P. v. Sanchez

Filed 5/11/07 P. v. Sanchez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.

Mark Farbman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On October 11, 2005, a first amended information was filed in the Superior Court of Fresno County charging appellant Albert Sanchez with the following offenses committed against V1: counts I and VI, forcible rape (Pen. Code,^[1] 261, subd. (a)(2)); counts II and VII, attempted forcible rape ( 664/261, subd. (a)(2)); counts III and VIII, forcible sexual penetration ( 289, subd. (a)(1)); counts IV and IX, sexual penetration of a child under the age of 16 years ( 289, subd. (i)); and counts V and X, commission of a lewd or lascivious act on a child ( 288, subd. (c)(1)).

As to V2, appellant was separately alleged to have committed counts XI, XII, and XIII, commission of a lewd or lascivious act on a child under 14 years old ( 288, subd. (a)). As to M., appellant was separately alleged to have committed count XIV, commission of a lewd or lascivious act on a child under 14 years old ( 288, subd. (a)).

As to counts I, III, VI, VIII, XI, XII, XIII, and XIV, it was alleged appellant committed sexual offenses against more than one victim within the meaning of the one strike law ( 667.61, subd. (e)(5)). Appellant pleaded not guilty and denied the special allegations.

On October 11, 2005, appellants jury trial began. On October 14, 2005, the court granted the prosecutions motion to dismiss count I, forcible rape of V1; and also granted appellants motion for acquittal of count II, attempted forcible rape, count III, forcible sexual penetration, and count IV, unlawful sexual penetration, all as to V1. On October 17, 2005, the court granted appellants motion for acquittal on counts XI and XII, commission of lewd acts against V2. The court denied appellants motion to dismiss count XIII as to V2.

On October 19, 2005, the jury found appellant guilty of the following counts as to V1: count V, commission of lewd acts; count VI, forcible rape; count VIII, forcible sexual penetration; count IX, unlawful sexual penetration; and count X, commission of lewd acts. He was found not guilty of count VII, attempted forcible rape of V1. As to V2, he was found guilty of count XIII, commission of lewd acts. As to M., he was found not guilty of count XIV, commission of lewd acts.

On January 6, 2006, the court sentenced appellant to 15 years to life for count VI, forcible rape of V1; a consecutive term of 15 years to life for count XIII, commission of lewd acts against V2; a concurrent term of six years for count V, commission of lewd acts against V1; and stayed determinate terms imposed for counts VIII, IX, and X.

On January 26, 2006, appellant filed a timely notice of appeal.

FACTS

Appellant was charged with multiple sexual molestation charges based upon the allegations of three girls: V1, V2, and M. The court dismissed several of the charges, he was found not guilty of one count based on V1, and not guilty of the only count based on M. He was convicted of five counts based on V1, and the single count based on V2. The jury found the multiple victim allegation true, and he was sentenced to an indeterminate one strike term.

On appeal, he contends the conviction based on V2s testimony is not supported by substantial evidence because she might have dreamed certain incidents. He also contends the trial court improperly permitted a prosecution expert to testify about Child Sexual Abuse Accommodation Syndrome (CSAAS).

V1Counts I through X

V1 was 15 years old when she testified at trial. When V1 was six or seven years old, she and her siblings moved in with their relatives, appellant Albert Sanchez and his wife as both their parents were not able to care for the children. V1 had an older sister, and three brothers S., A1, and A2. V1 testified appellant was very strict with the children and restricted their outside activities, and appellant and V1s older sister argued a lot. V1 sometimes got angry about appellant being strict, but V1 did not argue with appellant.

V1 testified that other children sometimes stayed at appellants house, including V2 and M. Appellants wife knew V2s parents, and she would babysit V2 once or twice a week. M. was a relative of appellants wife, and she sometimes spent the night. V2 and M. sometimes slept in V1s bedroom. V1 testified V2 was a few years younger and like her little sister.

V1 testified appellant touched her on two occasions in 2004, when she was about 14 years old. The first instance occurred one day in the summer, when V1 was attending year-round school. V1 was in her bedroom when appellant walked in and talked to her. No one else was at home. Appellant suddenly began touching her vagina with his hand, over her clothes. Appellant eventually stopped, but told her not to tell anyone or he would be locked up. About one month later, V1 was watching a movie on television with her best friend; one of the characters in the movie was raped, and V1 told her friend what appellant did to her.

V1 testified the second incident occurred later in 2004, after appellants wife died.^[2] V1 thought it happened around the time of the fair, possibly in October 2004. V1 remembered that period because she repeatedly asked appellant if she could go to the fair, and appellant repeatedly said no. Appellant finally said she could go and gave her some money, and he dropped off and picked up V1 and her friend.

At some point after that time, V1 was in appellants bedroom, making appellants bed, and no one else was around. Appellant entered the bedroom and told her to lie down on the bed, and she complied. Appellant touched her vagina with his hands, on top of her pants. Appellant then unbuttoned and removed V1s jeans. V1 asked him to stop, but he continued and removed her underwear. Appellant took off his pants and remained in his boxer shorts. V1 testified appellant moved his hand and seemed to take his penis out of his boxer shorts, but she could not see because it was dark in the room. V1 testified appellant inserted his penis into her vagina and moved around. It hurt and she started to cry, but appellant continued and did not say anything. V1 testified that less than 10 minutes later, appellant removed his penis and told her to clean up in the bathroom. Appellant again said not to tell anyone or he would be locked up. V1 went into the bathroom and took a bath.

V1 testified appellant bought her a couple of gifts after the first and second incidents, which was unusual because it was not Christmas or her birthday. V1 testified that later in 2004, appellant and V1 argued because she did not clean the house and she had been talking with a friend. V1 testified appellant also got tired of her. As a result, appellant took V1 to the Sanctuary, a shelter where children escaping hostile environments can be safe. V1 testified she was not afraid appellant was going to leave her there permanently. At the Sanctuary, a woman from Planned Parenthood asked V1 whether she was sexually active. She also asked V1 if she had ever been touched. V1 revealed that appellant touched her on two occasions. V1 testified she also told her older sister about what happened.

Appellant was charged with the following offenses as to V1: counts I and VI, forcible rape; counts II and VII, attempted forcible rape; counts III and VIII, sexual penetration by force; counts IV and IX, sexual penetration of a child under the age of 16 years; and counts V and X, commission of a lewd or lascivious act on a child.

After V1s testimony, the court granted the prosecutions motion to dismiss count I, forcible rape, and also granted appellants motion for acquittal of count II, attempted forcible rape, count III, sexual penetration by force, and count IV, unlawful sexual penetration.^[3]

As to V1, the jury found appellant guilty of count V, commission of lewd acts; count VI, forcible rape; count VIII, forcible sexual penetration; count IX, unlawful sexual penetration; and count X, commission of lewd acts. He was found not guilty of count VII, attempted forcible rape.

The Investigation

Officer Stephen Coleman responded to the Sanctuary and interviewed V1 for 30 to 45 minutes. Coleman spoke to V1 in her assigned bedroom; a social worker was also present. Coleman testified V1 was very restrained and basically didnt want to talk. It took several minutes of just loosening up and general questioning to have her have a little confidence in me before I started asking any questions of her. V1 said appellant touched her on two incidents which sounded identical in naturethat appellant entered her bedroom when she was lying in bed at night, slid his hands into her sweatpants, and touched her vaginal area. Coleman asked if appellant used his finger to penetrate her vagina, and V1 said no. V1 was [s]cared, very restrained. I basically had to ask specific questions to get responses that were very minimal in nature. V1 looked as if she felt ashamed and appeared ready to cry, but she did not break down. After the interview, Coleman determined that a crime had occurred and placed a protective hold on V1 pursuant to Welfare and Institutions Code section 300.

Appellants Pretrial Interview

Fresno Police Detective Art Rodriguez conducted a videotaped interview with appellant. At the time of the interview, Rodriguez had not talked to V1, and he did not know that other children also stayed at appellants house. Appellant was not aware the interview was being recorded.

Appellant was 55 years old. Rodriguez advised appellant that some allegations had been made that he had touched V1, and encouraged appellant to tell the truth. Rodriguez advised appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and appellant agreed to answer questions.^[4]

Rodriguez advised appellant that V1 said he touched her private parts and forced himself on her. Appellant said he would not do that, that V1 had lied about working late at school, he went to school and found her on the far side of campus with a boy, and he decided to leave her at the Sanctuary. Appellant insisted he never touched V1s body.

Rodriguez talked with appellant about DNA evidence, informed appellant that they found his DNA on V1s vagina, which meant his hand had been on her body, and asked if appellant wanted to start over.^[5] Appellant said he never raped her. Rodriguez asked why his DNA was on her vagina, and whether it was there by force. Appellant said no. Rodriguez asked whether it was consensual, and appellant asked if that made a difference in court. Rodriguez asked how it would look if appellant kept denying everything but they had evidence that it happened. Appellant asked what kind of time he would be looking at, and Rodriguez said he did not know.

Appellant said he would be honest with Rodriguez, and that everything started around the time of the fair because she was really into boys, he took her cell phone away, and he grounded her. Afterwards, V1 sat right next to him on the couch, put her legs near him, and asked if she could have $50 and go to the fair. She was wearing small shorts. Appellant said V1 became forward with him, and he asked if she was going to tell on him. V1 said no. Appellant said the incident happened after his wife died, and V1 knew she could act forward and get things from him. Appellant and V1 went into another room, but he had trouble having sex because of various medications. I went back there with her, and I couldnt do nothing because you know (inaudible) it was mostly just feeling that was it. Cause I havent had no sex with nobody for about the last probably ... 4 years, something like that.

Q. So what did you guys do in the room?

A. Just mainly just feel, just like baby rub .... But I couldnt do nothing because to tell you the truth I aint got much of anything, (inaudible) blood pressure (inaudible).

Appellant said V1 was laying on the bed and she took off her pants. No she always took them ... I never had to take off nothing. Appellant said he rubbed her vagina, and his finger did not go too far into her, maybe about an inch.

Q. So were you on top of her, ... how did it happen. How did you try to do it?

A. Uh at the end of the bed it was like the beds right here. My (inaudible) would always be too big so you know what I just told her, well you wanna try it right here, so we just tried it like that and she put her leg on top of the dresser, I just tried like that, that was it.

Appellant said he was in bed with her for about 10 minutes.

Q. Now when you placed your penis on her vagina it poked in a little bit, correct? At least you tried to put it in at least, correct?

A. I tried but it wouldnt do nothing.

Q. How deep do you think it went?

A. It didnt go in period.

Q. [I]t broke the skin through correct, it kinda went in a little bit?

A. Thats what I told you (inaudible) theres nothing there. [][]

Q. What was she doing this whole time when you were placing your finger or you were trying to put your penis inside, what was she saying or doing?

A. Nothing I looked at her (inaudible) she just go with her mouth just ... that was it.

Q. Okay.

A. At one time I told her ... at one time I think it was the one at the fair, I told her, you act like youre enjoying this, I cant even (inaudible) to you. You know but...

Q. Okay, shes saying that you did this against her will. That she didnt want to.

A. No, no!

V1 said he was hurting her and appellant stopped. Appellant asked V1 why she wanted to do that if you start complaining[?] Appellant went to the restroom and washed his hands. Appellant said V1 never took off her blouse.

Q. How did she look. If you were to rate her body from zero to ten, what would you give her?

A. Well shes a young girl, shes only 14, you have to give her a 10, you know that.

Q. Theres some 14s that look good.

A. Well [V1] isnt that good compared to her sister.

Q. You give her a ten? Do you say a ten. Do you think she looked pretty hot?

A. Well what I seen about her, there isnt much I seen. You know just the bottom part. I never seen the rest of her top.

Appellant said V1 was a pretty little girl and this type of incident happened [j]ust a couple of times. Appellant said the first time was in September, and the second time was when the fair occurred in October. After the second time, appellant asked V1 the following:

Because at the fair, that was the second time. Thats thats what I told her, you know well why do you bring up things like this and then you want $50 dollars, and then all of a sudden you tell me it, its hurts....

Appellant gave her $50 at that time.

I mean you know, as soon as I went back into the room, you know I went and sat on my couch where I was at and I dont know why, from that day on I just started feeling guilty and I just go this girl is going to get me into trouble.

Appellant admitted that at one point, he might have rubbed or placed his penis on her vagina, but I couldnt do nothing, I told you. Appellant said that he would not have gone through this with V1 if he knew she was going to get him in trouble because he had lost his job.^[6]

V2Counts XI, XII, XIII

Detective Rodriguez testified that when he interviewed appellant, he did not know that V2 or M. also stayed at appellants house. As the investigation continued, however, law enforcement officers interviewed these two girls, and appellant was charged with additional sexual offenses committed against these girls.

V2 was 12 years old and in seventh grade when she testified. She described appellant was her fathers friend, and they met when appellants dog tried to attack her dog. V2s parents were separated and she split her time between her mother and father. V2 stayed with her father every other week. Her father worked at night, and dropped her off at appellants residence so appellant and his wife could babysit her. She stayed at appellants house at night and sometimes in the daytime.

V2 knew some of the other children who stayed at appellants house, including V1, V1s older sister, and M. When V2 stayed overnight, she slept on the floor or in the same bed as V1s older sister. M. stayed overnight sometimes, and she slept in either the living room or on the floor with V2. V2 slept in the bedroom across the hall from appellants bedroom. V1 slept in another bedroom. V2 testified that adult family members of appellant and his wife occasionally stayed overnight at the house, and they usually slept in the living room.

V2 testified that when appellant got mad at the other girls, V2 would stand up for them. V2 was very protective of V1. On more than one occasion, appellant became very upset with the girls, and V2 tried to keep him out of their bedroom and away from the other girls. Appellant did not spank her but just yelled at her. V2 testified that appellant frequently stood in the bedroom doorway to make sure the children were asleep. The children, however, would still be awake and knew he was there.

V2 testified she stopped going to appellants house about two or three years before trial, when she was in the sixth grade, because something happened and it was hard to sleep. When appellants wife was not home, V1s older sister would sneak out of the bedroom, and V2 and V1 were left in the house by themselves.

V2 testified that appellant did something that also made it awkward and hard to sleep. There were three incidents that were kind of jumbled together, when appellant would enter the bedroom. V2 woke up on one occasion but not during the other two incidents.

V2 testified about the first incident, which occurred at night when she was nine or 10 years old. V2 was in bed, laying on her side and facing the wall. She felt a persons body laying behind her in bed.

Q Okay. Who was that person that was in the bed with you?

A I dont know. I did not open my eyes.

She felt that person touch her between her legs, under her sweatpants and over her underwear. The persons finger went inside her vagina. V2 testified she woke up and squeezed her legs together. The person started to lose his grip. The person did not say anything as he touched her.

Q Okay. Now, you say his, do you know it was a man?

A It had a mans hand.

Q What made you think it was a mans hand?

A Because it was big.

V2 testified that on this particular night, the other males in the house were V1s brothers: A1 who was about 14 years old; S., who was nine or 10 years old, and A2, who was eight or nine years old. She was sure the person who touched her was not A1 [b]ecause he has a smaller hand, and S. and A2 were too small. V2 testified there were no other adult males in the house aside from appellant, that I think of, or know of. There were no adult relatives there on that particular night.

V2 testified there were two other incidents which occurred when she was asleep in the same bed, and I felt something touching me in the same place between her legs. V1 was sleeping in another bed in the same room. She could not tell how big this persons hand was, but she did not think the persons finger went into her vagina. She did not react by squeezing her legs, and the touching just stopped. V2 testified the three incidents were pretty much the same.

Q. On the first two incidents that you have talked about, you dont know who touched you, do you, [V2]?

A. No.

Q. And on the third incident, you didnt open your eyes and see anybody, did you?

A. No.

V2 told a friend about the incidents and that appellant touched her. The friend told V2 to tell her father. When V2 told her father, he became very upset and she stopped going to appellants house. V2 also told Maria of the district attorneys office that appellant touched her on the first occasion, and she was sure about that when she spoke to Maria. V2 did not tell Maria that appellant touched her on the two other occasions because she was not sure.

As to V2, appellant was charged with counts XI, XII, and XIII, commission of a lewd or lascivious act on a child under 14 years old. After V2s testimony, the court granted appellants motion for acquittal on counts XI and XII. Appellant was found guilty of count XIII, commission of lewd acts.

M.Count XIV

M. was 10 years old when she testified. M. was related to appellants wife. M. used to go over appellants house and spend the night. She would sleep in the same bed as appellant and his wife, in between them. M. got along with appellant sometimes, but also had fights with him.

On one occasion when she was about six years old, she was sleeping between appellant and his wife when appellant touched her vagina with his hand. M. was facing away from appellant, and he reached over her body with his hand, and touched her vagina over her clothes. Appellants hand did not penetrate her vagina. M. woke up when appellant touched he. Appellants hand was still on her vagina as she tried to wake up appellants wife. Appellants wife woke up and told appellant to wake up. M. testified appellant was asleep, he woke up, and he stopped touching her. Appellants wife told M. to go into the other bedroom with the boys, S. and A2. M. woke up the other children and said they should go into V1s bedroom so they could all be together if appellant became angry at them.

M. told her mother and V2 that appellant touched her. Appellant never said anything to her about the incident. M. stayed away from appellants house for a while, then returned and stayed overnight again. She slept on the couch or with V1, and never slept with appellant and his wife again. About a year after the incident, appellant bought her things. Appellant also told her not to tell anyone about the incident.

As to M., appellant was charged with one offense, count XIV, commission of a lewd or lascivious act on a child. He was found not guilty of this charge.

CSAAS testimony

Dr. Randall Robinson, a clinical psychologist, testified for the prosecution about CSAAS, a term coined by a UCLA psychologist, Dr. Roland Summit, in 1983, which describes the reaction of children who have been sexually abused. Dr. Robinson testified the syndrome involved a pattern of behavior explaining how someone reacts to something. As to children, the syndrome basically says that children accommodate to the abuse, they cooperate with the abuse, they accept the abuse. There are a number of reasons for that, and that they do not report the abuse. And that if they do report the abuse, it is apprehensively, and incrementally, and inconsistently, and sometimes they retract the allegation. A child may report incrementally to test out the safety of reporting, whether the person would believe the child, or whether the child will get in trouble. A child may be apprehensive to report sexual abuse because he or she may have been threatened, afraid to disrupt the familys integrity if the family depends upon the abuser, or truly confused about what happened and whether the child is responsible for the shame and guilt.

Dr. Robinson testified it was a myth that a child would immediately report sexual abuse, and it was more common for a child not to make any report. It was easier for a child to report physical rather than sexual abuse. In his private practice experience, the vast number of abused children do not report until they are adults, and his adult patients have needed one or two years of therapy until they were willing to admit they were sexually abused as children. It was also not unusual for sexually abused children to remain in the house with the responsible family member, particularly if the children are dependent on the family and have nowhere to go.

Dr. Robinson had treated children who had reported sexual abuse. Such reports usually occur when a family member or school official notices the child displays behavioral symptoms like aggression, social problems, running away, and drug abuse, investigated the reason for the symptoms, and the child revealed the sexual abuse. Even if the child reports the abuse, they may give inconsistent statements to see if the other family members get upset with them. If the listener becomes agitated, the child will just avoid the entire issue. If the listener emotionally supports the child, the child will feel safer to disclose specific information. A younger child may not comprehend he or she has been sexually assaulted, whereas an older child will understand that a sexual act has occurred. Dr. Robinson further testified that a childs reaction will depend on the individual case. One child may feel guilty and humiliated, whereas another child may laugh or giggle during disclosure.

Dr. Robinson testified it was possible that the child would lie about sexual abuse with the goal of living somewhere else, but it was not probable a child would do such a thing [b]ecause its very embarrassing. They would, I expect a child to lie about something less embarrassing, such as whether the house rules were too strict, or they could not have friends, or something that doesnt involve the child. Generally, when children dont want to live somewhere, they accuse somebody else of something for qualities about that person, but not involving them.

On appeal, appellant challenges the sufficiency of the evidence in support of the only conviction based on V2s testimony, count XIII, commission of a lewd act, and argues her identification of him was based on mere conjecture and surmise and may have been based on dreaming. Appellant contends the court improperly admitted Dr. Robinsons testimony about CSAAS and whether the children were telling the truth. Appellant concedes defense counsel did not object to Dr. Robinsons testimony but argues counsel was ineffective because Dr. Robinson offered his opinion that the complaining witnesses were truthful, and this testimony usurped the jurys function and constituted inadmissible opinion evidence.

Appellant contends the court imposed two consecutive indeterminate terms based on the erroneous belief that it lacked discretion to impose concurrent terms. Respondent concedes the error, but argues the matter need not be remanded because it is not reasonably probable the court would have imposed concurrent terms. Appellant contends, and respondent concedes, the abstract of judgment must be corrected as to the determinate midterms imposed for counts V and X.

DISCUSSION

I.

SUBSTANTIAL EVIDENCE OF COUNT XIII

Appellant contends there is insufficient evidence to support his conviction in count XIII, commission of a lewd or lascivious act on V2, which was the only offense based on this victim and thus triggered the one strike sentence for multiple victims. Appellant argues V2s identification testimony was based on mere conjecture and surmise and may have been based on dreaming.

A. Background

As to V2, appellant was charged with counts XI, XII, and XIII, commission of a lewd or lascivious act on a child under 14 years old, in violation of section 288, subdivision (a). After V2s testimony, appellant moved for acquittal of counts XI and XII. Appellant noted that as to two counts, V2 admitted she could not identify any person who committed the acts, she could not identify the persons hand, and there was an older boy in the house. The court was also concerned that V2 could not identify who committed two of the three acts, whereas she recognized appellants hand and knew he committed at least one of the acts. The court issued a tentative ruling to dismiss counts XI and XII pending review of the reporters transcript.

After the court reviewed the reporters transcript, it decided to grant appellants motion and dismissed counts XI and XII because V2 was unable to say that appellant committed two of the three acts. The court found that while circumstantial evidence might raise an inference that appellant committed all three acts, V2 never testified to that fact. Thus, the jury was only required to deliberate about one count of lewd or lascivious conduct as to V2. In closing argument, the prosecutor explained that V2 described three incidents but count XIII was based on V2s testimony about the incident where she recognized appellants hand as he touched her and placed his finger in her vagina while she was in bed. Appellant was found guilty of this count.

B. Analysis

Appellant contends there is no reasonable, credible or solid evidence that he was the person who touched V2, she never saw the person who touched her, and her identification of appellant was entirely based on her belief that the persons hand was big and so it must have been appellants hand. Appellant notes that three boysV1s brotherswere also in the house that night, V2 testified that other adult family members stayed at appellants house, and any of these individuals could have been the perpetrator.

We turn to the well-settled standards to assess the sufficiency of the evidence to sustain a criminal conviction. The reviewing courts task is to review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Earp (1999) 20 Cal.4th 826, 887.) The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence. (People v. Johnson, supra, at p. 577; People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)

Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.) Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (Ibid.; People v. Stanley (1995) 10 Cal.4th 764, 792-793; People v. Bean (1988) 46 Cal.3d 919, 932-933.)

An appellate court must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425.) It must not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (People v. Pitts (1990) 223 Cal.App.3d 606, 884.) Furthermore, an appellate court may reject the testimony of a witness who was apparently believed by the trier of fact only if that testimony is inherently improbable or impossible of belief. (People v. Jackson (1992) 10 Cal.App.4th 13, 21; People v. Maxwell (1979) 94 Cal.App.3d 562, 577.) An appellate court may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)

In the instant case, V2 testified about three incidents when she was touched on her vaginal area by a person who climbed into bed and lay behind her. V2 testified that she did not turn around to look at that person, and she did not see that persons face.

Q. On the first two incidents that you have talked about, you dont know who touched you, do you, [V2]?

A. No.

Q. And on the third incident, you didnt open your eyes and see anybody, did you?

A. No.

As explained ante, however, the court dismissed two of the three counts involving V2 because of her admission that she did not know who touched her on two occasions, and the jury was presented with count XIII, based on the incident where V2 testified she felt the persons finger go inside her vagina. As to that incident, V2 testified she woke up and squeezed her legs together, and the person started to lose his grip. The person did not say anything as he touched her.

Q Okay. Now, you say his, do you know it was a man?

A It had a mans hand.

Q What made you think it was a mans hand?

A Because it was big.

V2 testified that on this particular night, the other males in the house were V1s three brothers: A1, who was about 14 years old, S., who was nine or 10 years old, and A2, who was eight or nine years old. V2 testified she was sure the person who touched her was not A1 [b]ecause he has a smaller hand, and S1 and A2 were too small. V2 testified that while appellants adult family members occasionally stayed overnight, there were no other adult males in the house aside from appellant on that particular night, that I think of, or know of.

Based on this testimony, there was substantial circumstantial evidence for the jury to find that appellant was the person who climbed into bed next to V2 and placed his finger into her vagina. While V2 testified that other adults occasionally stayed at appellants house, she also testified appellant was the only adult male in the house that night that she knew of. She also testified that the persons hand was big, and that V1s three brothers had smaller hands. Such evidence is clearly sufficient to support V2s identification of appellant in count XIII.

II.

DR. ROBINSONS TESTIMONY

Appellant next contends certain aspects of Dr. Robinsons testimony impermissibly addressed the ultimate issue in this casewhether V2 was a credible witnessand the prosecutor relied on this improper expert testimony in closing argument and exacerbated the error. Appellant concedes defense counsel did not object to these points but contends counsel was prejudicially ineffective.

A. Background

During motions in limine, the prosecutor advised the court that Dr. Robinson would be called as an expert witness on CSAAS. Defense counsel did not object and the court advised the parties that it would permit Dr. Robinsons testimony if a proper foundation was established.

As set forth ante, Dr. Robinson testified as to CSAAS. In the course of his testimony, Dr. Robinson also addressed whether children might lie in making disclosures. Both adults and children lie to make themselves look good, but children are more blatant liars than adults.

[THE PROSECUTOR] In your experience, do children lie to make themselves look good or bad?

A ... [Children] will lie about their parents making a lot of money or having good grades, or better grades, or a higher batting average. People lie to impress people to think positive things about themselves. Generally, people dont lie, people of any age dont lie to make people feel uncomfortable or to humiliate themselves.

Dr. Robinson conceded that a child who changes his or her story could also be lying about sexual abuse, or what exactly occurred.

Defense counsel returned to this issue on cross-examination:

[DEFENSE COUNSEL] Okay. Is it your opinion that any child who reports sexual abuse is telling the truth?

A Thats a very general question. I would, I would wonder why a child would report something humiliating that wasnt true. I would certainly investigate any report, but it would be very curious to me that a child would report something like that that is not true.

Q So, it is your opinion that any person, any child who reports sexual abuse would be telling the truth?

[THE PROSECUTOR]: Objection, asked and answered.

THE COURT: Overruled, you can answer it.

[A] It is my opinion that when children report child sexual abuse, there has been probably, most likely, child sexual abuse. [][]

Q Each individual is pretty different, so any hypothetical question that you have answered today, you have no real way to determine how a specific child is acting under any circumstances without actually interacting with that child, do you, doctor?

[A] Thats correct.

Thereafter, Dr. Robinson responded to a lengthy series of questions on this topic, raised in succession by the prosecutor and defense counsel during redirect and recross-examination, which forms the basis for the instant appellate issue. The prosecutor referred to his earlier testimony about a child lying to accomplish a goal.

[THE PROSECUTOR] What do you mean by that, to accomplish a goal?

A When the question was asked I was thinking about joining activities, or being in varsity as opposed to junior varsity, something that would elevate that child. A child would exaggerate his accomplishments or her accomplishments to be accepted into whatever he or she wanted to be accepted into.

Q And in your experience, do children lie about being sexually abused to accomplish a goal, or is that different?

A Thats very different.

Q And how would that be different? Why wouldnt they use that type of lie?

A Because that would call attention to something that is extremely humiliating, and mostly people dont call attention to something that is humiliating, and especially children who tend to feel responsible for things that happened to them, which is why we counsel kids that they arent responsible for divorces. Children would be even less likely to disclose something about which the child felt so bad and guilty, and confused, and humiliated.

Q Just to accomplish a goal?

A I dont know what the goal would be.

Defense counsel immediately followed-up on this issue in recross-examination.

[DEFENSE COUNSEL] Isnt it possible, doctor, that a 14 year-old or a teen of any older age, could be sophisticated enough that if they didnt want to live with someone anymore, would know that making an allegation of sexual abuse would get them out of the house?

A It is possible.

Q So that is certainly one goal that a child might lie about in order to achieve?

A That would be possible.

The prosecutor immediately returned to this topic on redirect-examination:

[THE PROSECUTOR] Would it be probable that they would lie about that particular thing to get out of the house?

[A] No.

Q Okay. Why not?

A Because its very embarrassing. They would, I would expect a child to lie about something less embarrassing.

Q For example?

A The rules are too strict; he wont let me have any friends; you know, I have to get a hair cut that I dont like; something that doesnt involve the child. Generally, when children dont want to live somewhere, they accuse somebody else of something for qualities about that person, but not involving them.

Defense counsel attempted to follow-up on recross-examination:

Q A teenager would know, wouldnt they, that an accusation of, my parents are too strict, wouldnt actually get them out of the house, wouldnt they?

[THE PROSECUTOR]: Objection, calls for speculation.

[DEFENSE COUNSEL]: Hypothetical.

THE COURT: Sustained, outside the scope of expertise here, a teenager to know.

[DEFENSE COUNSEL]: If a child was motivated by wanting to be removed from a home that they were motivated enough to lie, do you think they also might be smart enough to know that saying, my parents [are] too strict, would not accomplish their goal?

[THE PROSECUTOR]: Same objection, your Honor.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Question withdrawn. No further questions, your Honor.

Also as addressed ante, the prosecutor used his closing argument to clarify which incidents constituted the charged offenses in this case. The prosecutor also addressed the reasons why the three victims failed to tell any of their family members that appellant molested them, and cited Dr. Robinsons testimony about the reasons why some children either do not report sexual abuse or fail to report it for years. So thats not inconsistent with it not happening. The prosecutor further acknowledged the children in this case tried to report it but either received a negative reaction or no reaction at all. The prosecutor also cited Dr. Robinsons testimony about a childs incremental disclosures.

Basically Dr. Robinson testified to kind of lay some groundwork, and you can use that as you see fit, to see if the facts and the, she talked to you about how children report, and how these types of things happen, and the, you know, inconsistent alleged inconsistencies or why there might be some, and you can use that if you feel that applies in this case. But I would argue that it does apply in this case.

[V1] reported. The first time, where did she report it? It was just a very kind of a minimalized report, no doubt about it, but where did she report? At the Sanctuary, where she was at least a little safe, she wasnt living at the house with [appellant] anymore, but it was there. All right? People she didnt know. An officer with a gun and a badge, and I believe the CPS worker, maybe someone else from the Sanctuary was all in the room. Now shes expected to give this full-blown idea of a molest and a rape, so she kind of test reports, Ill submit to you. Lets see what happens. Then the story comes out a little bit later. It doesnt mean shes lying because of the fact thats the way she reported. Its very consistent with what Dr. Robinson said children do when they report.

I submit to you, Ladies and Gentlemen, that [appellant] is guilty beyond a reasonable doubt. No, I cant transport you back, I dont have every witness that may have been there. I cant transport you through time, but the evidence is clear, [V1, V2, and M.] came and told you what happened to them. They have no reason to lie. I mean, think about that. Why would they make this up? I mean, what, I guess maybe, you know, [appellant] could argue that, well, [V1] was really ticked off at [her uncle], he wouldnt let her do what she wanted, she wanted to get out of the house, so she makes up this whole story.

Well, Dr. Robinson talked about kids making up stories. If they make up a story, they are not going to make up one thats humiliating to themselves. Maybe he beat me, maybe something else happened, but not raped me. That doesnt make any sense.

Maybe, even if that were the case, then we have [V2] and [M.]. Theres no evidence whatsoever they all got together for some reason to conspire against [appellant] in this case to get him in trouble. Theres no advantage. No, they told you what happened, and thats what happened. (Italics added.)

B. Analysis

Appellant contends Dr. Robinsons testimony went beyond the scope of testimony about CSAAS, and improperly addressed the victims credibility, the prosecutor relied on this testimony to argue the victims were truthful and had no motive to lie, and defense counsel was prejudicially ineffective for failing to object to these points.

Appellants contentions herein involve interrelated issues of the admissibility of CSAAS evidence, opinion testimony on truth and/or credibility, and ineffective assistance. We begin with the admissibility of CSAAS evidence.

Appellant did not object when the prosecutor advised the court that Dr. Robinson would testify as an expert witness on CSAAS. CSAAS evidence is a term social scientists and the courts use to describe a list of behaviors commonly observed in child sexual abuse victims. These behaviors were first noted in the work of Dr. Roland J. Summit, who identified and defined the child sexual abuse accommodation syndrome in 1983. He identified five characteristics commonly observed in sexually abused children: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, conflicted, and unconvincing disclosure, and (5) retraction. (Steele, Expert Testimony: Seeking an Appropriate Admissibility Standard for Behavioral Science in Child Abuse Prosecutions (1999) 48 Duke L.J. 933, 943-944.) Summit claimed the characteristics were behavioral coping mechanisms that emerge because the child is fearful, tentative and confused about the nature of the continuing sexual experience and the outcome of disclosure. CSAAS does not prove abuse because it assumes that the abuse occurred. Nonetheless, CSAAS is helpful in identifying common responses to child sexual abuse and in establishing reasons for the behavior of child sexual abuse victims. (Id. at p. 944.) There are a host of behaviors, such as bed wetting and a delay in reporting the abuse, that are now included within the syndrome. (Id. at pp. 943-944; see also People v. Bowker (1988) 203 Cal.App.3d 385, 392, fn. 8 (Bowker).)

CSAAS is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witnesss credibility when the defendant suggests that the childs conduct after the incidente.g., a delay in reportingis inconsistent with his or her testimony claiming molestation. [Citations.] (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, fn. omitted (McAlpin).) CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience. [Citation.] The evidence is admissible solely for the purpose of showing that the victims reactions as demonstrated by the evidence are not inconsistent with having been molested. (Bowker, supra, 203 Cal.App.3d at p. 394, italics in original; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383.) Although inadmissible to prove that a molestation occurred, CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation. [Citations.] (People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino).) Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused childrens seemingly self-impeaching behavior. [Citation.] (McAlpin, supra, 53 Cal.3d at p. 1301.)

[T]he evidence must be tailored to the purpose for which it is being received.... [A]t a minimum the evidence must be targeted to a specific myth or misconception suggested by the evidence. [Citation.] 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. Where an alleged victim recants his story in whole or in part, a psychologist could testify on the basis of past research that such behavior is not an uncommon response for an abused child who is seeking to remove himself or herself from the pressure created by police investigations and subsequent court proceedings. (Bowker, supra, 203 Cal.App.3d at pp. 393-394, fn. omitted.) Identifying a myth or misconception has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victims credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. [Citations.] (Patino, supra, 26 Cal.App.4th at pp. 1744-1745.)

Although the California Supreme Court had not addressed the general issue of admissibility of CSAAS evidence, it had noted with apparent approval that most appellate districts have approved the use of such testimony. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) Since even general testimony on CSAAS has the potential of being used by an untrained jury as a construct within which to pigeonhole the facts of the case and draw the conclusion that the child must have been molested, the jury must be instructed that the experts testimony cannot be used as evidence that the victims claim of molestation is true. (People v. Bothuel (1988) 205 Cal.App.3d 581, 587, disapproved on another point in People v. Scott (1994) 9 Cal.4th 331, 347-348.) The jury must be instructed simply and directly that the experts testimony is not intended and should not be used to determine whether the victims molestation claim is true. The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury. (Bowker, supra, 203 Cal.App.3d at p. 394; People v. Housley (1992) 6 Cal.App.4th 947, 958-959; see also CALCRIM No. 1193, former CALJIC No. 10.64.) Thus, CSAAS evidence has been found constitutionally admissible with the proper admonishments to the jury regarding the limits of such evidencethat the experts testimony is not intended and should not be used to determine whether the victims molestation claim is true, but admissible solely to show the victims reactions are not inconsistent with having been molested. (Patino, supra, 26 Cal.App.4th at p. 1744; Housley, supra, 6 Cal.App.4th at pp. 958-959.)

In the instant case, appellant did not object to the prosecutions request to call Dr. Robinson, and the trial court properly permitted him to testify about CSAAS and address the reasons why children either fail, delay, or minimize reports of being sexually abused. In addition, the jury was instructed pursuant to former CALJIC No. 10.64, the appropriate instruction on CSAAS expert testimony:

Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victims molestation or rape claim is true.

Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation or rape has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.

You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victims reactions, as demonstrated by the evidence, are not inconsistent with her having been molested or raped.

We presume the jury properly followed this admonition. (People v. Adcox (1988) 47 Cal.3d 207, 253.)

On appeal, however, appellant contends the above-quoted sections of Dr. Robinsons testimony went beyond the permissible scope of CSAAS evidence and addressed the credibility of the children in this case, and the prosecutor relied on Dr. Robinsons testimony in his closing argument and asserted these children did not have any motives to lie. Appellant did not object to the admission of Dr. Robinsons testimony, the above-quoted statements, or the specific closing argument, and his assignments of error have been waived. (People v. Mitcham (1992) 1 Cal.4th 1027, 1044 [failure to object to evidence]; People v. Crew (2003) 31 Cal.4th 822, 839 [failure to object to closing argument].)

Appellant anticipates the waiver problem and argues defense counsel was prejudicially ineffective for failing to object to Dr. Robinsons testimony and the prosecutors argument. In order to demonstrate ineffective assistance, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721.) (People v. Williams(1997) 16 Cal.4th 153, 214-215.)

If counsels omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsels reasons. To engage in such speculations would involve the reviewing court in the perilous process of second-guessing. [Citation.] Because the appellate record ordinarily does not show the reasons for defense counsels actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. [Citation.] (People v. Diaz (1992) 3 Cal.4th 495, 557-558.) If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.