Opinion
A146054
01-11-2018
THE PEOPLE, Plaintiff and Respondent, v. NEIL AUNKO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC081427A)
Defendant Neil Aunko sexually abused his young stepdaughter, A., for over two years. After he also engaged in inappropriate sexual behavior with A.'s friend, M., the girls reported his actions to A.'s mother. A jury convicted him of forty counts of various sexual offenses against children, and the trial court sentenced him to 195 years to life in prison.
On appeal, Aunko claims that his convictions must be reversed because of errors involving expert testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS), a model that describes typical responses of child victims of sexual abuse. In particular, he contends that (1) the trial court wrongly allowed the prosecution's expert witness to testify on redirect that children rarely make false accusations of sexual abuse; (2) the jury was incorrectly instructed that it could consider the CSAAS testimony in "evaluating the believability" of the victims' testimony; (3) his trial counsel rendered ineffective assistance by failing to object to the prosecutor's improper comments about the CSAAS testimony; and (4) there was cumulative error. He also argues that, even if we do not reverse his convictions, remand is required because the court failed to conduct an in camera review of A.'s psychological records to search for evidence that might have supported his motion for a new trial. We reject these contentions and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Girls' Initial Report of Aunko's Abuse.
Aunko began dating A.'s mother in 2009, and they married in late 2010, when A. was nine years old and Aunko was 37 years old. The family, which also included A.'s two older brothers, originally lived in a two-bedroom apartment in San Mateo. A. shared a bedroom with her brothers, who slept in a bunk bed while she had her own bed. In the summer of 2012, the family moved to a four-bedroom house in a small town in San Mateo County. A. had her own bedroom in the new house.
The following summer, A. met 11-year-old M. at a local pool. They became friends, and M. spent the night at A.'s house several times. The night of August 15, 2013, during one of those sleepovers, the girls were sleeping together on A.'s bed when Aunko came into the room and lay on top of M. With M.'s encouragement, A. told her mother the following morning that Aunko had been sexually abusing her since the family moved to San Mateo. A.'s mother called the police.
A San Mateo County Sheriff's deputy responded to A.'s home. A., who was "visibly upset" and crying, told the deputy that Aunko "had been placing his penis in her anus" for "about two and a half years, almost every night." She stated that Aunko also "sometimes . . . put his fingers inside her vagina, and then sometimes he also took his tongue and licked her vagina." She had asked Aunko to stop, but he told her he would hit her if she said anything. A. reported that Aunko had last sodomized her two nights earlier.
The sheriff's deputy also interviewed M., who seemed "fine." M. stated that the previous night Aunko had come into the bedroom where the girls were sleeping and "stood at the end of the bed for a while and then crawled on top of her and [lay] on top of her." After M. moved her body as if waking up, Aunko left the room. M. said she that she had slept over at A.'s house about seven times and that Aunko lay on top of her at least three other times.
After speaking with the sheriff's deputy, A. went to the Keller Center, a child advocacy center where physical examinations and forensic interviews of potential victims of sexual abuse are performed. A medical exam of A. revealed no injuries to her anal area or vaginal area. Testing on swabs collected from her anal cavity was inconclusive about the presence of semen. An expert in examinations of sexual assault victims testified that about 95 percent of the medical exams conducted on children who have been sexually abused are normal, even in cases of "repeated forcible abuse," and such a result "in no way implies that nothing occurred."
The same day, A. made a pretext call to Aunko under the instruction of the investigating detective. A. told Aunko that she was about to be examined by a doctor and asked whether she was "sexually active." Aunko responded, " 'Well, you're not, as far as I know. . . . [¶] . . . [¶] . . . Are you?' " The detective testified that this response was "quite interesting" because Aunko's statement, " 'Are you?,' " was said not "in a manner in which he was asking; it was almost in a manner of telling." According to the detective, when A. asked Aunko what she should say about him " 'putting [his] penis in [her] butt,' " Aunko "[v]ery calmly" asked to speak to A.'s mother.
B. The Girls' Additional Statements.
1. M.'s forensic interview and testimony.
A couple weeks later, M. was interviewed at the Keller Center, and a video recording of the interview was played for the jury. She stated that on at least four occasions, she had awakened to find Aunko on top of her "humping [her] a little" on her buttocks, and that sometimes after she fell asleep again he would come back. M. had previously told A. what Aunko was doing, and A. said that Aunko did things to her too but she was afraid to tell because he had threatened to hit her. M. said that A. also told her that Aunko would get drunk and sometimes hit A.'s mother, who was planning to leave him. A. planned to wait until her mother broke up with Aunko to report his behavior, but M. was finally able to convince A. to tell after the August 15 incident. M. explained that her father had been convicted of molesting her and she knew reporting Aunko was the right thing to do. M.'s testimony at trial, which occurred when she was 12 years old, was generally consistent with what she had said during the forensic interview.
The parties stipulated that M.'s father "was properly convicted" in another state of molesting her.
2. A.'s forensic interview and testimony.
A. was interviewed at the Keller Center immediately after she reported the abuse, and a video recording of her interview was also played for the jury. In the interview, A. reported that Aunko had started abusing her after he married her mother, when the family was living in the San Mateo apartment. During the earliest incident of abuse she could remember, Aunko took his penis out while she was using the computer. When she told him to stop, he said, " 'What[, i]t's just life. You need to experience life.' "
On most other occasions, Aunko would come into A.'s bedroom at night. He would begin by pulling down her pajama pants and "put[ting] his penis in [her] anus." He would then "stick his finger in [her] vagina" and use his mouth and tongue on it. Finally, he would leave, and A. would cry and try to fall asleep. Aunko performed the same acts on her "almost every night" in both the apartment and the house, and he sometimes also sucked on her nipples or made her touch his penis. He would ejaculate on her bedding and clothes, and she would feel something like "warm water" on her legs. Occasionally, he also abused her during the daytime if she was home sick from school and they were alone.
A. said that she sometimes tied her pajama pants on "really tight" so Aunko could not sexually assault her, but he would cut them with scissors. In particular, she mentioned that he had cut her favorite pajama pants, which were Paul Frank brand. Her mother had a matching pair, and after A.'s were cut A. put them in her mother's closet so her mother "would think it just ripped and . . . nobody would find out."
A. stated that Aunko would pin her down and hit her, causing bruises, any time she tried to escape from him or told him to stop. He would tell her, " 'Don't be afraid. It's just life, you know? Live life to the fullest. And stop being so afraid because no one's gonna find out.' " One time in the San Mateo apartment, A. tried to leave the bedroom to tell her mother, but Aunko kept "bringing [her] back in the bedroom because he's a lot stronger than [her]" and eventually got "frustrated" and began hitting her.
A. said Aunko was often drunk and was very mean to her, her brothers, and her mother. A.'s mother was planning to divorce Aunko because "he would verbally abuse [A.'s mother] and stuff." When A.'s mother told A. she was going to leave him, A. felt "really relieved," and she planned to tell her mother about the abuse after he was gone. M. convinced A. to report the abuse sooner because M. had "been through this before with her dad" and told her it would be harder to find Aunko if she waited to tell.
At trial, A.'s mother confirmed she was already planning to leave Aunko before A. reported the abuse and had spoken to her daughter about the issue.
A. was 13 years old at the time of trial. Her testimony about Aunko's abuse and threats mostly echoed what she had said during her forensic interview, including her statements about the same three acts he would perform on her almost every night, his hitting her, and the cutting of her pajamas. She also testified that, even though her brothers were in the bedroom when Aunko sexually abused her in the San Mateo apartment, they were "very deep sleepers" and she "[did not] think they knew what was going on at all." At one point, A. tried to tell one of her brothers about the abuse, but he did not believe her. In addition, A. testified that her mother went to sleep before everyone else and would sometimes take sleeping pills.
A.'s mother confirmed that she was usually the first person in bed and that Aunko would stay up much later than she did.
D. The Physical Evidence.
After taking the girls' report, the sheriff's deputy collected a pink blanket that appeared to have "remnants of semen" on it from A.'s bed. A. stated that Aunko lay on the blanket "every time" he was in her room. The criminalist who examined the blanket testified that it had 12 separate stains that fluoresced, indicating possible semen. Because there were so many stains, she sampled only two, both of which contained large amounts of sperm that DNA testing confirmed was Aunko's.
About two weeks later, the detective investigating the case asked A.'s mother to collect A.'s bedding and other items. A.'s mother provided the detective with a floral sheet that had been on A.'s bed on August 15. The criminalist testified that she found one of Aunko's sperm on the sheet, and several areas of the sheet tested positive for acid phosphatase, "an enzyme that's found in high concentrations in semen."
A.'s mother also located A.'s Paul Frank pajamas in her own closet. The waist tie was double-knotted, and there was a cut in the back of the pants. Three areas on the inside of the pants, including one "in the rear of the crotch area," tested positive for Aunko's sperm. Several months later, after Aunko had been arrested and A.'s mother was "cleaning out his things," she found a pair of scissors with a fiber stuck in them in the back of his nightstand. The fiber was the same bright-pink color as A.'s Paul Frank pajamas.
E. The Defense Case.
Aunko testified in his own defense. He denied molesting A. or M. He claimed that on the night before the girls reported the abuse, he went into A.'s bedroom to get one of the family's pets, a feral cat, who was "howling." He claimed that he sat on the corner of the bed and tried to entice the cat to come out from under the desk. He saw that M. was awake, and he told her it was okay because he was just getting the cat.
Aunko testified that "[p]robably more than once" he had used A.'s pink blanket, which was left around the house, to cover himself and keep himself warm while he masturbated. He claimed that on one occasion after using the blanket this way, he put it back in A.'s bedroom, and he also testified that A. did not do her laundry very often. He speculated that his semen may have transferred from the blanket onto the floral sheet, but he could not explain how the substance got on the inside of A.'s pajama pants except to say that the house was very messy. Yet two character witnesses, friends of his who claimed he was an honest and gentle person, testified that the house was generally clean.
G. The Verdicts and Sentencing.
The jury found Aunko guilty of all 40 felony counts with which he was charged, 36 pertaining to A. and the rest pertaining to M. Six counts of sodomy with a child 10 years of age or younger (counts 1-6), six counts of oral copulation with a child 10 years of age or younger (counts 7-12), and six counts of digital penetration with a child 10 years or younger (counts 13-18) were based on acts when A. was between eight and ten years old. Eighteen counts of lewd or lascivious acts by use of force upon a child under 14 years of age, six based on sodomy (counts 19-24), six based on oral copulation (counts 25-30), and six based on digital penetration (counts 31-36), were based on acts when A. was 11 years old. Finally, four counts of lewd or lascivious acts upon a child under 14 years of age (counts 37-40) were based on the acts against M. The jury also found true the allegations for each count that Aunko committed a sex offense against more than one victim.
These convictions were under Penal Code sections 288.7, subdivisions (a) (sodomy) and (b) (oral copulation and digital penetration). All further statutory references are to the Penal Code unless otherwise noted.
These convictions were under section 288, subdivision (b).
These convictions were under section 288, subdivision (a).
These allegations were found true under section 667.61, subdivision (e)(4).
After denying Aunko's motion for a new trial, the trial court sentenced Aunko to a total term of 195 years to life in prison, comprised of three consecutive terms of 25 years to life for counts 1-3, three concurrent terms of 25 years to life for counts 4-6, twelve concurrent terms of 15 years to life for counts 7-18, six consecutive terms of 15 years to life for counts 19-24, twelve concurrent terms of 15 years to life for counts 25-36, two consecutive terms of 15 years to life for counts 37 and 38, and two concurrent terms of 15 years to life for counts 39 and 40.
II.
DISCUSSION
A. The Trial Court Did Not Err by Refusing to Strike the CSAAS Expert's Testimony on Redirect that Children Rarely Make False Accusations of Sexual Abuse.
Aunko contends that the trial court erred by failing to strike the testimony of the prosecution's CSAAS expert that false accusations of child molestation are "very uncommon or rare." We disagree.
1. Additional facts.
Before trial, the People sought to present expert testimony about CSAAS. The motion explained that such evidence was relevant to correct misconceptions about how child victims of sex crimes normally act, including the possibility that the jury would conclude A. and M.'s delayed disclosure of Aunko's sexual abuse was "inconsistent with actual victimization." The motion emphasized that the expert would " not opine . . . that the victims were actually molested in this case."
In response, Aunko filed a motion in limine to limit testimony about CSAAS. Although he acknowledged such testimony was admissible to correct a jury's misconceptions about how child victims of sexual abuse act, he argued that the expert should not be allowed "to improperly use statistics, percentages, or estimates regarding populations of abuse victims" to suggest the likelihood that A. and M. were being truthful. Specifically, Aunko argued that testimony about the statistical probability that a claim of abuse is true would be irrelevant and unduly prejudicial to the extent it would invite a juror to calculate the likelihood that the girls were telling the truth. Based on the parties' stipulation, the trial court then ordered that the People could present expert testimony about CSAAS but could not "go into percentages unless percentages become relevant based on the cross-examination questions of defense counsel."
At trial, Dr. Anthony Urquiza, Ph.D., a licensed psychologist and professor of pediatrics, was qualified as an expert on CSAAS. He testified that CSAAS is an "educational tool" first developed in the early 1980's that aims to explain "the common characteristics that happen with kids who have been abused and to dispel any misperceptions or myths [a person] may have about sexual abuse." The model is not diagnostic and applies only to children who have been sexually abused. Dr. Urquiza made clear that he had "no knowledge of the specific facts of this case" and was explaining general concepts, not opining "about anything related to whether somebody is guilty or innocent or whether somebody is abused or not abused."
According to Dr. Urquiza, CSAAS has five components: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction or recantation. Secrecy refers to the fact that children often do not disclose sexual abuse. Their abusers are usually authority figures and are in a position to pressure them to keep quiet, whether through overt threats, intimidation, or coercion. The second component, helplessness, is like secrecy in that it involves abusers' authority over children: a child effectively does not have the option to resist and will not yell or try to fight off an abuser.
On cross-examination, Dr. Urquiza clarified that "it is not typical that other people are present" during sexual abuse of children but also stated, "I've had a number of cases where things happen underneath blankets. I've had kids who have been sexually abused on a bunk bed where they were on the bottom bunk bed and somebody was asleep on the top. [¶] . . . So it sometimes happens that other people are around, but it doesn't happen a lot."
The third component, entrapment and accommodation, refers to children's feelings of being trapped in a situation and resulting coping mechanisms. Dr. Urquiza testified that he was aware of various things children do to cope with sexual abuse, including lying still and pretending to sleep, other manipulation of the environment, and dissociation, the last of which may lead a child to appear detached instead of distressed when recounting their experiences.
The fourth component, delayed and unconvincing disclosure, refers to the fact that "it is common for kids to keep quiet about sex abuse for a very, very long time" and that, when they do disclose abuse, they may not recall the details, especially if they were abused on many occasions. Delayed disclosure is often also related to an abuser's power over a child, which causes the child to fear the consequences of revealing the secret. Finally, the component of retraction or recantation refers to the propensity of children who disclose sexual abuse to withdraw the allegation, often because of familial pressure.
The concept of children falsely reporting sexual abuse was not mentioned during Dr. Urquiza's direct examination. But on cross-examination, Aunko's trial counsel asked, "Does [CSAAS] address false reports of abuse?" Dr. Urquiza responded that it does not. On redirect, after noting that Dr. Urquiza had been asked about fabricated reports, the prosecutor asked, "[I]n your experience is that common?" Aunko's counsel objected, and the prosecutor stated, "Counsel brought it up." After the trial court overruled the objection, Dr. Urquiza responded, "We actually have research literature on false allegations of sexual abuse. . . . [¶] Does it happen? Certainly. Does it happen very often? No. It is very uncommon or rare that there's a false allegation of sexual abuse."
2. Discussion.
Aunko claims that the testimony about the rarity of false accusations was inadmissible because it (1) was not relevant, (2) lacked foundation, (3) was unduly prejudicial, and (4) violated his federal right to due process. We conclude that the trial court did not err by refusing to strike this testimony and that the testimony's admission was harmless in any event.
Expert testimony about CSAAS is inadmissible on the issue whether a particular child was actually sexually abused, but it is permitted "for the limited purpose of disabusing the jury of misconceptions as to how child victims react to abuse." (People v. Bowker (1988) 203 Cal.App.3d 385, 392 (Bowker).) In particular, it "is admissible to rehabilitate [a complaining] witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation." (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin).) We review the trial court's admission of expert testimony for an abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45.)
Aunko first claims that whether false allegations are rare has "no bearing on whether the allegations in this case are true." Although it is true that CSAAS testimony is inadmissible to prove that a complaining witness suffered abuse, such testimony is admissible to address misconceptions about how child victims of sexual abuse typically act, an issue that bears on a witness's credibility. (See McAlpin, supra, 53 Cal.3d at p. 1300.) Moreover, the testimony was elicited by the prosecutor after the defense first raised the issue of false allegations. We agree with the Attorney General that the testimony was therefore relevant to "offer a more balanced picture" in rebuttal. (People v. Jones (2003) 30 Cal.4th 1084, 1121.)
Second, Aunko claims that the testimony about the rarity of false allegations lacked foundation because it "was, essentially, statistical evidence expressed in general terms rather than percentages" and the prosecution never established "that the data itself was based on reliable information." We agree with the Attorney General that Aunko forfeited this claim because he never objected to the testimony on these grounds. As a result, the People were prevented from addressing any potential problem with this evidence, and we are unable to assess whether it had an adequate foundation. (See People v. Nelson (2012) 209 Cal.App.4th 698, 711.)
Third, Aunko claims that the testimony about the rarity of false allegations should have been excluded under Evidence Code section 352 because it "lacked any substantial probative value and only served to confuse the issues and mislead the jury." He relies on People v. Bush (1978) 84 Cal.App.3d 294, which held that evidence of a modest insurance policy on a husband's life should have been excluded in his wife's trial for his murder because it "merely point[ed] to a possible ground of suspicion." (Id. at pp. 306-307.) Aunko does not explain how testimony that false allegations of abuse are rare is akin to the evidence at issue in Bush. Moreover, the testimony here was relevant to rebut the defense's insertion of the issue of false allegations into the proceeding, and it was unlikely to confuse the jury given that Dr. Urquiza testified that CSAAS applies only to children who have been abused and he had no knowledge of the allegations against Aunko.
Finally, Aunko contends that the admission of the testimony about the rarity of false allegations violated his federal right to due process. Generally, the application of state rules of evidence, including Evidence Code section 352, does not implicate a defendant's federal constitutional rights. (People v. Lewis (2009) 46 Cal.4th 1255, 1281, 1283-1284.) In arguing that the trial court's ruling nevertheless violated those rights, Aunko relies on a decision in which the Eleventh Circuit Court of Appeals granted habeas relief to a defendant who was convicted of child abuse. (Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 734.) In that case, an expert witness testified "that 99.5% of children tell the truth and that the expert, in his own experience with children, had not personally encountered an instance where a child had invented a lie about abuse." (Id. at p. 737.) The testimony was "linked to the expert's interviews with a specific child who testified at the trial—the only child who testified in [the] case who also was identified by the State as a victim of the crime for which [the defendant] was on trial." (Id. at pp. 737-738.) In contrast, the expert here did not cite any statistics, acknowledged that false allegations of abuse are sometimes made, and made clear that he had no knowledge of the case against Aunko and that his testimony should not be used to assess whether A. and M. had been abused. As a result, Aunko fails to demonstrate that the challenged testimony violated his right to due process.
Even if we were to conclude that the trial court erred by refusing to strike the challenged testimony, we would conclude that the error was harmless. As we have mentioned, Dr. Urquiza testified that he had no opinion on whether the allegations of abuse in this case were true, and, as we discuss at more length in section II.B. below, the jury was instructed that the CSAAS testimony was not evidence of Aunko's guilt. Moreover, in addition to A.'s and M.'s stories, there was powerful physical evidence of sexual abuse for which Aunko had no credible explanation, including the presence of his semen all over one of A.'s blankets and on the inside of her pajamas. As a result, we conclude that the admission of the challenged testimony was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24) and it is not reasonably probable that Aunko would have received a more favorable verdict had the court stricken the testimony. (People v. Watson (1956) 46 Cal.2d 818, 836.)
B. CALCRIM No. 1193 Properly States the Law.
Aunko claims that the trial court erred by giving CALCRIM No. 1193, the form instruction on CSAAS, because it incorrectly informed the jury that it could rely on the CSAAS testimony to evaluate A.'s and M.'s credibility. We disagree.
The jury was instructed under CALCRIM No. 1193 as follows: "You have heard testimony from Dr. Anthony Urquiza regarding child sexual abuse accommodation syndrome. [¶] 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 [A.'s] and/or [M.'s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony." The jury was also instructed under CALCRIM No. 303 that "certain evidence was admitted for a limited purpose" and that it could "consider that evidence only for that purpose and for no other." Aunko did not object to the giving or wording of CALCRIM No. 1193.
We independently review whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." ' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
Initially, the Attorney General argues that Aunko forfeited this claim by failing to object below. But we may review "any question of law" raised by any challenge to a ruling that affected a defendant's "substantial rights" despite a failure to object on the same grounds in the trial court. (§ 1259.) Thus, we will review the merits of the claim. (See People v. Ramos, supra, 163 Cal.App.4th at p. 1087.)
Aunko argues that, by instructing that the CSAAS testimony could be used to determine whether A.'s and M.'s conduct was consistent with having been molested and evaluate the believability of their testimony, CALCRIM No. 1193 effectively informed the jury that it could rely on the CSAAS testimony to infer he was guilty. We are not persuaded. To begin with, the given instruction admonished the jury that the CSAAS testimony was "not evidence that the defendant committed any of the crimes charged against him." And nothing about the other portions of the instruction improperly invited the jury to rely on Dr. Urquiza's testimony as proof that A. and M. had "in fact been sexually abused." (McAlpin, supra, 53 Cal.3d at p. 1300.) Contrary to Aunko's suggestion otherwise, a jury may rely on CSAAS evidence to evaluate a child witness's credibility. Indeed, such evidence is admissible only to rehabilitate a child's credibility, when the defendant suggests the child's behavior is inconsistent with having been abused. (See ibid.; Bowker, supra, 203 Cal.App.3d at pp. 393-394.) Of course, evidence that tends to rehabilitate a child's credibility will indirectly bear on the defendant's guilt to the extent it "neutralizes the [child]'s apparently self-impeaching behavior" and therefore removes a roadblock to believing the child. (People v. Gonzales (2017) 16 Cal.App.5th 494, 504.) But while a jury may not rely on CSAAS evidence as affirmative proof that a child has been molested, i.e., "as a predictor of child abuse . . . where a child meets certain criteria" (Bowker, at p. 393), "[t]here is no conflict" in the instruction because a jury may properly rely on such evidence to determine that the child's behavior does not undermine the child's credibility. (Gonzales, at p. 504 [upholding CALCRIM No. 1193].)
We also disagree with Aunko that the instruction was deficient because it failed to inform the jury that "CSAAS assumes the truth of the molestation claim" or that CSAAS evidence is "relevant only to educate the jurors about how molested children may act in general." It is true, as he points out, that a prior form instruction on CSAAS included the statement that CSAAS "begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience." (CALJIC No. 10.64.) But Aunko identifies no authority to suggest that an instruction must include such statements to be legally correct. To the contrary, we think the given instruction adequately informed the jury of the purposes for which it could consider this evidence.
Finally, Aunko claims that the instruction violated his federal constitutional rights because it lessened the prosecution's burden of proof. His only argument in this regard, however, is that the instruction "fails to limit the use of CSAAS and improperly permits a jury to use evidence of CSAAS to conclude that the complaining witness had in fact been abused." We have already rejected these contentions, and he therefore fails to demonstrate any constitutional violation.
C. Aunko's Trial Counsel Did Not Render Ineffective Assistance by Failing to Object to the Prosecutor's Argument About the CSAAS Testimony.
Aunko contends that his trial counsel rendered ineffective assistance of counsel by failing to object to the prosecutor's allegedly improper comments about CSAAS in closing argument. Again, we are not persuaded.
Aunko claims that if we conclude he forfeited any of his appellate claims, his trial counsel also rendered ineffective assistance by not raising a proper objection. Although we conclude that Aunko failed to preserve the argument that the testimony about the rarity of false allegations lacked foundation, he does not attempt to demonstrate how counsel's failure to object meets the elements of a claim of ineffective assistance, and we conclude that he has therefore waived this argument. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [failure to support point "with reasoned argument and citations to authority" results in waiver].)
Aunko challenges a five-page swath of the transcript of the prosecutor's closing argument, which he quotes in full, without identifying any specific statements that he claims were objectionable. During that part of the argument, the prosecutor reviewed the components of CSAAS and used them to explain that A.'s behavior, including her delayed reporting and her failure to resist Aunko, did not undermine her claim of being abused.
Aunko also cites a number of other pages in the record where the prosecutor purportedly "misused CSAAS evidence," but he again does not identify which statements were objectionable.
The federal and state Constitutions guarantee criminal defendants the right to be adequately represented by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) To prevail on a claim of ineffective assistance of counsel, a defendant must show both that (1) "counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing norms" and (2) there was "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
In evaluating such a claim, we "defer[] to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai, supra, 57 Cal.4th at p. 1009.) Because the presumption of counsel's competence typically can be rebutted only with evidence outside the record, claims of ineffective assistance made on direct appeal fail unless "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (Ibid.)
Aunko claims that in the challenged portion of the closing argument, "the prosecutor argued that CSAAS evidence showed that the molestation claims were true," violating "the law holding such use of CSAAS evidence impermissible." Aunko does not explain, however, how any of the prosecutor's statements amounted to an improper contention that the CSAAS testimony proved that A. had been sexually abused. In fact, the prosecutor relied on the CSAAS evidence to explain why aspects of A.'s behavior did not undermine the claim that Aunko had molested her. As we have explained, the use of CSAAS evidence to rehabilitate a child witness's credibility, and thereby indirectly bolster the child's claim of being abused, is permissible. Moreover, although it is improper for an expert to testify about CSAAS "in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused" (Bowker, supra, 203 Cal.App.3d at p. 393), a principle which may limit the extent to which an expert can testify about a particular child's behavior, Aunko identifies no authority preventing a prosecutor from applying general testimony about CSAAS to the specific facts of the case. In sum, Aunko fails to demonstrate that any of the prosecutor's statements were improper, and his trial counsel therefore did not render ineffective assistance by failing to object to them.
D. There Was No Cumulative Error.
Aunko contends that even if the errors he alleges are independently harmless, their cumulative effect requires reversal of his convictions. But the trial court did not err by failing to strike Dr. Urquiza's testimony about the rarity of false allegations of abuse or by instructing the jury under CALCRIM No. 1193, and Aunko's trial counsel did not render ineffective assistance by failing to object to the prosecutor's comments in closing about CSAAS. As a result, Aunko's claim of cumulative error fails.
E. The Trial Court Properly Declined to Conduct an In Camera Review of A.'s Psychological Records.
Finally, Aunko claims the trial court erred by denying his request for in camera review of A.'s psychological records in support of a new trial motion based on ineffective assistance of counsel in failing to procure those records for possible impeachment. We conclude that Aunko failed to show good cause for in camera review.
After the verdict, Aunko retained different counsel to represent him in filing a motion for a new trial. Based on a notation in the Keller Center report about A.'s physical examination stating that A. might be bipolar, counsel subpoenaed A.'s psychological records, and A's healthcare provider turned over 16 pages of material. The prosecutor represented that he never had the records in his possession.
Counsel also subpoenaed A.'s medical records, but Aunko's claim on appeal does not cover those records.
Aunko asked the trial court to conduct an in camera review of A.'s psychological records to determine whether, despite the psychotherapist-patient privilege, they should be turned over to the defense. In a confidential declaration in support of the motion, Aunko's new counsel identified his bases for believing that A. had significant mental illness that might impact her credibility, including the note in the Keller Center report. Through the prosecutor, A. asserted that the psychotherapist-patient privilege applied to the records. After reviewing the parties' memoranda and Aunko's counsel's declaration, the trial court denied the request for in camera review.
A patient "has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist." (Evid. Code, § 1014.) "When a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon . . . to balance the defendant's need for cross-examination and the state policies the privilege is intended to serve." (People v. Hammon (1997) 15 Cal.4th 1117, 1127 (Hammon).) As to the patient-psychotherapist privilege, those policies include the need "to encourage those who may pose a threat to themselves or others, because of some mental or emotional disturbance, to seek professional assistance" and to protect a patient's constitutional privacy rights. (People v. Stritzinger (1983) 34 Cal.3d 505, 511.)
As Aunko recognized below, to obtain in camera review of privileged documents a defendant must first establish good cause for their discovery. (People v. Reber (1986) 177 Cal.App.3d 523, 531, disapproved on other grounds in Hammon, supra, 15 Cal.4th at p. 1124.) "In this context, good cause means a reasonable likelihood that the documents contain information that is both material and favorable to the defense and that the same or comparable information is not obtainable from nonprivileged sources." (Hammon, at p. 1131 [conc. & dis. opn. of Kennard, J.].) In the confidential declaration, Aunko's new counsel contended that "[b]ipolar illness is a serious mental illness that can include serious thought disorders and delusions" and that if A. "ha[d] at any time had any significant mental illness, including . . . but not limited to bipolar illness," her credibility would be called into question. Similarly, on appeal, Aunko contends the psychological records could bear on A.'s credibility because "[s]evere bipolar disorder can cause psychotic episodes." Thus, although Aunko does not say so directly, his theory for materiality appears to be that if A. is bipolar, she may have misperceived or even hallucinated his actions.
We agree with the trial court's implicit determination that Aunko failed to establish good cause for in camera review of A.'s psychological records. It is true that "the mental illness or emotional instability of a witness can be relevant on the issue of credibility . . . if such illness affects the witness's ability to perceive, recall[,] or describe the events in question." (People v. Gurule (2002) 28 Cal.4th 557, 591-592.) On the other hand, it is also "a fact of modern life that many people experience emotional problems, undergo therapy, and take medications for their conditions. 'A person's credibility is not in question merely because he or she is receiving [or has received] treatment for a mental health problem.' " (People v. Anderson (2001) 25 Cal.4th 543, 579.) Here, there is no indication that A.'s accusations against Aunko were the product of mental illness. The physical evidence, M.'s testimony, and the sheer number of incidents A. described "overwhelmingly refute[] any theory that [A.] fabricated out of whole cloth the circumstances surrounding the charges." (People v. Reber, supra, 177 Cal.App.3d at pp. 531, 534 [concluding that error in not conducting in camera review of witness's psychotherapy records was harmless].) Aunko failed to demonstrate a reasonable likelihood that A.'s records contained information that would materially affect her credibility, and the trial court therefore properly declined to review them.
We also reject Aunko's contention that the trial court was required to disclose A.'s psychological records under Brady v. Maryland (1963) 373 U.S. 83. Brady imposes a duty of disclosure on the prosecution, not courts. (People v. Williams (2013) 58 Cal.4th 197, 255-256.) Aunko is simply incorrect that Brady applies regardless "[w]hether the records were in the possession of the prosecutor or the trial court," a proposition for which he offers no authority. Because he has made no showing that the records were within the prosecution's possession and therefore subject to disclosure, his Brady claim fails. (See People v. Webb (1993) 6 Cal.4th 494, 518.)
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.