Filed 2/24/22 P. v. Arizmendez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed with directions.

Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted appellant Eduardo Arizmendez of committing lewd and lascivious acts on his stepson’s best friend and attempting to commit a lewd and lascivious act by force or fear on the friend’s brother when both boys were under 14 years old. The trial judge, Riverside County Superior Court Judge Samuel Diaz, Jr., sentenced him to 20 years in state prison.

Arizmendez argues the trial judge abused his discretion in making evidentiary rulings. First, he says the judge erred by allowing the testimony of a Child Sexual Abuse Accommodation Syndrome (CSAAS) expert, though the prosecution didn’t disclose the expert witness before trial. We conclude the trial judge did not abuse his discretion by allowing the testimony after defense counsel questioned the credibility of one victim on the basis he didn’t disclose the molestation for years. The trial court acted reasonably in allowing the expert to testify in response and instructing the jury on late disclosure. Though the trial court could have granted a continuance to allow defense counsel to prepare and possibly retain his own CSAAS expert, doing so was not required where defense counsel had encountered the witness several times in other cases and didn’t ask for a continuance. Nor can we conclude on direct appeal that failing to ask for a continuance was ineffective assistance of counsel, as Arizmendez urges in the alternative.

Second, Arizmendez argues the trial judge erred by excluding as cumulative the testimony of defense character witnesses. We conclude that decision was reasonable because defense counsel admitted the excluded witnesses would offer substantially the same kind of testimony as the character witness who did testify.

Finally, Arizmendez argues the trial judge committed several errors at sentencing. He says the judge erred by interpreting the law as requiring a full consecutive sentence for the attempted lewd and lascivious act conviction. We agree with that argument and also agree there are errors regarding custody credits. However, we conclude there were no errors in the imposition of fines and fees. We therefore remand for resentencing, but otherwise affirm the judgment.

I

FACTS

1. The Prosecution Case

Arizmendez lived with his adopted stepson Mark in a small one-bedroom apartment over a garage. Arizmendez’s father lived with them for a while before moving into his own apartment. The grandfather stayed in the bedroom which was separated from the main room by a curtain.

The child victims of the crimes—W.C., who was born in 2002, and I.C., who was born in 2004—frequently visited the Arizmendez apartment because W.C. and Mark were best friends and the boys’ grandparents lived in the same apartment complex.

In 2012, when W.C. was in fifth grade, he would visit Mark in his apartment every day. The two played video games, watched television or movies, and ate dinner together. W.C. was short, weighed about 235 pounds, and didn’t have many friends.

W.C. introduced Mark to his two brothers, and they all went to Arizmendez’s apartment to hang out and play. I.C. visited the apartment frequently but not daily. The third brother visited less frequently. Arizmendez often fed W.C. and his brothers and took them to movies and on other outings. He also bought soccer gear and soccer cleats for I.C.

Over a three-year period, W.C. would spend the night at Mark’s apartment several times a week. When Arizmendez’s father was living at the apartment, he stayed in a separate room separated by a curtain. Mark slept on the upper twin or full-sized bunk bed and Arizmendez slept on the lower queen-sized bunk bed located in the living room. When W.C. spent the night, he would sleep on the floor or in the queen-sized lower bunk bed with Arizmendez. Arizmendez weighed at least 280 pounds at that time and was four or five inches taller than W.C. After Arizmendez’s father moved out, they turned the separate room into a living room and replaced the bunk beds with two full-sized beds located next to each other. W.C. would sleep on the couch or on an air mattress on the floor.

The first incident of molestation occurred when W.C. was 11 years old. That night, W.C. went to sleep in the lower bunk bed with Arizmendez, wearing socks. He was awakened when he felt something wet on his feet and saw Arizmendez licking his toes. W.C. said he was “weirded out” because he felt the contact was sexual. He said he kicked his feet, got up, and went to the bathroom, where he remained for over an hour. When he returned to bed, he didn’t go back to sleep.

Arizmendez continued making advances. W.C. said Arizmendez would often smell or lick his feet. He would approach W.C. and say, “Oh, your socks are smelly today.” I.C. heard Arizmendez tell his brother he would pay him if he wore his socks for two weeks and then gave them to him. Arizmendez licked W.C.’s feet on at least 20 occasions. Arizmendez would initiate contact with W.C. at night, when Mark was sleeping, playing videogames with his headset on, or downstairs in the garage playing drums.

Arizmendez also pressured W.C. to have a sexual relationship. He hugged W.C. and grabbed his genitals on many occasions. W.C. said he would push Arizmendez away and feel “grossed out,” “weird,” and “disappointed.” W.C. said these sexual advances were difficult for him to understand because they happened when he was between 11 and 14 years old.

One night when W.C. was sleeping on the floor next to the bunk beds, Arizmendez rubbed his penis on W.C.’s feet. There were several occasions when W.C. would be sitting on the couch with Arizmendez watching a movie, and Arizmendez would put a blanket over them and try to touch W.C.’s penis. W.C. would stop him and get up and go to the bathroom. However, Arizmendez would pick up where he left off when W.C. returned. W.C. said there were times when Arizmendez pulled his pants down and masturbated to try to entice him to engage in sexual contact. W.C. said he would defend against these advances by elbowing Arizmendez or pulling away from his grasp.

W.C. said the attempts to have sexual contact escalated. He would grab W.C. and touch his penis, both over his clothing and under his clothing. On multiple occasions, he exposed his erect penis. He would say things like, “It’s okay, don’t worry. It’s all going to be good,” and “It’s natural to have love with another person.” On five to 10 occasions, he tried to perform oral sex on W.C. or have W.C. perform oral sex on him. Once, W.C. woke and found Arizmendez had lowered his shorts and had his mouth on W.C.’s penis. He said he “freaked out” and stayed awake. On another occasion, Arizmendez pulled out his penis and said, “Oh, it’s okay to give it a taste.” W.C. said he was “not into it like that” and he left the apartment. On a third occasion, Arizmendez touched his erect penis to W.C.’s cheek, and W.C. had to prevent him from putting it in his mouth.

Arizmendez also attempted to engage in anal sex with W.C. on more than five occasions, but W.C. stopped him. The final incident occurred when W.C. was 13 years old and in the eighth grade. W.C. was spending the night because they were going to an amusement park the next day. In the middle of the night, W.C. woke up to find Arizmendez trying to kiss him and pulling down his basketball shorts. W.C. said he felt Arizmendez’s penis on his buttocks. He elbowed Arizmendez, went to the bathroom to compose himself, then left and went to his grandparents’ apartment.

Arizmendez also attempted to come on to W.C.’s younger brother, I.C., who was 11 or 12 years old at the time. On that occasion, when I.C. sat down on the couch to watch television, Arizmendez removed I.C.’s shoes, smelled his socks, and grabbed his feet and put them on his crotch. I.C. said he could feel Arizmendez’s erect penis through his shorts. I.C. responded by saying, “I gotta go. I gotta go,” but Arizmendez grabbed him and said, “No, you’re fine here.” I.C.’s second brother saw Arizmendez rub I.C.’s feet on his crotch.

Both boys said they didn’t want to jeopardize friendships by reporting the assaults. W.C. said he didn’t tell his parents about the sexual assaults because he didn’t want to lose his relationship with Mark, who was his only close friend. He said it was also difficult to talk about the issue with his parents. He said he didn’t tell his grandparents because he “didn’t want them looking at me the wrong way” or to look down on his family. I.C. said he didn’t want to tell his parents because he didn’t want his parents to think badly of Arizmendez. I.C. thought he was a good guy because he took them on fun outings, and if he told his parents about the incident, the outings would end.

W.C.’s mother became suspicious of Arizmendez after one of her sons told her he had smelled his feet or socks. She asked W.C. if something was “going on” with Arizmendez, and W.C. said no. However, she and her husband noticed behavioral changes with W.C. and continued asking about the relationship. W.C. repeatedly denied anything was happening, and he would look “hurt” and become angry at them for asking.

In August 2016, they told W.C. he didn’t have to speak about what had happened but asked him to write them a note which they would read outside of his presence. A couple days later, W.C. approached his mother and said, “This is what really happened,” handed her a note, and ran into his bedroom. In the note, W.C. disclosed Arizmendez’s sexual assaults.

On August 19, 2016, shortly after W.C. wrote the note to his parents, he and I.C. spoke with a police officer about the assaults. The police examined a laptop computer, a tablet computer, and cellular phone that belonged to Arizmendez. The computer contained an internet history and pornography related to foot fetishes. It also contained deleted message chats discussing a foot fetish with “stinky socks,” a “teen foot fetish” video, and photographs of feet. The tablet computer contained 43 chat messages involving Arizmendez and two others discussing foot fetishes. Arizmendez’s mobile phone also contained evidence of a foot fetish. He sent a message on May 22, 2015 saying, “Yeah, he’s a good kid, super stinky feet, ha, ha, ha.” In another message he said, “I think my son’s friend has the hots for me, ha, ha, ha.” “Kind of hard, he’s 14, but his feet are awesome, ha, ha, ha.”

2. The Defense Case

Marc, a friend who has known Arizmendez for over 40 years and played in the same band, testified that Arizmendez was a very sweet and passive person. He said he had never seen anything to lead him to believe Arizmendez inappropriately touched children but didn’t know anything about his sexual preferences. He testified Arizmendez used to watch his children. Asked on cross-examination whether messages like police found on Arizmendez’s phone and tablet would change his view of Arizmendez, he said no.

Arizmendez’s stepson, Mark, said he was 12 years old when he started living with Arizmendez, and he lived with him until his arrest on August 18, 2016. Mark said Arizmendez was not only his father, but also his best friend. He said W.C. was his best friend for three or four years and they would see each other daily.

Mark and W.C. were no longer best friends by the time of Arizmendez’s arrest. Mark said they weren’t friends because he learned W.C. had spoken negatively about him and because he had made new friends. He said another reason he no longer wanted to be friends was that W.C. was known to make things up. About two weeks before the arrest, Mark had asked W.C. not to come around their apartment.

About their friendship, Mark said W.C. would come over to his apartment more than 15 days a month and spend the night about six or seven times a month. He said when W.C. got to the apartment, he would hug Arizmendez and talk to him briefly before finding Mark. According to Mark, W.C. said many times that he wanted to have a father like Arizmendez. He said Arizmendez would take W.C. and his brothers out for dinner or to amusement parks because their family was struggling financially and Arizmendez could afford to pay. Mark said W.C.’s brothers would also hug Arizmendez. Mark said I.C. also came to the apartment almost daily. He said he never saw Arizmendez hug or touch any of the boys inappropriately.

Mark said he was aware Arizmendez had a foot fetish. He said he had an idea that Arizmendez had a foot fetish when he saw a video on his mobile phone. He said he also found a photograph of a foot on the phone. Mark saw him massage W.C.’s feet and I.C.’s feet and said Arizmendez also had massaged his feet.

3. The Verdict and Sentence

The Riverside County District Attorney’s Office charged Arizmendez with six counts of committing lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a); unlabeled statutory citations refer to this code) and one lewd and lascivious act on a child under the age of 14 by use of force, violence, duress, menace, and fear (§ 288, subd. (b)(1)). They also alleged Arizmendez committed those offenses by engaging in substantial sexual conduct with a child under 14 years of age (§ 1203.066, subd. (a)(8)) and committed a qualifying offense against more than one victim (§ 667.61, subd. (e)(4)).

A jury found Arizmendez guilty of six counts of lewd and lascivious acts and one count of attempted lewd and lascivious act by force or fear and also found he committed a qualifying offense against more than one victim.

On December 2, 2019, the trial judge sentenced Arizmendez to 20 years in state prison. His sentence consisted of a midterm of six years for the first count of lewd and lascivious conduct, two years (one third the midterm) for each of the other five counts of lewd and lascivious conduct, all set to run consecutively, and a midterm of four years consecutive for the conviction for attempted lewd and lascivious conduct by force.

Arizmendez filed a timely notice of appeal.

II

ANALYSIS

1. Admission of CSAAS Expert Testimony

Arizmendez argues the trial judge abused his discretion by admitting the testimony of a psychologist who testified as an expert regarding CSAAS. He complains the prosecution didn’t identify the expert until the second day of trial, when the prosecutor claimed the late disclosure was justified by and the testimony necessary to respond to defense counsel’s challenging W.C.’s credibility based on his delay in reporting the abuse.

At trial, Arizmendez didn’t challenge the CSAAS witness’s status as an expert or the relevance of her testimony. He sought to exclude the testimony only because the prosecution didn’t disclose the witness in a timely fashion. The trial court allowed the testimony. After trial, Arizmendez asked for a new trial arguing that allowing the testimony was prejudicial because he didn’t have time to seek his own CSAAS witness to rebut it.

Arizmendez acknowledges the failure to request a continuance during trial but argues the trial judge should have ordered a continuance on his own motion and the only proper remedy now is reversing the conviction. Recognizing the potential that he forfeited the issue by failing to request a continuance during trial, he also argues the failure to make the request was ineffective assistance of counsel.

1. 1. Additional facts

Defense counsel began cross-examination of W.C. by asking some basic factual questions and then began questioning him about why he hadn’t told anyone about the abuse earlier. He elicited the boy’s testimony that he never told his friend Mark about the sexual molestation, despite the fact that they were very close. He also elicited W.C.’s testimony that he didn’t tell his grandmother and grandfather over the entire three years when the molestation occurred. He then questioned W.C. about why he had told his mother and father by writing a note. He pointed out W.C. wrote the note only in 2016, “three years or four years after” the abuse, and asked “So how come you didn’t write a letter way before when this started happening?”

At one point the questioning became quite aggressive. He asked W.C. to describe the first time Arizmendez “tried something,” and W.C. said he had licked his feet while he was asleep. Defense counsel asked, “And you didn’t like that?” W.C. responded negatively. Defense counsel then delivered a speech. “Yet for three other years, you kept going and going and going and going and going. For so many years, three years, you didn’t like it. He tried several things against you. You said oral sex and ejaculation, you didn’t like that. He tried to do this and he tried to penetrate you several times, and you kept going . . .” At that point, the prosecutor objected that defense counsel was badgering the witness, and the trial judge sustained the objection and warned defense counsel.

W.C. explained his delay in several ways. He said, “I didn’t try to tell them, because I didn’t want them looking at me the wrong way. And [Mark] was my only friend, so I did not want to lose him, because I wasn’t popular. I was an outcast as a young kid, so I was trying to cling to anything I really had to try making it through life, and it wasn’t just helping me. I didn’t want my grandparents to look down at me or my family. That’s why I kept things a secret.”

Defense counsel then asked, “So why did you divulge the secret then eventually?” W.C. responded, “Because I had had enough.” He later asked W.C. why he had denied anything happened on many occasions, but then “all of the sudden you start writing a letter. How come you denied it before, how come you didn’t come back with the truth?” W.C. answered, “Because this is shameful.”

After a recess and outside the presence of the jury, the prosecutor indicated that based upon a “change of circumstance,” she had decided to ask the trial judge to permit the testimony of a CSAAS expert to “explain why the victim [W.C.] didn’t come forward until three years into it, and why he did or did not disclose at the time.” The prosecutor argued the testimony of a CSAAS expert was “especially probative now having listened to the defense’s cross-examination.”

The trial judge said the prosecutor could bring a motion to permit the testimony of a CSAAS expert after W.C.’s testimony was complete. Defense counsel objected that he was just hearing what the CSAAS expert would be testifying about, and he didn’t have a report. The prosecutor had the curriculum vitae of the CSAAS expert and offered to provide it to defense counsel.

After defense counsel completed his cross-examination of W.C., the prosecutor filed a motion asking the trial judge to allow the testimony of a CSAAS expert in the case-in-chief. The prosecutor argued the CSAAS testimony had become relevant because defense counsel’s cross-examination insinuated W.C. was a less credible witness based on his delayed disclosure. She argued the testimony of the CSAAS expert was needed to help the jury understand W.C.’s testimony. She acknowledged she had not included the CSAAS expert on the witness list but pointed out defense counsel was very familiar with the witness. “[D]efense counsel has been in trial in which [the CSAAS expert] has been called to testify regarding these issues many times. In fact, when I handed him the CV yesterday, he said, ‘I know her very well. I’ve been with her dozens of times.’”

Defense counsel requested a foundational hearing under Evidence Code section 402 to establish the psychologist’s expertise, which the trial judge granted. Defense counsel objected to admission of the CSAAS expert’s testimony based upon late disclosure. The prosecutor argued it was not a late discovery issue because the need for a CSAAS expert did not arise until defense counsel cross-examined W.C. and raised matters that were outside the common experience of jurors as to how a child may react differently to sexual molestation than adults would expect or reacted. Defense counsel did not suggest he needed additional time to be able to respond to the CSAAS expert and did not request a continuance to prepare or obtain a rebuttal CSAAS expert.

The trial judge tentatively ruled the psychologist was qualified as an expert and a change in circumstance justified allowing the expert testimony in the case-in-chief. However, he also held the discovery was late and it was appropriate to instruct the jury on the effect of late disclosure of evidence. Defense counsel later withdrew his request for a hearing on the proposed expert’s qualifications, and the trial judge found she was a qualified expert. Arizmendez does not question her qualifications or the relevance of her testimony on appeal.

The CSAAS expert testified as an expert regarding children’s general behavioral patterns responding to sexual abuse. She said CSAAS was not a diagnostic tool to determine whether sexual abuse actually occurred but provides an understanding of the dynamic as to why sexually abused children do not always report the abuse right away. She said she didn’t recognize Arizmendez, wasn’t familiar with the victims, didn’t review any police reports, transcripts, or recordings, and had not been present during court testimony.

The expert testified there are five components of CSAAS—secrecy, helplessness, entrapment and accommodation, delayed unconvincing disclosure, and retraction or recantation. She explained “secrecy” refers to the fact children keep sexual abuse secret for many years and, due to the shame involved, don’t need to be reminded or threatened to keep the sexual abuse secret for a long time. “Helplessness” refers to the fact children are dependent on adults for meeting their physical and emotional needs, making them vulnerable to sexual abuse. They cope by disassociating— putting themselves mentally elsewhere while the abuse is occurring. She explained “entrapment and accommodation” occurs when a child can’t escape sexual abuse and submits because there are no options to get out of the situation when the abuser is known and trusted. The child may receive gifts or special treatment and may believe they are protecting siblings or other children by taking the abuse on themselves. “Recantation or retraction” occurs when the disclosure proves disruptive to the person’s life. The child may have to go through with interviews by police, social workers, and mental health professionals, intrusive physical examinations, and be removed from their homes, which can cause the child to backpedal by claiming lack of memory or recanting the sexual abuse allegations.

The CSAAS expert explained “delayed unconvincing disclosure” is the most widely-researched aspect of CSAAS. She said about two-thirds of sexually abused children wait until adulthood to report the abuse. Disclosure is not full but incremental. The victim tests the waters to a trusted adult and gauges their response before disclosing the full details of the sexual abuse. Shame is a barrier to disclosure because victims blame themselves for the abuse.

Later, the trial judge instructed the jury on the untimely disclosure of evidence. “Both the People and the defense must disclose their evidence to the other side before trial within the time limits set by law. Failure to follow this rule may deny the other side of a chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the People failed to disclose their intention to call [the CSAAS expert] as an expert within the legal time period. In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.” The trial judge gave this instruction (CALCRIM No. 306) on his own motion. Neither the defense nor the prosecution objected.

As we’ve discussed, the jury found Arizmendez guilty of lewd and lascivious conduct with W.C. and attempting a lewd and lascivious act by force or fear with I.C. Defense counsel filed a motion for new trial arguing he should have been given a continuance to prepare when the judge allowed the testimony of the expert. The prosecutor argued the trial judge had properly ruled a change in circumstance at trial created by defense counsel’s cross-examination of W.C. permitted the late-disclosed testimony of the CSAAS expert. Defense counsel replied the prosecutor should not have been surprised by his cross-examination regarding the credibility of W.C., and that defense counsel should have been given the opportunity to get his own expert witness.

The trial judge denied the motion for a new trial. “At this time, after reviewing all the papers that have been filed and hearing arguments from both sides, at this time, the motion for new trial is hereby denied.”

1. 2. Analysis

Section 1054 et seq., governs discovery in criminal cases. Sections 1054.1 and 1054.3 lay out the information the prosecution and defense (respectively) must disclose to each other before trial. These reciprocal discovery provisions aim to promote disclosure of the truth by allowing the parties to obtain information and prepare their cases for trial without unnecessary surprise. (People v. Jackson (1993) 15 Cal.App.4th 1197, 1201.)

The prosecution is required to share certain evidence with the defense, including “any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.” (§ 1054.1, subd. (f).) The evidence must be produced at least 30 days before trial, or immediately if the discoverable information becomes known to, or comes into the possession of, a party within 30 days before trial. (§ 1054.7.)

If the prosecution doesn’t comply with its discovery obligations, the court may “make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.” (§ 1054.5, subd. (b).)

Excluding testimony is a severe sanction for a discovery violation, and a trial judge “may prohibit the testimony of a witness . . . only if all other sanctions have been exhausted.” (§ 1054.5, subd. (c).) Excluding a witness’s “testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial.” (People v. Jordan (2003) 108 Cal.App.4th 349, 358.)

“The trial court possesses the discretion to determine what sanction is appropriate to ensure a fair trial.” (People v. Mora & Rangel (2018) 5 Cal.5th 442, 466.) We review the trial judge’s decision whether to impose sanctions for abuse of discretion. (People v. Superior Court (Meraz) (2008)163 Cal.App.4th 28, 48.) We won’t substitute our judgment for the judgment of the trial judge and will find an abuse of discretion only if the trial judge’s ruling exceeds the bounds of reason. (People v. Giminez (1975) 14 Cal.3d 68, 72.)

Absent a showing of significant prejudice and willful conduct, the exclusion of testimony is not an appropriate sanction. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1758 (Gonzales).) Here, there is no indication the prosecutor deliberately engaged in willful conduct by not disclosing the identity of the CSAAS expert until after trial had commenced. The prosecutor explained the late disclosure as being based on a failure to appreciate the way defense counsel would approach the prosecution witnesses. The defense had telegraphed other ways of undermining W.C.’s credibility, such as by questioning his testimony about the layout of the apartment and the plausibility that Arizmendez could have carried out the abuse in such a small space, with Mark in the room and, for a time, the grandfather separated from them by only a sheet.

However, defense counsel put the fact that W.C. had delayed disclosing the sexual abuse front and center. After asking some opening questions reiterating what W.C. has said about the setting and the abuse on direct, defense counsel began asking why he hadn’t disclosed the abuse to Mark or his grandparents and why he disclosed the abuse to his parents using a note and only three years after the abuse started. The questioning was aggressive and at one point the trial judge had to admonish defense counsel for badgering the witness. As the CSAAS expert ultimately testified, the issue of delayed disclosure is one of the most widely-researched aspects of CSAAS, and one of the primary purposes of offering such testimony is to “rehabilitate such witness’s credibility when the defendant suggests that the child’s conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin).) Under these circumstances, it is understandable that the prosecutor would re-evaluate the importance of presenting a CSAAS expert to rehabilitate W.C.’s credibility. In any event, there’s nothing to indicate the prosecutor withheld the witness in bad faith to gain tactical advantage.

It’s not clear what purpose that strategy would have served in any event, because the CSAAS expert was well known and gave standard testimony about the syndrome, not factual evidence about the case. When the prosecutor gave defense counsel the expert’s curriculum vitae, defense counsel told her he knew her very well and had had cases in which she was an expert dozens of times. This comment shows defense counsel was familiar with the expert, the issues she would address, as well as the likely content of her standard testimony. This explains why he ultimately withdrew his request for a hearing to establish the psychologist’s expertise and why he didn’t request a continuance to prepare to cross-examine her or to retain a rebuttal CSAAS expert witness. Based on this record, we can’t conclude the trial judge abused his discretion by allowing the CSAAS expert to testify. There’s simply too little to indicate willfulness on the part of the prosecutor or prejudice to the defense to impose such a severe sanction. At minimum, the trial judge’s decision was reasonable, which forecloses reversal.

Arizmendez argues the jury instruction on delayed disclosure “was not an effective remedy because the leeway it purports to give the jurors to consider the effect of the violation is wholly illusory.” However, trial courts have broad discretion to craft an appropriate remedy to ameliorate the effects of a late disclosure. (People v. Jenkins (2000) 22 Cal.4th 900, 952.) Moreover, the reciprocal discovery statute specifically permits the trial judge to “advise the jury of any failure or refusal to disclose and of any untimely disclosure.” (§ 1054.5, subd. (b).) We conclude the trial judge properly exercised his discretion in crafting a remedy to ameliorate the effects of the late disclosure under the circumstances of this case by instructing the jury with CALCRIM No. 306. (Jenkins, at p. 952.)

Arizmendez argues that “nder section 1054.5, if the court does not grant the sanction requested by the aggrieved party, it is required to examine other alternatives.” However, the cases he cites merely acknowledge that trial judges have discretion to utilize the remedies set out in the statute, Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1167, or must exhaust other remedies before excluding testimony. (People v. Edwards (1993) 17 Cal.App.4th 1248, 1264.) The trial judge in this case complied with those duties and made a reasonable discretionary decision to instruct the jury on the problems with delayed disclosure of evidence but allowed the testimony.

[u]SLOUGH

J.

We concur:

McKINSTER

Acting P. J.

FIELDS

J.