People v. Contreras CA6

Filed 12/16/24 P. v. Contreras CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


 THE PEOPLE,                                                         H048703
                                                                    (Santa Clara County
           Plaintiff and Respondent,                                 Super. Ct. No. C1363256)

           v.

 JUAN CARLOS CONTRERAS,

           Defendant and Appellant.


         After a jury convicted Juan Carlos Contreras of child sexual abuse, the trial court
denied his motion for new trial and sentenced him to a term of 80 years to life in prison.
On appeal, Contreras argues his convictions must be reversed because the trial court
abused its discretion by failing to dismiss a juror for inattentiveness, erroneously
admitted expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS),
and erroneously instructed the jury on CALCRIM No. 1193. Contreras further argues the
prosecutor committed prejudicial misconduct in closing argument and that trial counsel
rendered ineffective assistance by failing to object to that misconduct. Finally, Contreras
contends that the criminal justice administration (CJA) fee the trial court imposed must
be vacated.
         We agree with the parties that effective July 1, 2021, any unpaid portion of the
$129.75 CJA fee the trial court imposed must be vacated. (See Gov. Code, § 6111,
subd. (a), added by Stats. 2020, ch. 92, § 11; see also id., former § 29550.1.) But
Contreras forfeited his claim of juror misconduct and has established no prejudicial error.
We vacate the CJA fee and otherwise affirm the judgment.
                                  I.    BACKGROUND

       The Santa Clara County District Attorney filed an information charging Contreras
with four counts of aggravated sexual assault of a child under age 14 and 10 or more
years younger than the defendant (Pen. Code, § 269; counts 1, 3, 4 & 6), and two counts
of sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7,
subd. (a); counts 2 & 5).1 The charged offenses took place between October 1, 2006 and
March 1, 2007. The victim, M. Doe, disclosed the abuse for the first time in 2012 and an
arrest warrant for Contreras was issued in 2013. Contreras was arrested in January 2018
and the case proceeded to trial in June 2019.
A.     Doe’s Testimony

       At the time of the charged offenses, Contreras was in an intimate relationship with
Doe’s mother, D.M., and lived with D.M., Doe, and Doe’s two older brothers in an
apartment in San Jose. Though Contreras was not Doe’s biological father, Doe
considered him to be a stepfather and called him “dad.” Doe, 18 at the time of trial,
testified that Contreras began sexually abusing him when he was five or six. The abuse
took place in the bedroom Contreras shared with D.M. Doe testified that though he slept
in the living room with his brothers, he was often in the bedroom during the day to watch
cartoons because that was where the television was located. Contreras would come into
the room, close the door, and force Doe to participate in anal or oral sex, sometimes both.
After each incident of abuse, Doe suffered from pain and discomfort in his anus, throat,
and jaw.
       Doe testified that Contreras sexually abused him daily for approximately one
week, and that while most of the abuse took place during the day, one incident occurred


       1
           Undesignated statutory references are to the Penal Code.
                                                2
at night. Doe could not recall where his mother was during the nighttime incident but
believed she was at work. Doe went along with Contreras’s abuse because Contreras was
a “father figure” to him and he did not want to make Contreras angry. Doe testified that
after forcing him to participate in oral or anal sex, Contreras would sometimes praise Doe
by calling Doe his favorite child, which gave Doe “solace” and “reassured [him] that
what [he] was doing was okay at that time.” The sexual abuse stopped a couple of
months before Doe’s youngest brother was born and never resumed. By Doe’s estimate,
Contreras put his penis in Doe’s anus four times and his penis in Doe’s mouth “about
three times.”
       Doe did not tell his mother about the abuse at the time because Contreras said he
would “eventually tell her” so there was no reason for Doe to “confess.” Contreras also
suggested that if Doe told D.M. about the abuse, Doe “would be taken away from” them
and would not be able to see them again. Shortly after D.M. gave birth to Doe’s youngest
brother, Contreras and D.M. separated and Doe, D.M., and Doe’s siblings went to live
with Doe’s grandmother. When Doe was 11 years old, Doe told D.M. and his pastor
about the abuse for the first time but did not provide specific details. After confiding in
his mother and pastor, Doe reported the abuse to the police.2
       On cross-examination, Doe was impeached with prior statements from his police
interview and from Contreras’s preliminary examination, and Doe admitted that some of
those statements were “lie[s].” Doe admitted having imaginary friends throughout his
childhood but denied that the sexual abuse he suffered was imaginary. Doe stated that his


       2
         Pastor Francisco Guerrero was unavailable to testify at trial and the parties
stipulated to the following: “[I]f called as a witness, [Pastor Guerrero] would testify that
in July of 2012 he met with . . . Doe and his mother, [D.M.], in his office. During the
meeting, he asked [Doe] if anyone had ever abused him. [Doe] covered his face and
responded, ‘Yes.’ [Doe] said that his stepfather had raped him approximately five years
before, when he was 5 to 6 years old. [¶] When asked to clarify if he was just touched or
raped, [Doe] said that he had been penetrated.”
                                              3
memory and understanding of the events surrounding the sexual abuse had “gotten
better” with time.
B.     CSAAS Evidence and CALCRIM No. 1193

       Over defense objection, the prosecution called Anthony Urquiza, Ph.D., who was
designated as an expert “in the myths and misperceptions about child sexual abuse and
child sexual abusers.” Preliminarily, Urquiza explained that he did not know the
underlying facts of the case, had not interviewed any participants or reviewed any
reports, and did not know what the specific charges were. Urquiza clarified that CSAAS
is not a diagnostic tool to determine whether a child had been sexually abused, that using
CSAAS for such a purpose is “inappropriate,” and that “[t]he responsibility for
determining whether somebody was abused or not or whether somebody was a
perpetrator or not is [the] responsibility of a jury.”
       Urquiza testified that a common misperception about child sexual abuse victims is
that they will report the abuse immediately: “[W]hile it does sometimes happen that kids
disclose soon after that initial instance of abuse, by far most kids have a significant delay
before they’re able to tell for the very first time of their abuse.” Such a delay, Urquiza
explained, can last “months or years, even decades.” Even when a child victim reports
sexual abuse, the report is often incremental and “unconvincing” because the account is
likely to change over time and is more like a process than an act. Urquiza explained that
child sexual abuse victims “may tell you something and then later on give you more
information; or they may tell you something and it may not be, from an adult view . . . [a]
convincing argument, but it is their perception of what happened.” The child victim may
provide “impossible” or “seemingly implausible” details in their disclosure, such as
saying they were abused “thousand[s of] times” when they simply mean the abuse had
occurred over and over. Urquiza explained that it is “common” for child victims
reporting sexual abuse to not display “outward signs of significant distress when
disclosing.”
                                               4
       On cross-examination, Urquiza was asked about “confabulation,” which he
defined as “[e]ssentially making up something that didn’t happen.” Urquiza testified
there was “no body of research to support the idea that confabulation is the source of
allegations that children have made with regard to being sexually abused.”
       Just after Urquiza testified, the trial court read the following instruction to the jury:
“Dr. Urquiza’s testimony about Child Sexual Abuse Accommodation Syndrome is not
evidence that the defendant committed any of the crimes charged against him. You may
consider this evidence only in deciding whether or not [Doe’s] conduct was not
inconsistent with the conduct of someone who has been molested and evaluating the
believability of his testimony.” The court read CALCRIM No. 1193 to the jury again at
the close of evidence.
C.     Contreras’s Testimony

       Contreras testified that he began dating D.M. in 2003 and moved in with her that
same year, when Doe was five years old. While living together, Contreras helped to pay
rent and living expenses and cooked meals for the children. The couple lived in a
two-bedroom apartment where initially, Contreras, D.M., and Doe slept in one bedroom
while Doe’s older brothers slept in the other, but after some friends came to live with
them, the two older kids moved into the living room. Contreras testified that he and D.M.
would often have sex when Doe was in bed with them and that this made Doe “very
upset.” Contreras attempted to persuade D.M. to have Doe sleep in the living room with
the other boys but Doe would “cry too much” and need to be with his mother. After the
couple moved to another apartment, Doe continued to sleep with Contreras and D.M.,
who continued having sex “on a regular basis” while Doe was in bed with them. Doe
acted “very offended” and angry toward Contreras and at one point told Contreras, “My
mom is mine.”
       Contreras stated that during the time he lived with D.M., he never played with Doe
or his brothers but would observe Doe playing with his “imaginary friends.” After the
                                               5
couple’s new baby was born, Doe was forced to go into the living room to sleep with his
brothers, at which point he became even more resentful toward Contreras and at one
point kicked him in the shins. Doe also pulled the baby’s ears and “crush[ed]” the baby’s
foot, though the baby was not injured as a result of Doe’s actions. Because Doe’s
behavior “got worse” after the baby’s birth, Contreras talked to D.M. about possibly
disciplining Doe, but D.M. told him not to do anything because Doe “was not
[Contreras’s] child.”
       After the baby was born, Contreras discovered that D.M. was cheating on him
with her boss. When he confronted D.M. about the affair and told her he was moving
out, she became “like a crazy person” and threatened Contreras by telling him he would
be “paying for it.”3 Contreras moved out of state to Florida and ended their relationship.
However, he and D.M. stayed in touch, both because they shared a child and because
D.M. “loved [him] a lot” and wanted to get back together. After Contreras moved to
Florida, D.M. brought two of the children (including Doe) to visit him on one occasion
but the couple never lived together again. Contreras denied ever sexually abusing Doe.
D.     Juror No. 2’s Self-Reported Inattentiveness

       At the beginning of trial, the jury included two alternates. Juror No. 12 was
excused and replaced with Alternate Juror No. 1. Juror No. 10 was then excused and
replaced with the last alternate juror. Contreras began his testimony the morning of
June 17, 2019, a Monday. After the lunch hour, Juror No. 2 told the court and counsel
that she had been the victim of domestic violence since the last court session and that her
husband had been arrested on felony charges with a restraining order. The juror
explained that she had no one to watch her three children and that she was also “not sure


       3
         Contreras’s sister-in-law testified on Contreras’s behalf and similarly recounted
hearing D.M. say in 2011 that “she would rather see [Contreras] dead or in jail.” The
sister-in-law also recounted D.M telling Contreras in March 2012, “You’re going to pay
for everything you’ve done to me.”
                                             6
if [she could] pay attention.” Juror No. 2 stated, “This—this whole morning, nothing
register[ed] in my head. So I’m not sure if I can stay.”
       Upon the trial court’s further inquiry, Juror No. 2 elaborated that her mother was
watching her children while she was at court, but “the more important thing is [her] state
of mind.” The court explained, “Now, I anticipate that we are very close to concluding
the evidence in the case, and the matter will be submitted. I also certainly understand that
it’s a trying time for you, but I need you to stay.” The court reiterated, “I really—I need
you to stay . . . [¶] . . . there’s no getting around it. I thought two alternates was enough
and I underestimated.” The court then asked Juror No. 2 whether taking some time off
would be helpful to her situation but Juror No. 2 declined, stating that if the trial were to
finish by Thursday, she would “go on with it,” and “try [her] best to stay focused.” The
court followed up with Juror No. 2 later that day, stating, “You seemed like you were
having no problem paying attention and focusing. Is that—am I correct in that?” Juror
No. 2 replied, “Yeah. I’ll try to stay focused.” Neither the district attorney nor
Contreras’s trial counsel had additional comments relating to Juror No. 2’s self-reported
inattentiveness, and neither sought to question Juror No. 2. Contreras’s trial counsel did
not object to Juror No. 2’s continued service on the jury or move for mistrial.
       The next morning, Contreras’s trial counsel expressed concerns relating to Juror
No. 2 for the first time: “I wanted to express my concern about Juror No. 2. I did not
hear her say this, but my colleague indicated that he heard her say that she wasn’t being
attentive during [Contreras’s] testimony. That’s just a source of concern.” The trial court
replied, “I spent a fair amount of time voir diring her as to her ability to pay attention
and—and checked in with her again at the end of the day. I feel confident that she has
been and will continue to be a valid member of the jury. And I’ve asked her, as you
know, to let me know if that’s not the situation.” Thereafter, counsel did not express
dissatisfaction with Juror No. 2’s service, did not object to her continued service, and did
not move for mistrial.
                                               7
E.     Closing, Verdict, New Trial Motion, and Sentencing

       One of the main defense theories at trial was that Doe fabricated the allegations of
sexual abuse against Contreras because D.M. wanted to make Contreras “pay” for not
getting back together with her. To dispel this theory, the prosecutor argued in closing:
“If this was some grand plan by [D.M.], how could she plan on the pastor [asking] this
question [whether Doe had been sexually abused]? What reason does the pastor have to
lie? How could [D.M.] count on [Doe] to be a willing and convincing coconspirator? [¶]
It’s ridiculous. It’s nonsense. It’s BS . . . . [¶] The defense has proposed to you that this
is a woman scorned. It’s the first comments in opening argument. It’s the second most
antiquated and offensive argument, after ‘she wanted it,’ in a sexual assault case.”
       Trial counsel did not immediately object to the prosecutor’s remarks but raised the
issue with the court during the first intervening break, stating: “I do think it’s improper
to say what I—I said in the court . . . [was] ‘BS.’ I don’t think that’s proper, and I would
like to see you indicate to [the district attorney] that that should stop, not to call what I
said ‘BS.’ ” The court agreed and admonished the prosecutor that “a different term
would be a more appropriate reference in counsel’s arguments.”
       After the jury found Contreras guilty on all charges, Contreras, with new counsel,
moved for new trial based on (1) ineffective assistance of trial counsel, (2) Juror No. 2’s
inattention, and (3) the prosecutor’s characterization of the defense theory as “BS” in the
prosecutor’s closing argument to the jury. Contreras contended that trial counsel was
ineffective in failing to present potential defense witnesses: (1) a defense expert to either
testify about confabulation or rebut Urquiza’s testimony about CSAAS, and (2) the
family’s pastor to testify that Doe made the allegations of abuse when the pastor
confronted Doe about his sexual orientation.
       After hearing trial counsel’s testimony, the trial court denied the motion. The
court concluded it was “pure speculation” that retaining a defense expert to opine on
confabulation would have resulted in a better outcome for Contreras. The court
                                               8
concluded there was no basis to excuse Juror No. 2 or to grant a new trial based on any
testimony the juror missed because the court “[did] not believe she missed any of the
testimony.” Finally, the court rejected Contreras’s allegations of prosecutorial
misconduct. The court sentenced Contreras to a term of 80 years to life and imposed
(among other fines and fees) a $129.75 CJA fee.
       Contreras timely appealed.
                                  II.    DISCUSSION
A.     The Juror Misconduct Claim is Forfeited

       Contreras contends the trial court abused its discretion by failing to remove Juror
No. 2 for her self-reported inattention. Contreras acknowledges that trial counsel never
sought Juror No. 2’s removal or a mistrial based on the juror’s self-reported inattention.
Contreras argues that neither measure was necessary, positing that the trial court had a
duty to remove the juror on its own motion, and alternatively, that any request for mistrial
would have been futile. Neither argument has merit.
       1.     Duty to Inquire Versus Duty to Discharge

       Once a juror is sworn, “great caution is required” before the juror may be
removed. Once on notice of potential cause to remove a juror, the trial court has an
independent duty to inquire into potential juror misconduct, “whether or not the defense
requests an inquiry, and indeed . . . even if the defendant objects to such an inquiry.”
(See People v. Cowan (2010) 50 Cal.4th 401, 506; see also People v. Johnsen (2021)
10 Cal.5th 1116, 1169 (Johnsen).) Contreras acknowledges that the court here conducted
an inquiry and does not dispute its adequacy. He instead contends that the court erred by
failing to remove Juror No. 2 on its own motion because “the juror’s inability to perform
her duty was clear.”
       But while the duty to inquire into potential juror misconduct lies with the court,
the duty to seek a juror’s removal lies with the defendant. To preserve a claim of
prejudicial juror misconduct, the defense must “ ‘propose additional questions [to be
                                              9
asked of jurors], object to any juror’s continued service, or request a mistrial on the
ground of juror misconduct.’ ” (Johnsen, supra, 10 Cal.5th at pp. 1169–1170.) The
requirement of a timely objection is no mere formality. Had Contreras requested the
juror’s removal “ ‘the court could have formally ruled on the matter . . . and cured the
problem,’ if any, by excusing the juror and substituting an alternate”—or here, where
there were no alternates left, entertained Contreras’s motion for mistrial. (People v.
Holloway (2004) 33 Cal.4th 96, 124 (Holloway).)
       After the trial court completed its inquiry into Juror No. 2’s ability to serve, trial
counsel neither sought further inquiry nor objected to Juror No. 2’s continued service.
And while counsel the next day “express[ed] [his] concern” about Juror No. 2’s
inattentiveness, counsel stopped short of any objection to the court’s indication it was
“confident that she has been and will continue to be a valid member of the jury.”
Counsel’s identification of a concern—untethered from any request for reconsideration of
the ruling, for further inquiry, or for a mistrial—is insufficient to preserve a claim of juror
misconduct when “defense counsel thereafter expressed no dissatisfaction with the
[court’s] inquiry or with the jurors’ continued service.” (People v. Foster (2010)
50 Cal.4th 1301, 1341, fn. 17.) “Having expressed no desire to have the juror discharged
at the time, and indeed no concern the juror had engaged in prejudicial misconduct,
defendant ‘is not privileged to make that argument now for the first time on appeal.’ ”4
(Holloway, supra, 33 Cal.4th at p. 124; see also Johnsen, supra, 10 Cal.5th at p. 1170
[holding that by “failing to seek Juror Y.P.’s excusal or otherwise object to the court's



       4
          Although it was in his new trial motion that Contreras first raised his claim of
juror misconduct (§ 1181, subd. 3), he has not argued on appeal that the trial court abused
its discretion in denying that motion. Instead, he maintains that the court erred in failing
to excuse Juror No. 2 upon inquiry. We note that at the hearing on his new trial motion,
Contreras called trial counsel to testify about the adequacy of his representation but did
not examine counsel about his handling of Juror No. 2’s disclosure.

                                              10
course of action, [defendant] forfeited his claim that the court should have removed Juror
Y.P.”].)
       By failing to seek further inquiry or removal of Juror No. 2, Contreras has
forfeited this claim.
       2.     Futility

       It is true that “ ‘[r]eviewing courts have traditionally excused parties for failing to
raise an issue at trial where an objection would have been futile . . . .’ ” (People v. Brooks
(2017) 3 Cal.5th 1, 92.) But Contreras has not established the “unusual circumstances”
that would support an inference of futility here. (Cf. People v. Hill (1998) 17 Cal.4th
800, 822 (Hill).)
       In Hill, for example, the Supreme Court excused defense counsel’s failure to
object to prosecutorial misconduct, because counsel had repeatedly objected in vain to
“continual” misconduct, but the trial court not only overruled the objections but chastised
counsel in the jury’s presence for being “obstructionist.” (Hill, supra, 17 Cal.4th at
p. 821.) In the “unusual circumstances” of this “poisonous” environment, counsel “could
reasonably infer from the general tenor of the trial court’s prior rulings and comments
that it disfavored additional interruptions,” and that further objection “would risk
additional critical comments . . . that would suggest to the jury the trial court believed
[counsel] was unnecessarily prolonging the proceedings by interposing ‘meritless’
objections.” (Id. at pp. 821, 822; see also People v. Zambrano (2004) 124 Cal.App.4th
228, 237 [excusing failure to object to a line of cross-examination after the trial court had
overruled objections to a similar line of questioning and argument].) By contrast, in
People v. Riel (2000) 22 Cal.4th 1153 (Riel), the court applied “[t]he normal rule
requiring an objection . . . , not the unusual one applied to the extreme circumstances of
[Hill],” concluding the record presented no unusual circumstances: “The trial atmosphere
was not poisonous, defense counsel did not object at all, and the record fails to suggest
that any objections would have been futile. (Riel, at p. 1213.)
                                              11
       Contreras argues that an objection or request for mistrial here would have been
futile because “[t]he trial court was going to make sure Juror No. 2 stayed seated because
the alternative, a mistrial, was simply not an option the trial court was willing to
consider.” To be sure, the trial court’s exchange with Juror No. 2 suggested its panic at
the prospect of a mistrial. The court discounted Juror No. 2’s own report that for a
half-day of the defense case, “nothing register[ed] in my head,” given her reported
experience of domestic abuse, the arrest and release on bail of the alleged perpetrator, and
her related struggle to provide appropriate care for her children. In urging the juror to
“do [her] best to pay attention,” the court invoked its own dilemma of having
underestimated the need for alternates and emphasized its need to retain Juror No. 2.
       But on this record we cannot conclude that a timely request for Juror No. 2’s
removal would have been futile. Indeed, the trial court’s effort to rehabilitate the juror
would seem to reflect its recognition that her answers mattered to its determination
whether to excuse her. (And it acknowledged in entreating her to stay that it had not yet
heard from counsel for the parties, signaling its awareness that counsel might prefer a
different approach.) The court’s readiness to retain the juror does not allow us to infer
that it would have denied counsel an opportunity to inquire further or overruled a timely
objection to the adequacy of the juror’s commitment to “try her best.” (Compare Riel,
supra, 22 Cal.4th at p. 1213 [declining to apply futility exception when “defense counsel
did not object at all”], with Hill, supra, 17 Cal.4th at pp. 821–822 [deeming further
objection futile, after counsel had objected repeatedly to prior misconduct before
yielding].) And unlike Hill, the record here does not betray a “ ‘poisonous’ ” trial
atmosphere that would have deterred counsel from doing either. (See Riel, at p. 1212.)
       There are thus no “unusual circumstances” in this case that warrant applying the
futility exception to the forfeiture rule. We conclude that the juror misconduct claim is
forfeited.


                                             12
B.     No Abuse of Discretion in Admitting CSAAS Testimony

       Next, Contreras argues the trial court abused its discretion in admitting Urquiza’s
CSAAS testimony because the testimony was not relevant, unduly prejudicial, and
unreliable under the Kelly rule.5 He contends that admission of the testimony violated his
due process rights. There was neither an abuse of discretion nor a constitutional
violation.
       1.      The Evidence was Relevant and Not Unduly Prejudicial

       California courts have long held expert testimony concerning CSAAS admissible
“ ‘to disabuse jurors of commonly held misconceptions about child sexual abuse, and to
explain the emotional antecedents of abused children’s seemingly self-impeaching
behavior.’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1301 (McAlpin); see also People
v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker) [limiting the permissible purpose to
“showing that the victim’s reactions . . . are not inconsistent with having been
molested”].)
       Although Contreras now disputes that “the public [still] holds the presumed
misconceptions CSAAS purports to address,” this is not the argument he made or
substantiated in the trial court. And “ ‘[t]he jury need not be wholly ignorant of the
subject matter of the opinion’ ” for a trial court to reasonably conclude that Urquiza’s
expert testimony regarding delayed disclosure, victim demeanor, and inconsistencies in
the victim’s testimony would still assist the jury as Evidence Code section 801
contemplates. (McAlpin, supra, 53 Cal.3d at p. 1299, italics added.)
       Contreras next argues that CSAAS evidence was not relevant in his case because
Doe did not recant. But recantation (or retraction) was only one facet of Urquiza’s


       5
         “Formerly known as the Kelly-Frye rule, based on People v. Kelly (1976)
17 Cal.3d 24 (Kelly) and Frye v. U.S. (D.C. Cir. 1923) 293 F. 1013, the rule is now the
Kelly rule in California after changes to the Federal Rules of Evidence that superseded
Frye.” (People v. Nieves (2021) 11 Cal.5th 404, 442, fn. 8.)
                                             13
CSAAS testimony. Urquiza testified about the common occurrence of “delayed and
unconvincing disclosure,” which was central to Contreras’s challenge to Doe’s
credibility. During Doe’s testimony, the defense cross-examined Doe extensively on
how his account of the abuse evolved and accused Doe of lying due to his prior
inconsistent and incomplete statements. In closing argument, counsel emphasized how
Doe in his recorded police interview neither cried nor showed “emotional attachment to
his description” of the sexual abuse, and suggested that Doe must therefore be lying.
Counsel also argued that inconsistencies in Doe’s account of the sexual abuse made it the
likely “confabulation” of “false memory.” Urquiza’s testimony, which discussed
commonly held misconceptions involving delayed reporting, inconsistent, incremental,
and unconvincing disclosure, and abuse victim demeanor, provided the jury with an
alternative framework through which to assess Doe’s testimony and to interpret Doe’s
“seemingly self-impeaching” behavior at trial. (McAlpin, supra, 53 Cal.3d at p. 1301.)
       Nor has Contreras demonstrated any abuse of discretion in not excluding
Urquiza’s testimony under Evidence Code section 352. Contreras argues the testimony
was unduly prejudicial because of the “likelihood the jury will misuse it as a diagnostic
tool to determine if the complaining witness[] has been molested.” But Urquiza made
clear that CSAAS testimony is “not diagnostic” but a syndrome of “just things that tend
to co-occur” but “don’t point to a specific etiology.” The court further instructed the jury
(both after Urquiza’s testimony and at the end of the case) that the CSAAS testimony “is
not evidence that the defendant committed any of the crimes charged against [Doe].”6
Contreras offers nothing that would overcome our typical presumption that the jury
followed this instruction. (See People v. Cain (1995) 10 Cal.4th 1, 34.)
       The trial court did not abuse its discretion in admitting this evidence.



       6
         We address Contreras’s claim of instructional error relating to this jury
instruction in the next section.
                                             14
       2.     The Kelly Rule Did Not Apply

       Finally, Contreras argues that Urquiza’s CSAAS testimony was inadmissible
because it had not been deemed reliable under Kelly, supra, 17 Cal.3d at p. 30. Under the
Kelly rule, the admissibility of evidence derived from a new scientific method or test
yielding a specific conclusion or result depends on the reliability of the method (as
evidenced by its general acceptance in the relevant scientific community), as well as the
qualifications of the expert opining on the subject and the application of correct
procedures. (See ibid.) But Kelly “ ‘only applies to that limited class of expert testimony
which is based, in whole or part, on a technique, process, or theory which is new to
science and, even more so, the law.’ ” (People v. Jackson (2016) 1 Cal.5th 269, 316;
People v. Peterson (2020) 10 Cal.5th 409, 457.) Expert testimony based on a new
scientific theory or on a “novel technique” designed to provide “some definitive truth”
warrants the “additional scrutiny” that Kelly provides. (See Peterson, at pp. 457–458.)
       The CSAAS evidence admitted here is not new. (See Bowker, supra,
203 Cal.App.3d at p. 389, fn. 3 [CSAAS dates back to at least 1983].) Nor did Urquiza
purport to provide a definitive truth that would require Kelly scrutiny; Urquiza expressly
disclaimed any such intent. Rather, his CSAAS testimony was limited to countering
potential misconceptions about how children who have been sexually abused would react
and report. (See McAlpin, supra, 53 Cal.3d at p. 1301.) It was therefore not “scientific
evidence” subject to the Kelly rule. (People v. Lapenias (2021) 67 Cal.App.5th 162, 173
(Lapenias) [Kelly rule does not apply to CSAAS evidence]; People v. Munch (2020)
52 Cal.App.5th 464, 472–473 (Munch) [accord].)7



       7
         Having rejected each of the underlying claims of error in admitting CSAAS
evidence, we accordingly reject Contreras’s due process claim. (People v. Scott (2011)
52 Cal.4th 452, 487, fn. 29 [noting that “rejection of a claim on the merits necessarily
leads to rejection of any constitutional theory or ‘gloss’ raised [on appeal]”].)

                                             15
C.     CALCRIM No. 1193

       Contreras next argues that CALCRIM No. 1193 erroneously permits the jury to
consider CSAAS testimony in determining Doe’s credibility, and in doing so, lessens the
prosecutor’s burden of proof.8 The trial court here instructed the jury: “Dr. Urquiza’s
testimony about [CSAAS] is not evidence that the defendant committed any of the crimes
charged against him. [¶] You may consider this evidence only in deciding whether or
not . . . Doe’s conduct was not inconsistent with the conduct of someone who has been
molested and evaluating the believability of his testimony.” (Italics added.)
       We review a claim of instructional error de novo. (Lapenias, supra,
67 Cal.App.5th at p. 175.) “The challenged instruction is considered ‘in the context of
the instructions as a whole and the trial record to determine whether there is a reasonable
likelihood the jury applied the instruction in an impermissible manner.’ ” (People v.
Rivera (2019) 7 Cal.5th 306, 326 (Rivera).)
       Multiple Courts of Appeal have upheld the language of CALCRIM No. 1193, as
recited above, as accurately informing the jury of the limited use of CSAAS evidence.
(People v. Gonzales (2017) 16 Cal.App.5th 494, 503–504; Munch, supra, 52 Cal.App.5th
at pp. 473–474; Lapenias, supra, 67 Cal.App.5th at pp. 175–176.) Moreover, assuming
without deciding that the reference to believability as a distinct purpose in the last
sentence of the instruction may create some ambiguity, we consider it unlikely that the
jury here would have applied the instruction in an impermissible manner. (See Rivera,
supra, 7 Cal.5th at p. 326.) Urquiza’s testimony was appropriately limited—he did not
render an opinion on whether Doe was molested, and indeed, went out of his way to
clarify that CSAAS evidence is not “diagnostic,” cannot be used to determine whether a
child was abused, and that “[t]he responsibility for determining whether somebody was
       8
         We reach the merits of this claim despite Contreras’s failure to object in the trial
court. (§ 1259.) The claim in essence is that the instruction is not “ ‘correct in law’ ” and
affected his substantial rights. (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.)

                                              16
abused or not or whether somebody was a perpetrator or not is [the] responsibility of a
jury.” Nor did the prosecutor argue improper inferences from Urquiza’s testimony. And
CALCRIM No. 1193 further informs the jury that CSAAS evidence “is not evidence that
the defendant committed any of the crimes charged.”
       On this record, we find no merit to Contreras’s assertion that the reference to the
“believability of the witnesses” in CALCRIM No. 1193 would have led the jury to
believe it was free to use the CSAAS evidence to “diagnose” Doe with having been
abused—rather than to intelligently decide whether Doe’s behavior was self-impeaching.
We reject Contreras’s claim that the instruction impermissibly lowered the prosecutor’s
burden of proof.
D.     Prosecutorial Misconduct and Ineffective Assistance of Trial Counsel

       Contreras argues that the prosecutor committed prejudicial misconduct in closing
argument by launching a “vitriolic attack” on Contreras’s trial counsel. What Contreras
on appeal identifies as misconduct are the prosecutor’s characterization of defense
theories as “ridiculous,” “nonsense,” “BS,” and “antiquated and offensive.” Although
trial counsel did not immediately object and arguably forfeited this claim,9 we address the
merits, given Contreras’s additional argument that counsel was constitutionally
ineffective for failing to preserve the issue. (See People v. Rodrigues (1994) 8 Cal.4th
1060, 1125–1126.) While we do not condone the intemperance of the comments
Contreras has identified, we do not find these rose to the level of prosecutorial
misconduct.




       9
         While it is true that counsel did not object at the time of the remark, counsel
raised the issue with the trial court at first opportunity outside the presence of the jury and
asked the court to admonish the prosecutor “not to call what I said ‘BS.’ ” The court
obliged and admonished the prosecutor to use a different term.
                                              17
       1.     Attacking Defense Theory versus Attacking Defense Counsel

       During closing argument, the prosecutor ridiculed Contreras’s theory that Doe
fabricated the sexual abuse allegations against Contreras at his mother’s behest as
payback for Contreras’s rejection of her: “If this was some grand plan by [D.M.], how
could she plan on the pastor [asking]this question [regarding whether Doe had been
sexually abused]? What reason does the pastor have to lie? How could [D.M.] count on
[Doe] to be a willing and convincing coconspirator? [¶] It’s ridiculous. It’s nonsense.
It’s BS. . . . [¶] The defense has proposed to you that this is a woman scorned. It’s the
first comments in opening argument. It’s the second most antiquated and offensive
argument, after ‘she wanted it,’ in a sexual assault case.”
       A prosecutor “ ‘ “ ‘is given wide latitude during argument’ ” ’ ” and may
“ ‘ “vigorously argue [the People’s] case” ’ ” without being “ ‘ “limited to
‘Chesterfieldian politeness.’ ” ’ ” (Hill, supra, 17 Cal.4th 819.) “ ‘It is, of course,
improper for the prosecutor “to imply that defense counsel has fabricated evidence or
otherwise to portray defense counsel as the villain in the case. . . . Casting uncalled for
aspersions on defense counsel directs attention to largely irrelevant matters and does not
constitute comment on the evidence or argument as to inferences to be drawn
therefrom.” ’ ” (People v. Redd (2010) 48 Cal.4th 691, 749.) Yet our high court has
discerned no error in closing argument that “challenges the insinuations—not the
character—of defense counsel.” (See People v. Lewis (2009) 46 Cal.4th 1255, 1305
[finding no misconduct in prosecutor’s argument that defense counsel’s “ ‘insinuations
are false, and all they can do possibly is mislead you’ ”].) Here, the prosecutor’s remarks
were tethered to the evidence and represented an attack on defense theory, not defense
counsel’s integrity. (See Redd, at p. 749 [calling defense theory “ridiculous” and
“preposterous” is not misconduct].) The remarks did not rise to the level of the
denigration of counsel as the Supreme Court has defined it.


                                              18
       2.     Trial Counsel’s Failure to Object

       Contreras relatedly argues he was denied his constitutional right to effective
assistance of counsel because trial counsel failed to object to the prosecutor’s “BS” and
“antiquated” remarks. Initially, because we have concluded that the prosecutor did not
engage in misconduct, counsel cannot be said to have rendered deficient performance by
failing to object to that non-misconduct. But even if the identified arguments were
objectionable, “ineffective assistance of counsel will be found [on direct appeal] only if
the record affirmatively demonstrates trial counsel had no rational tactical purpose for the
challenged act or omission.” (People v. Ramirez (2023) 98 Cal.App.5th 175, 226.) Here,
it is plausible that counsel calculated that objecting to the prosecutor’s remarks would at
best give the prosecutor an excuse to reiterate the same substantive points in only
marginally moderated form, calling attention to the defense failure to substantiate its
various theories of Doe’s motive to lie. Counsel may also have calculated that a curative
instruction was unnecessary for the jury to recognize and discount the prosecutor’s
rhetorical excess. “ ‘[D]eciding whether to object is inherently tactical, and the failure to
object will rarely establish ineffective assistance.’ ” (People v. Harris (2008) 43 Cal.4th
1269, 1290.) It does not do so here.
                                  III.   DISPOSITION

       The judgment is modified to vacate any portion of the criminal justice
administration fee that remained unpaid as of July 1, 2021. The trial court is directed to
prepare an amended abstract of judgment reflecting the modification and transmit it to the
California Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.




                                             19
                                        _____________________________________
                                        LIE, Acting P. J.




WE CONCUR:




_____________________________________
WILSON, J.




_____________________________________
BROMBERG, J.




People v. Contreras
H048703