People v. Lavaki CA1/3

Filed 7/22/21 P. v. Lavaki CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent, A156498
v.
LATU KAMISESE LAVAKI, (San Mateo County
Defendant and Appellant. Super. Ct. No. 16SF006435)

Defendant Latu Kamisese Lavaki was accused of sexually abusing his
great-niece, S.,1 between 2005 and 2007. A jury convicted defendant of
committing a lewd and lascivious act on a child under the age of 14 (Pen.
Code, § 288, subd. (a))2 and sexually penetrating a child under the age of 14
(§ 289, subd. (j)). The jury was unable to reach a verdict on whether
defendant orally copulated a child under the age of 14 (former § 288a, subd.
(c)(1)). The court declared a mistrial as to that count. The trial court
sentenced defendant to eight years in prison.
On appeal, defendant contends he was denied a fair trial due to
improper testimony provided by the prosecution’s expert on child sexual

We refer to some persons by their first names and initials for privacy.
1

(Cal. Rules of Court, rule 8.90.)
2 All further undesignated statutory references are to the Penal Code.

1
abuse accommodation syndrome (CSAAS), who testified on cross-examination
that studies show only a very small percentage of allegations of child sexual
abuse are false. Although there was error, we conclude the admission of this
testimony did not prejudice defendant. We agree with the parties that the
abstract of judgment and the sentencing minute order should be amended to
conform with the oral pronouncement of judgment. In all other respects, we
affirm.
EVIDENCE AT TRIAL
A. Charged Sexual Offenses—Molestation of S.
S. was 19 years old in 2018, when she testified at trial. In 2006, when
she was six or seven years old, S. often spent time at her maternal
grandmother’s house in Millbrae (the Millbrae house). Defendant, who was
married to S.’s great-aunt, E., lived at the Millbrae house, along with various
members of S.’s extended family.
In December 2006, while S. was on winter break during first grade, she
was alone watching television in the living room at the Millbrae house.
Typically, several relatives would have been home. However, on this
occasion, only defendant and S.’s uncle Michael were home. Somewhere
between 5:00 p.m. and 8:00 p.m., defendant walked into the living room with
S.’s favorite candy bar. Defendant spoke broken English, which S. could not
always understand, but through words and gestures he beckoned for her to
follow him upstairs to the bedroom over the garage. When S. walked into the
bedroom, defendant was already in the bed. Defendant had the candy bar in
his hand and beckoned S. toward the bed. S. got on top of the bed.
Defendant unbuttoned S.’s jeans and took off her underwear. Defendant
licked the candy bar and “put[] it on” her. Defendant then inserted his
fingers and moved them around inside of S.’s vagina. S. told him to stop

2
because it hurt. Defendant told her to be quiet. Defendant then used his
tongue to lick S.’s vagina. S. was very confused and did not understand what
defendant was doing to her.
At some point, S.’s uncle Michael walked into the bedroom. Michael
looked at defendant and S. from the doorway for less than a minute and left.
S. next remembered being back in the living room alone, fully clothed, and
waiting for her mother, Sophia, to pick her up.
Sophia recalled that defendant answered the door at the Millbrae house
that evening when she arrived after work. Sophia’s “heart sank.” Sophia
was shocked and “freaked out” because S. had been alone with defendant at
the house. Sophia knew what defendant was capable of and never
anticipated that defendant would be alone with her daughter since he was
always working.
On the way home, S.’s mother asked many questions: “ ‘[A]re you okay?
Did anything happen? Did he touch you? Did he do anything to you?’ . . .
‘Why were you the only one there?’ ” S. did not recall her mother saying
defendant’s name, but she assumed her mother was referring to him. S. was
scared and confused and did not completely understand what defendant had
done to her.
It was not until middle school that S. realized what defendant did to
her was wrong. It was when S. took a health class in high school that she
actually understood that defendant molested her. The thought of what
defendant did to her was always on her mind. Even after S. fully understood
that what defendant did to her was “bad,” she did not tell anyone about it
because she was afraid of backlash from the family. Therefore, she kept it to
herself.

3
 It was not until S. was 16 years old that she had an opportunity to talk
to her mother about the molestation. One day in August 2015, the topic of
boys and men came up while Sophia and S. were on the way to visit a sick
relative. Sophia told S. that she had been molested when she was young. S.
recalled that she interrupted her mother and told her that something had
happened to her too when she was young. S. had difficulty talking about it.
S. put her hands over her head and put her head on her knees, as she told her
mother about the molestation. Sophia asked her, “ ‘With who [sic]?’ ” S.
responded, “ ‘With Latu [defendant].’ ” Sophia was heartbroken and upset.
She pulled her car off of the freeway. Sophia cried and said, “ ‘No, no,’ . . .
‘Why is this happening again?’ ” After Sophia regained her composure, S.
recalled that her mother told her that defendant molested her too.
Instead of going to visit their sick relative, Sophia and S. went to see
Sophia’s sister, Mary M. Sophia cried and told Mary what had happened to
S. S. confirmed that she had been molested by defendant.
The following day, Sophia asked S. about the details of the molestation.
S. became “distraught.” S. put her hands over her head and rocked back and
forth. S. then told her mother exactly what happened.
S. and Sophia decided to speak with a bishop at their church because S.
was feeling “very low . . . .” Sophia and S. told the bishop that defendant had
molested both of them. The bishop offered guidance, but he did not contact
the police.
On August 23, 2015, Sophia called the police to report that defendant
had molested S. When the police asked if she knew whether defendant had
molested anyone else, Sophia told the police that he had molested her
(Sophia), too. S. remembered telling Detective Joseph Cang of the San Mateo
County Sheriff’s Office, as well as her mother and a counselor, that the

4
molestation seemed like a “dream[.]” S. clarified that she was “100 percent”
certain that defendant molested her and that she coped with it by putting it
aside in her mind, thinking of it as a “dream” or “nightmare” so that she
would not have to deal with it.
B. Prior Sexual Offenses (Admitted Under Evid. Code, § 1108)
1. Sophia
Sophia was 39 years old at the time of trial. Sophia’s aunt, E., was
married to defendant. Sophia often went to the Millbrae house to visit with
her cousins M. Doe (M.D.) and L. Doe (L.D.). When Sophia was a young
child, she regularly slept over at the Millbrae house on weekends, and more
often during the summer while her mother worked. Aunt E. and defendant
lived in one of the bedrooms at the time. M.D. and L.D. often slept there on
weekends, as well; all three girls slept on couches or mattresses on the floor
in the front room.
The first time defendant molested Sophia, she was sleeping in the
living room with her cousins M.D. and L.D. Defendant put his hand on
Sophia’s pelvic area, under her blanket. When Sophia woke up, defendant
“told her to ‘Sh.’ ” Defendant took off Sophia’s pants and touched the inside
of her vagina. Defendant also put his hand underneath her shirt and touched
her chest. Defendant told Sophia that if she ever told anyone, no one would
believe her and her father, who was then a church bishop, would lose his
title. Sophia did not tell anyone what defendant did to her because she was
afraid of what would happen to her father.
The day after the first molestation, Sophia was playing hide and seek
with her cousins and hid in the garage, which functioned as a guest bedroom.
Defendant was in the garage, wearing only a tank top and a towel.
Defendant told Sophia to be quiet and laid her down on the bed. Defendant

5
took her pants and underwear off, put a thin sheet over her vagina, and
inserted his penis just outside of her vagina. When the cousins called her
name, defendant told them that Sophia was not there and to go away. Sophia
was scared. Defendant put Sophia’s clothes back on her and sent her back
out to play.
Over the next two to three years, defendant molested Sophia at least 50
times at the Millbrae house. The molestations generally occurred in the
living room after defendant got home late at night and while Sophia was
sleeping. The other children did not wake up, and Sophia did not try to alert
them.
Once, when Sophia was about seven or eight years old, Aunt E. called
her into her bedroom. M.D. and L.D. were already in the bedroom. Aunt E.
asked the girls if defendant had been touching them, and they told her that
he had been doing so. Sophia specifically told Aunt E. that defendant
touched her on her vagina and chest. Aunt E. told her, “ ‘Sh, don’t say those
things. Kids your age shouldn’t talk like that.’ ” Aunt E. told the girls not to
say anything about it and she would take care of it.
After the meeting with Aunt E., defendant molested Sophia again. As
far as Sophia knew, Aunt E. did not do anything about it. Sophia still did not
report defendant ’s molestations to the police.
When Sophia was 13 or 14 years old, Aunt E. again asked her and the
cousins whether defendant molested them. Sophia again told Aunt E. that
defendant molested her.
2. L.D.
L.D. was 38 years old at the time of trial. L.D. lived at the Millbrae
house during the time she was four to seven years old. Defendant moved into

6
the Millbrae house at some point when L.D. lived there. At first, he slept in
the garage. Defendant later married L.D.’s aunt, E.
Defendant molested L.D. on one occasion when she was six or seven
years old. At one of the large family gatherings at the Millbrae house,
defendant told L.D. to come sit by him on the couch in the living room. When
L.D. sat down, defendant put his hand underneath her dress, pulled her
underwear aside, and moved his hand around her vaginal area for about five
to ten minutes.
One day, L.D. overheard Sophia and M.D. telling each other that
defendant had done something to both of them. L.D. told them, “ ‘Oh, that
happened to me too.’ ” L.D. thought someone overheard their conversation
because shortly thereafter, the girls had a meeting with Aunt E. Aunt E. met
with Sophia, M.D., and L.D. in her bedroom. L.D. recalled that her aunt
asked them if they had been talking “about something that happened with
Latu” and the girls said yes. Their aunt was mad at them. She asked them
why they were talking like that and told them that kids were not supposed to
talk like that. Aunt E. told them never to talk about it again. L.D. did not
tell her mother or anyone else because she felt she had to obey her aunt
because she was an adult.
When L.D. was about 12 years old, her mother spoke with Aunt E. on
the phone. L.D. recalled that her mother then asked her (L.D.) “if Latu
[defendant] ever did anything to [her].” L.D. confirmed that defendant
molested her. L.D. did not recall anything coming of the conversation.
In 2015, Sophia told L.D. that defendant molested S.

7
 3. M.D.
M.D. was 39 years old at the time of trial. M.D. lived at the Millbrae
house during the time she was five to eight years old. Defendant sexually
molested M.D. three times when she was about six or seven years old.
The first time, M.D. was playing hide-and-seek with her cousins and
was looking for a place to hide in the living room. When M.D. ran past
defendant, he grabbed her, pulled her onto a mattress that was in the living
room, restrained her with his arm, put his tongue down her throat, moved his
hands over her chest and underneath her dress, and then touched the outside
of her vaginal area over her underwear. When the other children came into
the house, defendant let M.D. go.
The second molestation occurred under similar circumstances, in the
garage, except that defendant touched her vagina beneath her underwear.
M.D. could feel defendant’s erect penis pressed against her back. The third
molestation occurred in the bedroom above the garage and was similar to the
other two incidents.
M.D. did not discuss the molestations with anyone because she did not
know if they were wrong or not. M.D. tried to suppress her memory of the
molestations; eventually, she went to therapy to process what happened to
her. She had no memory of discussing the molestations with Sophia and L.D.
when she was eight or nine years old.
Sometime when M.D. was between the ages of 13 and 15, she talked
with her sisters about the molestations. Around that time, M.D. met with
Aunt E., Sophia, and L.D., and they discussed the molestations. M.D.
believed that defendant was also present during the meeting. Aunt E. asked
the girls if something happened. Aunt E. indicated to the girls that she was
going to fix it and told them not to say anything.

8
 M.D. recalled having a second meeting with Aunt E., Sophia, and L.D.
about the molestations. Aunt E. asked again what had occurred, and the
girls again told her what defendant had done to them. Aunt E. again said
she would fix it. M.D. did not feel that she could talk about the molestations
with anyone else because Aunt E. told her not to say anything about it. M.D.
said that Aunt E. had a big influence on the children in the family and that
she was not the kind of person you would want to “mess with.”
Sophia later told M.D. that defendant molested S. M.D. and Sophia
also discussed how defendant molested them when they were children. M.D.
advised Sophia to call the police because she did not want S. to go through
what she went through emotionally.
C. Expert Testimony
As discussed in greater detail post, the prosecution called an expert
witness, Anthony Urquiza, a psychologist at the UC Davis Medical Center, to
testify about CSAAS, including the five recognized aspects: (1) secrecy;
(2) helplessness; (3) accommodation; (4) delayed and/or unconvincing
disclosure; and (5) retraction. He explained that accommodation in the
context of CSAAS means how children learn to manage or cope with the
unpleasant feeling about being sexually abused.
Dr. Urquiza emphasized that CSAAS is an educational, not a
diagnostic, tool. He was unaware of the facts in this case and could not offer
an opinion as to whether any person involved was abused. Dr. Urquiza
explained that CSAAS is not intended to determine whether a child has in
fact been abused. Rather, it is a method of educating therapists about the
dynamics of child sexual abuse and the way abused children may act.

9
D. Defense Evidence
Defendant testified on his own behalf. He denied ever molesting S.,
Sophia, L.D., and M.D. Defendant never spoke to his wife, E., about the
molestation allegations. For her part, E. denied ever meeting with Sophia,
L.D., and M.D. to talk about defendant’s molesting or abusing them.
Defendant testified that he worked in Atlanta between August 2006
and February 2007. He said that he did not return to the Bay Area during
Christmas 2006.
Defendant presented four character witnesses, all of whom described
him as an honest and truthful person. Two additional witnesses testified
that they had lived at the Millbrae house and never saw signs that defendant
was abusing any of the girls.
Bishop Salesio Langi testified that Sophia and S. met with him in
August 2015. Sophia and S. both were crying and “very emotional” as they
told him that defendant had molested them. Bishop Langi spoke to
defendant and his wife later that week. Defendant denied the allegations.
San Mateo County Deputy Sheriff Victor Bertolozzi testified that he
read the initial police report and also observed S.’s interview at the Keller
Center for Family Violence Intervention at the San Mateo Medical Center
(Keller Center). S. was distraught and crying during the interview. S. did
not tell the counselor that defendant licked the chocolate bar or used it in a
sexual manner. S. said that it hurt when defendant put his fingers in her
vagina and used his tongue on her. She also said that her uncle Michael and
defendant looked at each other during the incident. S. was not sure what her
uncle Michael saw.
On May 3, 2016, Bertolozzi interviewed defendant’s stepson Michael,
who was also S.’s uncle. Michael cried and was upset during the interview.

10
 Sergeant Joseph Cang of the San Mateo County Sheriff’s Office
testified that he took over the case from Bertolozzi in May 2016.3 Before
interviewing S., Cang reviewed her interview at the Keller Center. In
speaking with Cang, S. initially said the incident occurred when she was six
or seven years old and in the first grade. She later narrowed the timeframe
to a two-week school break in December 2006. S. told Cang that it did not
hurt when defendant put his fingers in her vagina.
Michael testified at trial that he never saw defendant molest S. He was
shocked and upset by the allegations.
DISCUSSION
A. Admission of the Statistical Data
Defendant contends that Dr. Urquiza’s testimony that false allegations
of abuse are statistically infrequent was inadmissible. The Attorney General
asserts that defendant invited the error, and forfeited any claim to it, by
soliciting the statistical testimony during cross-examination. Defendant
therefore alternatively argues his counsel was constitutionally ineffective.
1. Additional Background
On direct examination, the prosecutor elicited testimony from
Dr. Urquiza regarding the five recognized CSAAS elements: (1) secrecy;
(2) helplessness; (3) accommodation; (4) delayed and/or unconvincing
disclosure; and (5) retraction. During cross-examination, defense counsel
asked Dr. Urquiza about the retraction element of CSAAS. Specifically,
defense counsel questioned Dr. Urquiza about his testimony on direct
examination that the incidence of retraction was “extremely low, at some
point as low as 4 percent[.]” Although he could not recall his prior testimony,
Dr. Urquiza indicated that research supported this percentage. When

3 Cang was a detective at the time he took over the case.

11
defense counsel asked whether “some studies have it as high as 20 to 25
percent,” Dr. Urquiza responded, “I’m not aware of a study that’s in the 20 to
25 percent. To my knowledge, the range of allegations of false abuse is as low
as 1 to 6 percent.” (Italics added.) Defense counsel clarified that he was
“asking about whether or not 20 to 25 percent of the children retract.” (Italics
added.) Dr. Urquiza responded, “I’m sorry. You’re talking about retraction.
My mistake. Yes. I did, in fact, say earlier today about 20 to 25 percent of
kids who come before law enforcement or CPS retract—who have been
abused would retract that allegation.”
The prosecutor opened her redirect examination by “picking up on that
topic of false allegations . . . .” Dr. Urquiza explained that false allegations of
sexual abuse most frequently occurred in disputed child custody situations, in
which the false allegations were made by one of the parents involved.
Dr. Urquiza qualified, “Well, just the fact that—do false allegations happen?
Yes. But the number of cases in which false allegations of sexual abuse
occurs is really pretty small. And when it does happen, it appears
that that [sic] the largest subgroup is a situation where there is some type of
custodial dispute.”
During his recross-examination, defense counsel discussed his
impression that in the CSAAS framework, a therapist assumes a child’s
allegations of sexual abuse are true and it is unimportant whether the
allegations are, in fact, true. Dr. Urquiza responded, “I think, if you look at
the context of a therapist treating a child who’s been referred because of
sexual abuse, by far, they’re almost all sexually abused. Is it either—because
of the way in which they’re referred? If you just look at the numbers and
frequency of false allegations, it just doesn’t happen very often.”

12
 Defense counsel then asked Dr. Urquiza if his conclusion that the “very
low” frequency of false allegations was “based on this assumption that one
always will know actually what the truth is when someone retracts or doesn’t
admit it? . . . [Y]ou’re basing your assumption on facts that I don’t think
necessarily you can ever prove definitively.” Dr. Urquiza responded, “There
are about 15 or so empirical studies looking at the false allegations of sexual
abuse. The range—the lowest is about 1 percent. The highest is about
6 percent. The study I referenced earlier, it’s a Canadian study. It’s about
4 percent, right in the middle. So while you can argue that false allegations
do happen, they don’t happen very often. And I would probably, if you’ve got
to push me to a number—I would like to stay with a range because that’s
what the research says. But within that, in the middle of that range, is about
4 percent. Do they happen? Yes. Do they happen often? No.”
2. Analysis
Expert testimony on “the common reactions of child molestation
victims,” known as CSAAS theory evidence, is admissible “ ‘to disabuse jurors
of commonly held misconceptions about child sexual abuse, and to explain the
emotional antecedents of abused children’s seemingly self-impeaching
behavior.’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1301.) But such
evidence “is not admissible to prove that the complaining witness has in fact
been sexually abused.” (Id. at p. 1300.)
After defendant’s trial, two pertinent California cases were decided
which held statistical data on false allegations of child sex abuse is
inadmissible (People v. Julian (2019) 34 Cal.App.5th 878, 887 (Julian); People
v. Wilson (2019) 33 Cal.App.5th 559, 571 (Wilson)). In both cases,
Dr. Urquiza was the expert for the prosecution and presented nearly identical
testimony about the low percentage of false allegations in child sexual abuse

13
cases. (See Julian, supra, 34 Cal.App.5th at pp. 883–884; Wilson, supra, 33
Cal.App.5th at pp. 565–566.) Even though defendant arguably forfeited any
challenge to this testimony, we exercise our discretion to address the issue on
the merits. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)
In Julian, the appellate court agreed with the defendant’s contention
that the statistical evidence “was highly prejudicial, and deprived him of his
right to a fair trial.” (Julian, supra, 34 Cal.App.5th at p. 885.) The court
explained: “The expert providing CSAAS testimony may not give ‘ “general”
testimony describing the components of the syndrome in such a way as to
allow the jury to apply the syndrome to the facts of the case and conclude the
child was sexually abused.’ [Citation.] Nor is it proper for an expert to
present ‘predictive conclusions’ [citation], such as alleged child abuse victims
‘should be believed’ or ‘abused children give inconsistent accounts and are
credible nonetheless’ [citation]. Such predictive conclusions go beyond the
scope of CSAAS evidence and may confuse the jury. ‘[T]he jurors’ education
and training may not have sensitized them to the dangers of drawing
predictive conclusions.’ [Citation.] Where expert opinions on the statistical
probability of guilt are admitted, the jury may be ‘distracted’ from its
‘requisite function of weighing the evidence on the issue of guilt,’ and may
rely instead on this ‘irrelevant’ evidence. [Citation.]” (Id. at pp. 885–886.)
The Julian court concluded that probability evidence “invited jurors to
presume [the defendant] was guilty based on statistical probabilities, and not
decide the evidence properly introduced in the case.” (Julian, supra, 34
Cal.App.5th at p. 886.) Finding these errors prejudicial—under either the
Chapman standard of prejudice, which requires reversal unless the error is
harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S.
18, 24), or the standard of People v. Watson (1956) 46 Cal.2d 818, 836

14
(Watson), which requires reversal only if it is reasonably probable the
defendant would have received a more favorable result in the absence of the
error—the appellate court reversed. (Julian, at p. 890.)
In Wilson, our colleagues in Division Four of this appellate district
found Dr. Urquiza’s testimony was improperly admitted but not prejudicial
under the Watson standard. (Wilson, supra, 33 Cal.App.5th at pp. 571–572.)
In finding the error harmless, the Wilson court cited the relative brevity of
the improper expert testimony, the fact that the expert acknowledged it was
difficult to determine whether an allegation was false, and the expert’s
admission he had come across two cases where he believed the child he
treated was making false claims of sexual abuse. (Id. at p. 572.) The Wilson
court further noted the prosecutor did not mention the statistical evidence in
closing argument. (Ibid.) And the jury was instructed that it was the sole
judge of the facts and the credibility of witnesses. (Ibid.) Also, the two
victims testified extensively and the jurors could assess their credibility, and
other percipient witnesses were called. (Ibid.) Under these circumstances,
the Wilson court could not find a reasonable probability the defendant would
have achieved a more favorable result in the absence of the challenged
testimony. (Ibid.)
We agree with the Wilson court’s application of the Watson standard.
(See People v. Prieto (2003) 30 Cal.4th 226, 247 [“The erroneous admission of
expert testimony only warrants reversal if ‘it is reasonably probable that a
result more favorable to the appealing party would have been reached in the
absence of the error’ ”].) Applying this standard, we conclude the error in
admitting the statistical evidence in this case was harmless. The improper
expert testimony took comparatively little time in the context of the entire
trial. Further, defense counsel capitalized on this evidence during his closing

15
argument. Defense counsel pointed out that therapists, like Dr. Urquiza,
were primarily charged with providing therapy and not with finding out the
truth of a child’s sexual abuse allegation. He pointed out that even
Dr. Urquiza had encountered false allegations in his practice. Additionally,
defense counsel linked the false allegation/memory evidence directly to
defendant’s case, pointing out to the jurors that Michael did not see what S.
claimed he saw and that Aunt E. testified that she never had any meetings
with her nieces about defendant’s molestation of them.
Contrary to defendant’s contention, the evidence against him was
strong. S. provided detailed testimony about the sexual abuse that she
endured at defendant’s hands. S.’s prior statements disclosing the abuse
were generally consistent with her trial testimony.
Moreover, S.’s account of defendant’s offenses against her was similar
to the prior offenses he committed against Sophia, L.D., and M.D., providing
strong evidence of defendant’s propensity to commit such offenses against
young girls in their familial home. For these reasons, the jury was likely to
have found S.’s testimony credible, even without the objectionable evidence.
Defendant disagrees, claiming that S.’s credibility was undermined by
her statements to her mother, Cang, and the Keller Center counselor that she
had convinced herself that the molestation must have been a “dream.”
Dr. Urquiza’s properly admitted testimony explained that sexually abused
children often dissociate themselves from the abuse as a means to
“accommodate” or cope with the difficult feelings they may have surrounding
the abuse. Dr. Urquiza further explained that dissociation “means either to
suppress the feelings that you have, the sense of shame or humiliation; to
compartmentalize it, to put it in a box; to do something to not so acutely feel
those feelings.” He added, “If you can manage your feelings by dissociating,

16
by suppressing, by compartmentalizing, then it’s one way at least to cope
with that situation . . . .”
S.’s testimony that she felt like she had been in a “dream” is entirely
consistent with the accommodation aspect of CSAAS. Specifically, she said
that she had learned to cope with the sexual abuse by putting it aside in her
mind and thinking of it as a “dream” or “nightmare” because she did not want
to deal with it. S., however, was “100 percent” certain that defendant
molested her.
Further, while S. was confident that Michael appeared in the doorway
during the molestation, despite Michael’s testimony to the contrary,
Dr. Urquiza’s properly admitted testimony regarding the “delayed,
conflicting, and/or unconvincing disclosure” aspect of CSAAS informed the
jury that it was not uncommon for victims of childhood sexual abuse to get
some details wrong. Similarly, the other seeming discrepancies4 in S.’s
testimony that defendant claims undercuts S.’s credibility could be explained
by the conflicting/unconvincing disclosure aspect.
Defendant avers that any doubt regarding prejudicial error should be
resolved in his favor under any standard because this was a “close case”
based on the fact that the jury was deadlocked on one of the three counts
against him. We disagree. The jury’s inability to reach a verdict on the oral
copulation count dispels the notion that the admission of the statistical
evidence was prejudicial. (See People v. Rucker (2005) 126 Cal.App.4th 1107,

4 Defendant contends that S.’s testimony “was contradicted in myriad
ways.” He cites his testimony that he was in Atlanta during the time the
molestation was alleged to have occurred. Defendant further notes that S.
initially denied that he touched her and that she gave conflicting accounts
about whether the alleged digital penetration of her vagina hurt. As a
reviewing court, we do not reweigh the evidence or revisit credibility issues.
(People v. Icke (2017) 9 Cal.App.5th 138, 147.)

17
1120 [hung verdict tended to show jury did not convict defendant based on
inflammatory evidence].) Rather, the fact that the jury convicted defendant
of two of the three counts demonstrates that the jury carefully assessed the
facts and credibility of the witnesses.
Here, as in Wilson, the trial court instructed the jurors that they were
the sole judges of the facts and credibility of the witnesses. (CALCRIM Nos.
200, 266.) The trial court also gave a special instruction based on CALCRIM
No. 1193 regarding the limited purpose of the CSAAS evidence.5 Without
any evidence to the contrary, it is presumed that the jury followed the court’s
instructions. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248)
This case is distinguishable from Julian, supra, 34 Cal.App.5th 878,
where the court found prejudice. In explaining the prejudice aspect, the
Julian court noted that not only had the prosecutor introduced the statistical
evidence regarding false allegations and invited the jurors to use it during
their deliberations but also defense counsel repeatedly mentioned the
statistical evidence during closing argument and solicited the detective’s
improper opinion testimony that the child had been “honest” with him when
she made her claims of sexual abuse. (Id. at pp. 888–890.) The Julian court
also pointed out that the victim’s reports of abuse were riddled with
inconsistencies and there was no evidence corroborating the victim’s
molestation claim. (Id. at p. 888.)

5Special jury instruction 10.64 provided, in part, as follows: “Evidence
has been presented to you concerning [CSAAS]. This evidence . . . must not
be considered by you as proof that the defendant committed any of the crimes
charged against him. [¶] . . . The People have the burden of proving guilt
beyond a reasonable doubt. [¶] You may consider this evidence only in
deciding whether or not [S.], Sophia, [M.D.] and [L.D.]’s conduct was not
inconsistent with the conduct of someone who has been molested, and in
evaluating the believability of their testimony.”

18
 Here, unlike in Julian, S.’s testimony was generally consistent and
there was extensive corroborating evidence supporting her claim.
Specifically, three other victims—Sophia, L.D., and M.D.—testified that they
had been abused by defendant in the Millbrae house when they were about
the same age as S. Furthermore, the prosecutor here did not introduce the
statistical evidence about false allegations and did not refer to it during
closing argument.
Under the Watson standard, we conclude there is no reasonable
probability that defendant would have obtained a more favorable result in
the absence of Dr. Urquiza’s brief testimony about the statistical evidence
regarding false allegations of child sexual abuse.6
B. The Abstract of Judgment and Sentencing Minute Order
Defendant contends, and the Attorney General agrees, that the
abstract of judgment and sentencing minute order should be amended to
reflect the trial court’s oral pronouncement of the judgment regarding fines
and fees.
In the presentencing report, the probation department recommended
the imposition of various fines and fees, including a $300 restitution fine and
a 10-percent collection fine under section 1202.4, subdivision (b).
At the sentencing hearing, the parties stipulated that defendant was
indigent. In light of this stipulation, the trial court indicated that it would
“permanently stay” the imposition of the restitution fine and the

6 Having concluded the admission of the statistical evidence was
harmless, any claim of ineffective assistance of counsel necessarily fails. (See
People v. Catlin (2001) 26 Cal.4th 81, 162–164 [defendant must establish
deficient performance and resulting prejudice].)

19
assessments.7 However, the abstract of judgment and the sentencing minute
order reflect that a $300 restitution fine and 10-percent administration fine,
for a total of $400, were imposed.
“Where there is a discrepancy between the oral pronouncement of
judgment and the minute order or the abstract of judgment, the oral
pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380,
385; accord, People v. Mesa (1975) 14 Cal.3d 466, 471.) Here, the oral
pronouncement controls over the inconsistent and incorrect sentence set forth
in the abstract of judgment and sentencing minute order. Accordingly, the
abstract of judgment and sentencing minute order must be corrected to
accurately reflect the trial court’s oral pronouncement.
Finally, the abstract of judgment must be amended to correct a
typographical error in the spelling of defendant’s middle name.
DISPOSITION
The abstract of judgment and sentencing minute order are modified to
reflect that the $300 restitution fine and 10-percent collection fee imposed
under section 1204.4, subdivision (b) are permanently stayed. The abstract of
judgment is further modified to reference defendant’s middle name as
“Kamisese.”
The trial court is directed to prepare a corrected abstract of judgment
and to correct the sentencing minute order dated February 8, 2019, in
accordance with this disposition. The trial court is further directed to

7 The stay did not encompass the victim restitution ordered pursuant to
section 1202.4, subdivision (f). The trial court stated it would retain
jurisdiction over the matter of victim compensation and would order
restitution in amounts to be determined. The sentencing minute order and
abstract of judgment accurately represent the court’s oral pronouncement of
the judgment in this regard.

20
forward a certified copy of the corrected abstract of judgment to the
Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.

21
 _________________________
Jackson, J.

WE CONCUR:

_________________________
Fujisaki, Acting P. J.

_________________________
Chou, J.*

A156498/People v. Latu Kamisese Lavaki

Judge of the Superior Court of San Mateo County, assigned by the
*

Chief Justice pursuant to article VI, section 6 of the California Constitution.

22