1 Filed 11/26/14 P. v. Tolliver CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. DION DAMETRICE TOLLIVER, Defendant and Appellant. C072956 (Super. Ct. No. 09F02600)

Convicted of numerous counts of se xual abuse of children, defendant Dion Dametrice Tolliver appeals. He contends: (1) admission of evidence concerning child sexual abuse accommodatio n syndrome (CSAAS) violated his due process rights; (2) CALCRIM No. 1193 erroneously permitte d the jury to use CSAAS evidence to evaluate the victims’ cred ibility; (3) there was insuffici ent evidence to support a conviction for penetration of an unconscious person with a foreign object; (4) a multiplevictim finding was statutorily unauthorized; (5) cumulative prejudice requires reversal;2 and (6) the sentence as to two counts must be modified. Only the last contention has merit; therefore, we modify the ju dgment and affirm it as modified. BACKGROUND Defendant, who was born in 1976, raped S.T. in February 1998, when she was 14 years old. He also penetrated her vagina with his finger when she was asleep. In 2006 and 2007, when D.H. was 11 and 12 years old, defendant repeatedly touched her chest, raped her, sodomize d her, and orally copulated her. In 2007 or 2008, when D.P. was 14 or 15 year s old, defendant touched her buttocks and vagina. In 2009, when T.H. was seven years old, defendant put his fingers in her vagina. The trial court found true that defenda nt was previously convicted of making a criminal threat (1998), po ssession of cocaine (2000), and possession of a firearm by a convicted felon (2004). The criminal threat conviction was a prior strike, making this a second strike case. Defendant was convicted by jury of 16 co unts of sexual abuse. The following list reflects the victim, crime, and second strike sentence as to each count.

Count Victim Crime Sentence 1 S.T. Rape (§ 261, subd. (a)), 1 two or more victims (§ 667.61, subd. (e)(4)) 30 years to life 2 S.T. Penetration of unconscious person with foreign object (§ 289, subd. (d)), two or more victims (§ 667.61, subd. (e)(4)) 2 16 years

3 D.P. Lewd act on a child (§ 288, subd. (c)(1)) 1 year 4 months 4 D.P. Lewd act on a child (§ 288, subd. (c)(1)) 1 year 4 months

1 Unspecified statutory refere nces are to the Penal Code.

2 The multiple-victim allegation was incl uded in the jury verdict but was not included in the judgment. See part IV of the Discussion.3 5 D.H. Lewd act on a child (§ 288, subd. (a), two or more victims (§ 667.61, subd. (e)(4)) 30 years to life 6 D.H. Lewd act on a child (§ 288, subd. (a), two or more victims (§ 667.61, subd. (e)(4)) 30 years to life 7 D.H. Lewd act on a child (§ 288, subd. (a), two or more victims (§ 667.61, subd. (e)(4)) 30 years to life 8 D.H. Lewd act on a child (§ 288, subd. (a), two or more victims (§ 667.61, subd. (e)(4)) 30 years to life 9 D.H. Rape of a child (§ 26 9, subd. (a)(1), two or more victims (§ 667.61, subd. (e)(4)) 30 years to life 10 D.H. Lewd act on a child (§ 288, subd. (a), two or more victims (§ 667.61, subd. (e)(4)) 6 years, stayed 11 D.H. Sodomy on a child (§ 26 9, subd. (a)(3) 30 years to life 12 D.H. Lewd act on a child (§ 288, subd. (a)) 6 years, stayed 13 D.H. Rape of a child (§ 269, subd. (a)(1), two or more victims (§ 667.61, subd. (e)(4)) 30 years to life 14 D.H. Lewd act on a child (§ 288, subd. (a), two or more victims (§ 667.61, subd. (e)(4)) 6 years, stayed 15 T.H. Oral copulation of a child (§ 288.7, subd. (b)), two or more victims (§ 667.61, subd. (e)(4)) 30 years to life 16 T.H. Lewd act on a child (§ 288, subd. (a), two or more victims (§ 667.61, subd. (e)(4)) 6 years, stayed

The court imposed the unstayed terms consecutively and also imposed an additional 45 years for the prior strike (crimina l threats) (§ 667, subd. (a)) and 2 years for prior prison terms (§ 667.5, subd. (b)). The aggregate term imposed was a determinate term of 65 years 8 months, followed by an inde terminate term of 270 years to life in state prison. DISCUSSION I Child Sexual Abuse A ccommodation Syndrome The trial court admitted expert te stimony concerning CS AAS. Defendant contends that admission of this expert test imony violated his due process and fair trial rights. As many California cases have he ld, this contention is without merit.4 CSAAS evidence is admissible in Calif ornia to dispel jurors’ misconceptions about how child victims of sexual a buse typically react. (See, e.g., People v. Brown (2004) 33 Cal.4th 892, 905-907; People v. Wells (2004) 118 Cal. App.4th 179, 188; People v. Housley (1992) 6 Cal.App.4th 947, 955; People v. Archer (1989) 215 Cal.App.3d 197, 205, fn. 2; People v. Bowker (1988) 203 Cal.App.3d 385, 393-394.) As defendant acknowledges, California pr ecedent holds that admission of CSAAS evidence does not violate a defendant’s due process and fair trial rights. ( People v. Patino (1994) 26 Cal. App.4th 1737 ( Patino ).) The Patino court rejected a claim that the defendant’s “right to due process was violat ed by the introduction of CSAAS testimony. The United States Supreme Court has held th e admission of relevant evidence of the battered child syndrome does not violate th e due process clause of the Fourteenth Amendment. ( Estelle v. McGuire (1991) 502 U.S. 62[, 68-7 0] [116 L.Ed.2d 385, 396- 397].) Battered child synd rome evidence is analogou s to CSAAS evidence. ( People v. Bowker, supra, 203 Cal.App.3d at pp. 393-394.) For this reason, there can be little doubt the due process dimensions of both types of evidence is similar if not identical. Therefore, introduction of CSAAS test imony does not by itself deny appellant due process.” ( Patino, supra, at p. 1747.) Moreover, as the Patino court concluded, “the essence of a due process violation is a denial of a criminal defenda nt’s right to a fair trial. (See People v. Bell (1989) 49 Cal.3d 502, 534.)” ( Patino, supra, 26 Cal.App.4th at p. 1747.) Patino rejected the due process challenge because the defendant in that case “failed to demonstrate how his fundamental right to a fair trial was violat ed by the introduction of CSAAS testimony to rehabilitate [the victim’s] testimony after a rigorous defense cross-examination calling into question the vict im’s credibility.” ( Ibid .) This court has noted its agreement with the opinions of other districts that admission of CSAAS evidence does not violate a defendant’s due process and fair trial rights. ( In re S.C. (2006) 138 Cal.App.4th 396, 418.) We said: “[I]t has long been held5 that in a judicial proceeding presenting th e question whether a child has been sexually molested, CSAAS is admissible evidence for the lim ited purpose of disabusing the fact finder of common misconceptions it might have about how child victims react to sexual abuse. [Citations.]” ( Ibid. ) Acknowledging our prior hold ing, defendant invites us, in essence, to reconsider, arguing that, because the California Suprem e Court has not expressed an opinion concerning this specific issue, we are not bound. We declin e the invitation. While it is not improper for defendant to make this argu ment on appeal, we are under no obligation to reconsider precedent. (See People v. Hughes (2002) 27 Cal. 4th 287, 346-348 [declining to reconsider precedent]; see also People v. Sattiewhite (2014) 59 Cal.4th 446, 479-480 [same].) II CALCRIM No. 1193 Defendant contends that, even if the CSAAS evidence was ad missible, the trial court erred by using CALCRIM No. 1193 to instru ct the jury concerning the use of CSAAS evidence. He argues th at the instruction allowed the jury to use the CSAAS evidence in determining the vi ctims’ credibility. We conclude there was no instructional

error. The trial court instructed the jury, us ing CALCRIM No. 1193, as follows: “You have heard testimony from Dr. Antho ny Urquiza regarding child sexual abuse accommodation syndrome. [¶] Dr. Urquiz a’s testimony about child sexual abuse accommodation syndrome is not ev idence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not the named victim’s conduct was not inc onsistent with the conduct of someone who has been molested, and in evaluating the believability of his or her testimony.” Defendant did not object to CALCRIM No. 1193 in the trial court. However, “a defendant need not assert an objection to pr eserve a contention of instructional error6 when the error affects th e defendant’s ‘substantial rights.’ [Citation.]” ( People v. Felix (2008) 160 Cal.App.4th 849, 857.) Because de fendant claims the in struction is legally incorrect to the point where it misinforms the jury to his prejudice, resulting in a miscarriage of justice, we will ex amine his claim on its merits. Defendant argues that the last phrase of the instruction, “in evaluating the believability of his or her testimony,” im permissibly expanded the use of CSAAS evidence and, in defendant’s words, “erroneous ly told the jury it c ould use the evidence to [corroborate the victim’s claims of abuse].” To th e contrary, CALCRIM No. 1193, itself, informed the ju ry that it could not use the CSAAS evidence to conclude defendant committed the crimes. Defendant ’s reading of the last phrase of the instruction is inconsistent with the remainder of the instru ction. Read as a whole, the instruction directed the jury that it could use the CSAA S evidence to evaluate whether behavior by the victims that was seemingly inconsistent with being molested was actually not inconsistent . As the instruction properly notes, th at is an aspect of determining the victims’ believability. Speaking of CSAAS evid ence, the California Suprem e Court said: “[E]xpert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witn ess has in fact been sexually abused; it is admissible to rehabilitate such witness’s credibility when the defendant sugg ests that the child’s conduct after the incident – e.g., a delay in reporting – is inconsiste nt with his or her testimony claiming molestation. [Citations.] ‘Such expert testimony is needed to disabuse jurors of commonly held misconcep tions about child sexual abuse, and to explain the emotional antecedents of abus ed children's seemingly self-impeaching behavior.’ ” ( People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, italics added, fn. omitted.) Because CSAAS evidence is admissible to rehabilitate a witness’s credibility, it is not error for a trial court to instruct a jury , using CALCRIM No. 1193 , that it may use the7 CSAAS evidence in evaluating the believab ility of the witness’ s testimony with the further direction that the CS AAS testimony is not evidence that defendant committed the crimes. III Sufficiency of Evidence Defendant contends that the evidence wa s insufficient to sup port a conviction in count two, penetration of an unconscious pers on with a foreign object. He claims that, because there were inconsistencies in the testimony of S.T. con cerning whether she was asleep when defendant put his finger in he r vagina, the evidence on that point was insubstantial. We conclude the evidence supports the conviction. “ ‘In reviewing the sufficiency of eviden ce under the due process clause of the Fourteenth Amendment to th e United States Constitution, the question we ask is “whether, after viewing the evid ence 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.” ’ [Citation.] We apply an identical standard under the California Constitution. [Citation.] ‘In determining whet her a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorab le to respondent and presume in support of the judgment the existence of every fact the trier could reasonably dedu ce from the evidence.” ’ [Citation.]” ( People v. Young (2005) 34 Cal.4th 1149, 1175, italics omitted.) In reviewing the sufficiency of th e evidence, “a reviewing cour t resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]” ( Id . at p. 1181.) We will reverse for insufficient evidence only if “ ‘ “ ‘up on no hypothesis whatever is there sufficient substantial ev idence to support [the conviction].’ [Citation.]” ’ ” ( People v. Manriquez (2005) 37 Cal. 4th 547, 577.)8 Section 289, subdivision (d) provides: “Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the na ture of the act and this is known to the person committing the act or cau sing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. As used in this subdivision, ‘unconscious of the nature of the act’ means in capable of resisting because the victim . . . [w]as unconscious or asleep.” When S.T. was 14 years old, defendant liv ed with her and her family. He was the boyfriend of S.T.’s sister. One night, defe ndant woke up S.T. and invited her to watch television with her. She sat near him on the couch and watched television for a few minutes, but she went back to bed because she felt uncomfortable. After S.T. had fallen asleep, defendant en tered her room. On direct examination, S.T. testified that she woke up with defe ndant’s finger inside her vagina. She told defendant to stop, but he got on top of her and raped her. On cross-examination, S.T. testified as follows concerning what happened after she went back to bed and went to sleep: “Q And so the next thing that happens is what? “A He came in and he was touching my right leg. “Q And were you asleep at the time? “A Yes. “Q Okay. Do you have an idea from the time you left the couch, went to your room, fell asleep, and then [defendant] cam e in, do you have a sense of the time? “A Probably I don’t have a time. Like I said, I didn’t have a watch, and there was no clock in our room. “Q Sure, understood. “A So a couple minutes, wasn’t an hour. “Q But you were asleep? “A Yes.9 “Q Do you know how lo ng you were asleep for? “A No. “Q Okay. But you think it was a couple of minutes? “A Yes. “Q And what was that based on? “A I don’t know, just from the walk fro m there, and me laying in my bed and laying down, and I know I was sleeping, and th en I felt his hand touch my thigh and my thigh to my vagina. “Q Okay. I got that part. I’m just tr ying to get a sense of the time that you are asleep. And so I’m clear, you think you were asleep for two minutes? “A I was asleep. It was late. I was si ck. I was young and I went to sleep, so I don’t know the time. I don’t know th e minutes, but I know I was asleep. “Q That’s all I’m asking. I wasn’t th ere, so that’s why I’m asking. Because once you go to sleep, so metimes it is hard to tell how l ong you have been asleep for, and that’s why I’m asking that question. “A Right. “Q So then the next thing you know is [defendant] lying next to you, true? “A He’s squatted down on the side of the bed right here. “Q Is he in bed with you? “A Not at that time he touched my thigh, no. “Q And that’s what wakes you up? “A Yes. No, the hand touch to my vagina was what woke me up. “Q Okay. So he touches your le g and then touches your vagina, true? “A Yes. “Q But it is the touching of the vagina that wakes you up? “A Yes. “Q Then how do you know he to uched your leg if you are asleep?10 “A Rubbing my leg. Obviously, he was rubbing my leg. “Q Okay. How is that obvious? “A I felt him. My vagina is not that far from my leg. “Q Okay. So you u nderstand my question -- “A I do understand the ques tion and I’m answering it. “Q If he wakes you up by touching y our vagina, but you also remember him touching your leg before that, and so my question is how would you know that if you were asleep? “A I was asleep when he touched me. I know I was, and I felt him touch me.” Defendant argues: “There is no substantial evidence th at [S.T.] was unconscious, i.e., asleep, when [defendant ] penetrated her. Rather, sh e was awakened by his hand touching or rubbing her leg or thigh, afte r which his hand touc hed her vagina.” Defendant’s argument is not consistent with the proper view of the evidence. S.T. testified three times – once on direct examination and twice on cross-examination – that she woke up when he touched her vagina. Further, she said that, when he touched her vagina it was on the inside, thus penetration. While she also said th at he rubbed her leg before he touched her vagina, it was for the jury to resolve this appa rent inconsistency in S.T.’s testimony. There was nothing about her statements that his touching her vagina woke her up that was so unbelievable in context that we must reject it. Defendant is not entitled to his own inte rpretation of the evid ence on appeal. Resolution of conflicts and inco nsistencies is the exclusive pr ovince of the jury. And we cannot reverse unless there is no interpretation of the evidence consistent with conviction. ( People v. Manriquez, supra, 37 Cal.4th at p. 577.) Since th ere is an interpretation of the evidence supporting the conviction – that defe ndant’s insertion of his finger in S.T.’s vagina woke her up – we must conclude that the evidence was sufficient to sustain a conviction for penetration of an unco nscious person with a foreign object.11 IV Multiple-Victim Find ing on Count Two In his opening brief, defendant appends to the end of his suffi ciency of evidence argument a paragraph making a di fferent argument – that a multiple-victim allegation on count two (penetration of an unconscious person with a fore ign object) was statutorily unauthorized under the “One Strike” law be cause the One Strike law’s multiple-victim enhancement does not apply to the crime allege d in count two. Appa rently, the Attorney General did not notice this second argument be cause she did not respond. We conclude defendant forfeited this argument by failing to ra ise it properly. And, in any event, the argument is without merit because , even if the jury made a fi nding that does not apply to that offense, the finding was not adopted as part of the judgment. Therefore, there is nothing to correct. The One Strike law provides for enhan ced sentencing if, among other things, a defendant committed specified sexual offenses against multiple victims. (§ 667.61, subd. (e)(4).) Defendant asserts on appeal that th at the multiple-victim enhancement does not apply to penetration of an unconscious person with a foreign object, a violation of section 289, subdivision (d). He observes correctly that a violation of section 289, subdivision (d) is not one of the offenses listed in the One Strike law. (§ 667.61, subd. (c).) On the verdict form for count two, however, the jury found true that defendant committed offenses against multiple victims. An appellant must make each contention under a separate heading in his opening brief. (See Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4 [an appellant must present each point separately in the opening brief under an appr opriate heading, showing the nature of the question to be presented and the point to be made; failure to do so may be deemed a forfeiture of the argument].) Here, a contenti on that an enhancement was not statutorily applicable to an offense is different from a contention that the evidence was insufficient12 to sustain a conviction for th e offense. Therefore, failure to make the appended contention under a separate heading forfe ited consideration of that contention. But the forfeiture, as well as the argument, are of no moment here. While the verdict form contained a true finding as to a multiple-victim allegati on, defendant admits that the trial court did not impose an enhanc ement as to count two under the One Strike law. Neither the judgment, nor the abstract of judgment, mentions an enhancement under the One Strike law for count tw o. Accordingly, even if de fendant’s contention is correct that the One Strike law does not apply to penetration of an unconscious person with a foreign object, there is no e rror to correct here becaus e no such enhancement was imposed. V Alleged Cumulative Prejudice Defendant contends that, even if erro rs in the trial were not prejudicial individually, they were prejudi cial cumulatively, thus requiring reversal. Because we have found no error in the trial, there is no reason to consider whether errors were prejudicial cumulatively. Nonetheless, defendant also contends that, “even if the state court correctly applied state law and correctly adhered to state procedural and evidentiary rules in [defendant’s] case, the state proceedings did not comport w ith fundamental fairness and deprived [defendant] of a fair trial.” This is not a cumulative prejudice contention, but rather a contention that the proceeding s violated his due process rights. To attempt to support this argument, defe ndant simply lists mu ch of the evidence, procedure, and instructions that are proper under state law and concludes that this violated his due process rights under the fe deral Constitution. However, he does not identify why any of the evidence, procedure, or instructions violated his federal constitutional rights except to make a vague a ssertion that “trials for sexual offenses13 against children deprive defendants . . . of th e fundamentally fair trial guaranteed by due process . . . .” Given such a vague assertion, we have no way to analyze it and consider its merit. Accordingly, we can only concl ude that it is without merit. VI Sentencing Error Defendant contends the trial court erre d by imposing second strike sentencing on counts one and two – rape and penetration of unconscious vic tim, respectively, of S.T. – because the “prior conviction” did not occur prior to the crim es in counts one and two. The Attorney General agrees and requests th is court to modify the sentences on those counts. We agree that the se ntences must be modified. The second strike sentencing scheme a pplies to a criminal who “previously has been convicted” of a serious or violent felo ny. (§ 667, subds. (a)(1) & (b).) We have held, therefore, that the “Three Strikes” la w did not apply when a defendant experienced his “prior conviction” after he committed the charged offense. ( People v. Flood (2003) 108 Cal.App.4th 504, 507-508.) We said : “The word ‘previously’ means the conviction for a serious or violent felony must precede the present felony; the present felony must be committed after the serious or violent felony conviction.” ( Id . at p. 507, original italics.) Here, defendant committed the crimes alle ged in counts one a nd two in February 1998. However, he was convicted of his prior crime of making a criminal threat on June 23, 1998, after he committed the crimes allege d in counts one and two. Therefore, the criminal threat conviction was not a prio r conviction when defendant committed the crimes alleged in counts one and two. Relying on the criminal threat conviction at sentencing, the trial court doubled the term for count one to an indeterminate term of 30 years to life and doubled the term for count two to a determinate term of 16 years, both under section 667, subdivision (e)(1). The court also added a five-year enhan cement to count one under section 667,14 subdivision (a). Both of those provisions, however, require that the defendant was previously convicted of the crime. ( People v. Flood, supra, 108 Cal.App.4t h at pp. 507- 508.) Because defendant was not previously convicted of making a criminal threat when he committed the crimes alleged in counts one and two, the court erred by doubling the sentences on counts one and two and adding a five-year enhancement to count two. We must modify the sentence to correct the error. DISPOSITION The sentence on count one is modified to an indeterminate term of 15 years to life. The sentence on count two is modified to a dete rminate term of eight years, and the fiveyear enhancement imposed as to count two u nder section 667, subdivision (a), is struck. As modified, the judgment is affirmed. The tr ial court is directed to prepare an amended abstract of judgment and to send it to the Department of Correcti ons and Rehabilitation.

NICHOLSON , Acting P. J.

We concur:

DUARTE , J.

HOCH , J.