Filed 12/13/17 P. v. Mossman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL JAMES ALLEN MOSSMAN,

Defendant and Appellant.

F071651

(Mariposa Super. Ct. No. 12244)


OPINION

APPEAL from a judgment of the Superior Court of Mariposa County. Dana F. Walton, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant was convicted of committing a lewd act on a child under 14 and simple battery. The victim did not report the incident until some 10 months after it allegedly occurred. An expert testified about Child Sexual Abuse Accommodation Syndrome (CSAAS), which concerns “common stress reactions of children who have been sexually molested … which also may include the child’s failure to report, or delay in reporting, the abuse.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.)
During trial, evidence was admitted that defendant had committed uncharged crimes, including other instances of child molestation and possession of child pornography.
Defendant challenges the admission of the uncharged crimes evidence and related jury instructions, as well as the testimony concerning CSAAS. We reject his claims. Both parties agree that the abstract of judgment contains minor clerical errors, and we direct that the abstract of judgment be amended accordingly. We otherwise affirm the judgment.
BACKGROUND
In an information filed October 20, 2014, defendant was charged with committing a forcible lewd act on a child under the age of 14 (count 1; Pen. Code, § 288, subd. (b)(1)), and a lewd act on a child under the age of 14 (count 2; § 288, subd. (a).)
On count 1, a jury convicted defendant of the lesser included offense of lewd act on a child under 14. (§ 288, subd. (a).) On count 2, the jury convicted defendant of the lesser included offense of simple battery. (§ 242.)
The court sentenced defendant to the upper term of eight years on count 1.
FACTS
The victim, D.M., was 15 years old when she testified at trial. Defendant is D.M.’s maternal uncle.
When D.M. was 10, defendant put her over his shoulder and grabbed her “butt.” D.M. felt uncomfortable and did not tell anyone immediately because she was scared.
On Thanksgiving weekend in 2012, when D.M. was 12 years old, defendant drove her to her grandmother’s house. Defendant asked D.M. if she had a boyfriend, and D.M. said yes. When they arrived at D.M.’s grandmother’s house, defendant and D.M. sat on a couch. Defendant said he wanted to get something out of his truck and asked D.M. to go with him. D.M. sat in the driver’s seat and messed around with something in the backseat. Eventually, defendant came to stand near D.M. and touched her inner thigh. This made D.M. feel very uncomfortable, but she did not say anything. Defendant started moving his hand towards her genitals. D.M. “scooted back,” but defendant “kept going” and unzipped her zipper. Defendant moved D.M.’s underwear to the side and put his finger in her vagina. After an unknown period of time, defendant walked away. D.M. did not immediately tell her grandmother or anyone else what had happened.
D.M.’s Report of Abuse
J.C. is defendant’s ex-wife. They separated in 2009 and their divorce was finalized in February 2011. While J.C. was married to defendant, she spoke with D.M. frequently. After her separation from defendant, J.C. still spoke with D.M. but did so less often.
Defendant was set to be sentenced in a different molestation case on September 13, 2013. On the day before, September 12, 2013, J.C. received a text message from D.M. Initially, D.M. said, “[H]ello, how are you[?]” J.C. said, “[Y]ou have a cell phone now?” D.M. said she was using an iPod and Wi-Fi at her dad’s house. Eventually, the conversation turned to defendant. J.C. testified: “[S]he proceeded to tell me that she – that she was upset with him and that she missed him, but she didn’t, and she just had made me question if there had been anything that had happened between them.” J.C. asked D.M. if defendant had ever touched her, and she responded that he had but asked that J.C. please not say anything. With D.M.’s permission, J.C. told D.M.’s mom about the abuse.
D.M.’s Interview with Law Enforcement
A sheriff’s deputy interviewed D.M. at a high school on September 18, 2013. The deputy observed that D.M.’s “hair was very short and there was splotches that were missing from her scalp.” D.M. said she was stressed out. D.M. “spoke of a couple of things. She stated that she was stressed out. She was stressed out about telling – telling the story. That was it.”
Defendant’s Interview with Law Enforcement
Defendant told law enforcement officers that he had not touched D.M. inappropriately. When law enforcement officers asked defendant to write a letter recounting his recollection of the day, defendant wrote:
“I chased [D.M.] around the yard. At one point she got in my truck and I tickled her. She was laughing and smiling. Then she got out and she ran as I chased her to the house. She then went inside and I was still chasing her. She then went to the bathroom and said she was going to take a shower. I then went outside to work on the shed.”
Defendant did admit to the allegations made against him in “the Madera County case.” Defendant also admitted he was “capable” of inappropriately touching the vaginal area of a minor, but “that he wouldn’t do that to his nieces.”
At trial, defendant again denied abusing D.M. Defendant said that if he had abused D.M., he would have admitted it when he came clean about the other incidents and pornography.
Evidence of Other Incidents
Incident Involving R.B.
Seven-year-old R.B. testified that “a long time ago” she was with a man named Michael in an upstairs room. Michael picked her up and put her on his lap. He then “got his finger and did something to me I didn’t like.” Specifically, Michael put his finger underneath her underwear and started “digging.” He touched her “private part.” Two other kids were in the room at the time.
Defendant initially denied touching R.B. sexually. He initially gave two explanations for why R.B. would have claimed he touched her inappropriately. First, he said he picked her up “by the crotch and that it might have accidentally happened at that time.” Later, he said he had been “tickling” R.B.
Eventually, defendant admitted to the allegations against him concerning R.B., and he was convicted and imprisoned.
Incident Involving Child in San Diego
Defendant admitted to a prior incident involving a five-year-old girl in San Diego. Defendant said he lifted the child up to the sink to wash her hands, and put his hands through the bottom of her pants. He touched the child’s vagina but did not penetrate it.
Child Pornography
Defendant gave J.C. a laptop and said it had pornography on it. Defendant asked J.C. to “turn it in” to law enforcement.
Defendant admitted to law enforcement that he viewed pornography depicting children of various ages, including 12 to 14 year olds and “up to” 19 year olds. Defendant then said “it started going down,” which the law enforcement officer understood to mean “going down in age.” Defendant said he watched child pornography “to assist with the urges and he would watch it until he had finished, and then he would delete it.”
Greg Masters, a criminalist with the Department of Justice, testified that pornographic and erotic images and videos were found on defendant’s computer. The videos and images were not admitted into evidence, but Masters described them in his testimony.
Videos
Two videos were found, one “depicting what appeared to be a prepubescent female being digitally penetrated … and engaging in other sexual acts,” and the other “depicting a male fondling the breasts of what appeared to be a pubescent female and then later in the video the female is orally copulating the male.”
Images
Several images were found on the computer and were described by Masters. They included depictions of pubescent and prepubescent females in sexually suggestive poses, some naked and others scantily clad. One of the images depicted “what appears to be a pubescent female being orally copulated by a male.”
There were also at least three pictures of D.M. on the laptop, but they were “non-
pornographic.”
Link Files
Masters testified that computers also have files “called link files and they’re basically shortcuts.” Link files “are also used whenever a file is opened to accessed.” Masters found several link files that were “potentially probative” because the files to which the links pointed contained terms associated with child pornography. However, Masters did not know what videos or images the links pointed to, only the title of the links themselves. Masters described the titles of the link files and words contained therein. The titles included vulgar references to anatomy and various sexual acts. The titles also contained words indicating they likely depicted children, such as “preteen,” “12YO,” “daughter.”
Masters also testified about title of “recent documents” accessed on the computer. One file name included the phrase, “preteen hardcore … four-year-old, eight-year-old, 11-year-old girls copulation.” Another read, “Pedophilia uncle undressing and rapes 12-year-old niece for real, preteen, and quality porn ….”
Other Incident Involving D.M.
One time, when D.M. was six, defendant said her zipper was down. D.M. pulled up her zipper, but defendant pulled it back down. The incident made D.M. uncomfortable.
D.M.’s Mother
D.M.’s mother testified that while she was driving, she asked D.M. and her other daughter if defendant had ever touched them inappropriately. The other daughter responded first, and said, “[N]o.” Shortly thereafter, D.M. said, “[N]o.”
CSAAS
Dr. Anthony Urquiza testified about Child Sexual Abuse Accommodation Syndrome.
Dr. Urquiza received an undergraduate degree in child development, and a master’s degree and doctorate in clinical psychology, all from the University of Washington. Dr. Urquiza is a licensed psychologist and professor at UC Davis Medical Center. Dr. Urquiza also works as the director of the Care Center, which is a child abuse treatment program at the Department of Pediatrics at the UC Davis Medical Center.
Dr. Urquiza had testified in court more than 200 times concerning CSAAS. There are “five parts” to CSAAS: 1) secrecy, 2) helplessness, 3) entrapment and accommodation, 4) delayed and unconvincing disclosure and 5) retraction or recantation. CSAAS is an educational tool, not a diagnosis. CSAAS is not a framework used to make a determination as to whether a child has been abused.
Secrecy
When children are sexually abused, the perpetrator is usually someone with whom the child has an ongoing relationship. Often those relationships involve authority or control over the child’s life. This can lead to the child keeping sexual abuse secret because the child is either threatened, intimidated, or manipulated.
Helplessness
Dr. Urquiza testified that there is a misperception that if someone tries to touch a child sexually, the child should run, scream or fight off the attacker. However, research shows that kids who are sexually abused do not usually repel their attacker, but instead become more submissive.
Entrapment and Accommodation
Entrapment occurs when the child feels that they cannot tell anyone about the abuse and are helpless to stop it themselves. In response, children will “accommodate” as a means of coping with the abuse. Sometimes, children will “disassociate[]” meaning “to disconnect a part of your current reality from what’s going on.” As a result, many children do not cry or “breakdown” when talking about their abuse.
Delayed and Unconvincing Disclosure
Dr. Urquiza testified there is a misperception that children will disclose sexual abuse immediately after it happens. However, that does not usually happen. One researcher found that three-quarters of children who had been sexually abused did not disclose the abuse within one year. About one-third of children did not disclose the abuse until they were over 18 years old.
Dr. Uquiza frequently cited Dr. Roland Summit who wrote in 1983 that because it is difficult for children to talk about sexual abuse, disclosure is often a “process.” First, a child may make a vague or nonspecific statement (e.g., “I don’t like being around my Uncle Bob”.) If the response from the person listening is supportive (e.g., “you can tell me anything, I’ll keep you safe”), then the child may begin to say more over time. As a result, there may be a first, second, and third disclosure each with more information, which can appear “unconvincing.” However, research supports the conclusion that this is the manner by which sexually abused children disclose abuse. The research also shows that some children disclose the abuse all at once.
Dr. Urquiza also noted that a child’s story may “change because they may feel comfortable talking more about it ….” Or, sometimes children make “errors” in disclosing instances of abuse because when the abuse is occurring “[t]heir focus is not on remembering things, their focus is on trying to cope with the situation as best they can, try to cope with the feelings.” It is very rare for children to make false allegations of sexual abuse.
Retraction
Dr. Urquiza also noted that Dr. Summit had observed that retraction of sexual abuse claims by children was “common.”
The prosecutor posed several hypotheticals to Dr. Urquiza, which prompted objections from defense counsel.
DISCUSSION

I. The Trial Court Did Not Err in Admitting Evidence of Uncharged Acts Under Evidence Code Section 1108
Defendant argues that the admission of evidence concerning R.B., the unnamed San Diego victim, and the child pornography on his computer was improper. Specifically, defendant argues that “allowing the prosecution to use this information to show a general propensity to commit sexual offenses against minor girls” denied him a fair trial. He argues that “despite settled California authority to the contrary, Evidence Code section 1108 is unconstitutional on its face.”
A. Law
Unless an exception applies, character evidence “is inadmissible when offered to prove [a person’s] conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) One exception to this rule is found in Evidence Code section 1108. That statute permits, in sex offense prosecutions, the admission of “evidence of the defendant’s commission of another sexual offense” so long as the evidence satisfies Evidence Code section 352. (Evid. Code, § 1108, subd. (a).) Evidence Code section 352 gives the trial court discretion to exclude evidence “if its probative value is substantially outweighed by the possibility 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.)
The California Supreme Court has held Evidence Code section 1108 is constitutional on its face. (See generally People v. Falsetta (1999) 21 Cal.4th 903.)
B. Application
Defendant acknowledges that the California “Supreme Court has found section 1108 to be constitutional,” but he nonetheless “asserts and wishes to preserve in the event of further post-conviction review the contention that admission of prior bad acts solely to show criminal propensity violates federal due process standards.” As defendant all but concedes, we are powerless to review the conclusion of the Supreme Court that section 1108 is not facially unconstitutional. (See People v. Johnson (2012) 53 Cal.4th 519, 528 [“Court of Appeal … bound by decisions of this court”].) Consequently, we reject defendant’s facial challenge.
Though defendant also purports to raise “as-applied” and section 352 challenges, he offers little beyond generalized attacks on propensity inferences in the abstract. Defendant fails to convince us that the evidence in this case raised the propensity inference in a uniquely damaging way. Consequently, there is little to distinguish these arguments from a facial challenge to Evidence Code section 1108’s propensity inference. However, we will briefly address defendant’s contentions.
Defendant argues the other crimes evidence should have been excluded under Evidence Code section 352 because “the prejudicial effect of the evidence with respect to propensity clearly outweighed any probative value. [Citation.]” But this argument puts the propensity inference on the wrong side of the scale. The tendency of the evidence to show propensity is its probative value. The propensity inference “is a legitimate inference. A jury may use ‘the evidence of prior sex crimes to find that defendant had a propensity to commit such crimes, which in turn may show that he committed the charged offenses.’ [Citations.]” (People v. Reliford (2003) 29 Cal.4th 1007, 1013.)
Defendant contends that the propensity inference resulted in a lower burden of proof for the prosecutor. He argues, “All the prosecution had to do here was convince the jury by a preponderance of the evidence that appellant committed the prior offenses – something he readily admitted and never denied – and his conviction in the present case was all but guaranteed.” But this contention is belied by the court’s instructions to the jury, especially the following:
“If you decide that the defendant committed the uncharged offenses, you may, but are not required to conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision also conclude that the defendant was likely to commit and did commit child molestation as charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider all with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charges in this case. The People must still prove each charge beyond a reasonable doubt.”
We assume the jury followed these instructions. (See People v. Callahan (1999) 74 Cal.App.4th 356, 372.) Therefore, we conclude that the prosecution’s burden of proof was not improperly lowered here.
Defendant also claims the evidence concerning the unnamed victim in San Diego should have been excluded because it “consisted of nothing more than an unsubstantiated confession by a clearly troubled man.” But any deficiency in defendant’s credibility was appropriately left to the jury to evaluate. Under the court’s instructions, the jury was free to conclude that the purported abuse of the unnamed San Diego victim was not sufficiently supported by credible evidence, as defendant suggests. Alternatively, the jury was free to conclude that defendant’s confession was credible. Because the issue was properly left for the jury to decide, defendant’s rights were not violated.

II. The Trial Court’s Instruction on Uncharged Offenses was Not Erroneous
The court instructed the jury with a slightly modified version of CALCRIM No. 1191. Defendant argues the instruction was erroneous because (1) it permitted the jury to draw a propensity inference; and (2) it is inconsistent internally and with other instructions. Defendant “raises the issue here to preserve it for possible federal review” because he “acknowledges the California Supreme Court has approved substantially similar instructions and that this court is required to follow Supreme Court precedent.” We accept this concession and reject defendant’s claims concerning CALCRIM No. 1191. (See generally People v. Villatoro (2012) 54 Cal.4th 1152; see also People v. Reliford, supra, 29 Cal.4th at pp. 1012–1016 [concerning CALCRIM No. 1191’s predecessor].)
III. The Trial Court Did Not Err in Admitting Testimony on CSAAS
As described above, Dr. Urquiza testified about a syndrome called CSAAS. Defendant argues the trial court improperly admitted this testimony.
First, defendant argues CSAAS was irrelevant to the case. “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Here, the testimony concerning CSAAS was “relevant to the credibility of a witness” (ibid.) because it offered a potential explanation for why D.M. had delayed reporting of the abuse for some 10 months after it occurred. “[W]here 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.)
Defendant cites People v. Bowker, supra, 203 Cal.App.3d 385 wherein the court held CSAAS evidence must be targeted to a specific “myth” or “misconception” suggested by the evidence. (Id. at pp. 393–394.) But “[i]dentifying 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 victim’s credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. [Citations.]” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744–1745, italics added.) Here, the evidence showed that nearly 10 months elapsed between the alleged abuse and D.M.’s disclosure to J.C.
Defendant also cites State v. Stribley (Iowa App. 1995) 532 N.W.2d 170, which says that the “problem with this type of evidence [e.g. CSAAS] is it may incorrectly be used by a fact finder as evidence of abuse.” Similarly, defendant argues CSAAS testimony “merely attempts – in contravention of the rules of evidence – to suggest that the victim was, in fact, exhibiting symptoms of sexual abuse.” But the testimony at issue in this case clearly avoided that pitfall. Dr. Urquiza testified that CSAAS “should not be used to make a determination as to whether a child is abused or to make a determination as to whether the child is not abused.” Dr. Urquiza continued later to say: CSAAS “is not to be used to make a determination as to whether a child has been abused … there is no such measure to make that determination other than a jury who hears evidence in a case and then makes that determination.” Moreover, the court instructed the jury that the testimony concerning CSAAS “is not evidence that the defendant committed any crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [D.M.’s] conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony.” Thus, the CSAAS testimony here was not admitted to prove D.M. had been abused, but instead to mitigate the potential damage to her credibility flowing from her delay in reporting the abuse. (See People v. McAlpin, supra, 53 Cal.3d at p. 1300; see also People v. Gray (1986) 187 Cal.App.3d 213, 218.)
Defendant counters that “[t]he only reasonable implication is that the [CSAAS] evidence must be about the particular victim in this case, and, thus, the jurors are encouraged to improperly use the evidence to determine the ultimate fact as to whether abuse occurred.” However, that “implication” is not reasonable in light of Dr. Urquiza’s testimony that all he knew of the present case was the defendant’s name; that he did not evaluate D.M. or read her statements or testimony; that he did not interview any parents involved or read any reports; and that CSAAS should not be used to determine whether a child had been sexually abused.
Defendant contends testimony concerning CSAAS was improper because D.M. never recanted or retracted her claim of abuse. But retraction is only one of the five factors comprising CSAAS. The bulk of Dr. Urquiza’s testimony concerned the other factors. When there is evidence of delay and inconsistency in the victim’s statements, CSAAS testimony on retraction is permitted even without evidence the victim in the present case retracted his or her claim. (E.g., People v. Harlan, supra, 222 Cal.App.3d at pp. 449–450.)

IV. Trial Court’s Instruction Concerning CSAAS Evidence was Not Erroneous
The trial court instructed the jury as follows:
“You have heard testimony from Anthony Urquiza, Ph.D., regarding Child Sexual Abuse Accommodation Syndrome. Dr. Urquiza’s testimony about Child Abuse Accommodation Syndrome [sic] is not evidence that the defendant committed any crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [D.M.’s] conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony.”
Defendant argues CSAAS evidence is only admissible to determine “whether the alleged victim’s reaction were not inconsistent with molestation” but CALCRIM No. 1193 “erroneously instructs the jury it may also use CSAAS evidence to determine the credibility of victims ….” But these two concepts are the same. If accepted by the jury, CSAAS can tend to show D.M.’s delay in reporting abuse was not inconsistent with abuse having occurred; which is how the CSAAS evidence may be used to evaluate D.M.’s credibility. In other words, the jury may properly consider CSAAS as mitigating the harm to D.M.’s credibility posed by the delay in her reporting of the abuse.
Defendant also argues CALCRIM No. 1193 erroneously instructs the jury it may use the CSAAS evidence to “corroborate” the claims of abuse. The instruction does no such thing. To the contrary, the instruction makes clear that CSAAS testimony “is not evidence that the defendant committed any crimes charged against him.”

V. We Accept the Parties’ Concession that the Abstract of Judgment Should be Modified
Both parties agree the abstract of judgment should be corrected to reflect that defendant was convicted of lewd and lascivious acts in violation of section 288, subdivision (a) not “forcible” lewd acts under subdivision (b)(1) of that section. We accept the concession and order the abstract corrected.
DISPOSITION
The trial court is directed to amend the abstract of judgment to correctly state that section 288, subdivision (a) pertains to lewd and lascivious acts upon a child, not “forcible” lewd and lascivious acts upon a child. The trial court is directed to transmit the amended abstract to all appropriate parties and entities. In all other respects the judgment is affirmed.


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POOCHIGIAN, Acting P.J.

WE CONCUR:


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FRANSON, J.


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MEEHAN, J.