Filed 5/31/2016 CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. VICENTE RUIZ GARCIA, Defendant and Appellant. H040914 (Santa Cruz County Super. Ct. No. F24718)

Defendant Vicente Ruiz Garcia was convicted by jury trial of 16 counts of forcible lewd acts on a child (Pen. Code, § 288 , subd. (b)) 1 and sentenced to 86 years in state prison. On appeal, he claims that (1) the convictions are not suppo rted by substantial
evidence because the evidence at trial did not link each act of abuse to a particular one of the specific one

- year periods alleged in the second amended information , (2 ) there is not
substantial evidence of force or duress , (3) the trial court prejudicially erred in denying his motion to suppress his statements to the police, (4) the trial court prejudicially erred in admitting expert testimony about chil d sexual abuse accommodation syndrome (CSAAS), and (5) there are clerical errors in the abstract of judgment and minutes that
must be corrected.

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of sections III(B), III(C), and III(D).
1 Subsequent statutory references are to the Penal Code unless otherwise s pecified

.2

The Attorney General concedes that the errors in the abstract and minutes must be
corrected , and we agree

. In the published portion of this opinion, we conclude that it was not necessary for the prosecution to prove that specific charged acts occurred during each
of th e one

- year periods alleged in the information since the information alleged only that
the acts occurred “on or about” each of those periods . In the unpublished portions of the opinion, w e reject the remainder of defendant‟ s contentions. Consequently, we affirm the judgment and order the abstract and minutes corrected

.

I. Factual Background
In 2012, Jane Doe told her mother that defendant , her father, had sexually abuse d her, and her mot h e r confronted defendant. Defendant admitted the abuse and told Jane‟s mother that “he needed help and he didn‟t know why he had done it

. . . .” The abuse

sto pped.
On May 8, 2013, Jane‟s mother called 911 after defendant became “very drunk and he got very aggressive.” A deputy from t he San Benito County Sheriff‟s Department responded to the “ domestic disturbance ” call

. The deputy spoke with Jane, and she t old
him that defendant had touched her private parts from the time she was five years old
until she was 10 years old

. The deputy contacted San Benito County c hild p rotective

s ervices (CPS)

. After speaking with Jane, the CPS worker removed her from the ho me and contacted the Wa tsonville police , as the touchings had not occurred in San Benito County

. On May 10 , 2013, two Watsonville police officers went to the San Benito County
CPS office s and met with defendant there. While they were meeting with defendant, another police officer was interviewing Jane , who had been brought by CPS to the police department in Watsonville. Defendant admitted that he had sexually abused Jane, a nd Jane provided details of the abuse to the police. Although defendant a dmitted to just a
few incidents of non forcible abuse and insisted that they occurred in a single one

- year3

period in Chowchilla, Jane told the police about years of forcible abuse that began in Mexico when she was five years old and continued in Chowchilla and Watsonville until she was 10 years old

. Defendant was arrested at the end of his police interview.

II. Procedural Background The second amended information charged defendant with 16 counts. F our counts were charged for each one

- year period beginni ng with September 2007 through September 2008 and ending with September 2010 through September 2011

. The jury returned guilty verdicts on all 16 counts , and the court committed defendant to state prison for a term of 86 years

. Defendant timely filed a notice of appeal.

III. Discussion
A . Sufficiency of the Evidence Defendant contends that there is not substantial evidence in the record to support
the 16 counts on which he was convicted. He also contends that there was ins ufficient
evidence of force or duress

. 1. Jane’s Police Interview Jane told the police that defendant had begun touching her vagina when she was five years old and they were living in Mexico. 2 There were a couple of touchings in
Mexico. 3 After t he fami ly moved to Chowchilla , d efendant continued to abuse her, and
there were a lot of incidents of abuse in Chowchilla . While they were in Chowchilla, defendant touched her vagina and showed her his penis. He perpetrated the abuse when her mother was cooking , taking a shower, or washing clothes.

2 Videos of Jane‟s police interviews were played for the jury at trial.
3 The touchings in Mexico were not charged in this case.4

The family moved to Watsonville while Jane was in second grade, and the abuse got worse and continued when she was in third grade and fourth grade. The abuse was frequent in Watsonville; it happened almost every time her mother took a shower. Her mother took a shower every couple of days. Jane estimated that the abuse happened about 200 times in Watsonville when she was in second, third, and fourth grades.
Defendant would not only touch her private parts, but he would also grab her hand and “make” her touch his penis when they were in the car t ogether. Three times he forced her to touch his penis by grabbing her hand and putting it on his penis. It was in Watsonville that he began putting his penis on her vagina . He would pull her pants down, push her onto a bed or the floor, pull his pants d own, get on top of her, and put his penis on her vagina

. During these incidents of abuse , d efendant would grab Jane‟s hands really hard so that she would not move; this hurt her. A couple of times he covered her mouth so that
she could not scream. He also told her not to scream or he would do something to her mother, and he threatened to hurt her mother if she did not permit him to abuse her. In 2012, when Jane was 10 years old, she told her mother about defendant‟s abuse. Jane‟s mother confronted defendant, and he admitted the abuse. He stopped abusing
Jane. 2. Jane’s Trial Testimony Jane was a very reluctant witness at trial. Asked whether defendant had abused her in Mexico, she said “I don‟t want to talk about it.” Jane explained that she thought defendant “is a good dad,” and “I don‟t want him to be in jail

. . . .” Nevertheless, she
confirmed that she had told the truth to the police during her May 2013 interview and during a subsequent interview a couple of months later. Jane intermit tently exhibited reluctance to testify about the abuse: “I don‟t want to talk no more.”
Jane testified at trial that she came to the United States and moved to Chowchilla when she was six years old. The family subsequently moved to Watsonville. Jane5

confirmed that defendant had touched her vagina, displayed his penis to her, put his penis on her vagina, and forced her to touch his penis. She recalled one or two incidents in Watsonville where defendant forced her to touch his penis in the car. Jane r ecounted that the touchings occurred both lying down and standing up. Jane could not remember how many times defendant abused her in Chowchilla. She did remember that the abuse in Chowchilla occurred when her mother was cooking or in the bathroom. Once, she could not remember at what location, defendant touched her chest. Although she said she did not remember how many times defendant had touched her, she recalled telling the police that it was about 200 times. However, she testified that
she now tho ught that “it wasn‟t that much.” Jane remembered telling the police that the abuse had begun in Mexico when she was five years old , but on cross

- examination she said that the event in Mexico was just defendant trying to touch her, “but I didn‟t let
him

. . . .” Jane confirmed that in Watsonville defendant would “grab my hands really hard so I couldn‟t move” or “get away.” This “hurt.” Sometimes he would lie on top of her and cover her mouth so that she could not scream. He told her not to tell anyone about the abuse. However, Jane testified that defendant had never told her that he was going to do something to her mother.
On cros s

- examination, Jane testified that there were just three instances of abuse
in Chowchilla , and defendant did not hold he r down or threaten her when he abused her in Chowchilla. However, she also testified that he would “grab my hand” in Chowchilla.
She reiterated that he had held her down when he abused her in Watsonville. She also
testified on cross

- examination that the re were at least five instances of abuse in Watsonville. But she testified both that he held her down every time and that he held her down just once or twice and did not threaten her.6 3. Defendant’s Admissions During his police interview, d efendant a dmitted that he had sexually abu sed Jane
five times in Chowchilla and two or three times in Watsonville. In Chowchilla, Jane had
touched his erect penis once while her mother was in the shower ; twice he had touched her vagina with his hand; and twice he h ad placed his penis over her vagina. In Watsonville, defendant two or three times put his penis on Jane‟s vagina while her
mother was in the shower.
4. Standard of Review
Our standard of review is well established. “ „ [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ‟ ” ( People v. Johnson (1980) 26 Cal.3 d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318

- 319.) “[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably de duce from the evidence.” ( People v. Reilly (1970) 3 Cal.3d 421, 425; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) “Evidence is sufficient to support a conviction only if it is substantial, that is, „ “ if it reasonably inspires
confidence ” ‟ [ citation], and is „ credible and of solid value. ‟ ” ( People v. Raley (1992) 2 Cal.4th 870, 890

- 891.)
5. Time Periods
Defendant claims that his convictions are not supported by substantial evidence
because “it is virtually impossible to determine which of the alleged acts he committed ” “during each one year period.” He asserts that the evidence presented at trial did not satisfy the requirements of People v. Jones (1990) 51 Cal.3d 294 ( Jones ).
In Jones , the six counts at issue each charged one event in a different two

- month period. ( Jones , supra , 51 Cal.3d at p. 303.) The victim of these counts testified that the abuse occurred once or twice a month during the charged periods. ( Jones , at p. 301.)7

The California Supreme Court held that the victim‟s g eneric testimony constituted
substantial evidence support ing these six convictions. “[I]n determining the sufficiency of generic testimony, we must focus on factors other than the youth of the victim/witness. Does the victim‟s failure to specify precise date, time, place or circumstance render generic testimony insufficient? Clearly not. As many of the cases make clear, the particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a convicti on. [Citations.] [¶] The victim, of course, must
describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., „twice a month‟ or „every time we went camping‟). Finally, the victim must be able to
describe the general time period in which these acts occurred (e.g., „the summer before my fourth grade,‟ or „during each Sunday morning after he came to live with us‟), to
assure the acts were commit ted within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim‟s testimony, but are not essential to sustain a
convi ction.” ( Jones , at pp. 315

- 316.)
The Jones court also separately addressed whether the victim‟s generic testimony violated the defendant‟s due process rights . ( Jones , supra , 51 Cal.3d at p. 316.) First, it
held that r eliance on generic evidence did not violate a defendant‟s due process right to notice. “ We conclude that, given the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony does not, of itse lf, result in a d enial of a defendant‟ s due process right to fair notice of the charges against him. ” ( Jones , at p. 318.) Second, the court concluded that reliance on generic testimony did not deprive a defendant of his or her due8

process right to prese nt a defense. ( Jones , at pp. 319

- 320.) Finally, the court held that a defendant‟s right to a unanimous verdict was ensured by u nanimity instructions. ( Jones , at p. 321.) Defendant contends that the evidence presented at trial was insufficient to sup port his convictions on the first eight counts because the evidence did not link the acts of abuse to the time periods alleged in the second amended information for those counts.
The second amended information , which was the operative pleading at trial, a lleged that each set of four counts occurred “ [o] n or about or between” a one

- year period corresponding to Jane‟s ages of six, seven, eight, and nine

. The first four counts were alleged to have occurred when Jane was six years old, and the second four cou nts were alleged to have occurred when Jane was seven years old. Jane testified at trial that she was born in September 2001. Jane and her mother both testified at trial that the family
moved to Chowchilla from Mexico when Jane was six years old

. In d ef endant ‟s statement to the police, which was admitted into evidence at trial, he told the police that the family moved to Chowchilla when Jane‟s younger sister was seven months old. Jane‟s mother testified that Jane‟s younger sister was born in late July 2 007. Hence, they moved to Chowchilla in February or March 2008, when Jane was six and a half years old.
Jane testified that she was six or seven years old when they lived in Chowchilla , and her mother testified that the family lived in Chowchilla for “ [m] ore than a year and a half. ” 4 This evidence established that Jane lived in Chowchilla for all or nearly all of the year when she was seven years old. The first four counts charged a period that included only approximately the first
seven months of t he “[m]ore than a year and a half” that the family lived in Chowchilla.

4 Jane told the police that she was in first grade when they lived in Chowchilla and that she moved to Watsonvil le while she was in second grade. She also told the police that she went to second, third, and fourth grades in Watsonville. Jane testified that she was 12 years old and in the sixth grade at the time of the January 2014 trial

.9

The second four counts charged a period during which the family lived primarily in Chowchilla, but possibly lived in Watsonville toward the end of the period. As a result,
the Chowch illa events of abuse were spread over the time periods charged in both the
first and second sets of four counts. N o evidence was presented by the prosecution distinguishing between events of abuse during the one

- year period when Jane was six years old and living in Chowchilla (September 2007 to September 2008) and events of
abuse during the one

- year period when Jane was seven years old and still livi ng in
Chowchilla ( after September 2008). The only evidence of the total number of events of
abuse that occu rred while they lived in Chowchilla was Jane‟s statement to the police that there were “a lot” of incidents of abuse in Chowchilla and defendant‟s admission that
there were five events of abuse in Chowchilla

. Neither Jane‟s statement nor defendant‟s
admis sion distinguish ed between the two periods of time . Jane also did not give any statements or testimony about the frequency of the abuse in Chowchilla. Defendant argues that reversal of these eight counts is required due to insufficiency of the evidence because the evidence did not permit a determination of “how many acts occurred during each one year period.” The Attorney General con t ends that it was not necessary for the pr osecution to present evidence that the number of acts charged during a specific one

- year time period actually occurred during that one

- year time period. She contend s that the prosecution was required to show only that all of the acts occurred during the a pplicable limitations period. In her view, the prosecution‟s failure to show that four acts occurred while Jane was six years old and four acts occurred while Jane was seven years old , as charged in the second amended information, was merely a “variance b etween the p leading and the proof” that defendant forfeited by failing to object on that basis below and that would not in any event establish insufficiency of the evidence.
Defendant did not forfeit this contention. He demurred on due process grounds to the first amended information‟s use of one

- year periods without otherwise distinguishing10

between the counts. The prosecution responded that it was enough for the information to allege that the offenses occurred during th e applicable limitations period. His demurrer was overruled. Defendant also filed a section 995 motion challenging the sufficiency of the evidence presented at the preliminary examination to support the first eight counts.
He claimed that the evidence w as insufficient to show that four counts occurred when Jane was six years old or that four counts occurred when she was seven years old. His
motion was denied. Since defendant demurred on this ground and brought a section 995 motion on this ground, w e ca nnot credit the Attorney General‟s suggestion that defendant‟s contention was not “preserved” because he failed to bring it up below.
Defendant claims that the evidence is insufficient to support the first eight counts because no evidence linked particul ar acts of abuse to those specific one

- year periods. Such evidence was not required. “ The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the f inding or filing thereof, except where the time is a material ingredient in the offense. ” (§ 955.) “ The law is clear that, when it is charged that an offense was committed „on or about‟ a named date, the exact date need not be proved unless the time „is a material ingredient in the offense‟ ( Pen. Code, § 955), and the evidence is not insufficient merely because it shows that the offense was committed
on another date. ” ( People v. Starkey (1965) 234 Cal.App.2d 822, 827 ; accord People v. Peyton (2009) 176 C al.App.4th 642, 660 .) Time was not a “material ingredient” (§ 955) in any of the offenses. And Jones says nothing inconsistent with these principles

. The premise for defendant‟s contention is nothing more than a pleading error. The
second amended info rmation alleged the counts by reference to one

- year periods corresponding to Jane‟s age at the time of the events, but the evidence at trial did not distinguish between the acts of abuse by reference to one

- year periods or to Jane‟s age at
the time of the events. The evidence at trial distinguished between the events only by reference to whether they occurred in Chowchilla or in Watsonville. This pleading error11

did not render the evidence insufficient because the second amended information used “on or abo ut” in reference to these one

- year periods , making it un necessary to establish when the offenses actually occurred. The jury was not obligated to match the counts to

one

- year periods. Indeed, it was instructed that “[t] he People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day. ” The jury was also given a proper unanimity instruction that permitted it to convict defendant of all of the charged counts if “ [y] ou all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged. ” 5 The evidence at trial established that there were far mo re than 16 events of abuse that occurred during the four

- year period encompassed by the counts charged in the
information. 6 Since the jury could have concluded that defendant committed all of the
acts Jane described , which was far more than 16, and reached a unanimous verdict on that

5 The jury was instruct ed as follows on unanimity: “The defendant is charged with committing lewd acts on a child by force/violence/fear/duress in Counts 1

- 16 sometime during the periods of September 28, 2007 to September 27, 2011. [¶] September 28, 2007 and September 27, 200 8 = Counts 1

- 4 [¶] September 28, 2008 and September 27, 2009 = Counts 5

- 8 [¶] September 28, 2009 and September 27, 2010 = Counts 9

- 12 [¶] September 28, 2010 and September 27, 2011 = Counts 13

- 16 [¶] The People have presented evidence of more than o ne act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense; [¶] OR [¶] You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged.”
6 Jane told the police that the abuse occurred approximately every couple of days during the years they lived in Watsonville until she disclosed the abuse to her mother when she was 10 years old.12

basis, the incongruence between the dates alleged in the second amended information and the evidence produced at trial was immaterial. 7

6. Force and Duress Defendant also challenges the sufficiency of the evidenc e to show that he used
force or duress to perpetrate the abuse.

“ „ [ D ] uress as used in the context of section 288 [means] a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person
of ordinar y susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitte d. ‟ ” ( People v. Leal (2004) 33 Cal.4th 999, 1004 .) “A defendant uses „force‟ if the prohib ited act is facilitated by the defendant‟s use of physical violence, compulsion or constraint against the victim other than, or in addition to, the physical contact which is inherent in the prohibited act.” ( People v.
Bolander (1994) 23 Cal.App.4th 155, 1 64 (Mihara, J. concurring) ( Bolander ) ; accord People v. Soto (2011) 51 Cal.4th 229, 242 .) “ [A] n act is forcible if force facilitated the act rather than being merely incidental to the act.” ( Bolander , at pp. 164

- 165.) “[A]cts of grabbing, holding and restraining that occur in conjunction with the lewd acts themselves” are sufficient to support a finding that the lewd act was committed by means of force. ( People v. Alvarez (2009) 178 Cal.App.4th 999, 1005 ( Alvarez ).) Defendant used duress by means of thre ats to facilitate his abuse of Jane. During the earliest acts of abuse in Mexico, when Jane was five year s old, defendant “ would always tell me that he was gonna do something to my mom if I didn‟ t let him do something to me. ” This threat made Jane “ scared, ” and she had dreams about defendant

7 Defendant claims that the evidence is insufficient to support the other eight counts for the same reason: the evidence presented at trial did not distinguish between the two
one

- year periods with respect to the acts of abuse that occurred in Watsonville. This claim fails for the same reason that the claim a s to the first eight counts fails.13

“killing my mom.” Defendant continued to make similar threats

. He warned her not to scream or he would “do somethin to my mom.” Because of these threat s , Ja ne “ let him do whatever he wanted to because I was really nervous he was gonna do something to my

mom. ” Jane‟s decision to disclose the abuse came about because she “ got tired of my dad telling me that he was gonn a do something to my family .” Defendant a lso repeatedly used force to perpetrate much of his abuse of Jane. He grab bed her hands so hard that it hurt in order to keep her from moving while he touched her vagina . He forced her to touch his penis by grabbing her hand and p lacing it on his penis. Defendant was able to place his penis on Jane‟s vagina only because he had “ push[ed] ” Jane down on the floor and got ten on top of her. Although Jane attempted to push him off of her, she was
unsuccessful because he “wouldn‟t get up.” D efendant also cover ed her mouth to keep her from screaming. Defendant‟s threats to harm Jane‟s mother were plainly sufficient to cause a reasonable person to permit acts of abuse that she would not otherwise have permitted. After defendant had repeate dly threatened to harm Jane‟s mother, all of his subsequent acts of abuse were facilitated by the duress engendered by these threats. The fact that he also grabbed, held, and restrained Jane during many of the acts of abuse further supported the jury‟s ve rdicts. In light of the many acts that occurred in Watsonville and the jury‟s implicit finding that all of the acts alleged occurred, it is irrelevant whether all of the Chowchilla acts were committed by force or duress. S ubstantial evidence supports the jury‟s findings that defendant‟s acts of abuse came within the provisions of section 288, subdivision (b)(1).

B . Defendant’s Statements To The Police Defendant claims that the trial court prejudicially erred in admitting into evidence
his statements to the police because he was in custody during the initial portion of his14

police interview, before he was advised of his constitutional rights, and he did not subsequently voluntarily waive his rights. 8
1. Background
A CPS worker met with defendant on the morning of May 10, 2013. The CPS worker did not ask defendant about the molestation allegations. When Watsonville police officers arrived at the CPS offices, the CPS worker introduced defendant to one of the police officer s and then the CPS worker le ft the room

. The police officer did not advise defendant of his constitutional rights because defendant was not under arrest and
was free to leave. The police officer told defendant: “[Y]ou know that right now you‟re not under any obligation to talk to us, do you understand?” Defendant replied: “No, but that‟s fine.” The officer repeated that “you‟re not under any obligation to speak with anyone,” and defendant again responded “that‟s fine.” The officer also told him: “if at any time you feel

-- and if you don‟t feel well or you want to leave or

- [

- ] or you don‟t want to talk with me” “it‟s cool, you can leave the room as you wish or you can

-- if you don‟t want to talk about this, you tell me

. . . .” Defendant responded: “No, it‟s fine. I‟ll

-- I‟ll say what you ask me, I‟ll

-- I‟ll answer.” Defendant proceeded to readily respond to the officer‟s questions about his family and to describe the domestic disturbance that had led to CPS‟s involvement. The officer told defendant that he had spoken to Jane and that the officer knew that defendant had “touched her” in the past. The officer asked defendant to be truthful. Defendant proceeded to provide a lengthy narrative with little prompting by the officer beyond
“Mm

- hm.” Defendant said that he “ used to drink a lot. And sometimes I didn‟t know what I was doing because of the damn alcohol.” “I don‟t know what I did. If I ever

8 After the initial portion of the police interview , the police left for a while. They returned and advised defendant of his constitutional rights and continued to interview him

. A third portion of the interview follow ed the second one. Transcripts of these interviews were admitted into evidence at trial.15

disrespected my daughter, forgive me.” “I wasn‟t in my (five) senses.” “My

-- my wife is upset at me for the times that I would come home drunk and I wanted to grab the girl, maybe touch her private parts.” The officer told defendant “I don‟t want to arrest anyone,” and defendant responded “I‟m telling you the truth.” The officer repeated “I‟m not here to arrest

anyone .” Defendant said “if you are, it doesn‟t matter, you‟re within her rights.” The officer told defendant that Jane “told me exactly what happened,” and the officer wanted to “help your daughter get the help that she has needed.” The officer told defendan t that he knew defendant‟s wife had talked to him about Jane‟s allegations, and defendant responded: “I don‟t deny it, it is true.” He repeated that he had touched Jane when he was drunk. The officer asked him if he had touched Jane‟s vagina, and he adm itted that he had. He asserted that he had touched her over her pants in Chowchilla when she was nine years old. Defendant initially denied that he had ever put his penis on Jane‟s vagina,
but h e admitted that Jane had once touched his penis also in Chow chilla when she was nine years old. Defendant initially denied that there had been any touchings in
Watsonville. The officer at this point reiterated “don‟t feel that you‟re obligated to talk to me.” Defendant responded: “I came to tell the truth.” He went on to admit that his penis was
erect when Jane touched it and that his wife had been in the shower when that event occurred. Defendant also admitted having “sexual feelings” when Jane touched his penis and when he touched Jane‟s vagina. And he ad mitted telling Jane not to say anything to her mother. He insisted that Jane had touched his penis just once. At this point, the officer told defendant that he would be “right back” to ask “another question or two,” and they took a break. The officer r eturned and advised defendant of his constitutional rights. Defendant acknowledged that he understood his rights, and he continued to respond to the officer‟s questions. Eventually, he admitted that he had put his penis over Jane‟s vagina, but he initial ly insisted that it was over her16

clothes and happened only in Chowchilla. The officer continued to ask him about events in Watsonville, and defendant responded: “If my daughter said that, that‟s fine. It also happened in Watsonville.” He denied using f orce or covering Jane‟s mouth. He denied that Jane had touched his penis in Watsonville, but he admitted that two or three times he had placed his erect penis over Jane‟s vagina in Watsonville while his wife was in the
shower. He admitted to five events in Chowchilla. Once Jane had touched his penis; twice he had touched her vagina with his hand; and twice he had placed his penis over her vagina. He claimed that all of these events happened during the same year. The officer took another short break, returned, and reminded defendant “of your rights.” This final portion of the interview was very brief. Defendant denie d that he had
touched Jane in a car, and he denied that there were more than five touchings. At this point, the officer told defendant that he was “going to be arrested.” Defendant expressed no surprise. Instead, he said “that‟s fine.” The officer asked defendant “how did you feel talking to me?” Defendant responded: “I felt fine, I already said what I was going to say, and everythin g‟s all right.” That was the end of the police interview. Defendant moved in limine to exclude his statements to the police. He contended that the statements he made to the police prior to being advised of his constitutional rights
were inadmissible b ecause he was in custody during that initial portion of the interview. 9 Defendant also contended that all of his statements to the police should be excluded as
coerced. The trial court found that the initial portion of the police interview was not

cust odial because defendant was told that he did not have to speak to the officers, did not have to answer any questions, and was free to leave. The trial court also found that, after the initial portion of the police interview, defendant was properly advised of his rights

9 The audio recording of the interview , which was in Spanish, is not part of the record on appeal.17

and voluntarily and intelligently waived his rights. It therefore denied his motion to exclude his statements to the police. T ranscript s of all three portions of the interview of
defendant were admitted into evidence , and the audio recordi ngs were played for the jury. 2. Analysis Defendant claims that the trial court erred in concluding that he was not in custody during the initial portion of the interview.

“ Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.
But police officers are not required to administer Miranda warnings to everyone whom they question.

. . . Miranda warnings are required only where there has been such a restriction on a person‟s freedom as to render him „in custody. ‟ ” ( Oregon v. Mathiason (1977) 429 U.S. 492, 495.)
“ „ Before being subjected to “ custodial interrogation,” a suspect “ must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presen ce of an attorney, either retained or appointed. ” ‟ ” ( People v. Leonard (2007) 40 Cal.4th 1370, 1399

- 1 400 , italics added.) “ An i nterrogation is custodial when „ a person has been taken into custody or otherwise deprived of his freedom of action in any si gnificant way .‟ [Citation.] Whether a person is in custody is an objective test; the pertinen t inquiry is whether there was „ “ „ a

“ formal arrest or r estraint on freedom of movement” of the degree associated with a
formal arrest. ‟ ” ‟ [Citation.] [¶] Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] When reviewing a trial court‟ s determination that a defendant did not undergo custodial interrog ation, an appellate court
must „ apply a deferentia l s ubstantial evidence standard‟ [citation] to th e trial court‟ s factual findings regarding the circumstances surrounding the interrogation, and it must independently decide wheth er, given those circumstances, „ a reaso nable person in [the]18

defendant‟ s positio n would have felt free to end the questioning and leave‟ [citation]

. ” ( Leonard , at p. 1400 .) “ All the circumstances of the interrogation are relevant to this inquiry, including the location, length and form of the interrogation, the degree to which
the i nvestigation was focused on the defendant, and whether any indicia of arrest were present. ” ( People v. Moore (2011) 51 Cal.4th 386, 395.)
The trial court did not err in ruling that defendant was not in custody during the initial portion of the interview

. The interview did not take place at the police station, but at the CPS offices. Defendant was repeatedly reminded that he was not under arrest, was free to leave, and did not have to speak to the police officer or anyone else. There were
no indicia of arrest, and defendant was not restrained or confined in any way. The officer did not press defendant to answer his questions during the initial portion of the interview , and this portion of the interview was not particularly lengthy. In fact, defendant appeared eager to relate his story, and the officer simply encouraged him to do so. Since defendant was not in custody during the initial portion of the interview, the officer was not obligated to advise him of his constitutional rights.
Defendant asse rts that a reasonable person would have believed that he was required to submit to the police interview in order to regain custody of his children. He bases this argument on his claim that he “was asked to come to a government office to meet with a govern ment worker about his children.” The record contains no evidence concerning how defendant came to be meeting with the CPS worker that morning. Nor is there any evidence that he was led to believe that submission to police questioning was necessary to reg ain custody of his children. The CPS worker did not ask defendant about the molestation allegations, and the police repeatedly told him that he was free to leave and did not have to answer anyone‟s question s. Under these circumstances, a reasonable
perso n in his position would have concluded that submitting to the police interview was not obligatory and was not an avenue to regain custody of his children.19

Defendant also contends that his statements to the police should have been
excluded under Missouri v. Seibert (2004) 542 U.S. 600 ( Seibert ). “ Seibert does not apply where, as here, the suspect was not in custody during the first stage of the interrogation.” ( Smith v. Clark (9th Cir. 2015) 612 Fed.Appx. 418, 421.) Since defendant was not in custody du ring the initial portion of the interview, Seibert is inapplicable

.

C. CSAAS Evidence
Defendant contends that the trial court prejudicially erred in admitting CSAAS
evidence

. 1. Background
Defendant moved in limine to exclude as irrelevant or undu ly prejudicial expert testimony about CSAAS. However, at the hearing on the in limine motion, he argued only that the expert should be limited to testifying about “common myths related to child abuse” and sought only to preclude him from giving other test imony. The court ruled that the CSAAS expert would be precluded from offering testimony “regarding an opinion as to the believability” of the complaining witness or regarding “ this particular complaining witness , ” “this defendant, their family,” and “these particular incidents.” The expert would be permitted to testify “as to how children in general respond to these
situations

. . . .” T he court deferred ruling on any more specific objections until the expert testified.
Carl Lewis testified for t he prosecution as an expert on CSAAS. Over a period of 25 years, Lewis had investigated hundreds of cases involving allegations of child sexual
abuse , and he had testified as an expert on CSAAS about 300 times

. Lewis described the “myths about child sexu a l abuse that may not be accurate.” He explained that he knew nothing about t his particular case and was merely providing “general information about20

this topic” for the jury

. “These categories are helpful in reminding us that things may not always match our preconceived ideas.” Lewis described five myths, categories, or aspects of CSAAS. One myth is that a
child will always di sclose the molestation. This i s the “secrecy” aspect of CSAAS. 10 To keep the molestation secret, the molester may threaten the victim

. Another “category” of CSAAS is “helplessness.” A child‟s dependence on the molester may render the child unable to stop the abuse. A third category of CSAAS is the child‟s “entrapment and accommodation.” The child may be trapped by the circums tances and learn to accommodate the abuse by acting like nothing is wrong

. A fourth category is “delayed unconvincing disclosure.” A molested child may dela y disclosing the abuse and make an unconvincing disclosure due to the child‟s conflict about repor ting the abuse. The fifth category is “ retraction. ” A child molest victim may retract a claim of abuse due to the “chaos” that the disclosure has brought to the child‟s life.
At t he prosecution ‟s request, the court ga ve CALCRIM No. 1193 on CSAAS
evidence. “ You ‟ve heard testimony from Carl Lewis regarding child sexual abuse
accommodation syndrome. [¶] Carl Lewis‟ testimony about child sexual abuse accommodation syndrome is not evidence that the defen dant committed an y of the acts charged against him. [¶] You may consider this evidence only in deciding whether or
not Jane Doe‟s conduct was not inconsistent with the conduct of so meone who has been
molested in evaluating the believability of her testimony. ”

10 After Lewis began testifying, defendant‟s trial counsel asse rted that CSAAS was not a proper subject for expert testimony because “[e]verybody with common sense that God gave a chicken knows this

. . . .” The trial court rejected this assertion: “If it indeed is something a layperson understands I don‟t see any p rejudicial impact with this gentleman testifying to it.” “I do not find your argument that this type of testimony is within common knowledge to be persuasive.” Defendant‟s trial counsel also objected to certain questions as “beyond the scope.” Most of t hese objections were overruled. He does not argue on appeal that the trial court erred in overruling any of his specific objections.21

The prose cutor argued to the jury that CSAAS “explains how the evidence came in. It explains Jane Doe‟s conduct and how her conduct was understandable and her testimony was believable and most importantly her statement to Detective Sousa was believable.” “Let‟s t alk about child sexual abuse accommodation syndrome. It‟s not evidence he did anything in this case as far as the crimes charged. It‟s not evidence against him. Mr. Lewis didn‟t

-- he didn‟t read the reports. He didn‟t see the interviews.
He was here to just sort of tell us some general concepts about child molestation and myths about child molestation which

-- which assists viewing all of the evidence and it
shows

-- and for evaluating the believability of the testimony and the other evidence in
the c ase.” The prosecutor went through the five categories of CSAAS

. Defendant‟s trial counsel criticized Lewis‟s testimony in his argument to the jury

. “[H]e‟s not qualified to do anything. He is basically a beat cop who got a good gig and the good gig i s testifying in court to [CSAAS]. [¶] He couldn‟t show any studies to support his opinion and the opinion really was or should have been limited to dispelling myths commonly held. I don‟t know what myth he supposedly explained but he got into the, w ell, the children

-- children g en e rally will do A, B, C or D. I submit that that‟s beyond any expert witness and we don‟t know if it applies to Jane Doe.

. . . Why don‟t we have somebody who examined Jane Doe come in and testify with regard to that?”
The prosecutor responded in his closing argument. “Mr. Lewis provided helpful testimony in this case. He‟s able to say what a common myth is about delayed reporting or about retracting because he has experience in this area and he‟s interviewed

-- he
teaches people on how to interview kids. So that‟s why he is qualified to provide you with evidence in this regard.” 2. Analysis Defendant claims that the trial court prejudicially erred in admitting the CSAAS
evidence because it was irrelevant. He asserts t hat “nothing in the record establishes whether the jurors, or even people today generally” have any “misconceptions” about22

how a molest victim would act. Defendant also contends that this evidence was more prejudicial than probative because the jury was “ likely to draw the impermissible inference that a child who exhibits [CSAAS] symptoms has been abused

. . . .” In his view, the admission of CSAAS evidence “permits the jury to infer that a child‟s „not inconsistent‟ behavior must mean that he or she was abused.”

“ Although inadmissible to prove that a molestation occurred, CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation. [Citations.] [¶] Identi fying a „myth‟ or „misconception‟ has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of
molestation. It is sufficient if the victim‟ s credibility is placed in is sue due to the paradoxical behavior, including a delay in reporting a molestation. ” ( People v. Patino (19 94) 26 Cal.App.4th 1737, 1744

- 1745.) In this case, CSAAS evidence was relevant because all of the types of conduct
addressed by CSAAS that may lead to misconceptions were present in this case. Jane kept the molestations secret for years. She acquiesced to the molestations because she
believed that defendant would harm her mother. Jane accommodated the abuse in order
to maintain her family relations. She delayed reporting the molestations and retracted some of her allegations at trial. Lewis‟s testimony about why a molest victim may engage in such conduct helped to explain what might otherwise seem to be “paradoxical behavior.” Defendant suggests that expert testimony was not admissible on CSAAS because it is not “beyond common experience” (Evid. Code, § 80 1 , subd. (a)). We disagree. The behavior of child molestation victims is not within the “common experience” of most juro rs or people in general. Certainly they are unlikely to be familiar with the research that has gone into identifying CSAAS.23

Defendant‟s reliance on People v. Wells (2004) 118 Cal.App.4th 179 ( Wells ) is misplaced. In Wells , the prosecution presented expe rt testimony regarding CSAAS, and the jury was instructed that it could not use this testimony as proof that a molestation occurred. ( Wells , at p. 186.) T he defense unsuccessfully sought to rebut the CSAAS evidence with the testimony of a defense expert that one of the victims did not have the demeanor one would expect from someone who had suffered the act she described. On appeal, the defendant challenged the exclusion of the defense expert‟s testimony. He did not challenge the admission of the CSAAS e vidence. ( Wells , at p. 187.) The Court of Appeal rejected his challenge and held that “ expert testimony concluding a complaining
witness has not been raped or molested, based on the witness‟ demeanor after the alleged incident” was inadmissible. ( Wells , at p. 189 .) “[The expert‟s] proposed testimony about the „usual‟ demeanor of trauma victims is not relevant to correct any common myth or misconception about the behavior of children who have been molested. If anything, her proposed expert testimony wou ld likely reinforce a commonly held belief that traumatized victims will become emotionally disturbed or tearful when describing a
traumatic event. Because the defense identified no common misperception the jury might
hold about victim behavior that [the expert‟s] testimony was narrowly tailored to rebut, her proposed testimony was little more than expert opinion as to [the victim‟s] credibility. Jurors are generally considered to be equipped to judge witness credibility without the need for expert testim ony. ” ( Wells , at p. 189.) Defendant asserts “the Wells court implicitly found that molestation victims do not exhibit any „usual‟ behaviors or characteristics” and therefore CSAAS evidence is irrelevant. Nothing in Wells suggests the logical leap that d efendant makes. CSAAS
evidence was admitted in Wells , and its admission was not challenged. As the Wells court recognized, CSAAS evidence is properly admitted for the limited purpose of
rebut ting commo n misperceptions, and juries are instructed that it c annot be used as proof
of molestation. The defense evidence found to be inadmissible in Wells did not seek to24

rebut any common misperceptions and purported to provide proof that the victim was not
molested. The Wells court plainly approved of the use of CSAAS evidence, so it obviously did not “implicitly” find that such evidence was irrelevant. Defendant relies on authority from other states to argue that CSAAS evidence
should never be admissible. California courts have long held otherwise. “ „ [CSAAS] expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children‟s seemingly self

- impeaching behavior. ‟ ” ( People v. McAlpin (1991) 53 Cal.3d 1289, 1301.) Finally, w e reject defendant‟s claim that the CSAAS evidence should have been
excluded under Evidence Code section 352 because the jury was “likely to draw the impermissible inference that a child who exhibits [CSAAS] symptoms has been
abused

. . . .” T rial courts have the discretion to exclude evidence pursuant to Evidence Code section 352 “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial
dan ger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
The CSAAS evidenc e was relevant and probative, and t he risk of undue prejudice
was minimal. The jury was instructed that Lewis‟s testimony “ is not eviden ce that the
defen dant committed any of the acts charged against him, ” and the prosecutor admonished the jury that the CSAAS evidence was “not evidence [defendant] did anything in this case as far as the crimes charged.” Lewis‟s testimony, the court‟s
inst ruction, and the prosecutor‟s argument clearly informed the jury that the CSAAS evidence had a limited purpose solely to disabuse the jury of any misconceptions it might harbor about how a molestation victim might act. Under these circumstances, we must
p resume that the jury followed the court‟s instruction. ( People v. Holt (1997) 15 Cal.4th25

619 , 662 [“ Jurors are presumed to understand and follow the court‟ s instructions. ”].) The trial court did not abuse its discretion in admitting the CSAAS evidence. 11

D. Errors in Abstract The abstract of judgment and the minutes of t he sentencing hearing state that the terms imposed by the court for counts 13 through 16 were 8

- year upper terms

. At the sentencing hearing, t he court imposed eight

- year midterms for counts 13 through 16. Defendant seeks correction of the abstract and minutes, and the Attorney General concedes that correction is required. We agree and will so order.

IV. Disposition The judgment is affirmed. The trial court is directed to pre pare an amended abstract of judgment and minutes reflecting that the eight

- year terms imposed for counts 13 through 16 were midterms rather than upper terms and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabi litation

.

11 Defendant asserts that he was prejudiced by the cumulative effect of the trial court‟s errors. As we have found no err ors, there is no prejudice to cumulate.26 _______________________________ Mihara, J.

I CONCUR:

_____________________________ Bamattre

- Manoukian, Acting P. J.

People v. Vicente Ruiz Garcia H0 40914Grover, J.

I concur in the judgment but respectfully depart from some of the majority‟s reasoning in the published portion of the opinion. Defendant contends that the evidence is insufficient to support his 16 convictions for committing a forcible lewd act on a child (Pen. Code, § 288, subd. (b)) because the second amended information alleged that the acts occurred within specified one

- year i ncrements (coinciding with the victim‟s birthday), but none of the acts was proven at trial to have actually occurred within any of those periods. I agree with the majority‟s interpretation and application of People v. Jones (1990) 51 Cal.3d 294, People v. Peyton (2009) 176 Cal.App.4th 642, and People

v. Starkey (1965) 234 Cal.App.2d 822, and that the precise date was not a “material ingredient” of the charged offenses. (Pen. Code, §§ 955, 288, subd. (b).) However, I do
not share the view that defendan t‟s claim of insufficient evidence is premised on pleading error. I believe the issue is more accurately described as arising from a variance between pleading and proof. As such, the critical question is whether “the variance was of such a
substantial ch aracter as to have misled” defendant in preparing his defense. ( People

v. Collins (1960) 54 Cal.2d 57, 59 [“An accused should be advised of the charge against him in order that he may have a reasonable opportunity to prepare and present his defense.”].) In arguing insufficiency of the evidence based on a variance between the operative charging document and proof at trial, defendant has shown neither the materiality of specific dates nor inadequate notice of the crimes alleged. I therefore reach
the same conclusion as the majority.2 ______________________________________ Grover, J.

People v. Garcia H040914Trial Court: Santa Cruz County Superior Court

Trial Judge: Honorable Timothy R. Volkmann

Attorney for Defendant/Appellant: Jeffrey A. Glick Under Appointment by the Sixth District Appellate Program

Attorneys for Plaintiff/Respondent: Kamala D. Harris Attorney General of California Gerald A. Engler C hief Assistant Attorney General Jeffrey M. Laurence Acting Senior Assist ant Attorney General

Rene A. Chacon Supervising Deputy Attorney General

Allan Yannow Deputy Attorney General

People v. Garcia H040914