Defendant's claim that CALCRIM No. 1193 permitted the jury to use "CSAAS evidence to prove the defendant's guilt" is belied by the language of the instruction. CALCRIM No. 1193 told the jury that the CSAAS evidence "is not evidence that the defendant committed any of the crimes against him." No reasonable juror could have concluded from this language that he or she could properly use the CSAAS evidence as a basis for determining whether the charged offenses occurred. While it is true that evaluating an alleged sexual abuse victim's "believability" may ultimately assist the jury in determining whether to credit the victim's testimony that the abuse occurred, the same may be said of any evidence that is admitted solely on the issue of a witness's credibility. (See People v. Brackins (2019) 37 Cal.App.5th 56, 71-72 [expert testimony about intimate partner violence "could properly be used by the jury to evaluate" the believability of victim's abuse claims].) As CSAAS evidence may properly be used to determine whether a child-victim's conduct was inconsistent with that of a person who has been abused, it is properly used to evaluate a child-victim's credibility. The trial court did not err in giving CALCRIM No. 1193 because the instruction properly advised the jury of the limited purpose to which it could put CSAAS evidence.
F. Prosecutorial Misconduct
Defendant argues that the prosecutor committed prejudicial misconduct in rebuttal closing argument by misstating the prosecution's burden of proof. Defendant acknowledges he did not object, but contends this court should address the issue despite the failure to object. In the alternative, defendant argues that trial counsel was prejudicially deficient for failing to object.
1. Background
The trial court instructed the jury pursuant to CALCRIM No. 220 that the prosecution bears the burden of proving the defendant guilty beyond a reasonable doubt. The court emphasized: "Unless the evidence proves a defendant guilty beyond a reasonable doubt, he's entitled to an acquittal and you must find him not guilty." The court also gave the jury CALCRIM No. 359: "You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt." The prosecutor and defense counsel reminded the jury of the appropriate burden of proof throughout their arguments to the jury. After the prosecutor's rebuttal, the court again instructed the jury that the prosecution bore the burden to prove defendant's guilt beyond a reasonable doubt.
A consistent theme during the prosecutor's opening and rebuttal arguments was that defendant's case was not credible or reasonable based on the evidence. The prosecutor emphasized that defendant's case rested on an argument that Ashley was lying about the abuse and the other witnesses were lying about the circumstances when she revealed the abuse. During the prosecutor's rebuttal, she explained: "[I]n order to find the defendant not guilty, you would have to find that Ashley is conniving, that she's sophisticated enough, this teen-ager, that she's sophisticated enough to come in, that she has conspired with Dominic to lie, conspired with her mother to lie, conspired with everybody to lie to come in here and testify under penalty of perjury." On appeal, defendant challenges this statement as misstating the prosecutor's burden of proof.
2. Analysis
Initially, we agree with the Attorney General that defendant forfeited this issue by failing to object to the challenged argument and request a curative admonition. (People v. Frye (1998) 18 Cal.4th 894, 969-970, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) To avoid forfeiture of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury. [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553.) There is an exception to the general rule of forfeiture, however, which applies in the case of futility, incurability, or impracticability. (People v. Hill (1998) 17 Cal.4th 800, 820-821.)
Notwithstanding the forfeiture, because defendant raises the issue in the context of ineffective assistance, we reach the merits of the claim. To prevail on a claim of ineffective assistance of counsel, a defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
" '[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper.' " (People v. Panah (2005) 35 Cal.4th 395, 463.) "[A] prosecutor may comment that a defendant has not produced any evidence." (People v. Young (2005) 34 Cal.4th 1149, 1195 (Young).) "A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his innocence." (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) We do not look to isolated words or phrases, "we must view the statements in the context of the argument as a whole. [Citation.]" (People v. Dennis (1998) 17 Cal.4th 468, 522.)
In Young, the defendant argued that the prosecutor improperly attempted to shift the burden of proof when he argued, " 'What fact—what fact other than conjecture and insinuation do you have to say there is a reasonable interpretation of that evidence that leads to the defendant's innocence? What? None. You don't have any. There is none. [¶] Think of what set of circumstances that are reasonable that will hold water, that will hold together, that would say to you as a jury the defendant did not kill Sylvester Davis. There is no evidence. The only evidence you have is that the defendant went into that place alone and left alone.' " (Young, supra, 34 Cal.4th at p. 1195.) The California Supreme Court concluded that no misconduct occurred because there was "no reasonable likelihood the jurors would have understood the prosecutor's argument as imposing any burden on the defense." (Id. at pp. 1195-1196.)
In People v. Osband (1996) 13 Cal.4th 622 (Osband), the defendant argued that the prosecutor improperly attempted to shift the burden of proof to the defense when he asked the jury to consider what other explanation could account for evidence that was found at the murder victim's apartment. The evidence included the defendant's shoe print impressions. The high court held that the argument was not misconduct. "The prosecutor was suggesting that the most logical interpretation of the evidence was that defendant committed the crimes. It was 'a fair comment on the state of the evidence . . . .' " (Id. at p. 696.) Nor was it misconduct when the prosecutor argued that if the defendant " 'denies these things [i.e., having committed most of the crimes at the [victim's] apartment], and if you conclude . . . that he is not telling you the truth, I think it's a fair inference to conclude the opposite must be true.' " (Id. at pp. 696-697.) The court "underst[ood] the prosecutor to have meant that if the jury did not believe [the] defendant's statement that he did not commit the crimes, it would have to decide that he did commit them. There is no reasonable likelihood that the jury would understand the declaration to affect the burden of proof." (Id. at p. 697.)
In People v. Samayoa (1997) 15 Cal.4th 795 (Samayoa), the defendant argued that the prosecutor improperly attempted to shift the burden of proof when he attacked the defense experts' finding that he suffered from brain damage. The prosecutor argued, " 'Now, has the defense been able to create a reasonable doubt in your mind based on what these doctors have told you? I guess that would be the ultimate decision in this case, have they been able to create a reasonable doubt for you?' " (Id. at p. 842.) The high court held that the defendant's trial counsel's argument and the jury instructions had unambiguously communicated to the jury that the prosecution had the burden of proving every element of the case beyond a reasonable doubt. (Ibid.) The court concluded in light of the entire record that there was no reasonable likelihood the jury erroneously construed the prosecution's burden of proof. (Ibid.)
Here, as in the above cases, the prosecutor's argument was fair comment on the evidence. The evidence presented only two options. The first was a finding that defendant sexually assaulted Ashley on numerous occasions. The second was that Ashley fabricated the claims, and that other witnesses were dishonest or mistaken in their recollection of events. The prosecutor's argument urged the jury to conclude that the only reasonable interpretation of the evidence was that defendant committed the charged offenses. Such an argument does not misstate the burden of proof; it merely urges a reasonable interpretation of the evidence.
Also as in the above-cited cases, nothing in the record suggests that the prosecutor's remarks were reasonably likely to cause the jury to believe that the defense had any burden of proof. The prosecutor, throughout her opening and rebuttal arguments, correctly described her burden to prove the guilt of defendant "beyond a reasonable doubt." She did not suggest defendant had any burden of proof.
Any possible confusion would have been dispelled by the court's instructions. The court instructed the jury that the prosecution bears the burden of proving defendant guilty beyond a reasonable doubt and that "[u]nless the evidence proves a defendant guilty beyond a reasonable doubt, he's entitled to an acquittal and you must find him not guilty." On this record, there was no reasonable likelihood that the jury misunderstood the prosecution's burden of proof. (Samayoa, supra, 15 Cal.4th at p. 842.) The complained-of argument was not misconduct. (Osband, supra, 13 Cal.4th at p. 697; Young, supra, 34 Cal.4th at pp. 1195-1196; Samayoa, at p. 842.)
Because the prosecutor's argument was not misconduct, defendant cannot establish that his trial counsel's performance was deficient. His ineffective assistance claim fails. (Strickland, supra, 466 U.S. at p. 687.)
G. Cumulative Error
Defendant contends that he was deprived of a fair trial and due process by the cumulative impact of the errors in the present case. Since we assumed only a single error, which we found harmless, there is no prejudice to cumulate. (People v. Rountree (2013) 56 Cal.4th 823, 860.)
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.