1

Filed 9/4/20 P. v. Has CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

KHYVANNARA KHMET HAS,

Defendant and Appellant.

C084322

(Super. Ct. No. 

STKCRFE20160012563)

Defendant Khyvannara Khmet Has appeals his conviction for committing a lewd 

act upon a child. (Pen. Code, § 288, subd. (a).)

1

 He contends: (1) the trial court 

prejudicially erred in instructing the jury on flight, as it had no application to the facts of 

the case and impermissibly lightened the prosecution’s burden of proof; (2) the trial court 

abused its discretion in allowing the prosecution’s expert to testify on Child Sexual 

1 Undesignated statutory references are to the Penal Code.
2

Abuse Accommodation Syndrome (CSAAS); (3) the trial court’s denial of his request for 

an Evidence Code section 402 hearing and access to the victim’s mental health records 

denied his right to effectively cross-examine the expert witness; and (4) the trial court 

erred in imposing a $500 fine under section 294, as that fine cannot be imposed on a 

conviction under section 288, subdivision (a). The People properly concede this last 

point regarding the fine. We will strike the fine under section 294. In all other respects, 

we affirm the judgment.

FACTUAL BACKGROUND

Angelina Doe’s school psychiatrist diagnosed her with oppositional defiance 

disorder and her mental health counselor diagnosed her as bipolar. In September 2016, 

when Angelina was 12 years old, she and her mother got into a physical fight. As a result 

of the fight, Angelina walked out of the home, to a nearby park. After about 15 minutes, 

as she was walking through the park, she saw defendant on roller skates and he started 

talking to her. Defendant told her he was 27. Angelina gave defendant a fake name, told 

him she was 19 years old, and that she had gotten into an argument with a friend or a 

boyfriend. Defendant told her she had a baby face and questioned her age a few times. 

Nonetheless, he invited her to his friend’s home and to join him on some errands. They 

were running errands with two other men for about an hour and then returned to the 

friend’s house. During that time, defendant told Angelina she was cute and he wanted to 

kiss her stomach. After about another hour at the friend’s house, Angelina and defendant 

walked to the park. They sat on a bench talking and defendant started rubbing her 

shoulders. Angelina started crying because she missed her mother and defendant kissed 

her, open-mouthed, on the lips. The two then played in the playground.

Defendant suggested they go to his brother’s house and then to a “hang out spot.” 

There were a number of children at defendant’s brother’s house who were about 

Angelina’s age. They told him they knew her and that she was about their age. 

Defendant asked her again about her age and she answered she was 19. One of the kids 
3

at the house asked to see some proof of her age. One of the older boys at the house told 

defendant he was going to be charged with child molestation, and another one called him 

a pervert.

They left the house and defendant took Angelina to the “hang out place,” which 

was a shed behind a burned-down house. They went inside and he told her to take off her 

clothes and lie down. Then he kissed her on her lips, her breasts, her stomach, and her 

vagina. He also digitally penetrated her vagina. She told him to stop, but he did not. She 

started crying and he continued to digitally penetrate her. He stopped about 10 minutes 

later and told her to put on her clothes. She did and fell asleep. She did not touch him 

during this time and he did not ask her to.

Meanwhile, Angelina’s mother had called law enforcement and her mother’s 

boyfriend, Eric, had driven around the neighborhood looking for Angelina. A neighbor, 

Roan, told them he had heard where Angelina might be. Roan took them to the house 

with the shed. Angelina woke up the next afternoon, as her mother came through the 

door of the shed. Defendant was shirtless and his shorts were below his waist. He and 

Angelina were sleeping next to each other, with defendant’s hand on her hip. Angelina’s 

mother started yelling her name. As Angelina’s mother came into the shed, defendant 

stood up quickly and pulled up his shorts. Eric came into the shed, Angelina’s mother 

grabbed her, and defendant ran away. Eric testified he grabbed defendant and tried to 

push him through the back wall, but defendant struggled, got past Eric, and “took off 

running.” Angelina’s mother called the police.

Eric and Roan got into their cars to follow defendant. Defendant ran to, and 

across, the park. Eric stopped his truck in front of defendant and cut him off. Then Eric 

and defendant got into a fight as Eric tried to restrain defendant. Law enforcement 

officials arrived at the park and separated everyone.

When police officers arrived at the shed, Angelina refused to talk to them about 

what had happened. She did identify defendant at the park. While at the park to identify 
4

defendant, she also stated defendant had not done anything wrong. She felt guilty for 

telling defendant she was 19. Because of this lie, she initially blamed herself for what 

happened.

Angelina asked to go to safe house2 because she did not want to be at home. The 

next day, a social worker interviewed Angelina. She told the social worker that 

defendant had tried to touch her in the shed and she told him he should not because she 

was only 12 years old. A few days later, Angelina talked to Detective Bonnet at the safe 

house but did not tell him about the sexual assault that occurred in the shed. She told 

Detective Bonnet defendant had touched her leg, but nothing else.

A few weeks later, Angelina told her best friend, Diana, defendant had raped her. 

She told Diana that defendant had raped her because she did not understand the 

difference between rape and sexual assault. Then Angelina told her mother. Her mother 

had her talk with a woman at the Child Advocacy Center. She was still uncomfortable 

discussing the details of what had happened, so she repeated what she had told Detective 

Bonnet. At the preliminary hearing, Angelina did not testify that she was raped, orally 

copulated, or digitally penetrated. She testified defendant touched her inappropriately.

Angelina testified she spoke with her stepfather and told him that defendant had 

touched her inappropriately. Her stepfather testified Angelina told him three men had 

forced her into a car at gunpoint and forced her to perform oral sex. Angelina agreed to 

speak with Detective Bonnet again. She told the detective that defendant was one of the 

three men and he forced her into a car and touched her inappropriately, but she did not 

give specifics. Angelina later admitted to Detective Bonnet, and at trial, that she had 

omitted details in her earlier accounts because she was frustrated, upset, guilt-ridden, and 

uncomfortable talking about what happened. She told the full story at trial because she 

2 A safe house is a place teenagers can stay overnight without parental supervision.
5

wanted the whole thing to be over, and knew if she did not, she would have to keep living 

with it and might become suicidal.

David Love, a licensed marriage and family therapist, testified as an expert 

witness on CSAAS. CSAAS is not a diagnostic tool, but an ongoing study that looks at 

the typical reactions of children who have been molested and describes those reactions in 

five separate components. These components include secrecy, helplessness, entrapment 

and accommodation, delayed or unconvincing disclosure, and retraction. CSAAS is a 

study intended to help people understand unconventional behaviors in children who have 

been molested, including why they may delay in telling someone what happened, or why 

they may change their story. Love did not interview Angelina, read any reports, or 

interview anyone related to this case.

PROCEDURAL HISTORY

The prosecution filed an information that charged defendant with one count of 

lewd acts upon a child. (§ 288, subd. (a).) A jury found defendant guilty as charged. 

The trial court sentenced defendant to six years in state prison and granted him 215 days 

of presentence custody credit. The trial court also imposed various fines and fees, 

including a $500 fine under section 294.

DISCUSSION

I

Flight Instruction

Defendant contends the trial court prejudicially erred in instructing the jury with

CALCRIM No. 372 regarding flight. He argues the instruction did not apply to the facts 

of the case, as he fled not to avoid arrest but because Eric was beating him.

In closing argument, the prosecution argued defendant ran from the shed because 

he had been caught there with a 12-year-old girl after committing lewd acts upon her. 

Defense counsel argued defendant fled to avoid Eric beating him.
6

Without objection,3the trial court instructed the jury with CALCRIM No. 372: 

“If the Defendant fled or tried to flee immediately after the crime was committed, or after 

he was accused of committing the crime, that conduct may show he was aware of his 

guilt. If you conclude the Defendant fled or tried to flee, it is up to you to decide what 

meaning and importance—what is the meaning and importance of that conduct. 

However, that the Defendant fled or tried to flee cannot prove guilt by itself.”

“Errors in jury instructions are questions of law, which we review de novo.” 

(People v. Jandres (2014) 226 Cal.App.4th 340, 358.) A flight instruction “ ‘is proper 

where the evidence shows that the defendant departed the crime scene under 

circumstances suggesting that his movement was motivated by a consciousness of 

guilt.’ ” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) The circumstances of 

departure must suggest “ ‘ “a purpose to avoid being observed or arrested.” ’ ” (Ibid.) 

However, the prosecution “need not prove the defendant in fact fled, i.e., departed the 

scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer 

a consciousness of guilt from the evidence.” (People v. Bonilla (2007) 41 Cal.4th 313, 

328.) The sole fact that a defendant left the scene of the crime may be sufficient evidence 

for a flight instruction; it is for a jury to determine the significance of the departure. 

(People v. Turner (1990) 50 Cal.3d 668, 694.) The evidence of flight need not be 

uncontradicted. (People v. Richardson (2008) 43 Cal.4th 959, 1020.)

“An instruction in substantially [the] form [of CALCRIM No. 372] must be given 

whenever the prosecution relies on evidence of flight to show consciousness of guilt. 

(§ 1127c.) A flight instruction is proper whenever evidence of the circumstances of 

3 Defendant did not object to the instruction below or to the prosecution’s closing 

argument. In anticipation of us finding the issue forfeited, defendant also claims if this 

failure to object resulted in forfeiture of the issue on appeal, counsel was ineffective. 

Accordingly, we address the claim on the merits.
7

defendant’s departure from the crime scene or his usual environs, or of his escape from 

custody after arrest, logically permits an inference that his movement was motivated by 

guilty knowledge.” (People v. Turner, supra, 50 Cal.3d at p. 694, fns. omitted.) It is not 

the introduction of evidence that might be construed as flight, but rather the prosecution’s 

reliance on such evidence to prove guilt, that triggers the duty to instruct on flight. 

(People v. Tuggles (2009) 179 Cal.App.4th 339, 367.)

The evidence in this case, and the prosecution’s reliance on that evidence to show 

consciousness of guilt, support giving the instruction. Both Angelina and her mother 

testified defendant ran from the shed upon the mother’s arrival. Neither testified that Eric 

assaulted defendant before defendant fled. The prosecution’s theory that defendant fled 

because he was found in a shed with a 12-year-old girl whom he had just sexually 

assaulted was not an unreasonable inference from the evidence. Put another way, the jury 

could reasonably infer defendant’s flight from the scene demonstrated guilty knowledge. 

Although Eric’s testimony that he tried to put defendant through the back wall of the shed 

offered another possible, innocent, explanation for defendant’s flight, that evidence was 

for the jury to weigh. (See People v. Richardson, supra, 43 Cal.4th at p. 1020 [“The 

evidentiary basis for the flight instruction requires sufficient, not uncontradicted, 

evidence”].) It was up to the jury whether to believe this testimony, and to decide 

whether it was the reason for defendant’s flight from the scene. “The jury could attribute 

an innocent explanation to his conduct, but it could also infer that his departure and the 

circumstances thereof were consistent with and supported the prosecution’s theory. . . . 

Consequently, it was not error to give a flight instruction.” (People v. Bonilla, supra,

41 Cal.4th at p. 329.) As we have found no error in the instruction, we need not address 

defendant’s additional claims.
8

II

Expert Testimony

Defendant contends the trial court abused its discretion by allowing admission of 

expert testimony about CSAAS. He argues that despite the limiting instruction on the use 

of this evidence, there was a substantial danger the jury would consider the expert 

testimony “about CSAAS as supporting Angelina’s claims of abuse despite her changing 

version of events and credibility problems.” He argues any probative value was 

outweighed by the prejudicial effect of the evidence, particularly given that Angelina had 

“demonstrated credibility problems.” Defendant also claims the trial court erred in 

permitting the expert to testify as to case-specific information regarding the impact of 

mental health problems on the behavior of sexually abused children. Lastly, defendant 

contends the trial court denied his constitutional right to effectively cross-examine Love 

by denying his requests for an Evidence Code section 402 hearing (402 hearing) and 

access to Angelina’s mental health records.

Background

In motions in limine, the prosecution sought to introduce expert testimony from 

Love to explain CSAAS to address Angelina’s delayed and inconsistent recitation of the 

incident and her sporadic recantation of the claims. In response, defense counsel 

requested a 402 hearing “prior to [Love] being called as a witness.” At the hearing on the 

motions, after the trial court indicated it would permit Love to testify as to CSAAS with a 

limiting instruction, defense counsel asked if the trial court was denying the request for a 

402 hearing. The prosecution assured the trial court that Love’s testimony would be 

consistent with the testimony the court had previously heard from Love in other matters, 

a general conversation about CSAAS, that Love had no personal or professional opinion 

about the veracity of the allegations, and Love had not conducted any interviews in the 

case. The prosecution also provided defense counsel with a chart of the components of 

CSAAS indicating the general topics that would be discussed. Accordingly, the trial 
9

court denied the request. Prior to testimony commencing, defense counsel made another 

motion seeking access to Angelina’s mental health records. The trial court reviewed the 

records and denied the request to release the records. The trial court found there was no 

information in the records about false reports or accusations, false ideation, fantasies, 

delusions, hallucinations, or perceptual disorders. There was no information about the 

alleged offense and no mention of defendant. Accordingly, the trial court found the 

records were not relevant to any issue in the case.

During trial, prior to Love’s testimony, defense counsel also objected to Love’s 

expected testimony on CSAAS, arguing CSAAS was developed in a clinical setting of 

intrafamilial sexual abuse and was therefore not applicable to the facts of this case. 

Defense counsel also reiterated her request for a 402 hearing to see what the evidence 

was “limited to and see how it applies to this case and what he can testify to.” The trial 

court denied the motion, stating the parties had discussed the issue earlier, the 

prosecution had provided a chart with the information that would be testified to, and the 

prosecutor again confirmed Love had no personal involvement with the case, had not 

read reports or talked to any witnesses, and would only testify about CSAAS in general 

terms.

Prior to Love’s testimony, the trial court instructed the jury with CALCRIM 

No. 1193, as follows:

“So here’s the instruction. Because there’s going to be testimony about a 

syndrome. It’s called the Child Sex Abuse Accommodation Syndrome, and it’s three 

paragraphs, and they’re pretty brief. So let’s read ‘em. And by the time I read this, you 

will have heard the testimony. [¶] So it reads: ‘You have heard testimony from David 

Love regarding Child Sex Abuse Accommodation Syndrome,’ okay, paragraph one. 

Paragraph two, which is important, ‘This testimony about Child Sex Abuse 

Accommodation Syndrome is not evidence’—okay. What do you mean—‘is not 

evidence that the defendant committed any of the crimes alleged against him.’ [¶] I’m 
10

informed or believe Mr. Love knows nothing about this case, hasn’t talked to anybody, 

hasn’t been informed, hasn’t read anything, doesn’t know anything. So he’s not here to 

give you any opinion about guilt or innocence, okay. [¶] The last line is this, and this is 

all—this is all based on the law: ‘You may consider this evidence’—well, what evidence 

– ‘Child Sex Abuse Accommodation Syndrome only as follows’—in two ways, and 

one’s worded a little funny, but bear with me—‘in deciding’—uh-huh—‘whether or not 

the alleged victim’s conduct’—okay—‘in deciding whether or not the alleged victim’s 

conduct was not inconsistent with the conduct of someone who has been molested,’ that’s 

one. And, ‘Two, in evaluating the believability of the alleged victim’s testimony.’ 

That’s what it’s for.”

Love testified that CSAAS is a clinical study that examines the typical reactions of 

children who have been sexually molested. The purpose of the study was to create a tool 

for various professionals who work with children who have been molested. It is not a 

diagnostic tool and cannot be used to determine whether sexual molestation occurred. 

The study found five components that children tend to experience when they have been 

molested, which include secrecy, helplessness, entrapment and accommodation, delayed 

or unconvincing disclosure, and retraction.

The prosecutor asked Love about the impact of mental health diagnoses, such as 

bipolar or manic depression disorders, on the secrecy component. Love responded that 

children with these diagnoses may have difficulty regulating emotions and have 

inappropriate bonding and attachment with others, including not having appropriate 

boundaries with strangers. Such a diagnosis could increase the secrecy component. In 

addition, Love testified mental health issues can impact cognition and decisionmaking, 

and as to the helplessness component such diagnoses may make these children more 

vulnerable and emotionally needy.
11

Love also testified he had never interviewed Angelina or read any reports on this 

case. He had not made a diagnosis, and none of his testimony could be used to answer 

whether Angelina had been molested.

After the direct examination of Love, defense counsel stated her objection to 

Love’s testimony regarding mental health diagnosis. She indicated she had wanted a 402 

hearing to limit the testimony and to prevent the prosecution from seeking inadmissible 

testimony. She argued it was inappropriate to elicit the testimony regarding mental 

health, in part because she had not received discovery of the relationship between mental 

health problems and CSAAS. The trial court found the testimony remained generic and 

refused to strike the testimony. However, the trial court cautioned the prosecution from 

further examination on that point, specifically the impact of mental illness on the 

remaining components of CSAAS.

Analysis

A. Admission of CSAAS Evidence

Defendant contends the trial court abused its discretion in admitting the CSAAS 

evidence as it was irrelevant and highly prejudicial. He contends the behavior described 

in the study is equally consistent with false testimony as with truthful testimony. He also 

argues this case is not a case of intrafamilial molestation to which this type of evidence is 

commonly applied. Lastly, he claims that even with the limiting instruction, the jury can 

easily misapply the testimony.

California courts have long recognized that expert testimony on CSAAS is 

admissible in child sexual abuse cases for the limited purpose of disabusing the fact 

finder of common misconceptions it might have about how child victims react to sexual 

abuse. (See, e.g., People v. Mateo (2016) 243 Cal.App.4th 1063, 1069; People v. Perez

(2010) 182 Cal.App.4th 231, 245 (Perez); People v. Sandoval (2008) 164 Cal.App.4th 

994, 1001-1002; People v. Wells (2004) 118 Cal.App.4th 179, 188; People v. Patino

(1994) 26 Cal.App.4th 1737, 1744 (Patino); People v. Housley (1992) 6 Cal.App.4th 947, 
12

955-956.) Although CSAAS testimony may not be used to prove that a child was 

molested, it is admissible “for the limited purpose of disabusing a jury of misconceptions 

it might hold about how a child reacts to a molestation.” (Patino, at p. 1744.) The 

prosecution does not have to identify the specific misconception to be addressed; it is 

sufficient if the victim’s credibility is placed in issue due to paradoxical behavior, such as 

delay in reporting a molestation or in inconsistent statements. (Id. at pp. 1744-1745; 

Perez, at p. 245.)

We reject defendant’s assertion that CSAAS does not apply to this particular case. 

The CSAAS evidence admitted in this case was probative for its limited purpose. It was 

used to rebut common misperceptions the jury may have held about how children react to 

being sexually abused. Defense counsel asked the victim about her delay in reporting the 

abuse, and her inconsistent statements, including the new details in her trial testimony.

CSAAS testimony is admissible to explain the victim’s state of mind relative to those 

issues. (Patino, supra, 26 Cal.App.4th at pp. 1745, 1747; see also Perez, supra, 

182 Cal.App.4th at p. 245.) Without the CSAAS evidence on delayed reporting,

inconsistent statements and recantation, the jury could have concluded that the abuse did 

not occur simply because Angelina failed to report it immediately and continued to give 

inconsistent statements as to what occurred. Defendant has not shown the probative 

value of the CSAAS evidence was lessened because this was a molestation by a stranger 

rather than a family member.

The evidence’s probative value was not outweighed by its prejudicial impact. The 

CSAAS evidence in this case was properly limited to the syndrome’s characteristics, 

including delayed disclosure and inconsistencies. Love testified that he was not familiar 

with the facts of this case. He did not testify that Angelina was abused. He did not 

testify she had a mental illness. His testimony was limited to explaining the components 

of CSAAS. We reject defendant’s suggestion that the expert testimony invited the jury to 

conclude Angelina had been sexually abused in the manner she claimed. In our view, no 
13

reasonable juror would interpret Love’s testimony as an expression of opinion on the 

ultimate question of whether Angelina had been sexually abused. (See People v. 

Housley, supra, 6 Cal.App.4th at pp. 955-956 [expert’s testimony that he had never met 

victim, and was unfamiliar with particular facts of case, rendered it unlikely that jury 

would consider CSAAS testimony for improper purpose].) Moreover, the trial court 

instructed the jury on the limited use of the CSAAS evidence, including specifically 

instructing that CSAAS evidence was not evidence that defendant committed any of the 

crimes charged against him.

B. Love’s Testimony Regarding Mental Illness

Defendant also argues the trial court erred in allowing Love to testify as to case 

specific facts, specifically relative to the impact of diagnoses of bipolar or manic

depressive disorder on the CSAAS components, which applied to bolster Angelina’s 

credibility. Although asking about specific mental illness diagnoses did get close to the 

line of proper inquiry, we reject defendant’s claim that the testimony elicited was so case 

specific as to render it unduly prejudicial. Rather, Love’s testimony remained 

generalized statements and observations about the impact of those mental illnesses on the 

components of CSAAS, specifically secrecy and helplessness. As such, the testimony 

remained within the limitations of “observations concerning the behavior of abused 

children as a class and [] avoid[ed] testimony which recites either the facts of the case at 

trial or obviously similar facts.” (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1384.) 

Love explicitly acknowledged that he had neither met Angelina nor reviewed any of the 

reports in this case. The jurors were repeatedly instructed they could only use Love’s 

testimony to understand seemingly counterintuitive behavior when evaluating Angelina’s 

believability. The trial court did not abuse its discretion in admitting this evidence.

C. Evidence Code Section 402 Hearing and Psychiatric Records

Defendant’s last complaint relative to this expert testimony is that the trial court 

denied his right to effectively cross-examine Love by denying his requests for a 402 
14

hearing and denying him access to Angelina’s mental health records to prepare to crossexamine Love. He argues as a result of these abuses of discretion, he was “blindsided”

by Love’s testimony regarding mental illness and access to Angelina’s mental health 

records would have permitted him to effectively cross-examine Love.

It is unsettled whether the “right of confrontation embraces a right to discover 

information necessary to make cross-examination effective.” (People v. Abel (2012) 

53 Cal.4th 891, 931 (Abel), citing People v. Gurule (2002) 28 Cal.4th 557, 592 (Gurule).) 

The “right to confrontation [articulated in the Sixth Amendment] is a trial right, designed 

to prevent improper restrictions on the types of questions that defense counsel may ask 

during cross-examination. . . . The ability to question adverse witnesses . . . does not 

include the power to require the pretrial disclosure of any and all information that might 

be useful in contradicting unfavorable testimony.” (People v. Hammon (1997) 15 Cal.4th

1117, 1126 (Hammon), quoting Pennsylvania v. Ritchie (1987) 480 U.S. 39, 52-53 

(Ritchie) (opn. of Powell, J., concurred in by Rehnquist, C.J., White and O’Connor, JJ.).)

As Hammon notes, only four justices agreed on this point. Three justices 

concluded there were circumstances in which a pretrial denial could violate the 

confrontation clause, and two justices expressed no view on this point. (Hammon, supra, 

15 Cal.4th at p. 1126.) In light of divided views of the Supreme Court, “it is not at all 

clear ‘whether or to what extent the confrontation or compulsory process clauses of the 

Sixth Amendment grant pretrial discovery rights to the accused.’ ” (Ibid.) Denial of a 

defendant’s request to examine the confidential psychiatric records of a critical

prosecution witness for purposes of impeachment does, however, “implicate the 

fundamental fairness of trials and [is] therefore subject to analysis under the due process 

clause of the Fourteenth Amendment to the United States Constitution.” (Abel, supra, 

53 Cal.4th at p. 931; Richie, supra, 480 U.S at p. 56.)

The mental illness or emotional instability of a witness can be the subject of crossexamination of the witness “if such illness affects the witness’s ability to perceive, recall 
15

or describe the events in question.” (Gurule, supra, 28 Cal.4th at p. 592.) When a 

criminal defendant seeks, for purposes of impeachment, information otherwise protected 

by state law evidentiary privileges, such as the disclosure of private records, medical or 

otherwise related to care and treatment, the trial court must “balance the defendant’s need 

for cross-examination and the state policies the privilege is intended to serve.” 

(Hammon, supra, 15 Cal.4th at p. 1127; Davis v. Superior Court (1992) 7 Cal.App.4th 

1008, 1018-1019.)

In this context, the trial court has a “duty to review the documents and to 

determine which, if any, are material and should be disclosed.” (People v. Martinez

(2009) 47 Cal.4th 399, 453.) “ ‘[E]vidence is material only if there is a reasonable 

probability that, had the evidence been disclosed to the defense, the result of the 

proceeding would have been different. A “reasonable probability” is a probability 

sufficient to undermine confidence in the outcome.’ [Citation.]” (Ritchie, supra, 

480 U.S. at p. 57; Abel, supra, 53 Cal.4th at p. 931.) “We also consider any adverse 

effect nondisclosure might have had on counsel’s investigations and trial strategy.” 

(Abel, at p. 931.)

The purpose of a 402 hearing is to decide preliminary questions of fact upon 

which the admissibility of evidence depends. (People v. Superior Court (Blakely) (1997) 

60 Cal.App.4th 202, 209, fn. 6.) CSAAS testimony has long been admissible evidence. 

The trial court was familiar with Love, the nature of the testimony to be offered by him, 

and its admissibility. The parties discussed the testimony and the prosecution provided 

defense counsel with a graphic of the topics to be discussed by Love. The prosecution 

assured the trial court Love did not have, and would not testify to, any specific 

knowledge about Angelina or the specific facts of this case. Although Love’s testimony

ultimately went slightly beyond the prosecution’s proffer, given this record, it was not an 

abuse of discretion for the trial court to deny defendant’s request for a 402 hearing. (See 

People v. Chavez (2018) 22 Cal.App.5th 663, 704.)
16

The trial court conducted an in-camera review of Angelina’s mental health records 

and found they contained no information relevant to any issue in the case. (See People v. 

Webb (1993) 6 Cal.4th 494, 518.) Defendant does not argue the trial court erred in 

making this ruling as to cross-examining Angelina, the context in which the trial court 

was asked to review the records’ materiality. The records do not contain information that 

suggests a mental illness or instability that would have affected Angelina’s ability to 

perceive, recall, or describe the events in question. (Gurule, supra, 28 Cal.4th at p. 592.) 

The trial court was not asked to reconsider this ruling in light of Love’s testimony. 

Accordingly, as to this point, the claim is forfeited. Moreover, denial of these records did 

not “deprive[] [defendant] of information he could use to cross-examine” Love. (Abel, 

supra, 53 Cal.4th at pp. 930-931; Hammon, supra, 15 Cal.4th at p. 1127.) Love had not 

reviewed the records, had no information about what was in the records, had no specific 

information regarding Angelina’s mental health diagnoses, and did not testify on any of 

these points.

Further, although defense counsel may not have expected Love to testify as to the 

effect of mental illness on the CSAAS components, this unexpected testimony did not 

hinder counsel’s ability to cross-examine Love. Defense counsel was aware well before 

trial that Angelina had been diagnosed with bipolar/manic depressive disorder. She also 

knew this information well before Love’s testimony. Moreover, as discussed ante,

Love’s testimony as to the impact of mental illness on the syndrome components was 

generalized and not specific to Angelina’s diagnosis or treatment. It could not have been 

specific, as Love had no information about Angelina or this case specifically. As such, 

granting a 402 hearing and permitting examination of Angelina’s mental health records 

could not have resulted in a more effective cross-examination of Love. We find no abuse 

of discretion in the trial court’s rulings and the rulings did not infringe upon defendant’s 

right to effectively cross-examine Love.
17

III

Defendant contends the trial court erred in imposing a $500 fine under section 

294. The People properly concede this point. Under section 294, the trial court may 

impose a restitution fine when a defendant is convicted of an enumerated offense against 

a minor under 14 years old. (§ 294, subds. (a) & (b).) Section 288 is not one of the 

enumerated offenses. Accordingly, ordering defendant to pay that fine was unauthorized.

DISPOSITION

We modify the judgment to strike the fine under section 294. In all other respects, 

we affirm the judgment.

 /s/

BLEASE, J.

We concur:

 /s/

RAYE, P. J.

 /s/

RENNER, J.