Filed 8/22/22 P. v. Aguilar CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury found defendant Ezequiel Aguilar guilty on eight counts: sexual penetration of a child 10 years of age or younger; continuous sexual abuse of a child under 14; oral copulation with a child 10 years or younger; attempted oral copulation with a child 10 years or younger; sexual intercourse with a child 10 years or younger; and three counts of lewd or lascivious acts on a child under 14 by force, duress, or fear. The trial court imposed a total term of 55 years to life consecutive to 40 years in prison.

Aguilar raises numerous claims on appeal. First, he contends the evidence was insufficient to support his convictions for sexual intercourse and one count of a lewd or lascivious act by force. Second, he contends the trial court erred by admitting evidence of Child Sexual Abuse Accommodation Syndrome (CSAAS). Third, he contends the trial court erroneously instructed the jury on the permissible uses of CSAAS evidence. Fourth, he contends his trial counsel rendered ineffective assistance by failing to object or move for a mistrial when a police officer testified that he had advised Aguilar of his Miranda[1] rights. Fifth, he contends the trial court erred by instructing the jury it had to find Aguilar not guilty of a charged offense before it could consider a lesser included offense. Sixth, he contends the prosecutor committed misconduct in cross-examining Aguilar by asking him why the victims would have lied, and by using Aguilar’s answers to those questions in closing argument. Seventh, Aguilar contends we must stay or strike various fines and fees because the trial court imposed them without determining his ability to pay them under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). For the reasons below, we find these claims without merit.

Aguilar further contends we must vacate the criminal justice administration fee based on the newly enacted Assembly Bill No. 1869 (Assembly Bill 1869), and he contends we must correct a clerical error in the abstract of judgment. The Attorney General concedes these claims, and we accept the concessions. Accordingly, we will modify the judgment to vacate a portion of the criminal justice administration fee, and we will order the abstract of judgment to be corrected. We will affirm the judgment as modified.

1. Factual and Procedural Background

1. Procedural Background

The prosecution charged Aguilar with eight counts: count 1—sexual penetration with a child 10 years or younger (Pen. Code, § 288.7, subd. (b))[2]; count 2—continuous sexual abuse of a child under 14 (§ 288.5, subd. (a)); count 3—oral copulation with a child 10 years or younger (§ 288.7, subd. (b)); count 4—attempted oral copulation with a child 10 years or younger (§§ 288.7, subd. (b), 664); counts 5, 7, and 8—lewd or lascivious act on a child under 14 by force, duress, or fear (§ 288, subd. (b)(1)); and count 6—sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a)). A jury found Aguilar guilty on all counts as charged.

The trial court imposed a total term of 55 years to life consecutive to 40 years in prison. The term consisted of consecutive terms of 15 years to life on each of counts 1 and 3; 25 years to life on count 6; 16 years on count 2; and eight years on each of counts 5, 7, and 8. The court stayed the term for count 4 under section 654.

2. Facts of the Offenses

In May 2015, Aguilar lived in a small one-bedroom house with his wife X.D. and three children. Aguilar was 45 years old. The two younger children were Aguilar’s biological children, but the oldest child—X.D.’s 11-year-old daughter A.D.—was not Aguilar’s biological child. A.D. slept in the living room with another child, while Aguilar and X.D. slept in the bedroom with the third child.

X.D. testified as follows: On the night of May 4, 2015, X.D. was asleep when she was awoken by noises from the pull-out sofa bed that A.D. was sleeping on in the living room. When X.D. went to the living room, she saw Aguilar crouching down next to the sofa bed. When Aguilar saw X.D., he got up right away, walked towards the window, and called out to X.D. to ask if she was okay. X.D. did not see Aguilar actually touching A.D. X.D. asked Aguilar what he was doing, and A.D. turned around, covering herself with a blanket. Aguilar said he wasn’t doing anything except looking out the window. X.D. asked A.D. if Aguilar had been doing anything to her, and A.D. covered her face with the blanket. When X.D. screamed at her and asked her a second or third time, A.D. said Aguilar was touching her. Aguilar said he hadn’t been doing anything and told A.D. to tell the truth. A.D. yelled back at him that it was true he was touching her. She then started crying. X.D. then called 911 and went outside.

A.D. was 14 years old when she testified at trial. Although Aguilar was her stepfather, she had thought of Aguilar as “dad” and he had been in her life as long as she could remember. He worked in construction, so he would sometimes leave early in the morning and come home in the afternoon. When X.D. worked late, Aguilar would watch A.D. in the afternoon. Aguilar was the one who would make her do chores and homework, and he would discipline her if she misbehaved. He would hit her, or if he was being nice, he would make her go to bed early or prohibit her from watching television. A.D. used to like being around Aguilar, but things changed when he started “do[ing] stuff” to her.

1. Count 1—Sexual penetration with a child 10 years or younger

A.D. testified that she was eight years old the first time something happened. It happened during the day, when X.D. was not home. Aguilar was lying down in the living room with a blanket on top of him when he asked A.D. to come lie down with him. While they were under a blanket on the couch, Aguilar put one hand inside her pants and underwear and rubbed her clitoris with his fingers in a circular motion. It made her body feel weird. Aguilar told her not to tell anyone about it because “you wouldn’t want me to go away.” This made A.D. feel sad, because she knew he would actually go away if she told anyone.

2. Count 2—Continuous sexual abuse of a child under 14 years of age

A.D. testified that Aguilar “did something” to her more times than she could count—more than thirty times—between the ages of 8 and 11. She could not remember every time that he touched her, but it happened more than once a week, and sometimes it would happen “[a]lmost every day in a week.” A.D. told the police it was happening four to five times a week, and that it had happened about 40 to 50 times altogether. Normally, when she had her period, he would not touch her for about a week. Aguilar continued to touch A.D. after she turned 11. Between the time when she turned 11 in December 2014 and the time when the police arrived in May 2015, there were more than 20 times when Aguilar touched her. She could not remember the specifics of each incident, but at these times he would put his hand under her shirt, touch her vagina inside her pants, kiss her breasts, or kiss her mouth.

3. Count 3—Oral copulation

A.D. testified about a time when Aguilar put his mouth on her vagina. She was watching television in the bedroom when he came in, pulled her to the edge of the bed, took off her pants and underwear, spread her legs apart, and put his mouth on her vagina.

4. Counts 4 and 5—Attempted oral copulation with a child ten years of age or younger, and lewd or lascivious act on a child by force, fear, or duress

At some time between the fourth and fifth grades, A.D. went to the kitchen to get some water when she saw Aguilar standing by the refrigerator. He had his penis out, and he was putting chocolate syrup on it. He told A.D. to come over, grabbed her by the hair to pull her closer, told her to get on her knees, and tried to put his penis in her mouth. He put his penis into her mouth and started stroking her head back and forth. She tried to close her mouth; she moved her head to the side; she pulled his arm to the side; and she struggled to get away. He let go, and she ran away to the couch.

5. Count 6—Sexual intercourse with a child ten years of age or younger

A.D. testified about one occasion when Aguilar tried to put his penis in her vagina but he did not. She was sleeping on the bunk bed in the living room when Aguilar came in, got on the bed, pulled the blankets off her, and took her pants and underwear off. A.D. testified that he then “went in between my legs and he took his pants down halfway, and he tried to put his penis into my vagina but it didn’t go in.” When the prosecutor asked, “Did any part of his penis go in your vagina?”, A.D. responded, “No.”

The prosecutor questioned A.D. about this incident again, and she testified that Aguilar “tried putting his penis in my vagina” but he could not. The prosecutor asked if A.D. felt anything in her body when Aguilar was trying to put his penis in her vagina, and A.D. responded, “No.” On redirect examination, A.D. testified that Aguilar “grabbed his penis and he put it on top of my vagina, but he couldn’t get it inside.” When the prosecutor asked A.D. what “inside the vagina” meant to her, A.D. described it as a “tube going inside of a hole” and clarified that if the penis went just a little bit between the lips of the vagina, she would not consider it to be inside. A.D. testified that she could feel the tip of Aguilar’s penis “on my vagina,” and that she specifically felt the tip of his penis on her clitoris. She described the feeling as “weird” and said she could feel his penis “up and down on, like, my clit. It was going, like, down the vagina and up to my clit and down.” She could feel the lips of her vagina moving because of the penis being there. She told him to get off, and he told her to be quiet. Eventually, he got off her and went back into the bedroom.

6. Count 7—Lewd or lascivious act on a child under 14 by force, fear, or duress

When A.D. was 11 years old, during the day of May 4, 2015, she was sitting in a chair playing a game on the computer when Aguilar approached her from behind. He lifted her arm up with one hand, put the other hand inside her bra, and squeezed her breast. She tried to put her arm down, but he was squeezing her wrist and would not let it go. She told him to stop, but he did not. A.D. dropped something and reached down to pick it up, whereupon he pushed her head down onto the counter and caused her to hit her right cheekbone on the counter, hurting her.

7. Count 8—Lewd or lascivious act on a child under 14 by force, fear, or duress

Later that evening on May 4, 2015, A.D. was asleep on a pull-out sofa bed in the living room when Aguilar entered the living room and started touching her vagina and breasts. A.D. testified that Aguilar was crouched down on his knees next to the bed. He touched her breasts and vagina inside her clothes and underwear. She told him to stop, but “[h]e just kept going.” Then X.D. came in, while Aguilar was still crouched down. When X.D. asked A.D. if Aguilar was touching her, A.D. said he was. X.D. then went outside and called the police. That was the first time A.D. ever told anyone that Aguilar had been touching her. A.D. felt relieved that she had told someone. While X.D. was outside, Aguilar asked A.D., “Why would you tell her,” and, “How could you do this?” His voice sounded angry and deep. Aguilar told her, “Do you want your brother and sister to live—to live, like, without a dad?”

When the prosecutor asked A.D. why she had never told anyone, she responded, “Because from the first time he told me not to tell anyone because he didn’t—because, like, I felt scared and I would feel bad if he, like, went away or something.”

8. Other Evidence

Swabs for DNA testing were taken from several areas around A.D.’s body on the night of May 4, 2015. There was a substantial amount of male DNA in the swabs taken from A.D.’s nipples, and the samples tested positive for saliva. A comparison with Aguilar’s DNA profile showed he was the single source of the DNA taken from A.D.’s right nipple. The sample from a swab of the left nipple contained a mixture of DNA profiles. Aguilar was the major contributor, and A.D. was included as a minor contributor to the sample.

There was no male DNA in the samples taken from the vaginal swabs. A.D.’s underwear had a stain that tested positive for blood, and A.D. was the sole source of DNA in samples taken from that area. Samples taken from two other areas of the underwear included too little male DNA to obtain a full profile, but the samples included partial male DNA profiles. The partial male profiles could be matched to DNA profiles from Aguilar or any male relative of Aguilar from the same paternal lineage. The prosecution’s criminalist conceded that DNA can be transferred between clothing when items of clothing from different family members share the same laundry hamper. The Aguilar household shared a single laundry hamper.

A Sexual Assault Response Team (“SART”) examination showed that A.D.’s body looked normal with no signs of injury. A.D.’s hymenal area was intact, but the examiner testified that there could have been a complete healing of the area prior to the exam. There were no signs of trauma, scarring, or healing.

9. Aguilar’s Testimony

Aguilar testified in his defense. Aguilar worked in construction and supported the family financially. At some point, X.D. got a job working at a Subway in the evenings, and Aguilar would watch the kids after he got home in the afternoon.

On May 4, 2015, Aguilar got home around 5:00 p.m., and X.D. came home an hour or so later. Aguilar went out to run an errand and came back with food and beer. When X.D. saw the beer, she became upset and they got into an argument about money. Aguilar stayed in the kitchen drinking beer and listening to music until 10:30 or 11:00 p.m., at which point the children were asleep. Around 11:00 p.m., Aguilar went into the living room to kiss the children and he looked out the window to check on his car, which had been stolen once before. After he gave a kiss to A.D., he went to the window to see if the car was still there, and he was bending over near the window when X.D. came into the living room and asked him, “What are you doing?” X.D. “came out screaming” and A.D. woke up, whereupon X.D. asked her, “Is your dad doing something to you?” A.D. said “no,” and Aguilar went back to the bedroom to go to bed. X.D. stayed in the living room talking with A.D. for a long time, and when Aguilar went out to the hallway to call to X.D. to come to bed, he heard X.D. asking A.D. if he was touching her. At that point. A.D. said “yes,” and X.D. went outside with her phone to call the police. Aguilar was surprised that A.D. would say that, and he said to her, “Don’t do this to me. Why don’t you speak the truth?”

Aguilar denied that he touched A.D. in any inappropriate way. He stated that he simply lifted her hair on one side and gave her a kiss. He never touched or kissed her breasts, and never put her hands inside her underwear. Aguilar denied engaging in any of the sexual acts that A.D. had alleged.

2. Discussion

1. Sufficiency of the Evidence for the Convictions on Counts 6 and 8

Aguilar contends the evidence was insufficient to support a conviction on count 6 (sexual intercourse with a child) because the evidence did not prove he sexually penetrated A.D.’s vagina. The Attorney General contends Aguilar’s claim fails because he is relying on a legally incorrect definition of sexual penetration. Aguilar further contends the evidence was insufficient to support a conviction on count 8 (lewd or lascivious act by force or duress) because the evidence did not prove he used force or duress in committing the lewd act. The Attorney General argues the evidence is sufficient to prove duress based on Aguilar’s greater size, age, and power over the victim.

1. Legal Principles

“To assess the evidence’s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 357, citing People v. Maury (2003) 30 Cal.4th 342, 403.) The record must disclose substantial evidence to support the verdict such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) The substantial evidence must be reasonable, credible, and of solid value. (Ibid.) We review the evidence “in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (Ibid.) “A reversal for insufficient evidence ‘is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support’ the jury’s verdict.” (Ibid.) The standard is the same under both the California Constitution and the federal Constitution. (People v. Jimenez (2019) 35 Cal.App.5th 373, 392.)

“Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life.” (§ 288.7, subd. (a).) “Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis.” (People v. Mendoza (2015) 240 Cal.App.4th 72, 79 (Mendoza).) Penetration of the labia majora is sufficient. (People v. Dunn (2012) 205 Cal.App.4th 1086, 1097 (Dunn).)

Subdivision (b)(1) of section 288 punishes the commission of a lewd or lascivious act on a child under 14 years of age “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person . . . .” (§ 288, subd. (b)(1).) “Duress” as used in this section means “ ‘a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.’ [Citation.]” (People v. Soto (2011) 51 Cal.4th 229, 246 (Soto).) Duress is measured by a purely objective standard as applied to the defendant’s conduct; duress may be found regardless of how the victim subjectively perceived or responded to it. (Ibid.) The total circumstances, including the age of the victim, and the victim’s relationship to the defendant are factors to be considered in determining duress. (People v. Veale (2008) 160 Cal.App.4th 40, 46.) Other relevant factors include threats of harm; physically controlling the victim when the victim attempts to resist; and warnings that revealing the molestation would jeopardize the family. (Ibid.)

2. Sufficient Evidence Supports the Conviction on Count 6

As set forth above in section I.B., A.D. testified that Aguilar did not put his penis inside her vagina, but she felt the tip of his penis on her vagina, moving up and down between the top of the vagina and her clitoris. Aguilar contends this testimony is insufficient to prove sexual intercourse because the offense requires proof of “vaginal penetration,” and the evidence shows he only penetrated the lips of the victim’s vagina. Aguilar concedes that the courts of appeal have long held that actual penetration of the vagina is not necessary to prove sexual intercourse, and that penetration of the labia majora is sufficient. (Mendoza, supra, 240 Cal.App.4th at p. 79; Dunn, supra, 205 Cal.App.4th at p. 1097.) Aguilar argues the holdings of those cases are in doubt given the California Supreme Court’s opinion in People v. Holt (1997) 15 Cal.4th 619 (Holt). (See also People v. Paz (2017) 10 Cal.App.5th 1023, 1037, fn. 12.)

We are not persuaded. In Holt, the defendant challenged his conviction for rape on the ground that the trial court failed to define “sexual intercourse” for the jury, and that the jury could have interpreted the phrase to mean anal penetration rather than vaginal penetration. (Holt, supra, 15 Cal.4th at pp. 675-676.) The California Supreme Court rejected this argument, concluding there was no reason to think a juror might understand intercourse to mean anal intercourse, given the jury instructions. In the course of that analysis, the court stated, “We see no possibility that the jury did not understand the instructions to require vaginal penetration.” (Id. at p. 676.) Aguilar seizes on the phrase “vaginal penetration” in this sentence to argue that Holt defined “sexual intercourse” to require vaginal penetration. This assertion ignores the context around that language; Holt did not define “sexual intercourse” as requiring vaginal penetration. The court in Holt had no occasion to distinguish between penetration of the vagina and penetration of the labia majora; the court used the phrase “vaginal penetration” to distinguish it from anal penetration. The opinion subsequently described the jury instruction as requiring “penetration of the victim’s vaginal genitalia,” and the court quoted the instruction on rape as follows: “ ‘[A]ny penetration of the male sex organ into the female sex organ, however, slight, constitutes an engaging in an act of sexual intercourse.’ ” (Ibid.) The court expressed no disapproval of this instruction.

We decline to depart from the long-standing holdings of the courts of this state. We will apply the holdings of Mendoza and Dunn, which do not require evidence of vaginal penetration to prove rape under section 288.7. A.D.’s testimony that Aguilar moved his penis up and down “on” her vagina in contact with the clitoris is sufficient evidence that he penetrated the labia majora. Accordingly, this claim is without merit.

3. Sufficient Evidence Supports the Conviction on Count 8

Aguilar contends the evidence was insufficient to support his conviction for violating subdivision (b) of section 288 because the prosecution failed to prove he used force or duress to commit the lewd act. The Attorney General concedes there was no evidence of physical force or violence but he contends the evidence was sufficient to support a finding of duress.

The lewd act charged in count 8 concerned the final lewd act that occurred on the night of May 4, 2015. A.D. testified that Aguilar crouched down next to the bed and touched her breasts and vagina inside her clothes and underwear. She told him to stop, but he “just kept going.” Aguilar stopped when X.D. entered the room. A.D. was an 11-year-old girl at the time, and Aguilar was a 45-year-old construction worker. The jury had the opportunity to compare Aguilar’s physical stature to A.D. when she testified at age 14, and the photographs of both persons in the record suggest a reasonable juror could have found Aguilar was larger and stronger than her at the time of the offense. As A.D.’s stepfather, Aguilar was responsible for disciplining her, and she testified that this sometimes included hitting her when she misbehaved. Furthermore, early that same day, when A.D. attempted to physically resist his groping her breast, he forcibly pushed her head down and her right cheekbone hit the counter, causing her pain. By that time, Aguilar had been forcibly molesting A.D. for around three years, starting when she was eight years old. He warned her that revealing the abuse would result in his absence from the family.

Taken together, these circumstances were sufficient evidence of duress in the commission of the lewd act charged in count 8. “Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. ‘Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim’ is relevant to the existence of duress. [Citation.]” (People v. Senior (1992) 3 Cal.App.4th 765, 775.) When considered together, these factors—the parental relationship of authority Aguilar held over A.D.; the age and physical differences between them; the history of his abuse of her; his past threats that the family would be hurt if he was gone; and the recent infliction of a painful injury to her when she resisted—all support a finding that Aguilar used an implied threat of force sufficient to coerce a reasonable person of ordinary susceptibilities to acquiesce in an act to which they otherwise would not have submitted. (Soto, supra, 51 Cal.4th at p. 246.) A reasonable jury could have found beyond a reasonable doubt that Aguilar thereby used duress to commit the offense.

For the reasons above, we conclude these claims are without merit.

2. Admission of Expert Testimony on Child Sexual Abuse Accommodation Syndrome

Aguilar contends the trial court erred by admitting testimony from the prosecution’s expert on Child Sexual Abuse Accommodation Syndrome (CSAAS). He argues CSAAS evidence is inadmissible for all purposes because it is unreliable and tends to support the conclusion that the defendant committed the abuse. Second, he argues CSAAS evidence was inadmissible in this case because the record showed none of the jurors harbored any of the misconceptions CSAAS is intended to rebut. Third, he argues the trial court erred by admitting statistical evidence as CSAAS evidence. The Attorney General argues the admission of CSAAS evidence was not an abuse of discretion under long-standing state law making CSAAS testimony admissible at trial. He disputes that the admission of CSAAS requires some initial showing that jurors hold the misconceptions CSAAS is intended to rebut. Finally, he argues the trial court did not admit any improper statistical evidence.

1. Legal Principles

To be admissible, expert testimony must be “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact,” among other criteria. (Evid. Code, § 801, subd. (a).) CSAAS evidence is admissible for limited purposes. It may not be used to prove the alleged sexual abuse actually occurred, but CSAAS is admissible “for the limited purpose of disabusing the fact finder of common misconceptions it might have about how child victims react to sexual abuse. [Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 418.) The prosecution may explicitly identify misconceptions about victims’ behavior that CSAAS testimony is intended to rebut. (People v. Harlan (1990) 222 Cal.App.3d 439, 449-450.) Such evidence may be relevant and admissible where a victim’s conduct relates directly to those misconceptions. (Id. at p. 450.) “For instance, where a child delays a significant period of time before reporting an incident or pattern of abuse, an expert could testify that such delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust.” (People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker).)

“The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.” (People v. McDowell (2012) 54 Cal.4th 395, 426.) Evidence Code section 352 gives trial courts discretion to “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.” (Evid. Code, § 352.) “Rulings under Evidence Code section 352 come within the trial court’s broad discretion and will not be overturned on appeal absent a showing of an abuse of that discretion.” (People v. Brooks (2017) 3 Cal.5th 1, 43.)

2. Procedural and Factual Background

Aguilar moved pretrial to exclude CSAAS testimony because it is no longer recognized as a theory that applies in forensic settings and it is unreliable under People v. Kelly (1976) 17 Cal.3d 24 (Kelly). The trial court denied the motion and admitted the proposed testimony for the limited purposes as set forth under existing case law. The trial court ruled that the jury would be instructed on the limited uses of the evidence in accordance with CALCRIM No. 1193.

Dr. Blake Carmichael, a clinical psychologist at the U.C. Davis Children’s Hospital, testified for the prosecution as an expert in CSAAS. Dr. Carmichael testified that he did not know what charges had been brought against Aguilar; he was not familiar with the facts of the case; he had not seen the police reports; and he had not interviewed any of the people involved.

Dr. Carmichael testified that there are five components to CSAAS: secrecy; helplessness; entrapment and accommodation; delayed and unconvincing disclosures; and retraction or recanting. He described each of these components in detail and testified about common behaviors associated with them. He testified that CSAAS should not be used to diagnose a child or to determine whether or not a child has actually been sexually abused. Dr. Carmichael emphasized that the research was based on observations of children who were known to have been abused, and that you cannot infer that any given child has been abused because these behaviors were observed. The purpose of the research is to help people understand how abused children might react to sexual abuse, not to determine whether a child has been sexually abused.

The trial court instructed the jury based on CALCRIM No. 1193 that “testimony about child sexual Abuse Accommodation syndrome is not evidence the defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not [A.D.’s] conduct was not inconsistent with the conduct of someone who has been molested in evaluating the believability of her testimony.”

3. Admission of CSAAS Testimony Was Not an Abuse of Discretion

Aguilar acknowledges that California law allows for the admission of CSAAS evidence for limited purposes, but he nonetheless contends it should be held inadmissible for any purpose whatsoever. He argues CSAAS testimony is unreliable, and that it is impossible for any jury to avoid using it as evidence the victim’s allegations are true. In support of these contentions, he cites to case law from several other jurisdictions. We decline to depart from the long-standing law of the courts of this state, which have repeatedly rejected challenges to the reliability of CSAAS evidence based on decisions from other jurisdictions. (See People v. Munch (2020) 52 Cal.App.5th 464, 468-473 (Munch).) Furthermore, the trial court instructed the jury that the CSAAS expert’s testimony was not evidence that Aguilar committed the charged offenses, and the court properly instructed the jury on the limited uses of the evidence. “We presume absent contrary indications that the jury was able to follow the court’s instructions.” (People v. Pinholster (1992) 1 Cal.4th 865, 919 (Pinholster), disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405.) Absent a showing to the contrary, we presume the jury followed the trial court’s instructions not to use the testimony as evidence that Aguilar committed any of the charged crimes.

Aguilar next contends that even if CSAAS is generally admissible, it should have been excluded from his trial because the jurors did not hold the misconceptions CSAAS testimony is intended to address. Aguilar cites trial counsel’s argument in support of his renewed motion to exclude the testimony, wherein counsel cited responses potential jurors had given to a questionnaire that included several questions relevant to CSAAS. Counsel asserted, for example, that in response to a question about whether victims would delay reporting sexual abuse to family members or trusted adults, every juror said a victim would possibly delay reporting. Counsel asserted that in response to a question that asked, “Do you have any preconceived notions about how victims of sexual assault should act,” every juror responded they did not have any preconceived notions. Counsel argued that CSAAS testimony was therefore irrelevant because jurors confirmed they did not have any preconceived notions about how victims of child molest should act. The trial court ruled again that the evidence was more probative than prejudicial and denied the motion to exclude.

The jurors’ responses to the questionnaire are not in the record, however, and the unsworn statements of counsel are not evidence.[3] (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.) Furthermore, a question asking jurors whether they “have any preconceived notions” seem unlikely to elicit accurate responses, as it assumes jurors will know their own notions are “preconceived” and would acknowledge having them. The questionnaire included a question asking whether jurors believed victims would delay reporting, but other aspects of CSAAS evidence were not addressed.

The California Supreme Court has recognized that most jurors may lack a common understanding of how child sexual abuse victims react. “Most jurors, fortunately, have been spared the experience of being the parent of a sexually molested child. Lacking that experience, jurors can rely only on their intuition or on relevant evidence introduced at trial.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1302.) “ ‘Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children’s seemingly self-impeaching behavior. [¶] The great majority of courts approve such expert rebuttal testimony.’ ” (Id. at p. 1301, quoting Myers et al., Expert Testimony in Child Sexual Abuse Litigation (1989) 68 Neb. L. Rev. 1, 89.) Absent evidence in the record showing jurors did not hold any such misconceptions, we cannot conclude the trial court abused its discretion by adhering to this rationale.

Aguilar next contends the trial court erred by admitting “inadmissible statistical evidence” as CSAAS evidence. In response to a question about delayed disclosure by abuse victims, Dr. Carmichael testified that “somewhere between 40 and 60 percent of kids don’t tell within the first year, even other studies that say around 50 to 70 percent of kids don’t tell until after they turn 18.” He added that among children who are known to have been sexually abused or touched, about 40 percent of children do not disclose the abuse even when they are asked about it directly. Dr. Carmichael then testified that about 70 percent of children show no outward signs of negative emotions when talking about abuse. Finally, he testified that “there are much higher rates of being sexually abused by someone you know. Someone said 300 percent more likely, 80 to 90 percent or even higher, showing that kids are abused by people they know.” Defense counsel did not object to any of this testimony.

Aguilar argues this testimony was erroneously admitted because it was irrelevant in that it did not address common misconceptions about child sexual abuse victims. For this proposition, he relies on People v. Julian (2019) 34 Cal.App.5th 878 (Julian), and People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson). Those opinions held it was error to admit expert testimony reciting statistics suggesting false accusations by child sexual abuse victims are rare (ranging from 1 percent to 8 percent of cases). (Julian, at p. 883; Wilson, at p. 568.) The court of appeal in Julian held that this testimony “invited jurors to presume Julian was guilty based on statistical probabilities, and not decide the evidence properly introduced in the case.” (Julian, at p. 886.) Similarly, the court of appeal in Wilson concluded, “the practical result was to suggest to the jury that there was an overwhelming likelihood [the victims’] testimony was truthful. In so doing, this testimony invaded the province of the jury, whose responsibility it is to ‘draw the ultimate inferences from the evidence.’ [Citation.]” (Wilson, at p. 570.)

Neither Julian nor Wilson is squarely on point. The statistics cited by the expert here did not concern the prevalence of false accusations by child victims of sexual abuse. In the first three examples quoted by Aguilar, Dr. Carmichael testified to the percentage of child victims who do not disclose they were abused or who show no outward emotional signs of abuse. These statistics were relevant to the CSAAS components of secrecy and delayed disclosures. Moreover, none of these statistics would have led any reasonable juror to presume Aguilar was guilty or to conclude there was an “overwhelming likelihood” the victim was telling the truth.

In the fourth example quoted by Aguilar, Dr. Carmichael testified about the higher likelihood of a victim being sexually abused by someone they know. It is not exactly clear what statistics Dr. Carmichael was referencing or what they measured, as he stated only, “Someone said 300 percent more likely, 80 to 90 percent or even higher, showing that kids are abused by people they know.” Dr. Carmichael did not explain exactly what ratio these percentages purported to measure, and he did not cite any studies or sources for them. The thrust of the statement—that victims are more likely to be abused by someone they know—is marginally relevant to CSAAS evidence because, as the expert testified, delays in disclosure tend to arise when the victim is close to the abuser. Arguably, however, a juror might infer from this testimony that the defendant was more likely to be guilty of the charged offenses because he was known to the victim, making it somewhat more analogous to the testimony held improper in Julian and Wilson.

Nonetheless, as Aguilar concedes, his trial counsel failed to object to any of this testimony. The claim is therefore forfeited on appeal. (People v. Partida (2005) 37 Cal.4th 428, 433 (Partida).) Aguilar argues it was sufficient that he objected pretrial to CSAAS evidence generally as unreliable under Kelly, supra, 17 Cal.3d 24. But that is not the claim Aguilar is making on appeal. Here, Aguilar is arguing the testimony is irrelevant, and to the extent he relies on Julian and Wilson, the question is whether the evidence improperly invades the province of the jury. Aguilar’s general pretrial objection to CSAAS testimony based on Kelly was not specific enough to enable the trial court or the prosecution to address the arguments raised here. “What is important 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.” (Partida, at p. 435.) We conclude the claim was therefore forfeited. Aguilar further contends the failure to object should be excused because Julian and Wilson, which were decided after the trial in this case, constituted an unforeseeable change in the law. We are not persuaded. Both cases applied well-established legal principles governing the role of the jury and the limits of expert testimony.

For the reasons above, we conclude these claims are without merit.

3. The Jury Instruction Regarding Permissible Uses of the Expert Testimony

The trial court instructed the jury based on CALCRIM No. 1193 as set forth above in section II.B.2. Aguilar contends the trial court erred by instructing the jury on the permissible uses of CSAAS testimony based on this instruction. He contends the instruction was erroneous because it allowed the jury to use CSAAS evidence in deciding whether he was guilty of the charged offenses. The Attorney General contends the trial court properly instructed the jury on the permissible uses of CSAAS testimony.

“We review a claim of instructional error de novo. [Citation.] The challenged instruction is considered ‘in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.’ [Citation.]” (People v. Rivera (2019) 7 Cal.5th 306, 326.)

Aguilar cites no case law or other legal authority invalidating CALCRIM No. 1193, and California courts have rejected many similar challenges to CALCRIM No. 1193. (See People v. Lapenias (2021) 67 Cal.App.5th 162, 175; Munch, supra, 52 Cal.App.5th 464, 473; People v. Gonzales (2017) 16 Cal.App.5th 494, 504.) Aguilar argues those cases are wrongly decided. He argues the instruction is invalid under Bowker, supra, 203 Cal.App.3d 385, and People v. Housley (1992) 6 Cal.App.4th 947, 959 (CSAAS testimony is not intended and should not be used to determine whether the victim’s molestation claim is true). But neither Housley nor any other case cited by Aguilar held CALCRIM No. 1193 to be invalid. And CALCRIM No. 1193 instructs the jury that CSAAS testimony is not evidence the defendant committed any of the charged crimes. Aguilar points to nothing in the record that would suggest the jury failed to adhere to this instruction. Absent a showing to the contrary, we presume the jury followed the trial court’s instructions not to use the testimony as evidence that Aguilar committed any of the charged crimes. (Pinholster, supra, 1 Cal.4th at p. 919.)

For the reasons above, we conclude this claim is without merit.

4. Ineffective Assistance of Counsel for Failure to Object to Testimony by Police Officer Who Advised Defendant of His Miranda Rights

Aguilar contends his trial counsel rendered ineffective assistance by failing to object when a police officer testified that he had advised Aguilar of his Miranda rights. The Attorney General contends Aguilar’s trial counsel had no cause to object because the officer never testified that Aguilar remained silent or otherwise invoked his Miranda rights.

1. Background

In its case in chief, the prosecution introduced the testimony of the police officer who obtained a DNA reference sample from Aguilar after he was arrested and taken into custody. When the prosecutor asked the officer to state how he obtained the DNA sample, the officer responded that he and a Spanish-speaking interpreter went to the county jail where Aguilar was held and made contact with him. The officer then testified, “I read him his rights -- his Miranda rights from my San Jose PD-issued Miranda card.” The prosecutor then asked if the officer took a DNA sample from Aguilar, and the officer responded affirmatively, followed by a description of the swabbing procedure. Defense counsel did not object.

2. Legal Principles

The use of a defendant’s postarrest silence following Miranda warnings to impeach the defendant’s trial testimony violates due process unless the defendant presents exculpatory testimony inconsistent with a voluntary post-Miranda statement. (People v. Collins (2010) 49 Cal.4th 175, 203.)

To establish ineffective assistance of counsel, the defendant bears the burden of showing trial counsel’s performance was deficient: that counsel’s performance “fell below an objective standard of reasonableness” in light of the prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) “ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” ’ [Citations.] ‘[W]e accord great deference to counsel’s tactical decisions’ [citation], and we have explained that ‘courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are generally not deemed reversible, and counsel’s decision making must be evaluated in the context of the available facts.’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925-926 (Weaver).) “In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.” (Id. at p. 926.) Second, the defendant must show the asserted deficiency in counsel’s performance resulted in prejudice: a “ ‘ “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ’ ” (Id. at p. 955.)

3. Trial Counsel’s Performance Was Not Deficient

The record clearly shows the officer never testified that Aguilar invoked his Miranda rights or that Aguilar remained silent. The officer simply testified that he advised Aguilar of his Miranda rights. Aguilar contends his trial counsel rendered deficient performance by failing to object because this testimony was “akin to evidence a defendant remained silent after Miranda advisements.” Aguilar cites no authority to support this proposition.

There is nothing in the record that would have enabled any reasonable juror to infer that Aguilar remained silent or invoked his Miranda rights based on the officer’s testimony. We see no legal or factual support for the assertion that the officer’s testimony was “akin to” evidence that Aguilar remained silent. Accordingly, any objection by trial counsel would have been meritless. Counsel did not render deficient performance by declining to lodge a futile objection. (People v. Anderson (2001) 25 Cal.4th 543, 587 [defense counsel does not provide ineffective assistance of counsel by declining to lodge a futile objection].) We conclude this claim is without merit.

5. Jury Instruction Regarding a Lesser Included Offense

The jury was instructed on the possibility of lesser included offenses to the charges alleged in counts 1, 2, 5, 7, and 8. Aguilar contends the trial court erred by instructing the jury it had to find him not guilty of a charged offense before the jury could consider the lesser included offense, violating People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman). The Attorney General argues Aguilar waived this claim by failing to object. On the merits of the claim, the Attorney General contends the trial court’s instructions when considered as a whole properly instructed the jury on the lesser included offenses.

Arguing in the alternative, Aguilar contends his trial counsel rendered ineffective assistance by failing to object to the trial court’s instructions and by failing to object when the prosecutor argued in closing that the jury could not consider the lesser offenses without first finding Aguilar not guilty on the charged offenses.

1. Procedural Background

The trial court instructed the jury on lesser included offenses based on CALCRIM No. 3517 as follows, in relevant part: “If you find that the defendant is not guilty of the greater charged crime, you may find him guilty of a lesser included if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime. A defendant may not be convicted of both a greater and lesser crime for the same conduct. [¶ . . . ¶] It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict on a lesser crime only if you found the defendant not guilty of the corresponding greater crime. [. . .] If all of you agree that the People have proved the defendant is guilty of the greater crime, complete and sign the verdict form for guilty of that crime. Do not complete or sign any other verdict form for that count. If all of you agree that the People have proved the defendant is—if all of you agree the People have not proved the defendant is guilty of the greater crime and also agree that the People have proved he’s guilty of a lesser crime, complete and sign the verdict form for guilty of the lesser crime. Do not complete or sign any verdict forms for that count. If all of you agree that the People have not proved that the defendant is guilty of the greater or lesser crime, complete and sign the verdict form for not guilty. [¶] If all of you cannot agree whether the People have proved that the defendant is guilty of a charge or lesser crime, inform me only you cannot reach an agreement as to that count, and do not complete or sign any verdict form for that count.”

In closing argument, the prosecutor described how the elements of a lesser included offense are a subset of the elements in the greater offense, analogous to concentric circles. The prosecutor then stated, “That’s the concept of what lesser includeds are. You essentially go through the lesser to get to the greater offense. What the law says is that the defendant can only be convicted of one. In other words, if you find him guilty of the charged offense, then you don’t consider the lesser. If you find him not guilty of the charged offense, then you look at what the lesser is and you decide if he’s guilty of that.” The prosecutor then explained how the jury should fill out the verdict forms by leaving the verdict for a lesser included offense blank if the jury found Aguilar guilty of the greater offense. Defense counsel did not object to any of these statements.

After closing arguments concluded, the trial court gave final instructions to the jury on how to complete the verdict forms for each count as follows: “If you see a single page, there’s no lesser. You can go through the verdict forms in any way you want, but, for example, on Count 1, we have a lesser. So on the first page of any case where there’s a staple is the charged crime. Then the second page is the lesser crime. If you decide let’s say on Count 1 the defendant is guilty, you will sign—the foreperson is going to sign guilty, date, and sign. You do not go to the lesser. If you decide he’s not guilty of the charged crime but is guilty of the lesser crime, then you will either write guilty or not guilty. [¶] Now, let’s say you’re hung. Now we are hung on Count 1. Well, you don’t get to go to the lesser. You have to find the defendant not guilty before you go to the lesser. You can’t, like, jump ahead. You will do that for each and every verdict. Remember when it has no staple, that means there’s no lesser. It’s either guilty not guilty or hung.” Defense counsel did not object to any of these instructions.

2. Legal Principles

“[A] trial court may direct the order in which jury verdicts are returned by requiring an express acquittal on the charged crime before a verdict may be returned on a lesser included offense.” (People v. Bacon (2010) 50 Cal.4th 1082, 1110) But the trial court may not “prohibit a jury from considering or discussing the lesser offenses before returning a verdict on the greater offense.” (Kurtzman, supra, 46 Cal.3d at p. 329.)[4]

3. The Trial Court Properly Instructed the Jury on Lesser Included Offenses

Aguilar does not challenge the trial court’s pre-argument instructions on lesser included offenses based on CALCRIM No. 3517, in which the court stated, among other things, “It is up to you to decide the order in which you consider each crime and the relevant evidence . . . .” In accordance with Kurtzman, supra, these instructions did not preclude the jury from considering or discussing a lesser offense before reaching a not guilty verdict on the charged offense. Aguilar challenges only the trial court’s post-argument instructions on the completion of the verdict forms, in which the court told the jury that if it was hung on a charged count, “you don’t get to go to the lesser. You have to find the defendant not guilty before you go to the lesser. You can’t, like, jump ahead.”

Aguilar’s claim takes the trial court’s instructions out of context. Reading the instructions as a whole, it is clear the court was instructing the jury on how to complete the verdict forms, not telling it how to decide which verdicts to reach. The court explained how each offense was listed on a single page, and just prior to the challenged statement, the court explained that the foreperson should write “guilty” or “not guilty” for an offense, and sign and date the form. The court did not tell the jury it could not “consider” or “discuss” a lesser offense until after acquitting on the charged offense. Arguably, a juror could confuse the instruction not to “go to the lesser” as an instruction on how to deliberate or decide on the verdicts; ideally, the court should have been more explicit on this point. But defense counsel did not object and did not request any clarification. “Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Andrews (1989) 49 Cal.3d 200, 218.) Considered in context, the court’s instructions were legally correct, so counsel’s failure to object or request a clarification forfeits this claim. In any event, reading the instructions as a whole, we see no error.

The prosecutor’s statements in closing argument, by contrast, were objectionable. The prosecutor expressly told the jury “don’t consider the lesser” before finding Aguilar not guilty on the charged offense. (Italics added.) The prosecutor made this statement immediately after discussing the legal concept of a lesser included offense, not in the context of filling out the verdict forms. Again, however, defense counsel did not object, forfeiting the claim on the merits.

Aguilar argues his trial counsel rendered ineffective assistance of counsel in failing to object to both the prosecutor’s statements and the trial court’s instructions. As the Attorney General points out, however, trial counsel’s defense was that Aguilar did not commit any of the alleged acts. Counsel challenged the credibility of the victim’s testimony, describing it as inconsistent and problematic, and counsel argued this was a result of pressure or reinforcement from the investigating officers. It is conceivable that counsel made a tactical decision not to argue for the lesser included offenses, and that objecting to the prosecutor’s statements about them would be inconsistent with this approach. In other words, counsel may have decided that any statement or objection in favor of a finding on a lesser included offense would be seen by the jury as a concession that Aguilar committed some crime. “Where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.” (Weaver, supra, 26 Cal.4th at p. 926.)

For the reasons above, we conclude these claims are without merit.

6. Prosecutorial Misconduct

Aguilar contends the prosecution committed misconduct by asking him inadmissible “were they lying” questions on cross-examination and relying on his answers in closing argument. The Attorney General contends the prosecution did not commit misconduct because the questions were allowed and the answers that Aguilar gave in his testimony were admissible. The Attorney General further contends the claim was forfeited by trial counsel’s failure to object on the same grounds raised in this appeal.

1. Procedural Background

When Aguilar testified in his defense, he gave an account of the night he was arrested that differed in key respects from the versions set forth by the prosecution witnesses, and he denied committing all of the alleged acts. Aguilar testified that he told A.D., “Don’t do this to me. Why don’t you speak the truth?”

On cross-examination, the prosecutor asked Aguilar if he knew A.D. and X.D. well. Aguilar responded that he did. The prosecutor then asked, “Why do you think they are lying about this?” Defense counsel objected on the ground the question called for speculation on the witnesses’ states of mind, and the trial court held a sidebar that was not transcribed on the record. The prosecutor then resumed cross-examination as follows:

“[Prosecutor:] You said none of these things happened?

“[Aguilar:] Correct.

“[Prosecutor:] You heard [A.D.] testify about what you did to her?

“[Aguilar:] Yes.

“[Prosecutor:] You heard [X.D.] testify about walking in when you were by [A.D.]’s bed?

“[Aguilar:] That’s what she said, yes.

“[Prosecutor:] Why do you think [A.D.]’s lying about this?”

Defense counsel again objected to the question as speculative, and the trial court held another sidebar off the record. The cross-examination then resumed as follows:

“[Prosecutor:] So, Mr. Aguilar, why do you think she’s lying about this?

“[Aguilar:] I have no idea.

“[Prosecutor:] You have no idea?

“[Aguilar:] No.”

On redirect examination, defense counsel asked Aguilar why he thought the prosecution’s witnesses were making the allegations against him, and Aguilar responded, “I don’t have a clear answer, but there are many things.” Aguilar testified that the family had had financial problems and X.D. had had medical problems. Aguilar added that he had been paying more attention to his own biological children than he had given to A.D., and he suggested A.D. was jealous.

In closing, the prosecutor argued that A.D. had no reason to lie, and the prosecutor continued as follows: “There were a lot of questions about this, implications of some jealousy that she had. It’s an implication that falls on its own weight, because even if we take the best version of the defendant and he gave his best version of himself. What we know about that household is life is difficult. Mom was working. He was working. Everybody was chipping in. He was supporting, mom was supporting. Why would [A.D.] throw him out? This is the man who is providing for this family. This is a part of this family that [A.D.] wants. You hear her talk about that with Officer Reyes, what she’s worried about, her brother and her sister being separated, losing her family. That’s not a reason to lie about this, that’s a reason to keep it secret, which is what she did until the day that he was confronted with it based on—by a police officer. If she is lying about it, why sexual assault? Why something so personal, something so private, something even awkward for even adults to talk about? Why not just say, ‘He’s hitting me’? Because he wasn’t hitting her. What he was doing was touching her, and that’s what she told the police and that’s what she told the judge at the preliminary hearing, and that’s what she told you. So at the end of it, it breaks down in a very simple way. It’s a truthful disclosure given at the scene. It’s a truthful disclosure that’s corroborated, not just by the DNA but by her mother and her sister, and it’s a truthful disclosure given by a kid who has no reason to lie. That’s a lot of evidence in a child molest.” Defense counsel did not object to any of this argument.

2. Legal Principles

“No witness may give testimony based on conjecture or speculation. (See Evid. Code, § 702.) Such evidence is irrelevant because it has no tendency in reason to resolve questions in dispute. (Evid. Code, § 210.)” (People v. Chatman (2006) 38 Cal.4th 344, 382 (Chatman).) “An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.” (Id. at p. 384.) We apply the abuse of discretion standard of review to a trial court’s ruling on the admissibility of such testimony. (People v. Thornton (2007) 41 Cal.4th 391, 428.)

When the defendant testifies to facts contradicting testimony by a prosecution witness, the prosecution may ask the defendant “were they lying” questions, subject to certain limits. “[C]ourts should carefully scrutinize ‘were they lying’ questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.” (Chatman, supra, 38 Cal.4th at p. 384.)

“ ‘ “When a prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated.” ’ [Citations.] ‘ “Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.” [Citation.]’ [Citation.] Misconduct that does not constitute a federal constitutional violation warrants reversal only if it is reasonably probable the trial outcome was affected. [Citation.]” (People v. Shazier (2014) 60 Cal.4th 109, 127.) “ ‘ “As a general rule, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” ’ [Citations.]” (People v. Covarrubias (2016) 1 Cal.5th 838, 894.)

3. The Prosecutor Did Not Commit Misconduct

Aguilar contends the prosecutor committed misconduct by eliciting the “were they lying” testimony. But merely eliciting evidence is not misconduct if the prosecutor did not intentionally elicit inadmissible evidence; the premise of Aguilar’s claim is that the evidence was inadmissible. (See Chatman, supra, 38 Cal.4th at p. 380 [defendant’s real argument is that the evidence was inadmissible].) For this proposition, Aguilar relies on authorities from outside this jurisdiction. He acknowledges that Chatman generally allows for such questioning, but he urges us to adopt the laws of other states instead. We are bound, however, by the holdings of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450.)

Under Chatman, supra, 38 Cal.4th at page 382, the prosecutor may elicit “were they lying” testimony provided the foundation is adequate. To be of assistance to the factfinder and to avoid speculation, the witness under subject to such examination must have personal knowledge of the events in question. (Ibid.) Aguilar admitted he knew A.D. and X.D. well, such that he had some personal knowledge of their motives, and he was obviously a percipient witness to the events underlying the charged acts. “A defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken. When, as here, the defendant knows the other witnesses well, he might know of reasons those witnesses might lie. Any of this testimony could be relevant to the credibility of both the defendant and the other witnesses.” (Ibid.) The prosecution here laid a foundation consistent with this holding.

Aguilar then claims that the prosecutor committed misconduct in closing argument when he “doubled-down” on his prior misconduct by challenging the responses Aguilar gave as reasons for why A.D. and X.D. might have lied. For this proposition, Aguilar relies on People v. Zambrano (2004) 124 Cal.App.4th 228 (Zambrano). But that case preceded Chatman, and as the California Supreme Court observed in Chatman, the defendant in Zambrano was questioned about the veracity of witnesses who were strangers to him. The police arrested Zambrano for selling cocaine after they observed him conducting a sale during an undercover operation in the parking lot of a truck stop. On cross-examination, the prosecutor asked Zambrano if the police were lying when they testified that they saw him sell the cocaine. The court of appeal in Zambrano held this constituted prosecutorial misconduct under state law. (Zambrano, at p. 241.) The California Supreme Court in Chatman distinguished this holding on the basis that Zambrano had no relevant personal knowledge that could have provided a foundation for such question. “Defendant, a stranger to the officers, had no basis for insight into their bias, interest, or motive to be untruthful.” (Chatman, supra, 38 Cal.4th at p. 381.)

The prosecution in this case laid a proper foundation for its questioning by demonstrating that Aguilar had some nonspeculative basis for forming an opinion about the other witnesses’ motives or biases. Aguilar himself provided reasons for why they might have lied when he testified on redirect. Furthermore, he had percipient knowledge of the events underlying their testimony. The questioning here was thus permissible under Chatman, and the prosecutor did not commit misconduct by eliciting the testimony or referring to it in closing argument. We conclude this claim is without merit.

7. Imposition of Fines and Fees Under Dueñas

The trial court imposed various fines and fees including a $10,000 restitution fine (§ 1202.4, subd. (b)); a $320 court security fee (§ 1465.8); a $240 criminal conviction assessment fee (Gov. Code, § 70373, subd. (a)(1)); a $300 sex offender fine (§ 290.3); and $930 in penalty assessments. Aguilar contends we must stay or strike these fines and fees because the court imposed them without determining his ability to pay them under Dueñas, supra, 30 Cal.App.5th 1157.[5] The Attorney General contends the trial court properly imposed the fines and fees.

As to the $10,000 restitution fine, Aguilar forfeited any claim of inability to pay by failing to object. Because $10,000 was “in excess of the minimum fine,” (§ 1202.4, subd. (c)), Aguilar had statutory grounds to object that the court should not impose the restitution fine based on inability to pay. “[E]ven before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute (§ 1202.4, subd. (c)) expressly permitted such a challenge. [Citation.]” (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) “Thus, even if Dueñas was unforeseeable . . ., under the facts of this case [defendant] forfeited any ability-to-pay argument regarding the restitution fine by failing to object.” (Ibid.) Aguilar contends his trial counsel rendered ineffective assistance by failing to object, but even assuming counsel’s performance was deficient in this regard, Aguilar has failed to show he was prejudiced—that is, he has not met his burden of showing a reasonable probability the result of the proceeding would have been different if counsel had objected. (Weaver, supra, 26 Cal.4th at p. 955.)

As to the remaining fines and fees, which amount to considerably less, we note the trial court sentenced Aguilar to 55 years to life consecutive to 40 years in state prison. Any wages he earns in prison may be used to pay those fines and fees, which forecloses any meritorious inability to pay argument. (People v. Jones (2019) 36 Cal.App.5th 1028, 1035, citing People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may consider ability to earn prison wages in determining ability to pay].) Aguilar cites to an operations manual published by the Department of Corrections and Rehabilitation for the proposition that he will not have the ability to pay the fines and fees in prison, but the record contains no individualized evidence of Aguilar’s prison wages. Accordingly, we conclude any error under Dueñas was harmless. (People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 [error harmless beyond a reasonable doubt when defendant was sentenced to eight years in prison].)

8. Imposition of a Criminal Justice Administration Fee

The trial court imposed a $129.50 criminal justice fee under Government Code sections 29550, 29550.1, and 29550.2. Aguilar contends we must order the trial court to modify the abstract of judgment to strike the fee based on the newly enacted Assembly Bill 1869. The Attorney General concedes that the fee must be vacated. We accept the concession insofar as the fee must be modified, but the new law does not empower us to strike it in its entirety.

Effective July 1, 2021, Assembly Bill 1869 revised Government Code section 611, which now provides, “On and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to . . . [Government Code] [s]ections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Gov. Code, § 6111, subd. (a).) “[B]y its plain terms the ameliorative changes of Assembly Bill 1869 apply retroactively to make any unpaid portion of the identified assessments, as they existed on June 30, 2021, ‘unenforceable and uncollectible’ as of July 1, 2021. (Stats. 2020, ch. 92, §§ 11, 62.).” (People v. Greeley (2021) 70 Cal.App.5th 609, 626.) “[A]lthough the unpaid balance of the identified fees is no longer enforceable and collectible, the statute also mandates that any portion of a judgment imposing those fees be vacated. Accordingly, based on the plain language of the statute, the unpaid balance of the probation supervision and criminal justice administration fees must be vacated.” (Id. at pp. 626-627, fns. omitted.)

The record does not show what portion of the criminal justice administration fee, if any, remained unpaid as of July 1, 2021. Accordingly, we will vacate the portion of the judgment requiring payment of any balance on the criminal justice administration fee that remained unpaid as of July 1, 2021.

1. Correction of the Abstract of Judgment to Show the Conviction Was the Result of a Jury Trial

Aguilar contends we must order the abstract of judgment to be corrected because it incorrectly states his convictions were the result of a plea when in fact he was convicted by a jury. The Attorney General concedes the abstract of judgment is incorrect as the result of a clerical error and must be corrected.

The concession is well taken. The abstract of judgment incorrectly indicates Aguilar’s convictions were the result of a plea rather than a jury trial. Courts may correct clerical errors at any time. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will order the abstract corrected.

For the reasons above, we will modify the judgment, order the abstract corrected, and affirm the judgment as modified.

3. Disposition

The judgment is modified to vacate any portion of the $129.75 criminal justice administration fee that remained unpaid as of July 1, 2021. As so modified, the judgment is affirmed. The clerk of the Superior Court is ordered to correct the abstract of judgment to reflect the modified criminal justice administration fee. The clerk shall also correct the abstract of judgment to show Aguilar was convicted by a jury. The clerk is ordered to prepare and transmit the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

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Greenwood, P. J.

WE CONCUR:

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Grover, J.

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Lie, J.

People v. Aguilar

H046900

[1] Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

[2] Subsequent undesignated statutory references are to the Penal Code.

[3] The record includes a blank copy of the questionnaire.

[4] The standard of review for a challenge to jury instructions is set forth above in section II.C. Ineffective assistance of counsel is defined above in section II.D.2.

[5] This issue is currently under review in the California Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.