People v. Cordova CA4/2

Filed 4/13/21 P. v. Cordova CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073199

v. (Super.Ct.Nos. SWF1600673 &
SWF1807161)
ERIK MICHAEL CORDOVA,
OPINION
Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Michael B. Donner,

Judge. Affirmed.

Darryl L. Exum for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V.

Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.

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 Defendant and appellant Erik Michael Cordova fathered nine children with two

women. For many years, he molested four of his six daughters. On May 6, 2019, a jury

convicted him of 15 counts of lewd acts on a child under 14 years old (Pen. Code, § 288,

subd. (a)) and six counts of forcible lewd acts on a child (Pen. Code, § 288, subd. (b)(1)).

The jury also found that defendant committed these offenses against more than one

victim. (Pen. Code, § 667.61, subd. (e)(4), Stats. 2018, ch. 423, § 68, eff. Jan. 1, 2019,

former § 667.61, subd. (e)(5).) He was sentenced to an indeterminate term of 315 years

to life.

On appeal, defendant raises various challenges to the trial court’s evidentiary

rulings and his counsel’s assistance. We reject his challenges and affirm.

I. PROCEDURAL BACKGROUND AND FACTS

A. Background.

Defendant was in the business of “mining and marketing gemstones.” He has nine

children from two different wives, J. and S. In 1989, defendant began a relationship with

J. In 1993, he began a relationship with S. In 1994, J. gave birth to Sa. and defendant

told J. about his relationship with S. The families lived in two separate, but adjacent,

houses in Torrance. Defendant and J. have five children: three sons, including M., and

two daughters, including Jane Doe 2 (L.C., born Oct. 1996). Defendant and S. have four

daughters: Jane Doe 1 (R.A., born Feb. 1995), Jane Doe 4 (C.C., born Dec. 1999), Jane

Doe 3 (M.C., born Oct 2001) and A. Defendant married J. in 1997. By 2002, the

families moved to Murrieta and lived in the same house. Shortly thereafter, in 2004, J.

and her children moved out.

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 In 2009, defendant, S. and their children moved to Temecula. By 2013, defendant

and J.’s divorce had become final, and defendant married S. Three years later, defendant

was arrested, and S. divorced him.

B. The Prosecution’s Case.

1. Molestation involving L.C. (Jane Doe 2).

Defendant began molesting L.C. when she was eight or nine years old, shortly

after they moved to Murrieta, and continued until she was 16 years old. Sometimes he

gave her alcohol and showed her pornography. He touched and massaged her breasts and

genitals, made her touch and rub his penis and, sometimes, he ejaculated in her hand. He

also made her orally copulate him, and he digitally penetrated her vagina while rubbing

his penis. Defendant threatened that she would not be able to see her half sisters again if

she did not comply. She did not tell anyone about the abuse because she was afraid she

would be taken away from her mom and family.

L.C.’s brother, M., testified that one time, in the middle of the night, he saw

defendant kneeling by L.C., who was on the couch, with his hand near her. Defendant

yelled at M. to go to sleep.

2. Molestation involving R.A. (Jane Doe 1).

In 2000, defendant began molesting R.A. when she was five years old. He began

by massaging her back, buttocks, and genitals, and later progressed to having her

masturbate or orally copulate him. The abuse continued until she moved out of the house

when she was 17. The abuse made R.A. angry, and she and defendant would argue a lot.

She did not tell anyone about it because she was afraid. Defendant told her that if she

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told anyone about the abuse, her “siblings would be put into foster care and [her] mom

would be deported[1] and [she] would never see [her] family again.”

3. Molestation involving C.C. (Jane Doe 4).

Defendant began molesting C.C. when she was eight or nine years old, and the

family was living in Temecula. He massaged her back down to her buttocks. When she

was in the sixth grade, defendant, who was wearing boxers, grabbed her and pushed her

body against his body, and rubbed her chest and stomach. She did not tell anyone

because she was afraid she and her siblings would be placed in foster care since her

mother could not support them, and C.C. did not think her mother was eligible for social

services as “she was here undocumented.” Less than a year later, M.C. told C.C. and M.

that she (M.C.) had been abused. M. did not believe it, but C.C. also disclosed that she

had been abused. They agreed to keep it a secret so they would not be separated.

In 2015, C.C. told her mother that defendant had molested her. S. told C.C. not to

tell anyone, and S. did not file a report with the authorities. Also in 2015 or 2016, C.C.

told her boyfriend that defendant had touched her inappropriately. He told his aunt, a

therapist, who spoke to C.C. and pressured her to call child protective services (CPS).

1 R.A.’s mother, S., is from Austria. She came to the United States in 1993 as a
nanny. She briefly returned to Austria but reentered the United States in 1999 on a
tourist visa. She stayed past the expiration of her visa and became undocumented. In
2016, R.A. sponsored S. and initiated an application for her to get a green card, which
was issued to her in June 2017.

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 4. Molestation involving M.C. (Jane Doe 3).

When M.C. was eight years old and living in Temecula, defendant rubbed her

chest under her shirt while they watched a movie. When she tried to get away, defendant

said, “‘No. Be quiet. Stay here.’” When she was in the fourth or fifth grade, he walked

into her bedroom and wanted her to touch his penis. She refused, and he told her to lay

on the bed. He grabbed her chest under her shirt for about 10 minutes. M.C. wrote about

the incident in her journal. About one year later, she disclosed the incident to M. and

C.C. In 2012, S. found M.C.’s note in her journal, and they discussed it. M.C. had

written, “This is about the time when Dad asked me to touch his thingy. I told [C.C.] and

[M.] about it [¶] . . . [¶] [b]ut no one believes me.” When S. confronted defendant, he

said that it was “a one-time thing” and “nothing happened.” S. discarded the note and did

not tell anyone because she was in the country illegally and had no money or a driver’s

license.

5. The 2012 investigation.

In 2012, during defendant and J.’s divorce, J. and L.C. were not living with

defendant. L.C. was not doing well and at one point tried to kill herself because of her

father’s abuse. In November 2012, she disclosed the sexual abuse to her mother, who

called the police. L.C. was referred for a sexual assault response team (SART) exam but

did not take it. L.C spoke with a social worker but was not able to discuss all of the

abuse. She was able to write that defendant raped her three times. C.C., M.C., and A.

were also interviewed and denied any sexual abuse. C.C., M.C., and M. discussed not

disclosing the abuse because they were afraid of their family being “torn apart.”

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 On December 6, 2012, J. notified Detective Franchville that her son, M., had told

her about an incident involving C.C., M.C., and defendant.

6. The 2016 investigation.

On April 25, 2016, when C.C. was 16 years old, she and her father got into an

argument while driving. When they returned home, C.C. called her boyfriend and told

him to have his aunt call CPS. CPS contacted C.C. By reporting the abuse, C.C. hoped

defendant would be punished for what he had done, and she would prevent him from

abusing her younger sister, A. The following day, CPS spoke with M.C., who also

disclosed that she had been abused. M.C. wrote down her account in a letter, which was

entered into evidence. CPS then contacted the sheriff’s department. A detective

interviewed both C.C. and M.C. The detective also interviewed defendant, who denied

the allegations. R.A. continued to deny that she had been sexually abused until

Christmas 2017.

7. Expert testimony regarding child sexual abuse accommodation

syndrome (CSAAS).

Dr. Jody Ward, a clinical and forensic psychologist, testified regarding CSAAS,

which describes a “pattern of behaviors that many children exhibit who have been

sexually abused.” She explained that children abused by a family member in an ongoing

relationship tend not to report the abuse right away and, since they tend not to be

believed, they suffer more consequences from the abuse. Dr. Ward described five stages

of CSAAS: (1) secrecy, (2) helplessness, (3) entrapment, (4) delayed, unconvincing

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disclosure, and (5) recantation. She did not review any police reports or talk about any

aspects of this case because she was not talking about the particular children in this case.

C. The defense.

Jonathan Mendoza, an immigration attorney, testified about the process of

obtaining a green card for legal status in the United States. He explained that a “U visa,”

which can be obtained by the parent of a cooperating crime victim, takes longer to

process than a “family-based petition,” and a family-based petition is more expensive.

Defendant’s youngest daughter, A., testified that defendant had never acted

inappropriately toward her.

A child forensic interviewer testified she had interviewed M.C., C.C., and A. on

December 14, 2012. M.C. and C.C. both denied that anyone had touched them

inappropriately or that they were afraid of their father. In response to a question, M.C.

stated that L.C. had said defendant bothered her because of custody issues with their

brothers.

Defendant testified. He denied ever molesting, inappropriately touching, or raping

his daughters. In late 2012, defendant and J. were having child custody issues because

defendant wanted custody of the three boys. L.C.’s allegation kept him from obtaining

custody. In 2016, on the day before C.C. accused defendant of molesting her, the two

had an argument. When asked what the argument was about, he said, “in my household,

we like to debate politics and things like that.” The prosecutor objected under Evidence

Code section 402, and the judge struck the answer. Around the same time prior to C.C.’s

allegations, defendant and S. discussed her immigration status; he did not have enough

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money to sponsor her. Defendant stated that C.C. hated him in 2015 and 2016 and was

“very rebellious.”

Three character witnesses—defendant’s uncle, cousin, and mother—vouched for

defendant’s character of being honest, law-abiding, and a good father to his children.

Defendant’s mother also testified that in 2015 and 2016, both S. and R.A. discussed S.’s

undocumented status and expressed concern about the amount of time it was taking.

Upon learning of her son’s arrest, defendant’s mother asked R.A. if defendant had done

anything to her, and R.A. said no.

D. Stipulations.

The parties stipulated that (1) social worker K. Phillips interviewed A., C.C., and

M.C. on November 14, 2012, and they all denied that defendant had sexually or

physically abused them; (2) S. hired an attorney in 2016 to apply for permanent residence

using R.A. as a sponsor; (3) S.’s attorney never tried to file for a U visa, and neither the

sheriff’s department nor the district attorney’s office had received any U visa requests

from S. or anyone on her behalf; (4) S. obtained her green card on June 22, 2017; and (5)

neither C.C. nor M.C were approached by S. or anyone regarding a U visa or its

requirements, and they never took steps to obtain one for S.

II. DISCUSSION

Defendant asserts (1) the trial court erred in excluding evidence of witness bias,

(2) the court erred in admitting expert evidence on CSAAS, (3) defense counsel was

ineffective by not presenting expert evidence that defendant did not fit the profile of a

child molester and by failing to object to the prosecutor’s questions concerning whether

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C.C., M.C., R.A., and S. were lying and conspiring against defendant, and (4) the court

erred in allowing cross-examination of defendant’s character witnesses with hypothetical

questions assuming his guilt. We reject these contentions and affirm.

A. Evidence of Witness Bias.

Defendant asserts that the trial court abused its discretion and violated his

constitutional rights to a fair trial and to present a defense by excluding evidence that S.

and the children were biased against him because of “his support for President Donald

Trump and [his] immigration policy.” We disagree.

1. Further background information.

Prior to trial, the parties informally discussed the prosecution’s motion in limine

regarding “the concept of immigration as it pertains to this case.” More specifically, the

trial court stated, “I am not going to allow any reference to Donald Trump under any

circumstances, in any way, shape, or form. It is irrelevant. It is prejudicial. It requires

an undue consumption of time, and you are instructed, as are you being instructed to tell

all of your witnesses, they are not to mention Donald Trump’s name at all. That’s my

ruling.” The court later asked defense counsel if he “[c]are[d] to be heard on the Trump

issue?” Counsel replied, “No, Your Honor, I do not. I think I could work around that, as

you directed and ordered, and I will do that.” However, the prosecutor expressed concern

the evidence would “get in” because “one of the initial disclosures in this case came from

an argument between one of the [alleged] victims and the defendant” regarding

“Candidate Trump.” The trial court responded, “Well, I can’t be clearer. If someone

violates my order as it related to this political issue, that is such a hot potato in the United

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States right now, I will recess, and out of the presence of the jury, very directly express to

you my displeasure. . . . [¶] . . . And I will consider it a violation of a direct court order.

So just be forewarned. I’m not going to play around with that.”

Acknowledging the court’s directive, defense counsel asserted that “one of

[C.C.’s] motivations, besides the immigration, is her hatred for her father, which she said

she had because of his support for Donald Trump” and which “the defense believes is a

motivating factor for her to lie.” Counsel thus inquired whether he could ask C.C. the

following: “‘Was your discussion with your dad where you said you hated him, was that

a result of the different candidates who were running for office?’” The court answered,

“The answer is no. That’s too close to my ruling. It is irrelevant. It is immaterial.

Under [Evidence Code section] 352 analysis, it is more prejudicial than probative, and it

would require an undue consumption of time. That is my ruling. I don’t want any

slipping up to the edge of the envelope with that.” The court clarified that the victim

could be asked about her dislike of her father for reasons unrelated to any alleged sexual

abuse without asking about politics and Donald Trump. Defense counsel responded,

“But for the record, I think . . . my ability to ask [C.C.] questions about her motivation to

make up the story about her dad has been somewhat restricted by the Court’s ruling.”

The court replied, “I could not disagree more, and I don’t think trying to interject Donald

Trump into the trial has any relationship to this trial whatsoever, and I have made the

basis for my ruling very clear on the record, including undue consumption of time. [¶]

So I respect your right to advocate as strenuously as you want to, and I can understand

why you would like nothing more than to interject Donald Trump into this trial given the

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diversity of opinions about our current president. . . . [¶] . . . [However, n]o matter how

much you advocate, I don’t see any relevance at all to Donald Trump.”

Following the jury’s verdict, the defense moved for a new trial on the grounds

defendant should have been allowed to show (1) he was an avid, staunch, and vocal

supporter of President Donald Trump, (2) S. and their children strongly disagreed with

his views, (3) S. had made multiple comments that she hated him because of his support

for President Trump, (4) their feelings centered around his support for President Trump

and his immigration policy, (5) S. had stated in front of the children that “Trump should

be assassinated, and [defendant] deserved what he got,” and (6) the defense would have

provided this as a theory of the motive to fabricate. Defense counsel argued the evidence

was relevant because the issue was so divisive. The prosecutor opposed the motion,

arguing (1) the jury heard information about the “argument” between C.C. and defendant,

which “evolved into name calling, where they called each other bad people based upon

conduct that each was alleged to have done,” (2) the trial court “articulately and

thoughtfully” expressed its reasons for excluding any evidence involving President

Trump, and (3) defendant never attributed his daughters’ allegations to his support of

President Trump during his initial interview. The trial court denied the motion.

2. Exclusion of the evidence.

Under Evidence Code section 352 (section 352), a trial court has the discretion to

exclude evidence if its probative value is substantially outweighed by the probability that

its admission will create a substantial danger of undue prejudice. We will not disturb a

trial court’s decision to admit or exclude evidence under section 352, “except on a

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showing the trial court exercised its discretion in an arbitrary, capricious, or patently

absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez

(1999) 20 Cal.4th 1, 9-10.)

Here, defendant notes the trial court’s concern that “evidence about biases related

to Trump were too divisive,” but argues, “that’s just the point. That goes to the heart of

the defense theory. It was so divisive that it provided part of the motive for the fabricated

charges.” Notwithstanding the points defendant raises, we are not convinced the court

erred in excluding the proposed evidence under section 352. As noted ante, the evidence

was irrelevant and had little probative value. The jury heard the victims’ testimony

regarding the charged offenses, and jurors were made aware of a possible motivation for

the victims to lie about their accusations. Specifically, defense counsel presented

evidence of (1) defendant’s divorce proceedings with both J. (custody over the boys) and

S., (2) S.’s immigration status and the prospect of obtaining a U visa as the mother of a

cooperating crime victim, and (3) defendant’s argument with C.C. shortly before she

accused him of molesting her. Presenting evidence that the argument concerned

defendant’s political views would have added nothing to the defense.

In contrast, evidence of defendant’s support for President Trump would have been

prejudicial to both sides. Regarding the inflammatory nature of this evidence, the trial

court noted that the “very name [Trump] in this political climate triggers emotions that

are breaking up friendships, breaking up families,” “elicit[ing] a visceral response from

people . . . [a]nd it could work both for or against either side. For example, you could

have a juror on the case who was very much anti-Trump, and that would have been

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devastating for the defendant . . . .” Moreover, to allow the presentation of evidence

regarding the parties’ political views would have been time-consuming. The defense

would have had to present evidence regarding defendant’s, C.C.’s, and S.’s political

views, discussions the children participated in or heard, and the details of the argument

between C.C. and defendant. Moreover, the prosecution would have had to cross-

examine the witnesses on these points. When the trial court denied defendant’s motion

for new trial, it noted, “I couldn’t even imagine how long jury selection would take if we

had to question every potential juror about their political beliefs and issues they’ve had

with the current political climate, et cetera.”

Weighing the minimal probative value of the evidence of defendant’s political

views against the significant prejudicial effect and the likelihood that it would necessitate

undue consumption of time, we conclude the trial court’s decision to exclude the

evidence was not arbitrary, capricious, or patently absurd.

3. Violation of constitutional rights.

Defendant contends that as well as constituting an abuse of discretion under

section 352, the trial court’s ruling also violates his federal constitutional rights to a fair

trial and to present a defense. There is no indication defendant asserted these

constitutional claims in the trial court. Although defendant contends that constitutional

issues may be raised for the first time on appeal, the California Supreme Court has

repeatedly held that constitutional claims not raised in the trial court are forfeited.

(People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14 [“Defendant did not object on this

ground below, and thus his constitutional claim has not been preserved for appeal.”];

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People v. Carpenter (1997) 15 Cal.4th 312, 372 [“[D]efendant did not raise most of these

constitutional claims at trial, thus waiving them on appeal.”]; People v. Williams (1997)

16 Cal.4th 153, 250 [“Defendant, however, waived these constitutional objections to the

admission of . . . evidence by failing to raise them at trial.”].)

At any rate, we find no constitutional deprivation. “In general, the ‘“[a]pplication

of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s

right to present a defense.” [Citations.]’ [Citations.] We have recognized, however, that

Evidence Code section 352 must yield to a defendant’s due process right to a fair trial and

to the right to present all relevant evidence of significant probative value to his or her

defense. [Citation.] [¶] Although the complete exclusion of evidence intended to

establish an accused’s defense may impair his or her right to due process of law, the

exclusion of defense evidence on a minor or subsidiary point does not interfere with that

constitutional right. [Citation.] Accordingly such a ruling, if erroneous, is ‘an error of

law merely,’ which is governed by the standard of review announced in People v. Watson

(1956) 46 Cal. 2d 818, 836.” (People v. Cunningham (2001) 25 Cal.4th 926, 998-999;

see People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317 [“Where a ‘trial court’s ruling

did not constitute a refusal to allow defendant to present a defense, but merely rejected

certain evidence concerning the defense,’ the ruling does not constitute a violation of due

process and the appropriate standard of review is whether it is reasonably probable that

the admission of the evidence would have resulted in a verdict more favorable to

defendant.”].)

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 Although the trial court’s ruling did result in the exclusion of evidence of the

opposing political views of defendant and his family, “we are not convinced that this

evidence was ‘critical’ to [his] defense or that its exclusion amounted to the exclusion of

a defense rather than evidence concerning a defense.” (People v. Espinoza, supra,

95 Cal.App.4th at p. 1317.) Defendant claimed the victims and S. had a motive to lie

about the charged offenses. In support of this defense, the jury heard about his divorce

proceedings with both J. and S., S.’s immigration status, the possibility of her obtaining a

U visa as the mother of a cooperating crime victim, and his argument with C.C. shortly

before she accused him of molesting her. In the context of this evidence, defendant’s

support for President Trump was not critical, and its exclusion did not preclude him from

presenting a defense.

B. Expert Evidence on CSAAS.

Defendant contends the trial court erred in admitting expert evidence on CSAAS

and instructing the jury with CALCRIM No. 1193. On the merits, we conclude

defendant’s contentions fail.

1. Further background information.

Prior to trial, the prosecutor argued that expert testimony on CSAAS was “needed

to disabuse the jurors of the commonly held misconceptions about child sexual abuse and

to explain the emotional antecedents of abused children’s seemingly self-impeaching

behavior, including delayed reporting, inconsistent statements, and recantation.” Defense

counsel argued for exclusion on the grounds the evidence is unreliable and will not assist

the jurors. Alternatively, counsel argued the evidence should be limited in scope to

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situations where the victim is unable to explain why her disclosure was delayed. The trial

court allowed the testimony. The jury was instructed with CALCRIM No. 1193 as

follows: “You have heard testimony from Dr. Jody Ward regarding child sexual abuse

accommodation syndrome. [¶] Dr. Ward’s testimony about child sexual abuse

accommodation syndrome is not evidence that the defendant committed any of the crimes

charged against him. [¶] You may consider this evidence only in deciding whether or

not [L.C.’s, R.A.’s, C.C.’s, and M.C.’s] conduct was not inconsistent with the conduct of

someone who has been molested, and in evaluating the believability of their testimony.”

2. CSAAS evidence was relevant and admissible.

Defendant asserts, “Dr. Ward’s testimony was not probative of any material issue

in dispute in this case [because t]he only disputed material issue . . . was whether [he]

sexually abused his daughters or not.” Thus, he argues, “the slightest prejudicial impact

of the testimony justified its exclusion under Evidence Code section 352.” We disagree.

Expert testimony concerning CSAAS is admissible “to disabuse jurors of

commonly held misconceptions of child sexual abuse and the abused child’s seemingly

self-impeaching behavior.” (People v. Gonzales (2017) 16 Cal.App.5th 494, 504

(Gonzales) [“The CSAAS evidence simply neutralizes the victim’s apparently self-

impeaching behavior.”].) Section 352 provides, in part, that “[t]he court in its discretion

may exclude evidence if its probative value is substantially outweighed by the probability

that its admission will . . . create substantial danger of undue prejudice . . . .” “‘In

applying [Evidence Code] section 352, “prejudicial” is not synonymous with

“damaging.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.) It involves evidence that

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tends to “‘evoke an emotional bias against the defendant . . . which has very little effect

on the issues.’” (Ibid.) The decision to admit or exclude expert CSAAS testimony is

reviewed for abuse of discretion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299

(McAlpin).)

Here, Dr. Ward’s testimony was relevant to dispel any myth or misconception

about L.C.’s, R.A.’s, C.C.’s, and M.C.’s delay in reporting the abuse and the fact that

they initially denied it. Any potential prejudicial impact was reduced because Dr. Ward

testified she was not aware of the facts of the case. She stated that she was not

expressing any opinion as to whether any of the victims suffered from CSAAS or if

defendant was in fact a child molester. No reasonable juror would have believed her

testimony was an attempt to prove defendant committed the charged offenses. (People v.

Housley (1992) 6 Cal.App.4th 947, 955-956 (Housley).) Prior to deliberating, the jury

was properly instructed with CALCRIM No. 1193, which conveyed “Dr. Ward’s

testimony about child sexual abuse accommodation syndrome is not evidence that the

defendant committed any of the crimes charged against him.” We presume the jury

followed this instruction. (People v. Cain (1995) 10 Cal.4th 1, 34.)

3. CALCRIM No. 1193 does not violate defendant’s right to due process.

Defendant contends the trial court erred by giving the jury CALCRIM No. 1193

because it effectively allowed them to use Dr. Ward’s testimony as “evidence of [his]

guilt,” thus violating his right to due process. Although defendant concedes he did not

object to CALCRIM No. 1193 or request a modification of the instruction, we consider

his appellate contention because “the forfeiture rule ‘does not apply when . . . the trial

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court gives an instruction that is an incorrect statement of the law,’” and that is what

defendant claims happened here. (People v. Gomez (2018) 6 Cal.5th 243, 312.)

“The independent or de novo standard of review is applicable in assessing whether

instructions correctly state the law.” (People v. Posey (2004) 32 Cal.4th 193, 218.) “‘It

is well established in California that the correctness of jury instructions is to be

determined from the entire charge of the court, not from a consideration of parts of an

instruction or from a particular instruction.’ [Citations.] [¶] ‘We credit jurors with

intelligence and common sense [citation] and do not assume that these virtues will

abandon them when presented with a court’s instructions. [Citations.]’ [Citation.]

[¶] We ask whether a ‘reasonable juror would apply the instruction in the manner

suggested by defendant.’” (People v. Bragg (2008) 161 Cal.App.4th 1385, 1395-1396.)

In challenging CALCRIM No. 1193, defendant asserts the instruction is “worded

entirely in terms of the purposes for which the jury can use CSAAS testimony; it does not

say that there is any purpose for which they cannot use it.” He therefore claims that using

Dr. Ward’s testimony “as evidence the alleged victims were ‘believable,’ . . . is

indistinguishable from using it as evidence [he] committed the crimes charged against

him.” Since CALCRIM No. 1193 “misled the jury into relying on the expert’s testimony

to bolster the witnesses’ credibility, [defendant argues] it lessened the prosecution’s

burden of proving guilt beyond a reasonable doubt[, and] it violated [his] rights to due

process under the federal constitution.”

As defendant concedes, this same argument was rejected in Gonzales, supra,

16 Cal.App.5th at p. 504. However, he argues that “Gonzales was wrongly decided and

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the court’s explanation of how the jury would understand the instruction is why the

instruction is problematic.” We are not persuaded. While CALCRIM No. 1193 does not

say that “there is any purpose for which [jurors] cannot use it,” it does contain language

that clearly conveyed that point. Specifically, the instruction told the jurors that Dr.

Ward’s testimony was “not evidence that the defendant committed any of the crimes

charged against him.” Defendant acknowledges this language and that it is “mentioned in

CALCRIM No. 303[2] (which the court also gave [without] specify[ing] that [it] applies

specifically to the CSAAS testimony . . .),” but he contends “for the jury to understand”

the limited use of CSAAS testimony, they “first need to understand . . . that there is a

difference between ‘the complaining witness is believable’ (one of the purposes

authorized by the instruction) and ‘the victim’s molestation claim is true’ (the purpose

forbidden by Housley).” We disagree.

CALCRIM No. 1193 does not allow the jury to conclude that defendant molested

his daughters based solely on Dr. Ward’s testimony. Rather, it allows the use of the

expert’s testimony as one factor in assessing the victims’ credibility. Defendant’s

argument confuses two types of evidence: (1) evidence relevant to a victim’s credibility;

and (2) evidence that the defendant committed the charged offenses. However, the two

types of evidence are different, and case law recognizes this difference. (See Housley,

supra, 6 Cal.App.4th at p. 956 [CSAAS evidence is properly admitted “to rehabilitate

[the victim’s] credibility and to explain the pressures that sometimes cause molestation

2 “During the trial, certain evidence was admitted for a limited purpose. You may
consider that evidence only for that purpose and for no other.” (CALCRIM No. 303.)

19
victims to falsely recant their claims of abuse.”]; People v. Bowker (1988)

203 Cal.App.3d 385, 394 [Although CSAAS evidence may not be “used to determine

whether the victim’s molestation claim is true,” it may be used “to rebut defense attacks

on the [victim’s] credibility.”]; McAlpin, supra, 53 Cal.3d at p. 1300 [Although CSAAS

evidence is “not admissible to prove that the complaining witness has in fact been

sexually abused,” “it is admissible to rehabilitate such witness’s credibility.”].)

Here, CALCRIM No. 1193 did not require the jury to accept the CSAAS evidence

or infer that L.C., R.A., C.C., or M.C. were sexually abused. Rather, it expressly told the

jury not to use Dr. Ward’s testimony as “evidence that the defendant committed any of

the crimes charged against him” and advised that jurors could consider the evidence

“only” for the limited purpose of “deciding whether or not [L.C.’s, R.A.’s, C.C.’s and

M.C.’s] conduct was not inconsistent with the conduct of someone who has been

molested, and in evaluating the believability of their testimony.” In separate instructions,

the jury was also informed of the presumption of innocence and the People’s burden to

prove defendant guilty beyond a reasonable doubt. Taken together, these instructions are

clear, a reasonable juror would have understood them, and they did not create any risk

that jurors would believe they could rely on the expert testimony to convict defendant

even if guilt had not been proven beyond a reasonable doubt based on other evidence.

(Accord, Gonzales, supra, 16 Cal.App.5th at pp. 503-504 [rejecting defendant’s argument

that “it is impossible to use the CSAAS testimony to evaluate the believability of [the

victim’s] testimony without using it as proof that [defendant] committed the charged

20
crimes,” and holding that CALCRIM No. 1193 “was proper and did not violate due

process”].)

Because we find no instructional error, we need not, and do not, consider the

People’s harmless error argument.

C. Ineffective Assistance of Counsel.

Defendant asserts his trial counsel was ineffective by not presenting expert

evidence that he did not fit the profile of a child molester and by failing to object to the

prosecutor’s cross-examination concerning whether the victims were lying and

conspiring against him.

“Under both the Sixth Amendment to the United States Constitution and article I,

section 15, of the California Constitution, a criminal defendant has the right to the

assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a

claim of ineffective assistance of counsel, a defendant must establish that his counsel’s

performance was deficient and that he suffered prejudice. (Strickland v. Washington

(1984) 466 U.S. 668, 687.) Deficient performance requires a showing that “counsel’s

representation fell below an objective standard of reasonableness” “under prevailing

professional norms.” (Id. at p. 688.) With respect to prejudice, a defendant must show

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” (Id. at p. 694.) “If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that

course should be followed.” (Id. at p. 697.)

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 1. Failure to present a Stoll3 expert.

a. Further background information.

Prior to trial, defense counsel obtained a psychological assessment of defendant

from Laura A. Brodie, Ph.D., who interviewed him on July 28, 2017. She stated that the

results of defendant’s testing “suggested typical, heterosexual, age-appropriate sexual

interests involving adolescent and adult females. There was no indication of sexually

deviant interests involving paraphilic stimuli, such as exhibitionism, voyeurism,

prepubescent children, or sexual violence.” Dr. Brodie opined that the “findings from

[defendant’s] psychosexual evaluation indicates that at the time of assessment, he does

not have a deviant sexual interest in prepubescent children, he does not have a

diagnosable mental illness and he is not predatory.”

On June 14, 2019, after the verdict but before sentencing, the trial court relieved

Mr. Greenberg as defendant’s attorney and appointed Mr. Exum as his counsel. Mr.

Exum filed a motion for new trial on the ground of ineffective assistance by failing to call

Dr. Brodie as an expert witness. The motion was accompanied by Dr. Brodie’s written

report and a declaration from Mr. Greenberg. Mr. Greenberg declared that he did not

“call Dr. Laura A. Brodie as a witness for tactical reasons.” On July 11, 2019, the court

denied defendant’s motion.

3 People v. Stoll (1989) 49 Cal.3d 1136 (Stoll).

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 b. Analysis.

Psychological opinions based upon personal examination and analysis of accepted

psychological tests are admissible as character evidence tending to show that a defendant

was or was not likely to have committed a particular act. (Stoll, supra, 49 Cal.3d at

p. 1153; Evid. Code, § 1102, subd. (a).) In Stoll, a child molestation case, the California

Supreme Court held that the trial court erroneously excluded a psychiatrist’s opinion that

the defendant had a “‘normal personality function,’” that the defendant had not

previously engaged in “‘sexual deviancy of any kind,’” and that it was “‘unlikely . . . she

would be involved in the events she’s been charged with.’” (Stoll, at p. 1149, italics

omitted.)

Defendant insists “competent counsel would have used Dr. Brodie’s testimony to

show that [his] psychological makeup was not consistent with molesting a child.” Not so.

Defendant has not definitively established that Mr. Greenberg lacked a tactical reason for

declining to present Dr. Brodie’s testimony given his declaration to the contrary. At the

hearing on the motion for new trial, defendant did not call Mr. Greenberg to testify to his

tactical reasons. However, there are reasons why he may have decided not to introduce

Dr. Brodie’s testimony.

To begin with, Dr. Brodie’s assessment of defendant was not all positive.

According to the personality assessment inventory, defendant “produced a defensive

profile, attempting to place himself in a more favorable light”; however, “[h]e did not

respond in a manner that would make the inventory invalid.” Trial counsel may have

feared evidence of defendant’s “defensive profile” would cause the jury to conclude that

23
he was lying. As the prosecutor argued, he was “hopeful that the defense would call [Dr.

Brodie] because it would go towards a lack of credibility when the person who’s

evaluating him as to whether or not he has a sexual interest in children found him to be

untruthful at times.” Also, defendant did not need the Stoll evidence to support his

assertion of innocence. The first accusation of sexual molestation was made during

defendant’s divorce from J., when the two were engaged in a heated custody battle over

their sons. Thus, defendant stresses, “[t]he fact that sexual abuse allegations arise from a

divorce/custody situation is a significant circumstance that flags a potential motive to

fabricate.” Through direct- and cross-examination of various witnesses, defense counsel

was able to present this defense without Dr. Brodie’s potentially damaging testimony. A

reasonable juror could understand why children might have a motive to lie about a

parent’s conduct during a divorce.

The above reasons make Mr. Greenberg’s decision not to present the testimony of

Dr. Brodie a reasonable, if not compelling, tactical choice.

2. Failure to object to the prosecutor’s “‘were they lying’” questions.

a. Further background information.

While cross-examining defendant, the prosecutor asked, on numerous occasions,

24
whether C.C., M.C., R.A., or S. were lying and conspiring against him.4 Defense counsel

registered no objection to these questions.

4 Regarding C.C. and M.C., the prosecutor asked: “Q: You heard [C.C.] say in court
what she says you did to her, correct? [¶] A: I heard that, yes, sir.
“Q: And you are saying your daughter is a liar? [¶] A: I am saying she’s lying when
she said that, yes. [¶] . . . [¶]
“Q: You heard [M.C.] state in court what you did to her, correct? [¶] A: I heard her
accusations in court, yes.
“Q: You are calling your daughter [M.C.] a liar, correct? [¶] A: When she made
those accusations, she was lying, sir. [¶] . . . [¶]
“Q: In every accusation that you’re aware she made, you’re calling her a liar? [¶] A:
Yes, I am, sir.”

In reference to the victims’ mother, S., the prosecutor asked: “Q: You heard [S.]
testify in court that she found a note from [M.C.] and confronted you with it, correct? [¶] A:
I heard that testimony, yes, sir.
“Q: And as you sit here today, you’re saying she’s lying? [¶] A: I’m saying those
statements were lies, yes.”

Regarding R.A., the prosecutor asked: “Q: You heard what she said you did to her
during those years, correct? [¶] A: I heard her accusations, yes, sir.
“Q: And you are saying that she is a liar? [¶] A: I’m saying those accusations were
a lie, yes.
“Q: So from this photograph of the five women sitting on the opposite side of the
table from you, four are lying about you during these court proceedings? [¶] A: Yes, they
were, sir.”

After the prosecutor asked defendant about crying on the witness stand when he was
shown cards from his family, the following exchange occurred: “A: It’s my family, sir, yes.
[¶] Q: Family that you’re saying are liars? [¶] A: Yes, they are.”

Finally, the following exchange occurred regarding the victims conspiring against
defendant: “Q: . . . April 26, 2016, your mental state, you didn’t have any reason to believe
that your wife, at the time, [S.] was conspiring with your daughters to make something up,
correct? [¶] A: When Franchville was interviewing me in April of 2016, I thought they
must be conspiring to do something because they were lying about me.
“Q: You thought that? [¶] A: That’s what I thought. There must be some kind of
problem going on with them. They’re obviously up to something. I was very confused, and
I was shocked. [¶] Q: Okay. So that’s what you would have said. You would have said,
Hey, they’re conspiring against me. You would have told the investigator that? [¶]
A: Probably not.”

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 b. Analysis.

Defendant contends the trial court erred in permitting the prosecutor to ask him a

series of “‘were they lying’” and conspiring questions. (People v. Zambrano (2004)

124 Cal.App.4th 228, 242 (Zambrano)].) [trial courts should consider “‘were they lying’”

questions in context].) Since defense counsel registered no objections to these questions,

the claim is forfeited. (See People v. Dykes (2009) 46 Cal.4th 731, 763.) Anticipating

our application of forfeiture, defendant contends his counsel was ineffective.

In Zambrano, two police officers testified that they purchased cocaine from

defendant via a woman at a truck stop parking lot. (Zambrano, supra, 124 Cal.App.4th at

p. 233.) At trial, the defendant admitted that he worked at the truck stop parking lot but

denied engaging in any drug transaction. (Ibid.) On cross-examination, the prosecutor

repeatedly asked him if the officers were lying when they testified. (Id. at pp. 234-235.)

The prosecutor also asked if defendant wanted the jury to believe that the officers were

going to risk their jobs by lying at his trial. (Id. at p. 234.) Defense counsel’s objection

was overruled. (Ibid.) The defendant answered that he did not know whether the officers

would lose their jobs for lying, but he did not have drugs that day and did not use drugs.

(Ibid.) On appeal, the defendant asserted the “‘were they lying’” questions constituted

prosecutorial misconduct. (Id. at pp. 239-240.) The Zambrano court agreed. (Id. at

pp. 240-242.)

Zambrano does not bar all “‘were they lying’” questions. (People v. Chatman

(2006) 38 Cal.4th 344 (Chatman).) In Chatman, the California Supreme Court observed

that “[i]f a defendant has no relevant personal knowledge of the events, or of a reason

26
that a witness may be lying or mistaken, he might have no relevant testimony to provide”

because testimony cannot be based on conjecture or speculation. (Id. at p. 382; see Evid.

Code, § 702.) Thus, this type of evidence would be inadmissible. (Evid. Code, § 210.)

Conversely, “[a] defendant who is a percipient witness to the events at issue has personal

knowledge whether other witnesses who describe those events are testifying truthfully

and accurately. As a result, he might also be able to provide insight on whether witnesses

whose testimony differs from his own are intentionally lying or merely mistaken.

When . . . the defendant knows the other witnesses well, he might know of reasons those

witnesses might lie. Any of this testimony could be relevant to the credibility of both the

defendant and the other witnesses.” (Chatman, at p. 382.) As a result, the Chatman court

stated, “courts should carefully scrutinize ‘were they lying’ questions in context. They

should not be permitted when argumentative, or when designed to elicit testimony that is

irrelevant or speculative. However, in its discretion, a court may permit such questions if

the witness to whom they are addressed has personal knowledge that allows him to

provide competent testimony that may legitimately assist the trier of fact in resolving

credibility questions.” (Id. at p. 384.)

Here, the prosecutor’s “‘were they lying’” questions were similar to the questions

deemed proper in Chatman. By choosing to testify, defendant placed his credibility in

dispute. And, like in Chatman, he had personal knowledge of his interactions with C.C.,

M.C., R.A., and S. and of the events that they testified about. He thus had insight into

their alleged “bias, interest, or motive to be untruthful.” (Chatman, supra, 38 Cal.4th at

p. 381.) Consequently, the prosecutor’s questions elicited testimony that could assist the

27
jurors in resolving key credibility questions, and defense counsel was not ineffective for

failing to object. (Id. at p. 384.)

We reach a different conclusion on the prosecutor’s decision to ask defendant

whether he believed the witnesses were conspiring together against him. That question

was argumentative in nature and called for a speculative answer. (Chatman, supra,

38 Cal.4th at p. 381; Zambrano, supra, 124 Cal.App.4th at p. 242.) As such, we can

conceive of no tactical reason why defense counsel chose not to object on these grounds.

However, a reversal for ineffective assistance of counsel is required only if defendant can

demonstrate prejudice, which he has failed to do. The prosecutor’s conspiracy question

was brief and was not particularly prejudicial. Defendant had already testified that he

believed that the witnesses were not being truthful and, earlier, he testified of his belief

that their allegations stemmed from the custody dispute in his divorce with J. Thus, it is

not reasonably probable that he would have received a more favorable result had his

counsel objected. (Strickland, supra, 466 U.S. at p. 694.)

D. Cross-examination of Defense Character Witnesses.

Finally, defendant argues the trial court improperly allowed the prosecutor to

question character witnesses with hypothetical questions that assumed he was guilty of

the charged crimes.

1. Further background information.

Several character witnesses testified on defendant’s behalf. When cross-

examining these witnesses, the prosecutor asked each of them whether their opinion of

defendant’s character would change, assuming he was guilty of the crimes charged in the

28
case. R.R., defendant’s uncle, testified that defendant is an honest, trustworthy, and

upstanding citizen. On cross-examination, the prosecutor asked, “Would it change your

opinion if you heard that he asked his daughter, [M.C.], to have her touch his penis?”

R.R. replied, “I wouldn’t believe that.” The prosecutor followed up, “Well, would it

change your opinion? If you learned that, would it change your opinion as to truthfulness

as you described it?” R.R. answered, “Wouldn’t change my opinion.”

Defendant’s cousin, J.C., testified that defendant is an honest, lawful, nonviolent

person. During cross-examination, the prosecutor asked, “As far as your opinion of his

character, would it change your opinion if you heard him admit that he asked his

daughter, [M.C.], for her to touch his penis? Would that change your opinion if you

heard that?” She replied, “If that was true. [¶] . . . [¶] Yes.”

Defense counsel raised no objection to any of these guilt assuming hypotheticals.

2. Analysis.

Defendant acknowledges that his trial counsel did not object to the questions but

insists that because they violate his due process rights, his arguments may be raised for

the first time on appeal. He also argues that given the constitutional implications of the

questioning, this court should exercise its discretion to review his claims notwithstanding

forfeiture. We decline to exercise our discretion to examine the merits of defendant’s

claims. The failure to object to the admission of evidence on constitutional grounds

forfeits the issue on appeal. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21; People v.

Benson (1990) 52 Cal.3d 754, 786, fn. 7.)

29
 Alternatively, defendant argues that defense counsel rendered ineffective

assistance by failing to object to the prosecutor’s guilt assuming hypotheticals. We

disagree. Even if we assume defense counsel was deficient, defendant has failed to

demonstrate prejudice. (Strickland, supra, 466 U.S. at pp. 688, 694.)

As defendant points out, federal courts have found that it is improper for a

prosecutor to ask defense character witnesses guilt assuming hypotheticals. (See U.S. v.

Shwayder (9th Cir. 2002) 312 F.3d 1109, 1121 [“use of guilt assuming hypotheticals

undermines the presumption of innocence and thus violates a defendant’s right to due

process”]; U.S. v. Guzman (11th Cir. 1999) 167 F.3d 1350, 1354 [“district court should

not have allowed the government to ask [the defendant’s] character witness to assume

that she was guilty of the instant offense”]; U.S. v. McGuire (6th Cir. 1984) 744 F.2d

1197, 1204 [“It would be error to allow the prosecution to ask the character witness to

assume defendant’s guilt of the offenses for which he is then on trial.”]; U.S. v.

Candelaria-Gonzalez (5th Cir. 1977) 547 F.2d 291, 294; U.S. v. Oshatz (2d Cir. 1990)

912 F.2d 534, 539.) However, the federal cases finding error are inapposite.

Here, the prosecutor did not ask the witnesses to assume defendant was guilty but

rather whether it would change their opinions if they heard about the accusations. In

People v. Qui Mei Lee (1975) 48 Cal.App.3d 516, a character witness testified that the

defendant was honest. (Id. at p. 524.) On cross-examination, the prosecutor asked

whether the witness had heard of the allegations made against the defendant. (Ibid.) The

Court of Appeal concluded that the cross-examination was proper. (Id. at p. 526.) The

appellate court observed that “the witness’ testimony [was] delivered in the present tense.

30
. . . Whatever [the defendant’s] reputation might have been before the charge, after the

charge it is at least dubious. Thus where the character witness nonetheless states under

oath that such defendant’s reputation for honesty is presently good, there is a strong

suggestion (to say the least) that he is not a credible witness. And on cross-examination,

such lack of credibility may be demonstrated by asking him whether he in fact has heard

of the commission of the offense for which the defendant is on trial.” (Id. at p. 527.)

Here, R.R. initially refused to accept the hypothetical posed by the prosecutor, but

upon further inquiry testified that it would not change his opinion of defendant. In

contrast, J.C. indicated that such information, if she “heard him admit that he asked his

daughter . . . to touch his penis,” would change her opinion. While the response from

J.C. was credible, the response made by R.R. was less credible. However, there was

another reason to doubt R.R.’s impartiality—he is defendant’s uncle. Considering the

witnesses and their responses, we do not believe that this is a case where it is reasonably

probable that absent the witnesses’ responses, defendant would have received a more

favorable result. As a result, we conclude defendant has not demonstrated prejudicial

error under the Strickland standard.

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 III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:

SLOUGH
J.

RAPHAEL
J.

32