Filed 4/13/16 P. v. Gallardo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. ESTEBAN HERNANDEZ GALLARDO, Defendant and Appellant. H040518 (Santa Clara County Super. Ct. No. C9361672)

Defendant Esteban Hernandez Gallardo was convicted by a jury of two counts of continuous sexual abuse of a minor (Pen. Code, § 288.5, subd. (a)), 1 but was acquitted of
one count of lewd and lasciviou s conduct with a child under 14 years of age (§ 288,
subd. (a)). He was subsequently sentenced to an aggregate term of 32 years in prison, consisting of consecutive 16 year terms on each count. On appeal, Gallardo argues his conviction must be reversed b ecause: ( 1) his speedy trial rights were violated; ( 2) the trial court erred in limiting the testimony of his expert witness; ( 3) the trial court erred in admitting testimony regarding Child Sexual
Abuse Accommodation Syndrome (CSAAS) ; and ( 4) the trial c ourt erred in excluding
evidence of one of th e victim’s prior sexual conduct. We find no merit to any of Gallardo’s arguments and will affirm the judgment.

1 Unspecified statutory references are to the Penal Code.2

I. F ACTUAL AND P ROCEDURAL B ACKGROUND A

. Prosecution ’ s case 1

. Victim 1
Victim 1 was born in 1982, and was 30 yea rs old at the time of trial. As a child,

v ictim 1 lived in a one

- bedroom apartment in San Jose with her older sister ( v ictim 2 ) , their mother, grandmother, aunts, uncles, cousins and Gallardo , a friend of the family

. Some of the household m embers slept in the bedroom while ot hers slept in the living
room. Victim s 1 and 2 slept in a bedroom with their mother, grandmother, cousins, and
Gallardo . The room had a queen size bed and bunk beds , and in all, about 10 people slept
there. The two vi ctims , their mother, and Gallardo sl ept on the floor on a blanket. Though he occasionally left the house for a few days, Gallardo was otherwise always
around. Victim 1 testified that, when she was little, Gallardo touched her in a way she did

not like. The first time it happened was in the bedroom where she slept with the others, including Gallardo. She woke up in the night and found herself on top of Gallardo, who then moved her to his other side, away from her mother. Victim 1 could see Gallardo’s
fa ce as there was light coming from both the window and the door to the kitchen. He put his hand under her pajamas and touched her breast and vagina . She did not understand what was happening, so she did not cry out. Victim 1 thought she was seven or eigh t years old at the time, and the touching took plac e “ almost like [ sic ] every night he was there.” She hated going to sleep and asked her mother if she could not sleep there.
Victim 1 also asked v ictim 2 to switch sides with her. However, she did not te ll her mother or sister why

. Victim 1 testified the touching got worse. Gallardo would, unsuccessfully, try to put his penis in her vagina . Victim 1 recalled a couple of times where she could feel his penis pressing against her vagi na and it was uncomfortable. This happened more than once, possibly a couple of times.3

Victim 1 also felt Gallardo’s fingers in her vagina on more than on e occasion, saying “It happened a lot.” Gallardo would kiss her “ breast area ” but never put his mouth or tongue on her vagina

. Gallardo told v ictim 1 not to tell anyone and that he “wanted to be able to keep doing things” when she got older. She tried to avoid him during the day , but thought she was never going to get away from him.
V ictim 1 was unable to recall exact dates , but estimated her age and when the
molestations occurred

. At some point, she and her family moved to another apartment and by that time, she believed the molestations had gone on for a couple of years.
Victim 1 n ever talked to victim 2 about what Gallardo was doing at the time, but may have talked about it once when she was around 12 years old . At that point, the molestation had stopped and Gallardo was no longer living with their family. During a conversation with her sister in 1993, victim 1 discovered victim 2 had also been molested by Gallardo . They decided to report what happened to an adult. They first told their mother’s boyfriend, Sergio Tabares, and then told their mother. Victim 1

was subsequently i nterviewed at her school by a police officer. She did not talk to her sister about the molestation again , however , and testified she was absolutely certain
Gallardo had molested her.

2

. Victim 2
Victim 2 was born in 1981 and , at the time of trial, was 31 years old. She is one year older than her sister , v ictim 1 . She testified she grew up in a one

- bedroom house in
San Jose with v ictim 1 , their mother, grandmother, uncles, aunt, and Gallardo

. She
recalled half of the people in the house slept in the living room and the other half in the

one bedroom.
Victim 2 slept in the bedroom with her mother, s ister, grandmother and aunt, but she testified Gallardo did not sleep in that room with them. When asked why he was staying with them, she said she ass umed Gallardo was a friend of the family, and she
recalled he lived with their family for years. Victim 2 could not recall how old she was4

or what grade she was in when Gallardo first moved in. She never saw Gallardo molesting v ictim 1 in the bedroom.
W hen she was a little girl, maybe between six and nine years old, 2 Gallardo touched her in a way she did not like. Victim 2 admitted she did not have a precise memory of her age or how long ago the molestation occurred , but s he believed it lasted two years

. The first time Gallardo touched her was when she was on the couch in the living room watching television. Gallardo told v ictim 2 to go behind the couch and take off her
clothes. He then kissed her breasts , took off her underwear and tried to put his penis in her vagina

. The tip of his penis went between the lips of her vagina. Victim 2 told
Gallardo it hurt and asked him to stop , but Gallardo told her, “one more time.” She tried to move away , but could not completely get away from him

. After Galla rdo molested

v ictim 2 , he told her to watch television and not to turn around. He then took v ictim 1 , who was in the room watching cartoons, behind the couch with him

. Gallardo molested v ictim 2 every time he was alone with her or when others were

at wor k, but all of the molestati ons occurred during the day. He told her to tell her
mother that she was sick so v ictim 2 would stay home from school. Victim 2 did so , but she did not want to stay home with Gallardo alone.
The second incident she recalled occ urred in the bedroom during the day.
Gallardo took off her pants and put his penis on top of her vagina , rubbing it between the lips without penetrating her. Victim 2 did not know what he was doing and said she did not have an understanding about sex or sexual acts at that time.
Gallardo frequently licked or kissed her breasts , but did not put his fingers in her vagi na. One time, he put his tongue or his mouth on victim 2’s vagina. He told her to take off her pants and underwear , but they would be under some covers so victim 1 , who

2 Victim 2 later testified she was in seventh grade when Gallardo molested her.5

was also home watching television or coloring , would not see. Victim 2 testified
Gallardo would touch her in a sexual way “ [ e ] very chance he would get, ” frequently caressing h er head and then asking her to lie down.
Vic tim 2 and her family eventually moved and Gallardo did not live with them in
their new residence

. She recalled the molestations occurring during the school year and lasting for a while. One summer while in elementary school, victim 2 went on a trip to
Me xico with her family, including victim 1 . She could not recall if Gallardo still lived with them after that trip.
After her family moved , victim 2 spoke with her sister about what Gallardo had done to them. That same day, the two girls told their mother’ s boyfriend, Tabares, and
then told their mother about Gallardo

. Victim 2 recalled being interviewed by a therapist,
rather than a police officer. On cross

- examination, victim 2 said she remembered being interviewed by a police officer but could not reca ll any details about that interview , which took place two to three years after the molestation. She did not recall if her sister was there during the interview or if she was present when victim 1 was interviewed.
Since that first discussion with her sister , victim 2 has not talked to victim 1 about
what Gallardo had done to them. Victim 2 did not know why she had not told her sister
while the molestation was happening. She did not know it was a bad thing , but she was
scared. She was absolutely certain Gallardo had molested her and the abuse was continuous until they moved

.

3

. Arthur Serenil Serenil, a retired San Jose police officer, testified at trial. He was serving in the military in Iraq in 2003 when he sustained injuries which affected his memory. Serenil
was a detective in the sexual assault unit from 1990 to 1993. While he was part of that unit, h e interviewed two sisters, victims 1 and 2 , at Castro Middle School in 1993.
Serenil interviewed the girls separatel y in the principal’s office, al though the principal was present during each interview

. Serenil testified generally about his training and the6

techniques he used when interviewing children in sexual assault cases , such as building rapport with the child, avoiding leading quest ions, and focusing on big events in their
lives in order to determine the timing of particular incidents. Although he could not independently recall the interviews with victims 1 and 2 apart from the police reports, Serenil assumed he applied those techni ques. According to the police report, v ictim 2 told Serenil that Gallardo first molested her when she was nine years old. Victim 1 reported the first molestation by Gallardo
occurred when she was seven or eight years old. Victim 1 told Officer Serenil that she was “raped” “a lot by [ Gallardo ] when she was ten years old.” Serenil also interviewed
the victims ’ grandmother, their mother, and one of their cousin s , 3 during the investigation
of the case.
4

. Miriam Wolf Wolf, a licensed clinical social worker, testified about CSAAS. According to Wolf, CSAAS first appeared in a 1983 article , authored by Dr. Summit, 4 in a journal on child abuse and neglect. The article described patterns of behaviors observed in children
who were victims of abuse and sought to dispel common myths about how childr en behave in these situations. It was not a research article n or was it intended for use as a clinical diagnostic tool to determine if a child was , in fact, abused or molested. W olf was
not involved in the investigation of this case and did not review the police reports which were prepared in that investigation. She was not aware of what the victims said and could not offer an opinion on the accuracy of their statements or whethe r Gallardo was guilty or not.
Wolf explained to the jury that the five pat ter n s of behavior in CSAAS are: ( 1) secrecy; ( 2) helplessness; ( 3) entrapment and accommodatio n; ( 4) delayed, conflicted

3 This cousin was called as a defense witness.
4 Dr. Summit’s full name does not appear in the record.7

o r unconvincing disclosure; and ( 5) retraction. Secrecy involves children not disclosing
sexual abuse right away, often waiting long periods of time to do so

. Helplessness occurs when there is a child victim and someone who is older or in a position of power. There is a developmental, physical, and psychological or emotional helplessness on the part of the
child. A child experiences helplessness because they feel they cannot go to the people they would normally turn to for help. Delays in disclosures are more common when the
abuser is a family member or someone close to the family.
Wolf testifi ed that the concept of entrapment and accommodation in CSAAS involve children feeling trapped in their situation and figuring out a way to live normally while the abuse is occurring. She explai ned that delayed, conflicted or unconvincing
disclosure means that the disclosures do not occur all at once but instead come out a little at a time, often hesitatingly and conflicted especially if the abuser is someone they know
and trust. It has been doc umented that when making disclosures of abuse , children get confused, mix up dates, or are unable to give dates and times. Retraction, the final element of CSAAS, involves children recanting their statements when they experience
the negative consequences that result , such as a loved one being arrested, the child having to leave home, or family members becoming upset and blaming them. According to Wolf , since the initial publication of his article , Dr. Summit has expressed concerns that his article has bee n misused and the term “syndrome” is a
misnome r. In a subsequent article published in 1994, Dr. Summit , a psychiatrist, regrets using “syndrome” in describing his observations because he believes it leads people to use CSAAS as a diagnostic tool.
B

. De fense case
1

. Dr

. Bruce Yanofsky Dr. Yanofsky, a clinical and forensic psychologist, testified about his psychological evaluation of Gallardo

. In preparing for his evaluation, Dr. Yanofsky reviewed the records in Gallardo’s case and the victims’ testimony from the preliminary8

hearing before conducting a clinical interview with Gallardo and subjecting him to
several objective psychological tests. Based on that evaluation, Dr. Yanofsky opined that Gallardo did not “present[] with any mental health diagnosis or condition that would predispose him to sexual crimes of any sort.” In all, Dr. Yanofsky spent approximately
10 hours with Gallardo in two c linical interviews and performed eight psychological

tests. Dr. Yanofsky testified that Gallardo’s IQ test indicated he was of below average intelligence , principally because of his lack of education and illiteracy. Dr. Yanofsky
also conducted an extensi ve test on Gallardo designed to measure the sexual characteristics of an adult male alleged to have committed a sex offense. 5 The results of this test indicated Gallardo’s commonality with a group of known child molesters was very low.
Gallardo also sco red low on a test for determining psychopathy, and Dr. Yanofsky
testified this result indicated Gallardo was not the type of person who would likely engage in cruel, callous, violent or sexually violent behavior, n or was he someone who
would feel no remors e or guilt. Gallardo ’s self

- reported sexual history did not disclose a sexual interest in children and his relationships have been “ age

- appropriate consensual relationships. ”
On cross

- examination, Dr. Yanofsky agreed that a person can molest a child and
not be diagnosed as a pedophile. He indicated it is difficult , based on a psychological profile alone , to determine whether or not s omeone is a sexual criminal. B ased on Gallardo’s psychological profile, he was not a pedophile , but Dr. Yanofsky clarified he was not opining whether Gallardo did in fact commit the molestations in this case.

5 Gallardo was asked to sign a consent form for this test, and in doi ng so, signed the name “Jesus Gomes.” However, as discussed below, Gallardo also went by “Jesus Gomez.” Which was the name on the driver’s license in his possession at the time of his arrest, as well as how he signed a prebooking form.9 2

. Victims ’ older cousin The victims’ cousin, who was born in 1974, lived with the victims in 1991. She
first arrived in the United States in 1990 and has known Gallardo since that time. The
last time the victims’ cousin saw Gallardo was at a family party in 2010. She recalled that when she was 16 years old, Gallardo lived at her aunt’s house for a while but later
moved out. Gallardo slept in the living room an d never tried to touch her in a sexual
way. He would often give her a ride to her part

- time job on the weekends , but never touched her or acted in a way that made her uncomfortable. The victims’ mother took her to the police in September 1993 to be inte rviewed
about Gallardo. The cousin denied tell ing police during that interview that Gallardo continually tried to touch her in a sexual way and the only reason he did not was because she had stopped him. She also denied telling police Gallardo had thrown an adult magazine at her after she had returned from a trip to Mexico , and denied ever having gone back t o Mexico after she moved to the United States

. She denied having told the police that Gallardo tried on at least three occasions to touch her arm clo se to her breast while giving her a ride to work. The victims’ cousin indicated she never made any of the
statements attributed to her in the 1993 police report.

3

. Dr

. Rahn Minagawa Dr. Minagawa, a clinical and forensic psychologist, testified about C SAAS for the defense. Dr. Minagawa indicated that CSAAS has been subject to some criticism in the field of psychology , with a number of articles questioning whether CSAAS is a syndrome, and whe ther it qualifies as science. The five elements associated with CSAAS are not always present and the descriptions of some of the elements , such as delayed reporting , are vague. D elays could be based on different factors of the child such as age
and environment. According to Dr. Minag awa, one of t he problems with using CSAAS in the legal setting is that it can confuse individuals who are not familiar with scientific10

principles and who may consequently give it more weight than it deserves. CSAAS has not been accepted as a real syndrome and it assumes that abuse, in fact, has occurred.

4

. Aracely Maldonado Maldonado, Gallardo ’s niece, testified she has known Gallardo since she was five years old. He would live with her family for several months, leave and then return to live
with th em. Maldonado recalled he lived with them in 2002 or 2003 when she was 15 or 16 years old. Gallardo never tried to touch her in a sexual way. Although the two victims are her cousins, they are not very close and she is four or five years younger than
th em

. Maldonado thinks she saw Gallardo when she attended her aunt’s funeral three or four years ago. She testified that the two victims were also at that funeral . The last time
Maldonado saw Gallardo was one or two months before he went to jail. She co nsiders her relationship with him to be close and does not believe he is the kind of person who
would molest children. When she was about 18, she learned that Gallardo was going under the name,

“ Jesus Gomez. ” 6 She was confused by this but never asked he r mother about it because it

was “ none of my business. ” Although she was not close to the victims , she did not know them to be liars or to make up things against people.
C

. Verdict and sentencing On April 26, 2013, the jury found Gallardo not guilty on the charge of lewd and lascivious conduct on a child under age 14 (§ 288, subd. (a) , count 1 ), but guilty of two counts of continuous sexual abuse of a child (§ 288.5, subd. (a) , count s 2 & 3 ). Gallardo was sentenced to a total term of 32 years in prison on counts 2 and 3

.

6 See footnote 5, ante

.11

II. D ISCUSSION A

. Gallardo ’ s speedy trial rights were not violated
Gallardo argues the 18 year delay in prosecuting this case after the initial complaint was filed violated his state and federal right to a speedy trial. We disagree.
B efore discussing the applicable legal standards, we set forth the following relevant undisputed facts. After the victims reported what happened, Gallardo was interviewed by police about the allegations on September 24, 1993. On October 19, 1993, the pros ecution filed a felony complaint against Gallardo, but could not locate him
to arrest him. 7 On September 30, 2011, Gallardo was arrested in an unrelated matter, in possession of a driver’s license in another name. During the booking process, his identity
was discovered and Gallardo was arrested on the 1993 charges.

1

. Legal standards

“ ‘ “[D]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay.” ’ ” ( People v

. Cowan (2010) 50 Cal.4th 401, 430 ( Cowan ).) “Prejudice may be shown by ‘ “loss of material witnesses due to lapse of time [ci tation] or loss of evidence because of fading memory attributable to the delay. ” ’ [Citations.] And although the federal constitutional standard for what constitutes sufficient justification for delay is unclear [citation], [the California Supreme Court has] noted that ‘the law under the California Constitution is at least as favorable for defendant

7 We address the steps taken to locate Gallardo and the reasonableness of those efforts below.12

in this regard’ as federal law [citation]. Accordingly,

. . . we apply California law here.” ( Cowan , supra , 50 Cal.4th at pp. 430

- 431. ) “Under the Californ ia standard, ‘negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process. This does not mean, however, that whether the delay was purposeful or negligent is irrelevant.’ [Citation.] R ather, ‘whether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due proc ess violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation.’ [Citation.] The justification for the delay is strong when there is ‘investigative delay, nothing else.’ ” ( Cowan , supra , 50 Cal.4th at p. 431.) “[D] ifferent weights should be assigned to different reasons [for delay]. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason suc h as negligence or
overcrowded courts sho uld be weighted less heavily

. . . . Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” ( Barker v

. Wingo (1972) 407 U.S. 514, 531, fn. omitted.) A delay may also be at tributed to the defendant as when he flees the jurisdiction to avoid trial. ( People v

. Perez (1991) 229 Cal.App.3d 302, 308 .) The appellate court “review[s] for abuse of discre tion a trial court’ s ruling on a motion to dismiss for prejudicial prearrest de lay [citation], and defer[s] to any underlying factual findings if substantial evidence supports them [citation].” ( Cowan , supra , 50 Cal.4th at p. 431.)

2

. Gallardo ’ s showing of prejudice Gallardo argues the delay in bringing him t o trial was prejudicial because certain witnesses helpful to his defense died or moved away and could not be located. He also13

claims that the deterioration of witness memories was harmful to his defense. We examine the specifics of each of his claims below.

a
. The victims ’ grandmother On September 24, 1993, Officer Serenil and Officer Robert Dominguez spoke
with the victims’ grandmother about their claim that Gallardo molested them. She told
them “she did not believe any of the allegations.” She stated that Gallardo “liv ed with her family for approximately eight years and has help[ed] financially with the running of the household.” She also told police “nothing has occurred because [Gallardo] would only be alone with the victim when he would give her a ride to work .” ( I talics added.) The victims’ grandmother died in 200 8

. As noted by the trial court in its written order denying the motion to dismiss, the victims’ grandmother was simply not a material witness in this case. The statements she made to the police in 199 3 were made in response to questions about allegations that
Gallardo had molested two different victims , including the victims’ older cousin. 8 We have no way of knowing what the victims’ grandmother might have said about the allegations that Gallardo mole sted the victims, since she was not asked about those allegations in 1993. To the extent that the victims’ grandmother could have been called as a character witness, there were two other witnesses, i.e., Gallardo’s niece and
Dr. Yanofsky, who testified th at Gallardo was not the type of person who would molest a child. Accordingly, the death of this witness prior to his trial resulted in little to no prejudice to Gallardo’s defense.

b

. Officer Serenil ’ s memory loss
Gallardo next claims that , due to the delay, Officer Serenil, the investigating
of ficer, had no independent recollection of the investigation he conducted. Furthermore,

8 This is the same cousin called by the defense at trial who testified she did not tell police during her interview in 1993 that Gallardo had touched he r inappropriately.14

Serenil had suffered injuries during his military service in Iraq which affected his
memory. As a result, Galla rdo could not effectively cross

- examine Serenil about his interviewing techniques. However, defense counsel did question Serenil about his training in interviewing children, his interviewing techniques, and whether those techniques were likely employed
in his interviews of victims 1 and 2. The defense was also able to argue that Serenil’s memory had faded and therefore there was no way to verify he actually used proper interviewing techniques in 1993, suggesting the allegations contained in his report wer e the res ult of a flawed investigation. Gallardo has not shown that he was prejudiced by Serenil’s faded or incomplete memory. Serenil testified his memory of the details of the case was refreshed by his report, which is a common occurrence even in ca ses which go to trial within a few years of a suspect’s arrest. The jury was able to evaluate Serenil’s credibility during his testimony about the training he received in interviewing children and the techniques he followed during such interviews.

c
. In ability to locate other witnesses Finally, Gallardo contends that due to the delay, the defense was not able to locate two important witnesses: ( 1) Ms. Cole, 9 the school principal who was present when Serenil interviewed the victims; and ( 2) Maria Placer, the Child Protective Services (CPS) worker who was the original reporting party. Gallardo argues Cole could have potentially provided testimony regarding Serenil’s interview techniques with victims 1 and 2, and Placer wrote in her report tha t the victims stated the sexual mo lestation “happened 2 years ago, ” i.e., from 1990 through 1992. However, during trial, the parties stipulated Gallardo “was in custody for a narcotics offense from October 22, 1990 to July
1992.”

9 Serenil’s written report does not include Cole’s first name.15

Cole and Placer were not material witnesses to the defense. It is nothing more than speculation to suggest that Cole could have provided testimony to impeach Serenil regard ing his interviewing techniques

. It is just as likely that Cole’s testimony would have supported the prose cution’s case, assuming she recalled anything specific about the
events at all. Similarly, the evidence that victims 1 and 2 made statements indicating that
Gallardo molested them at a time when he was incarcerated was available in Serenil’s police repor t. Gallardo was able to solicit testimony from victims 1 and 2 about the dates during which they claimed Gallardo molested them, and defense counsel argued to the jury that, based on their testimony, Gallardo was in custody at the time and could not be
gu ilty. Placer’s testimony about the dates of the molestations would not have been any

more helpful to the defense than the testimony from the victims themselves

.

3

. Delay was justified
Even were we to assume , however , that Gallardo could show some prejud ice from any of the above, the delay in prosecution was neither intentional nor negligent. In fact , the record is clear that the delay was attributable to Gallardo himself.
Gallardo was interviewed by police about the molestation allegations on Septembe r 24, 1993. At an Evidence Code section 402 hearing during trial, but outside the presence of the jurors, Serenil testified about the efforts made to locate Gallardo and
serve the arrest warrant which had been issued in October 1993 , based on his review of the police file

. Serenil said that he asked Gallardo for a new address since he had apparently moved, but Gallardo could not give him one. Ser enil indicated the Sunnyvale police department attempted to locate Gallardo at a specific address, provided b y either Gallardo or his employer , but determined there was no such address in Sunnyvale.
Serenil testified there was a note in his file to the effect that he was informe d by
someone that Gallardo had fled to Mexico. Serenil did not make note of who tol d him that and he had no independent recollection of that conversation.16

Gallardo was ultimately arrested in an unrelated matter on September 30, 2011

. During the prebooking process for that arrest, Gallardo was carrying a California driver’s
license in the name of “Jesus M. Gomez” and that is the name he signed on a prebooking form. The police discovered Gallardo’s outstanding warrant when his fingerprints were entered into the fingerprint identification system and he was arrested in the present case

. Gallardo’s use of a false name during the period between 1993 and 2011 was corroborated by Maldonado , who testified at trial she learned that Gallardo was going by the name “Jesus Gomez” about seven years prior to the 2013 trial.
Gallardo relies on testi mony from Maldonado and the victims’ cousin that he was present at “family events over the years” including a funeral in 2009 or 2010 and a party
in 2010

. This evidence is insufficient to establish intentional or negligent delay on the part of the People. Even if true, it does not counter the People’s evidence that Gallardo, upon learning he was under investigation for child molestation, sought to avoid arrest by failing to provide a valid address and by using a false name, even going so far as to
pro cure a driver’s license with that alias

. Consequently, we find there is substantial evidence supporting the trial court’s factual findings on Gallardo’s motion to dismiss and that the trial court did not abuse its discretion in denying that motion.
B

. No error in restricting Dr

. Yanofsky ’ s testimony Gallardo argues the trial court erred in precluding his expert, Dr. Yanofsky, from opining that, based on Gallardo’s personality, he would be more prone to confess if he were guilty of the crimes in question. In his view, the limitation on Dr. Yanofsky’s testimony violated his rights to due process and a fair trial, as well as his right to present
a defense. We disagree.

1

. Relevant facts
In an in limine motion , the prosecution sought to “[p]reclude Dr. Yanofsky
from opining that defendant would have been more prone to confess if he was guilty.”17

In Dr. Yanofsky’s report detailing his psychological evaluation of Gallardo, he referenced a study 10 “describ[ing] several factors associated with confessing or n ot to a sexual crime during police interrogation.” Dr. Yanofsky wrote that Gallardo was a “relatively quiet and introverted individual who according to this research would have been more prone to confess had he committed the offense.” The prosecution arg ued such testimony was “inherently unreliable, and just because a person commits a crime does not mean they are going to confess to it.” In its ruling excluding the testimony in question , the trial court emphasized that Dr. Yanosky was not qualified as a n expert to render an opinion on confessions and thus his opinion on this issue would be inadmissible. “ Yanofsky was hired to render an opinion regarding whether the defendant had characteristics of a child molester. That is Yanofsky’s proffered area of expertise.

. . . Yanofsky does not have expertise in police interrogations, tricky police interrogations, and the likelihood of the introverted defendant
as it relate s to which questions were asked of defendant when he gave a statement to the police. Yanofsky does not even know what questions were asked by the police. Even if
Yano fs ky did know the questions, he lacks expertise in confessions. There is a foundation deficiency and an expertise deficiency. ”

2

. Legal standards In order to testify as a n expert, a witness must have special knowledge, skill, experience, training or education in the subject area of his proposed testimony. (Evid. Code, § 720, subd. (a).) “Against the objection of a party, such special knowledge, skill, experience, trainin g, or education must be shown before the witness may testify as an

10 The citation provided in Dr. Yanofsky’s evaluation was to “Beauregard, et al

. (2010)

. Interaction Between Factors related to the Decision to Confess During Police Interrogation: A Classification Tree Approach. Sexual Abuse, Vol. 22, No. 3 September 2010.” This article was not provided to the trial court and is not part of the record on ap peal.18

expert.” ( Ibid .) In considering whether a person qualifies as an expert, the field of expertise must be carefully distinguished and limited. ( People v

. King (1968) 266 Cal.App.2d 437, 44 5.) It is left to the trial judge’s discretion to determine if that standard
has been met. ( People v

. Ramos (1997) 15 Cal.4th 1133, 1175.)

3

. Analysis Dr. Yanofsky was qualified to testify as a Stoll 11 expert in this case. H e was not offered as an exp ert on confessions nor was evidence presented on his qualifications in
that area. In the absence of an adequate foundation, the trial court properly determined
that Dr. Yanofsky was not permitted to render an opinion about whether someone accused of child molestation would be more likely to confess when subjected to interrogation if the accused has an introverted personality as opposed to an extroverted one. There was no indication that this subject fell within the confines of Dr. Yanofsky’s expertise and defense counsel advised the trial court she could not overcome the
foundational hurdles necessary to question Dr. Yanofsky on the topic

. 12 Even without being permitted to offer an opinion on Gallardo’s proclivity to
confess were he guilty, Dr. Yanofsky still presented testimony explaining his professional opinion that Gallardo was not likely to have committed the alleged crimes. Dr. Yanofsky
evaluated Gallardo to determine if he is “an individual who is likely to commit sexual
crim es or might have commit[ted] sexual cr imes which he stands accused of, ” and found that Gallardo’s commonality with known child molesters “was really low.” He further opined that Gallardo “is not the type of individual who would likely engage in very cruel ,

11 The California Supreme Court, i n People v

. Stoll (1989) 49 Cal.3d 1136, 1140

- 1141 ( Stoll ), held that an expert’s opinion that a defendant did not show signs of sexual deviancy or pedophilic traits was admissible character evidence.

12 The trial court expressly advised the parties it would be open to reconsidering its ruling “[s]hould the defense establish the foundation (Yanofsky studied the questions that were put to the defendant [by police]) and establish the expertise of Yanofsky in this area (as an expert on who is likely to confess).” The defense did neither.1 9

callous, violent o r sexually violent behavior.” The jury was permitted to hear all this evidence and weigh it against the other evidence presented. Accordingly, the trial court did not err in granting the in limine motion.
C

. No error in admitting CSAA S testimony Gallardo next argues the trial court erred in denying his motion in limine and allowing Wolf to offer testimony regarding CSAAS. Gallardo contends this evidence is
inadmissible because it did not meet the requirements of the Kelly / Frye 13 test. However,
the Kelly / Frye rule governing the admissibility of scientific evidence is inapplicable here
because t he CSAAS evidence was not admitted to prove that the victims had been
molested

. (See People v

. Harlan (1990) 222 Cal.App.3d 439, 449, citing Stoll , supra , 49 Cal.3d at p. 1161.) Rather, Wolf’s testimony was admitted “ ‘for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation.’ ” ( People v

. Wells (2004) 118 Cal.App.4th 179, 188.)
A trial court has broad discretion in deciding whether to admit or exclude expert testimony, and its decision will not be reversed on appeal unless a manifest abuse of
discretion is shown. ( People v

. McDowell (2012) 54 Cal.4th 395, 426; People v

. McAlpin (1 991) 53 Cal.3d 1289, 1299 ( McAlpin ); People v

. Sandoval (2008) 164 Cal.App.4th 994, 1001.) Expert testimony is admissible on any subject sufficiently beyond common experience such that the opinion of an expert would assist the trier of fact. (Evid. Code, § 801, subd. (a); People v

. Brown (2004) 33 Cal.4th 892, 905.)
It is well established that CSAAS “evidence is admissible solely for the purpose of showing that the victim’s reactions as de monstrated by the evidence are not inconsistent with having been molested. ” ( People v

. Bowker (1988) 203 Cal.App.3d 385, 394

13 People v

. Kelly (1976) 17 Cal.3d 24; Frye v

. United States ( D.C. Cir. 1923) 293 F. 1013. Although Frye was superseded by statute ( Daubert v

. Merrell Dow Pharmaceuticals , Inc . (1993 ) 509 U.S. 579; People v

. Leahy (1994) 8 Cal.4th 587, 591

- 592), the test is still commonly ci ted as the Kelly/Frye rule.20

( Bowker ).) The California Supre me Court has acknowledged that this type of evidence,
offered for this purpose, is admissible. ( People v

. Humphrey (1996) 13 Cal.4th 10 73, 1088 [evidence of batte red women’s syndrome]; McAlpin , supra , 53 Cal.3d at
pp. 1300

- 1301 [ evidence regarding parental reluctance to report child molestation].) The necessity for such evidence arises when the victim’s credibility is attacked by a defendant’s suggestion t hat the victim’s conduct after the incident, e.g., a delay in reporting, i s inconsistent with his or her testimony claiming molestation. ( People v

. Gilbert (1992) 5 Cal.App.4th 1372, 1383.) “[A]t a minimum the [CSAAS] evidence must be targeted to a specific ‘myt h’ or ‘misconception’ suggeste d by the evidence. [Citation.] For instance, where a child delays a sig nificant period of time before reporting an incident or pattern of abuse , an expert could testify that such delayed reporting is not inconsistent with th e secretive environment often created by an abuser who occupies a position of trust. Where an alleged victim recants his story in whole or in part, a psychologist could testify on the basis of past researc h that such behavior is not an uncommon response f

or an abused child who i s seeking to remove himself or herself from the pressure created by police investigations and subsequent court proceedings. In the typical cri minal case, however, it is the People’s burden to identify the myth or misconception the evidence is designed to rebut. Where there is no danger of jury confusion, there is simply no need for the expert testimony.” ( Bowker , supra , 203 Cal.App.3d at pp. 393

- 394.) However, “[i]dentifying a ‘myth’ o r ‘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 issue due to the paradoxical behavior, including a delay in reporting a molestation.” ( People v

. Patino (1994) 2 6 Cal.App.4th 1737, 1744

- 1745.) Even when it appears that CSAAS evidence may be admissibl e, use of the evidence is subject to certain p rocedural safeguards. To guard against the danger that a21

jury might impr operl y evaluate CSAAS evidence and view it as proof of a defendant’s guil t, the jury must be instructed that “the expert’s testimony is not inte nded and should
not be used to determine whether the victim’s molestation c laim is true.” ( Bowker , supra , 203 Cal.Ap p.3d at p. 394.) Jurors “must understand that CSAAS research approaches the issue from a perspective opposite to that of the ju ry. CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience.” ( Ibid .) If a trial court adheres to these procedural safeguards , testimony regarding CSAAS is admissible for the limited purpose d escribed. ( Id . at
pp. 393

- 394.)
The trial court here properly instructed the jury on how it should view the CSAAS
testimon y, stati ng that the testimony was “ not received and must not be considered by you as proof that the alleged victims’ molestation s or rapes is true. ” The jurors were
further instructed that that they could “ consider the evidence concerning this syndrome and its affect [ sic ] only for the limited purpose of showing, if it does, that the alleged victims’ reactions as demonstrated by the evidence are not inconsistent with them by having been molested or raped .” This i nstruction satisfied the stricture set fo rth in
Bowker , supra , 203 Cal.App.3d at page 394. Contrary to Gallardo ’s assertion, CSA AS evidence was not offered in this case to
establish that he did molest the victims, but rather to assist the jury in understanding how

t he victims’ actions were not “ inconsistent with having been molested.” ( Bowker , supra , 203 Cal.App.3d at p. 394.) T he trial court’s instruction to the jury is entirely consistent with the limited purpose fo r which CSAAS is admissible

. Inconsistencies in a witness’s

a ccount directly influence that witness’s credibility with the jurors; otherwise attorneys would not devote so much effort seeking to highlight such inconsiste ncies at trial

. CSAAS evidence is admitted in order to show that the vict im’s reactions as demonstrated by the ev idence are not necessarily inconsi stent with having been molested

. Therefore, the jurors should not aut omatically view any such “ inconsistencies” as a reason to find22

the victim’s testimony lacking in credibility

. The trial court’s instruction merely
reinforced the limited purpose for which the CSAAS evidence was introduced. Accordingly, we find no abuse of dis cretion in admitting the CSAAS evidence and further find that the jury was properly instructed on how to evaluate that evid ence. D

. No error in excluding evidence of victim 1 ’ s subsequent molestation Gallardo next argues the trial court erred in excluding evidence that victim 1 was molested by Tabares, her mother’s boyfriend, around the time she disclosed the alleged molestation by Gallardo. He claims this violated his rights to due process, a fair trial and his right to present a defense

.

1

. Relevant factual background
The defense br ought an in lim ine motion to admit evidence , pursuant to Evidence Code section 782, that victim 1 had been sexually molested by Tabares in 1993. Gallardo argued the evidence was relevant to victim 1’s credibility on two theories: ( 1) the evidence would explain an alter native source of injuries or physical evidence; 14 and ( 2) the evidence would provide an alternative source of victim 1’s sexual knowledge. The trial court summarized the relevant chronology as follows:

“ [ Gallardo ] allegedly molested the two girls from August 6, 1989, to October 22,
1990. [ Gallardo ] went to prison on another matter on or about October 22, 1990, and never returned to the home of the girls. The girls moved to a new home. [ Gallardo ] did

not come to live with the girls’ family at their new home when [ Gallardo ] was released from prison. On September 10, 1993, [victim 1] and [victim 2] reported to their mother and their mother’s boyfriend Sergio Tabares that the girls were sexually assaulted by
their grandmother’s boyfriend

— [ Gallardo ]

— about two to three years prior to

14 The trial court ruled that, if the prosecution introduced evidence of victim 1’s sexual assault response team ( SART ) examination, th e evidence of Tabares’ molestation of her would be admissible. However, the prosecution disavowed any intention of introducing victim 1’s SART examination at trial and did not do so.23

September 10, 1993. A CPS report was taken and then San Jose Police Officer Arthur Serenil interviewed the girls separately on September 24, 1993.

. . . On February 11, 1994, [victim 1] reported her mother’s boyfriend Sergio Tabares was molesting her. [ V ictim 1] ’s mother confronted Mr. Tabares. He admitted the sexual assault of touching [victim 1]

. Police interviewed Mr. Tabares and he confessed. Mr. Tabares indicated the
sexual assa ult happened between September 1993 and January 1994.

. . . This was long after defendant was no longer living with the girls’ family, and it was possibly during the
time that [victim 1] reported to Mr. Tabares and [victim 1] ’s mother that [ Gallardo ] had
molested her. Based on the report, the People charged Mr. Tabares with sexual assaults that allegedly occurred between September 1, 1993 and February 6, 1994. Mr. Tabares plead [ed] guilty to sexually assaulting one girl and the other charge regarding the second
sister was dismissed

. [ 15 ] ” (Original fns

. & underscore omitted.)
The trial court denied the defense motion. Gallardo renews the argument he raised below that under Evidence Code
sections 782 and 1103, sexual conduct of a complaining witness can be offered to attack their credibility. Because victim 1 was being molested by Tabares in 1993, around the
time she disclosed the past molestation by Gallardo , Tabares’ molestation was an alternate source of her sexual knowledge and would have undermine d the credibility of her allegations against Gallardo

. “A defendant generally cannot question a sexual assault victim about his or her prior sexual activity.” ( People v

. Bautista (2008) 163 Cal.App. 4 th 762, 781, citing People v

. Woodward (20 04) 116 Cal.App.4th 821, 831.) An exception exists when
evidence of t he complaining witness’s prior sexual history is “offered to attack the credibility of the complaining witness as provided in [Evidence Code] Se ction 782 .” (Evid. Code, § 1103, subd. (c)(5).) “Evidence Code section 782 p rovides for a strict

15 Victim 2 did not re port being molested by Tabares.24

procedure that includes a hearing outside of the pre sence of the jury prior to the admission of evidence of the complain ing witness’s sexual conduct. [ Citat ions.]
Evidence Code section 782 is designed to protect victims of molestation from ‘embarrassing personal disc losures’ unless the defense is able to show in advance that the victim’s sexual conduct is relevant to the victim’s credibility. [Citation.] If, after review, ‘the court finds the evidence relevant and not inadmissible pursuant to Evi dence Code section 352, it may make an order stating w hat evidence may be introduced and the nature of the questions permitted.’ ” ( People v

. Bautista , supra , at p. 782.) “By narrowly exercising the discretion conferred upon the trial court in this screening process,
Cali fornia courts have not allowed the credibility exception in the rape s hield statutes to
result in an undermining of the legislative intent t o lim it public exposure of the victim’s prior sexual history.” ( People v

. Chandler (1997) 56 Cal.App.4th 703, 708.) Stated another way, th e credibility exception to the inadmissibility of a complaining witness’s
pr ior sexual conduct should not “ impermissibly encroach upon the rule itsel f and become a ‘back door’ for admitting otherwise inadmissible evidenc e.” ( People v

. Rioz (1984) 161 Cal.App.3d 905, 919.) We review the trial court’s ruling in d enying the admission of sexual conduct for
an abuse of discretio n. ( Peo ple v

. Chandler , supra , 56 Cal. App.4th at p. 711.) We will
not disturb a cour t’s exercise of its discretion “ except on a showing that the cou rt exercised its discretion in an arbitrary, capricious or patently ab surd manner that resulted
in a manif

est miscarriage of justice.” ( People v

. Jordan (1986) 42 Cal.3d 308, 316.)
Gallardo fails to carry his bur den to demonstrate an abuse of discretion. As is apparent, Gallardo’s a rgument is a reargument of his position rather than a showing that
the trial court’s ruling was arbitrary, capricious, or patently absurd. Moreover, Gallardo
could not demo nstrate that the trial court’s irrelevancy ruling was arbitrary, capric ious, or patently absurd.25

Gallardo’s theory of rele vance pre supposes that victim 1’s k nowledge of sexual terms came from Tabares’ molestation of her. This claim is speculative , at best

. There
was no evidence the Tabares molestation occurred before victim 1 reported Gallardo’s molestation in September 1993, and thus it cannot b e concluded that she described
Gallardo ’s act of “raping” her from sexual knowledge obtained from Tabares. Moreover,
victim 1 was 11 years old and in the sixth grade wh en she made the report against
Gallardo and just as easily may have obtained knowledge about sex fr om a variety of

sources, such as sex education a t school, discussions with her friends or with her mother.
E

. No cumulative error Gallardo’s final argument is that cumulative error warrants reversal. A claim of cumulative error “is in essence a due proces s claim.” ( People v

. Rivas (2013) 214 Cal.App.4th 1410, 1436.) “The ‘litmus test’ for cumulative error ‘is whether defendant received due process and a fair trial.’ ” ( People v

. Cuccia (2 002) 97 Cal.App.4th 785, 795.) Here, we are satisfied that Gallardo received due process and a fair trial. As explained above, Gallardo has failed to show any error that infringed his due process rights. Moreover, Gallardo “was e ntitled to a fair trial but not a perfect one.” ( People v

. Cunningham (2001) 25 Cal .4th 926, 1009.) Gallardo’s trial was fair, and his claim of
cumulative error fails.
III. D ISPOSITION The judgment is affirmed.Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

People v. Gallardo H040518