Filed 10/14/14 P. v. Gudiel CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.
ARNOLDO GUDIEL,
Defendant and Appellant. B246976
(Los Angeles County Super. Ct. No. PA068885)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Katherine Anne Stoltz, Judge. Affirmed. Richard D. Miggins, under appointmen t by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant A ttorney General, Stev en D. Matthews and Roberta L. Davis, Deputy Attorneys Ge neral, for Plaintiff and Respondent.

____________2 Arnoldo Gudiel was convicted by a jury of continuous sexual abuse of a child under 14 years old and committi ng a lewd act on a child under 14 years old. On appeal Gudiel contends the court deprived him of a fair trial by making a disparaging comment about him during voir dire; admitting irrele vant and prejudicial evidence, including expert testimony on child se xual abuse accommodation syndrome; and failing to instruct the jury on the limited use of ce rtain evidence. He also cont ends, to the extent he has failed to preserve any of th ese arguments on appeal, his tr ial counsel was constitutionally ineffective in failing to object to th e errors at trial. We affirm.
FACTUAL AND PROCED URAL BACKGROUND
1. The Operative Third Am ended Information Gudiel was charged in the operative thir d amended information filed on July 10,
2012 with one count of con tinuous sexual abuse of his live-in girlfriend’s daughter, Shandy G., a child under 14 years old, du ring the period Marc h 20, 2005 through October 17, 2010 (Pen. Code, § 288.5, subd. (a)) 1 (count 1) and one count of committing lewd conduct on a child under 14 years old on or about October 18, 2010 (§ 288, subd. (a)) (count 3). 2 Gudiel pleaded not guilty.
2. The Evidence at Trial Gudiel became romantically involved with Sandra Jimenez, Shandy’s mother, when Shandy (born in 1997) was three years old. He later moved in with them, and they lived together as a family. He and Jimen ez had two children together, a son born in March 2005 and a daughter born in Octo ber 2006. Shandy considered Gudiel her stepfather.

1 Statutory references are to the Pena l Code unless otherwise indicated.

2 Guidel had previously b een charged with two counts of committing lewd conduct on a child under 14 years old, as well as one count of continuous sexual abuse of a child under 14 years old. A jury found him not guilty on one count of committing lewd conduct but was unable to reach a verdict on the other two charges. After a mistrial was declared as to those two counts, they were recharged in a slightly revised form in the operative third amended complaint.3 Shandy testified Gudiel sexually abused her on a frequent basis during the period January 2005 through October 17, 2010. Prior to Octobe r 2008, Gudiel on numerous occasions touched Shandy’s breast area under her clothes with his hands and his mouth and “touched” her vagina with his hands, m outh and penis. In October 2008, after the family moved and Gudiel acquired a minivan, the abuse became both more consistent and more pervasive: Gudiel would take Shandy w ith him on an errand in the minivan, stop the minivan in a parking structure adjacent to their apartment building and instruct Shandy to lie down in the ba ck area of the vehicle. Once Shandy complied, Gudiel would move to the back of the minivan, remove her clothes, pull down his own pants and, using a condom, r ub his penis against her vagina while he moaned. He also used his
hands and mouth to touch Shan dy’s breasts. After he ejacula ted, he would remove the used condom and throw it into a nearby dumpster. This pattern of abuse occurred frequently between October 2008 and October 17, 2010. On October 18, 2010 Gudi el took Shandy and her little sister on an errand in the minivan. When they returned , they saw Jimenez outside th eir apartment building talking with a relative. After greeting Jimenez and th e relative, Gudiel pulled into the adjacent structure and parked. With Shandy’s younger sister asleep in her car seat, Gudiel sexually assaulted Shandy in th e back of the minivan in the same manner as on previous occasions, albeit with one exception: This time he stopped before ejaculating and told Shandy to get dressed. He put his own clothes back on and re turned to the driver’s seat. Jimenez walked into the park ing structure and saw shadows of people moving from the
back of the minivan to the fr ont of the vehicle. Curious and confused by the apparent movement in the minivan, she opened the sliding side door a nd found Shandy lying down, fully clothed, in the ba ck of the vehicle. Jimenez asked Shandy why she was lying
down since she had been in the front passenger seat when Jimenez had seen them pull into the garage five minutes earlier. Shandy did not resp ond. Gudiel, whose face appeared very red, told Jime nez Shandy was resting becaus e she had a headache. When Jimenez questioned Shandy later without Gudi el present, Shandy told her about the continuing abuse. Shandy ha d not told her mother earlier because Gudiel had sworn her4 to secrecy and warned she could be take n away from Jimenez if the abuse were discovered. She also thought it would make her mother sad. Jime nez told Shandy she believed her and, after taking a day to think about how to proceed, called the police. While in custody in a Los Angeles County jail, Gudiel called Shandy and Jimenez on the telephone. During the conversation, which was conducted entirely in Spanish (Gudiel’s and Jimenez’s native language) and recorded by the Los Angeles Police Department, Gudiel told Jimenez, “yes I di d touch [Shandy]” but on ly once. He urged Jimenez to ask Shandy whether she had “com e on” to him and tearfully expressed his hope that one day Jimenez could forgive him. He said he would ask God to forgive and help him. Gudiel also spok e to Shandy during the conversa tion and asked her to forgive
him. Gudiel asked Jimenez to withdraw th e accusation against him and said, if she did, he would move far away from the family and never see the children ag ain. The recorded conversation was played for the jury. In addition, the jury was given a written transcript of the conversation, translated into English. Gudiel’s counsel stipulated the transcript was an accurate English transl ation of the conversation. During her trial testimony Shandy often appeared reluctant to answer questions, stating she did not want to ta lk about the abuse and wanted to forget it had happened. Joyce Medley, a licensed marriage and family th erapist, testified as an expert witness on child sexual assault accommodation syndrome (CSAAS), which she explained consisted
of a cluster of behaviors often observed in child sexual abuse victims. She explained the pattern had five identifiable behavior s—secrecy, helplessness, entrapment, accommodation and delayed, and of ten unconvincing, disclosure of the abuse. Medley’s testimony consisted of identifyi ng the patterns of behavior and explaining the reasons such behaviors, including a reluctance to report the abuse, were exhibited by child
victims of sexual abuse. She also acknowled ged she did not know the facts of this case and did not offer an opinion as to whether Shandy met the criteria for CSAAS.
Gudiel testified in his own defense a nd denied sexually abusing Shandy. When Jimenez opened the door to the minivan on October 18, 2010 and saw Shandy, Gudiel had just hit Shandy hard on the bottom of her foot as puni shment for taking her seatbelt5 off prematurely. He asked Jimenez and Sh andy for forgiveness because he had never before physically disciplined Sh andy and he felt guilty for it. He told Jimenez during the recorded telephone call that he had “touched” Shandy because he did not want to admit
he had hit her. When he asked Jimenez to inquire whether Shandy had ever come on to him, he simply meant for Jime nez to inquire whet her Shandy was seeking attention with
these accusations. William O’Donohue, a clinical psychologist, testified as an expert witness for the defense. He discussed in detail the problems of suggestibility and fa lse memory that can
arise when adults interview children about sexua l abuse. He also explained the behaviors identified with CSAAS generally do not occur in cases in wh ich the child’s accusation is believed from the beginning. Deborah Dotson, Shandy’s fifth grade t eacher in the 2007-2008 academic year, testified Shandy did not disclose to her sh e had been abused. Dotson acknowledged she
was not trained in detecti ng sexual abuse and did not have a particularly close relationship with Shandy.
3. The Verdict and Sentence The jury found Gudiel guilty on both counts. The tria l court sentenced Gudiel to an aggregate state prison term of 15 years, 12 years (the high term) for count 1 and a full and consecutive three years (the low term) for count 3.
DISCUSSION
1. The Court’s Comments During Vo ir Dire Were Not Improper After administering the oath to potential ju rors, the court stated as part of its introductory remarks to the ju ry venire, “The next thing I am going to do is tell you the nature of the charges in the case and just a little bit about the case. An d let me just stress to you that these are only charges and are not in any sense evidence against Mr. Gudiel. So this is just was the prosecutor claims happe ned. I am not telling you that this is what happened. That’s what we are here to find out, okay? So these are just charges.” The court identified the charges in the information and told the jury it would then entertain any excuses for not being able to serve as a juror. The court explained jury service was6 an important civic duty and it woul d not be easy to be excused fr om service. It stated, “I don’t want you to raise your ha nd and say, ‘oh, judge, I can’t be fair because I don’t like child molesting.’ Of course you don’t like child molesting. Most people don’t. You can’t expect me to try this case with a full ju ry of people who like ch ild molesting, okay?
That wouldn’t be realistic. . . . The issue is whether or not you can be fair and impartial, and that’s whether or not you can set aside your feelings and decide this case with your mind, okay? That’s what the attorneys are looking for. They’re looking for jurors who can decide this case just looki ng at the evidence and in their mind decide on a fair result, okay, without letting their feelings or thei r emotions affect their judgment.” Before dismissing potential jurors for th e day, the court ordered them “not to discuss the case with anyone, and that includes with your friends, your relatives, your coworkers, your husband, your wife, your best friend in the whole world. . . . Don’t even tell them the charges. Because if you go running home and say ‘Oh, I am on a child molesting case,’ you know they’re going to go, ‘Oh, you know, this is what I think about child molesters’ and they are goi ng to start to try to influenc e you, and we don’t want that to happen.” Gudiel, whose counsel did not object to the comments, contends the court’s remarks “effectively told the ju ry panel that [he] was a child molester,” prejudicing the jury venire and depriving him of the ability to obtain a fair tr ial. To overcome the bar of forfeiture (see People v. Houston (2012) 54 Cal.4th 1186, 12 20 [claim of judicial misconduct forfeited when an objection could have cured the prejudice and there was no
reason to conclude objection woul d be futile]), he asserts hi s counsel was constitutionally ineffective in failing to object to the co mments when they were made. Assuming arguendo Gudiel has presented a cognizable claim, 3 it fails on its merits. Far from

3 The Attorney General conten ds Gudiel has not presented a cognizable claim of judicial misconduct because he cannot show any of the potential jurors who heard the remarks actually served on the jury. The court’s commen ts occurred during the voir dire of an initial panel. According to the Atto rney General, other potential jurors were brought after the initial venire was depleted; and the subsequent voi r dire proceedings, although transcribed, are not include d in the record on appeal. (See In re Kathy P. (1979)7 labeling Gudiel a child molester, the c ourt’s comments provided an appropriate explanation of the difference between charge s and evidence and properly described the jurors’ obligation to set aside their personal views relating to the nature of the charges
and to decide the case based so lely on the evidence presented. Because none of the identified comments was objectionable, much less prejudicial, Gudiel cannot show his counsel was constitutionally ineffective in failing to objec t to them. (See People v. Boyette (2002) 29 Cal.4th 381, 430-431 [to establish a violation of the criminal defendant’s constitutional right to effective assistance of coun sel, a defendant must show both that his counsel’s performance was c onstitutionally deficient and the deficient performance resulted in prejudice]; People v. Kipp (1998) 18 Cal.4th 349, 366 [same]; Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S. Ct. 2052, 80 L.Ed.2d 674].)
2. Gudiel Has Forfeited His Objection to the Admission of the Spanish Audio Recording ; His Counsel Was Not Constitutiona lly Ineffective in Failing To Object to It During trial the court, the prosecutor an d defense counsel engaged in a lengthy colloquy outside the pr esence of the jury concerning th e recorded jailh ouse telephone conversation. The People argued the audio reco rding should be played for the jury even though it was in Spanish beca use the emotion and vocal inflections of Gudiel, Jimenez and Shandy during the conversati on were probative of the cred ibility of their statements. The defense did not object to the recording being played, but requested that a certified court interpreter translate th e recording into English cont emporaneously with it being played. The court responded th at it would impose too great a burden on the interpreter to translate the recording in this manner, a view echoed by the certified court interpreter in
the courtroom. The court stated it would admit into evidence the English-language transcript of the conversation and would allow the jury to re fer to it while listening to the audio tape recording. 4 Defense counsel did not object to this approach but expressed

25 Cal.3d 91, 102 [appellant bears burden of demonstr ating error from record]; People v. Sullivan (2007) 151 Cal.App.4th 524, 549-550 [same].)

4 Although it found the simultaneous use of the Spanish recording and English transcript somewhat “unusual,” the court agreed with the Pe ople it would aid the jury to8 concern the transcript had b een prepared by th e Los Angeles Police Department and requested the opportunity to have it reviewed for accuracy before giving it to the jury. The court agreed. At the court’s suggestion, a certified court inte rpreter reviewed the transcript and the audio recording during the lunch recess to determine whether the transcript provided an accurate translation. The interpreter confirmed the transcript was accurate except for a few minor (“nonsubstantiv e”) changes, which she made. After this occurred, the court inquired whether defense co unsel intended to call the interpreter as a witness to testify as to the accu racy of the English transcript . Defense counsel replied he had spoken to the interpreter and would “stip ulate the [modified] transcript is correct without testimony.” The court then instru cted the jury, “Ladies and Gentlemen, a stipulation is an agreement by th e attorneys as to the facts and should be seen as true. So we are stipulating that the transcript is an accurate transcript of what—accurate translation of what’s on the tape.” 5 The court also instructed the jury at the close of evidence: “During the trial, you were told that the People and the defense agreed, or stipulated, to certain facts. This means they both accept those facts as true. Because there is no dispute about those facts you mu st also accept them as true.”
Gudiel contends it was error to admit th e recording of the telephone conversation
into evidence because it resulted in “some of the jurors [those who understood Spanish] receiving different evidence than the others.” Gudiel did no t object to the admission of

listen to the recording and to simultaneously refer to the English transcript. The court ruled the interpreter would assi st the jury by advising them when it was tim e to turn the page of the English transcript.

5 The court also advised the jury the portions of the transcript that identified the speaker and stated whether a speaker was cr ying or “weeping” were not included in the stipulation: “The voices are labeled here wi th names. There is no agreement that those are the voices on the transcript. For that, y ou have to rely upon the evidence and make your own determination as to whose voices ar e on the tape. . . . There are places here where it says ‘crying’ and ‘weeping.’ That is just a person’s opinion, a layperson’s opinion, as to what is happening on the transc ript. It’s just to help you follow along so you can see where we are in th e transcript. But that’s just one person’s opinion. You should disregard that in term s of being opinion. You can make up your own mind as to what’s happening . . . .”9 the recording and thus has failed to preserve this argument for appeal. (Evid. Code, § 353, subd. (a) [judgment will not be reve rsed due to the erroneous admission of evidence unless “an objecti on to or a motion to exclude or to strike the evidence . . . was timely made and so stated as to make clear the specific ground of the objection or motion”]; People v. Houston, supra, 54 Cal.4th at p. 1213.)
Gudiel’s related claim his counsel was constitutionally ineffective for failing to object to the introduction of this evidence also fails. This assertion is entirely speculative. Nothing in the re cord on appeal suggests, let alone establishes, there were Spanish speakers on the jury. 6 Beyond this speculative argument, Gudiel does not challenge the propriety of admitting the tr anscript into eviden ce or his counsel’s stipulation the transcript provided an accurate tr anslation of the conversation. In fact, in his trial testimony Gudiel admitte d he had made the recorded st atements as translated, but offered his own explanation as to their inte nded meaning. Accordingly, there was no basis for counsel to object to the admissi on of the audio recording and certainly no prejudice as a result of its ad mission into evid ence. (See People v. Kipp, supra, 18 Cal.4th at p. 366 [i f alleged error not prejudicial—that is, not reasonably probable that
the defendant would have recei ved a more favorable verdict in the absence of the error— reviewing court may dispose of ineffective as sistance of counsel claim without evaluating
whether counsel’s con duct was deficient]; People v. Slaughter (2002) 27 Cal.4th 1187, 1219.)

6 The record, in fact, belies Gudiel’s asser tion that some jurors understood Spanish. The court stated it had listened to the tape “to make sure the jury wo uld be able to follow the words on the tape with the transcript ev en though they don’t understand Spanish” and concluded “I think they can fo llow the transcript even though they don’t speak Spanish.” Apart from the court’s comments, which were not objected to, the record is silent on this point. (Cf. People v. Gonzales (2008) 165 Cal.App. 4th 620, 625 [record of voir dire proceedings reflected at least five prospectiv e jurors expressly indicated they understood Spanish].)10 3. The Trial Court Adequately Instructed the Jury Concer ning Its Duty To Accept the Transcript of the Recorded Conversation as a True and Accurate Translation over Any Other Understanding Gudiel acknowledges the jury was instructed with CALCRIM No. 121, alternative A, requiring it to accept the interpreter’s tran slation of testimony over its

own, 7 but contends the court had a duty to in struct sua sponte with alternative B of CALCRIM No. 121, specifically pertaining to foreign lang uage recordings. 8 Although his counsel did not request either instruction, he argues the court was required to instruct jurors to rely on the Eng lish transcript rather than their own understanding of the recording. (Cf. People v. Cabrera (1991) 230 Cal.App.3d 300, 303 [it is misconduct for juror to rely on his translation rather than interpreter’s translation].) Citing the bench notes to CALCRIM No. 121, the Attorney Genera l insists there is no duty to give either vers ion of the instruction sua sp onte. (See Bench Notes, CALCRIM No. 121 [“The committee recomm ends giving Alternative A of this instruction whenever testimony will be received with the assistance of an interpreter, though no case has held that th e court has a sua sponte duty to give the instruction. The instruction may be given at the beginnin g of the case, when the person requiring translation testifies, or both, at the court’s discretion. If the jury may hear a recording

7 CALCRIM No. 121, alternative A, prov ides, “Some testimony may be given in <insert name or description of language other than English> . An interpreter will provide a translation for you at the time that the testimony is given. You must rely on the translation provided by the in terpreter, even if you understa nd the language spoken by the witness. Do not retranslate any testimony for other jurors. If you believe the court interpreter translated testimony incorrectly , let me know immedi ately by writing a note and giving it to the (clerk/baili ff).” The court gave this be fore witnesses testified in Spanish through the assi stance of a Spanish language inte rpreter but did not include it in the written instructions provided to th e jury prior to its deliberations.

8 CALCRIM No. 121, alternative B, prov ides, “You (may/are about to) hear a recording in a foreign language. You will recei ve a transcript with an English language translation of that recording. You must rely on the transcript, even if you understand the language in the recording. Do not share your own translation with other jurors. Please write a note to the clerk or bailiff if yo u believe the translation is wrong.”11 that is at least partially in a foreign langua ge, the court may give Alternative B with the appropriate bracketed language, as needed.”].) Although it would have been better prac tice to have instructed the jury with CALCRIM No. 121, alternative B, the court’s ot her instructions fully satisfied whatever obligation it had to instruct that the Englis h translation of the recording controlled over any contrary understanding that might have been derived from a juror’s comprehension of Spanish. At the time the recording was played, the court expressly advised the jury that the prosecutor and defense counsel had s tipulated the transcript was an accurate English translation of the recorded conversati on and made clear the jury was obligated to accept that fact as true. The court reiterated that instruction twice more during the trial and included it among the written instructions pr ovided to the jury before deliberations began. Those instructions ad equately informed th e jury of its obligation to accept the transcript and nothing else. (See People v. Hughes (2002) 27 Cal.4th 287, 360 [“‘“‘“[w]hether a jury has been correctly in structed is not to be determined from a consideration of parts of an instruction or from particular instructions, but from the entire charge of the court”’”’”]; People v. Tapia (1994) 25 Cal.App.4th 9 84, 1027 [same].) We presume the jury understood and followed these directions. ( People v. McKinnon (2011) 52 Cal.4th 610, 670.) Moreove r, as explained, there is no apparent discrepancy between the transcript and the contents of the audio recording. On this record, any error in omitting the instruction was necessarily harmless under any standard. ( Chapman v. California (1967) 386 U.S. 18, 24 [ 87 S.Ct. 824, 17 L.Ed.2d 70 5] [applying beyond-areasonable-doubt standard of review to errors of constitutional magnitude]; People v.

Breverman (1998) 19 Cal.4th 142, 165 [recognizing th at instructional errors are reviewed
under the standard articulated in People v. Watson (1956) 46 Cal. 2d 818, 836].)
4. Gudiel Has Forfeited His Objection to the Admission of Expert Testimony on CSAAS; and His Counsel Was Not Ineff ective in Failing To Object To It Gudiel contends the trial court erred in admitting Medley’s expert testimony on CSAAS. Gudiel acknowledges such eviden ce has been held admissible to disabuse commonly held misconceptions about a child’s post-abuse actions, including a delay in12 reporting. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300 [discussing with approval use of CSAAS expert testimony “to rehabilitate [a] witnesses’s credibility when the defendant suggests that the child’s conduct after th e incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation”]; People v.

Brown (2004) 33 Cal.4th 892, 906 [same]; People v. Bowker (1988) 203 Cal.App.3d 385, 394 [expert testimony about CSAAS is properly admitted to describe or explain common reactions of children to molestation]; People v. Patino (1994) 26 Cal.App.4th 1737, 1744 [CSAAS evidence is admissible for “the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation”].) Nonetheless, he argues such expert testimony is no longer necessary in today’s world where crime
dramas such as “Law and Orde r Special Victims Unit” have se rved in the past decade “to enlighten the general public” on common pattern s of behavior found in victims of child sexual abuse. (See Evid. Code, § 801, subd. (a) [expert testimony admissible only when related to subject that is “sufficiently be yond common experience th at the opinion of an expert would assist the trier of fact”].) Gudiel failed to object to the CSAAS ev idence at trial and thus has forfeited the argument on appeal. ( People v. Houston, supra, 54 Cal.4th at p. 1213; Evid. Code, § 353.) We also reject Gudiel’s argument th at expert testimony would not have assisted the jury and adhere to the wealth of authority recognizi ng the admissibility of CSAAS testimony in cases such as this one in which th e victim’s credibility and, in particular, her delayed disclosure of the abuse we re directly at issue. (See People v. Brown, supra, 33 Cal.4th at p. 906; People v. McAlpin, supra , 53 Cal.3d at p. 1300; People v. Patino,

supra, 26 Cal.App.4th, at p. 1744.) Because the evidence was pr operly admitted, Gudiel’s counsel was not deficient in failing to object to it. ( People v. Weaver (2001) 26 Cal.4th 876, 931 [counsel has no duty to make frivol ous or futile objections]; People

v. Memro (1995) 11 Cal.4th 786, 834 [same].)13 5. The Trial Court’s Failure To Instruct Sua Sponte with CALCRIM No. 1193, Even if Error, Was Not Prejudicial Even if the CSAAS evid ence was properly admitted, Gudiel argues the trial court’s failure to give CALCRIM No. 11 93, the Judicial-Council-approved jury instruction concerning the limited use of CSAAS evidence, 9 was prejudicial error. 10 Generally, absent a request by a party, there is no duty to give an instruction limiting the purpose for which evidence may be considered. ( People v. Smith (2007) 40 Cal.4th 483, 516; cf. Evid. Code, § 355 [“[w]hen eviden ce is admissible as to one party for one purpose and is inadmissible as to another party for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly”].) However, because of the potential for mi suse of CSAAS evid ence, the court in People v. Housley (1992) 6 Cal.App.4th 947 ( Housley ) held a trial court has a duty to instruct sua sponte with limiting language similar to that now found in CALCRIM No. 1193
whenever CSAAS evid ence is presented: “Such testimony, especially from one recognized as an expert in the field of child abuse, easily could be misconstrued by the jury as corroboration for the victim’s claims ; where the case boils down to the victim’s word against the word of the accused, such evidence could unfairl y tip the balance in

9 CALCRIM No. 1193 provides, “You ha ve heard testimony from ___ < insert name of expert > regarding child sexual abuse acco mmodation syndrome. [¶]___’s < insert name of expert> testimony about child sexual a buse accommodation syndrome is not evidence that the defendant committed any of th e crimes charged against (him/her). [¶] You may consider this ev idence only in deciding wh ether or not ____’s < insert name of alleged victim of abuse > conduct was not inconsistent w ith the conduct of someone who has been molested, and in evaluating th e believability of (his/her) testimony.

10 Defense counsel proffered his own lengthy in struction to advise the jury on how to use CSAAS evidence. The court rejected the proffered instruction, and defense counsel conceded it was unnecessary as long as the standard instruction on expert testimony, CALCRIM No. 332, was given. Gudiel’s argum ents on appeal are limited to the court’s duty to instruct sua sponte with CALCRIM No. 1193 and do not address the court’s ruling rejecting his counsel’s proposed instruction.14 favor of the prosecution. A simple inst ruction similar to that described in Bowker [11] would clearly define the proper use of such evidence and would prevent the jury from accepting the expert testimony as proof of the molestation. Furthermore, requiring such
an instruction would avoid potentially erroneous conv ictions occasioned by counsel’s inadvertent or incompetent failu re to request a limiting admonition. . . . Accordingly, in
all cases in which an expert is called to testify regard ing CSAAS we hold the jury must sua sponte be instructed that (1) such evidence is admissible solely for the purpose of showing the victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested; and (2) the expert’s testimony is not intended and should not be
used to determine whether the victim ’s molestation claim is true.” ( Housley , at pp. 958- 959; cf. People v. Bowker, supra, 203 Cal.App.3d at p. 394 [recognizing need for limiting
instruction when CS AAS evidence is admitted]; but see People v. Stark (1989) 213 Cal.App.3d 107, 116 [limiting instruc tion on CSAAS evidence to be given “if requested”].) While finding it error not to give a limi ting instruction on CSAAS evidence even if not requested, the Housley court held the failure to do so in the case before it was
harmless because there was no reasonable likelihood the jury misunderstood or misapplied the expert testimony as proof th e molestation occurred. In reaching its conclusion the court found signif icant that the expert witness “twice told the jury she had not met the victim and had no knowledge of the case. Her testimony was couched in general terms, and described behavior common to abused victims as a class, rather than any individual victim.” ( Housley, supra, 6 Cal.App.4th at p. 959.) Similarly, in the instant case Medley made clear she had not discussed the case with the prosecutor, had no knowledge of the facts of the case and no opinion whether Shandy met the criteria for CSAAS or whether she was, in fa ct, abused. Like the court in Housley, we have little difficulty in this case concluding any error in failing to instruct sua sponte with

11 See People v. Bowker, supra, 203 Cal.App.3d at p. 394 [“the jury must be instructed simply and directly that the expert’s testimony is not intended and should not be used to determine whether the vic tim’s molestation cl aim is true”].)15 CALCRIM No. 1193 was harmless; it was not reasonably probable Gudiel would have received a more favorable verdict had an ap propriate limiting instruction been given. ( People v. Watson, supra, 46 Cal.2d at p. 836; Housley, at p. 959.) 12

DISPOSITION The judgment is affirmed.

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.

12 Because we hold any error in failing to in struct with CALCRI M No. 1193 to be harmless, we need not address Gudiel’s contention his counsel provided ineffective assistance by failing to requ est CALCRIM No. 1193. ( People v. Ledesma (1987) 43 Cal.3d 171, 217 [failure to establish prejudice is fatal to ineffective assistance of counsel claim].)