NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

IKOLA, J.

In a second trial, a jury convicted defendant Harry Thomas Whitehead of two counts of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)) and one count of lewd acts upon a child (Pen. Code, § 288, subd. (a)). In the first trial, a jury deadlocked and the court declared a mistrial. A major difference between the first and second trials was the exclusion in the first trial — and admission in the second — of Evidence Code section 1108 evidence.1 That evidence included sexual abuse allegations of which defendant was acquitted by a jury in 1984. Defendant contends the court in the second trial abused its discretion by admitting the section 1108 evidence. He further contends the court erred by admitting expert testimony on the child sexual abuse accommodation syndrome and by failing to give a unanimity instruction. We affirm the judgment.

FACTS

Charged Offenses

The three victims are defendant's granddaughters. They are also sisters; Victim 1 is the eldest sister, Victim 2 the middle, and Victim 3 the youngest. Victim 2 and Victim 3 testified at trial, while Victim 1's testimony was read to the jury because she was on military duty.

Beginning in 1995 or 1996, Victim 1 and Victim 2 often spent the night at defendant's house on weekends. Victim 1 was about eight years old then, Victim 2 six, and Victim 3 two. Sometimes they slept in his bed.

Victim 2 was five or six years old when defendant started touching her. Defendant kissed her and put his tongue in her mouth, put his hand down her shirt and pants, washed and felt her body (including her vaginal area) with his hand during baths and showers; and walked naked in front of her. Defendant said, "Its okay," that it was normal, and she should not worry. He had Victim 2 and Victim 1 wear adult-style silky nightgowns with spaghetti straps. At some point, when Victim 2 was between eight and 10 years old, defendant started removing her clothes and putting his mouth on and licking her vagina. Defendant said it was okay and not to worry. When Victim 2 was in the fourth or fifth grade, he would put his penis against the outside of her vagina, move it with his hand, and ejaculate on her stomach and vaginal area. He kept a roll of paper towels on his nightstand, which he used to clean her. Around that time, he started putting her hand on his penis and making her hand go up and down. He sometimes put his finger in her vagina. Once she awoke as he tried to put his penis in her anus area; she jerked and he stopped. The conduct ended when Victim 2 was in the seventh grade and stopped going to defendant's house.

Defendant engaged in similar conduct with Victim 1, beginning when Victim 1 was in the third grade. Once Victim 1 asked to borrow money from defendant so she could go out with her boyfriend; defendant agreed to lend her the money only if she "let him make love" to her. Defendant called it "making love" when he touched her vaginal area. When Victim 1 asked him to buy her a camera, defendant imposed the same condition. The conduct stopped when Victim 1 was in the tenth grade in around 2003.

Victim 3 began spending the night at defendant's house when she was in the second grade. Defendant touched Victim 3's chest, vaginal area, and buttocks with his hands, French kissed her, and made her touch his penis with her hand and masturbate him.

Uncharged Conduct

T.M. testified at trial. Prior to her testimony, the court told the jurors the following facts: (1) defendant was tried in 1984 on charges concerning T.M.; (2) the 1984 jury found defendant not guilty of unlawful sexual intercourse with a female under age 182 and deadlocked on the charges of oral copulation of a person under age 16 and a person under age 14; (3) the district attorney chose not to retry the charges, which were dismissed; and (4) currently, due to the passage of time, "many of the potential witnesses for both sides" were unavailable or unable to recall events, and no transcript of the trial testimony was available.

T.M. and her sister began spending the night at defendant's house when T.M. was seven years old. Defendant was married to T.M.'s aunt at that time. T.M. stopped visiting defendant and her aunt in 1984, when T.M. was 14 years old and told her mother that defendant "had been having sex" with her. T.M. disclosed this to her mother because she (T.M.) thought she was pregnant. T.M. and her father (a police officer) reported defendant's conduct to the police.

T.M. testified she could recall "a couple of incidents." In one memory, she and defendant were completely naked, he was holding her up in front of a long mirror with her facing him, and he told her to look back into the mirror. When she was older and more developed, he touched her in the breast area. Sometimes he took off her clothes. He kissed her on the forehead, lips, and vaginal area. He asked her to kiss his penis, but she refused.

T.M. slept in the guest bedroom. Defendant would come in when she was asleep. The bed was raised, so that a person had to climb steps, like a ladder, to get to it. Defendant would sit on the bed, take off the sheets, remove her pants and underwear, get on top of her, touch her breasts, and put his penis in her vagina. She would pretend to be asleep. Sometimes he would ejaculate inside her, other times outside. She would see or feel semen on the outside of her vagina and on her legs. He would clean it up with paper towels he got from the kitchen or from his bedroom. When pressed by the prosecutor, T.M. guessed defendant had intercourse with her more than 20 times. But she admitted that she previously testified, in 1984, that it happened three or four times. Defendant also put his mouth on her vaginal area. During these incidents, her aunt was in the house, but T.M. did not know where she was; often the incidents took place at night.

Defendant told T.M. he would kill her parents if she ever told anyone about their little secret. He started telling her this when she was very little. (During cross examination, T.M. referred again to defendant's threat to kill her family, but admitted she never mentioned defendant's threat to kill her family during the 1984 preliminary hearing or in police interviews related to the 1984 case.)

Defense

Linda O. was defendant's girlfriend. In 2001, she began spending the night at his house at least a couple times a week, and in 2003, she moved in with him. His granddaughters spent the night about four times when Linda was there and slept in the den. Defendant did not like to French kiss and wore dentures.

Defendant testified in his own defense. His son (Son). — is the father of Victim 1, Victim 2, and Victim 3. After having little contact with his son, defendant took custody of him when the boy was eight years old. Defendant had "difficulty" with Son, who "got in trouble" in high school. After Son, joined the military, defendant had little contact with him. Defendant first learned of the existence of Son's children when he received "a surprise call from German authorities." He did not meet the children until years later.

He kept paper towels by his bed and other places because he had been "gassed and poisoned" at his job at a plastic bag company, lost a third of his lung capacity, and suffered from sneezing and nose bleeds.

Defendant denied the charges.

Sentence

The court sentenced defendant to a prison term of 30 years.

DISCUSSION

The Court Did Not Abuse Its Discretion by Admitting Evidence of the Uncharged Conduct under Section 1108

Prior to defendant's first trial, Judge Donna Gunnell Garza denied the People's pretrial motion to admit evidence of T.M.'s accusations. Judge Garza stated the prior uncharged conduct was remote in time, that its introduction into evidence would involve "a trial within a trial," and that defendant could no longer obtain information to impeach T.M. The jury in the first trial deadlocked on a vote of six to six.

Prior to the second trial, Judge Michael Smith ruled T.M.'s allegations were admissible under section 1108. In reaching this ruling, the court stressed that the charged offenses and uncharged conduct were very similar because (1) the victims in each case were sisters and defendant's relatives,3 (2) the incidents took place at defendant's home, and (3) the victims allege "almost identical acts, with the one difference being the 1984 incidents alleg[e] actual completed intercourse." The court stated the uncharged conduct did not involve any "additional, inflammatory elements such as force or brutality," or victimizing a stranger, as had the section 1108 evidence in People v. Harris (1998) 60 Cal.App.4th 727, 730, 737 (Harris) (where an appellate court held the trial court improperly admitted evidence of a brutal prior sexual offense). The court proposed to exclude evidence of defendant's sexual intercourse with T.M., but defense counsel objected. Defense counsel argued against admission of the section 1108 evidence, but stated that if any of it was admitted, then defendant was entitled under People v. Mullens (2004) 119 Cal.App.4th 648 (Mullens) to have the jury informed of his prior acquittals; otherwise the jury would hear only the evidence on which the 1984 jury deadlocked without any indication the jury found defendant not guilty on some charges.

The court, conducting a section 352 analysis, found no danger of undue prejudice from admitting the evidence, and stated that the prior conduct was highly probative on issues of common scheme, motive, and propensity. The court discounted the risk the jurors would try to punish defendant for the prior conduct, stating it would instruct the jury on the "limits" of section 1108 evidence. The court also found that admission of the evidence would not consume an undue amount of time. The court then discussed the remoteness of the prior conduct. It stated that under People v. Branch (2001) 91 Cal.App.4th 274, 285 (Branch), the relevant time period in a section 1108 case is the gap between the termination of the prior conduct and the start of the current offenses. Thus, although the prior conduct took place 24 years earlier, the gap between the previous and subsequent misbehavior was only 11 or 12 years. Therefore, the court concluded, the section 1108 evidence was admissible, despite its 11-year remoteness, because of the similarity between the past conduct and the current charges. In factoring "remoteness" into its section 352 weighing, the court did not mention defendant's inability to locate witnesses or transcripts from the 1984 trial, despite defense counsel's argument at the hearing that he lacked the transcripts, witnesses, and other information necessary to defend against the 24-year-old case.4

After the close of evidence, the prosecutor, during her closing and rebuttal statements, referred five times to T.M.'s testimony that defendant engaged in "unlawful," "sexual," "vaginal intercourse" with T.M. when she was under 16 years old, and also reminded the jurors T.M. was afraid she was pregnant as a result. The prosecutor made many more statements about T.M. She mentioned T.M.'s name more often than Victim 2's, Victim 1's, or Victim 3's. Toward the end of her rebuttal, the prosecutor stated: "[I]f you believe [defendant], he is the most unlucky person in the whole world. . . . [H]e was accused of child molest back in 1984. Now he is accused again."

Defendant contends the court abused its discretion under section 352, and violated his right to due process and a fair trial, by admitting the section 1108 evidence. Defendant claims T.M.'s accusations were inflammatory, particularly her allegations he committed repeated sexual intercourse, threatened to kill her parents, and caused her to fear she was pregnant. He notes the jury might have tried to punish him for this conduct. He argues the outcome of the 1984 trial casts doubt on whether he committed the alleged offenses against T.M. He contends the uncharged conduct was remote, occurring many years before the charged crimes and 24 years before the trial. He asserts that, because witnesses and records from the 1984 trial were unavailable, "[a]ll that remained was the testimony of the accuser" which had been rejected by a jury in 1984. He argues the admission of the evidence was prejudicial under any standard, pointing to the mistrial in the first trial where evidence of the uncharged conduct was not admitted and the prosecutor's acknowledgment in the second trial that the case came "down to [the] credibility" of the "girls" against that of defendant.

We review the relevant law on the admissibility of propensity evidence. Under section 1101, character evidence is inadmissible when offered to prove a defendant's "conduct on a specified occasion," except to prove certain specified facts such as motive or opportunity (and not predisposition to commit an act). (Id., subds. (a), (b).)

In sexual offense cases, however, section 1108 creates an exception to section 1101's prohibition against propensity evidence. Under subdivision (a) of section 1108, evidence of the defendant's uncharged sexual misconduct is not excluded under section 1101 if the evidence is admissible under section 352. Section 1108 reflects the Legislature's conclusion that the admission of propensity evidence in sexual offense cases is probative and necessary, "`given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. . . .'" (People v. Yovanov (1999) 69 Cal.App.4th 392, 403.) "With the enactment of section 1108, the Legislature `declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.'" (People v. Soto (1998) 64 Cal.App.4th 966, 983.)

But section 1108 "evidence must be received with the utmost caution." (Mullens, supra, 119 Cal.App.4th at p. 666.) Our Supreme Court has held section 1108 to be "constitutionally valid" because "the provision preserves trial court discretion to exclude the evidence if its prejudicial effect outweighs its probative value" under section 352. (People v. Falsetta (1999) 21 Cal.4th 903, 907 (Falsetta).) By conducting a complete and careful section 352 analysis, a court provides the defendant with a "realistic safeguard" (id. at p. 918) against the "fundamentally unfair trial" that could result from the admission of section 1108 propensity evidence (Harris, supra, 60 Cal.App.4th at p. 730). "A careful weighing of prejudice against probative value . . . is essential to protect a defendant's due process right to a fundamentally fair trial." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings) [concerning section 1109 domestic violence evidence].)

Section 352 affords a court the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." In this context, the word "prejudice" is used in the sense of "`an emotional bias'" (Jennings, supra, 81 Cal.App.4th at p. 1315) or "`"of `prejudging' a person or cause on the basis of extraneous factors"'" (Harris, supra, 60 Cal.App.4th at p. 737). Unduly prejudicial evidence "prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis." (People v. Walker (2006) 139 Cal.App.4th 782, 806.)

In conducting a section 352 analysis in a section 1108 case, a court considers "the unique facts and issues of each case," instead of mechanically applying automatic rules. (Jennings, supra, 81 Cal.App.4th at p. 1314.) "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, it's likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, supra, 21 Cal.4th at p. 917.)

We review the court's section 352 ruling for an abuse of discretion and will disturb that ruling only if "`the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

This is a close case. But we cannot say the court abused its discretion under section 352 by admitting the section 1108 evidence. The court made a considered and thoughtful decision — its explication of its analysis and findings at the hearing comprises seven transcript pages. The court considered numerous factors. It took all possible steps to minimize the prejudice to defendant, short of excluding T.M.'s testimony. For example, the court advised the jurors that a 1984 jury acquitted defendant of the rape charges and deadlocked on the other counts.

Unfortunately, the court stated that the only relevant consideration, in terms of factoring in the remoteness of the prior conduct, was the gap between the end of the uncharged behavior and the start of the charged offenses — an 11 year charge free period. This limited definition of remoteness is not applicable in all cases and is not controlling here. Rather, in the instant case, the 24-year staleness of the prior accusations and the resulting impairment of defendant's ability to defend himself against them (despite defense counsel's good faith efforts to find witnesses and records) were undoubtedly important factors in the section 352 balancing.5 Nevertheless, a trial court need not expressly mention all relevant factors "`if the record as a whole shows the court was aware of and performed its balancing function under . . . section 352.'" (People v. Lewis (2009) 46 Cal.4th 1255, 1285.) As discussed above, the record reflects the court engaged in a thorough and thoughtful section 352 weighing process. The court did not abuse its discretion by admitting the section 1108 evidence.

The Court Did Not Abuse Its Discretion by Admitting Expert Testimony on the Child Sex Abuse Accommodation Syndrome

Defendant contends the court abused its discretion by admitting into evidence expert testimony on the child sex abuse accommodation syndrome (CSAAS). He argues that "in this day and age such `myth busting' testimony is not necessary given that jurors know a child may delay a report of molest." He asserts the probative value of such testimony is minimal and the court abused its discretion under section 352 by admitting it.

In pretrial motions in limine, the prosecution moved to introduce expert testimony on CSAAS while the defense sought to exclude it and requested a hearing. At the hearing, the People confirmed that the expert would testify in general about why child victims might not report abuse, but would not opine on whether the victims in this case exhibited any symptoms of CSAAS or had actually been abused. Over a defense objection, the court ruled the evidence was admissible.

The expert witness testified in the prosecution's case-in-chief after the victims had already testified. Before the expert began testifying, the court admonished the jury that (1) testimony on CSAAS is not evidence that a crime occurred or that defendant committed any of the charged crimes; (2) the jurors should consider the evidence only to decide whether the victim's conduct was "inconsistent with the conduct of someone who has been molested" and to evaluate the victim's credibility; and (3) the expert witness had not met or evaluated "any of the people involved in this case" and was not offering an opinion that anyone involved in the case suffered from or showed the symptoms of CSAAS.

The expert, a licensed marriage and family therapist, testified CSAAS is not a diagnosis, but rather "a list of characteristics that tend to be very common with children who have been abused," especially by someone the child knows and trusts. The primary elements of CSAAS are secrecy, helplessness, "entrapment and accommodation," disclosure, and recantation. The characteristics can "seem odd or unusual" to the average lay person who has not been exposed to it or has no knowledge about it based on their own experience or education. The general public still believes the "myths" that a sexually abused child will tell someone about the abuse right away and will be distraught and try to avoid the perpetrator. The expert testified she had not spoken with the victims in the case and did not even know their identities.

"CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation." (People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino).) "[T]he evidence must be targeted to a specific `myth' or `misconception' suggested by the evidence." (People v. Bowker (1988) 203 Cal.App.3d 385, 393-394.) Identifying a myth or misconception does not require "the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation." (Patino, at pp. 1744-1745.) The prosecution may offer CSAAS testimony in its case-in-chief whenever the victim's testimony may raise an "obvious question . . . in the minds of the jurors," such as "why the molestation was not immediately reported if it had really occurred" or "why [the victim] went back to [the defendant's] home a second time after the first molestation." (Id. at p. 1745.)

Expert opinion may be admissible if it would "assist" the jurors, "even if the jury has some knowledge of the matter . . . ." (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) "It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness."'" (Ibid.) "[T]he decision of a trial court to admit expert testimony `will not be disturbed on appeal unless a manifest abuse of discretion is shown.'" (Id. at p. 1299.)

Here, the court did not abuse its discretion by admitting the testimony on CSAAS. The victims' testimony raised questions about why they delayed in reporting the alleged abuse and why they continued to visit defendant's home. That those questions are still pertinent in modern day America is demonstrated by defense counsel's persistent cross-examination of the victims about their failure to report the incidents and their denial that any abuse had taken place. The court "handled the matter carefully and correctly" by admonishing the jury on the limited purpose of CSAAS testimony (Patino, supra, 26 Cal.App.4th at p. 1745); the jury is presumed to have followed this instruction (see People v. Avila (2006) 38 Cal.4th 491, 574). Nor did the court's admission of the evidence violate defendant's constitutional right to due process. (Patino, at p. 1747.)

In sum, the court did not abuse its discretion by admitting into evidence the expert testimony on CSAAS.

The Court Properly Instructed the Jury on the Confines of the Unanimity Requirement for Conviction of Continuous Sexual Abuse of a Child

The jury convicted defendant of two counts of continuous sexual abuse of a child under Penal Code section 288.5. That section applies to a person who has recurring access to a child and engages in three or more acts of substantial sexual conduct or lewd or lascivious conduct with the child over a period of at least three months. (Pen. Code, § 288.5, subd. (a), italics added.) Under the statute, the jury "need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number." (Id., subd. (b).) Accordingly, the jurors were instructed here that they did "not all need to agree on which three acts were committed."

Defendant contends the statute's failure to require unanimous jury agreement on the specific acts of abuse violated his constitutional rights to a fair trial and trial by jury. He argues the jurors must agree on which acts of child molestation have been proven beyond a reasonable doubt. "Among the essential elements of the right to trial by jury are the requirements that a jury in a felony prosecution consist of 12 persons and that its verdict be unanimous." (People v. Collins (1976) 17 Cal.3d 687, 693.)

In enacting Penal Code section 288.5, the Legislature recognized that when a child is repeatedly molested over a prolonged period of time by a "`"resident child molester,"'" "`the child, because of age or the frequency of the molestations, or both, often is unable to distinguish one incident from another in terms of time, place, or other particulars . . . .'" (People v. Grant (1999) 20 Cal.4th 150, 156.) As a result, the victim's trial testimony is often "`generic.'" (People v. Johnson (2002) 28 Cal.4th 240, 242.) To address this problem, the Legislature crafted Penal Code section 288.5 to require the jury to unanimously agree that the defendant engaged in a pattern of abuse of at least three acts, but not on the details of where, when, or how these individual acts occurred. (Grant, at p. 155.) Thus, the statute "prohibits a continuing course of conduct." (Ibid.) Only "one violation of [Penal Code] section 288.5 can be charged for the continuing sexual abuse of a single victim, and the defendant may not be charged with any other felony sex offenses involving the same victim during the period in which the defendant allegedly violated [Penal Code] section 288.5." (Id. at pp. 154-155.)

Defendant "acknowledges that several appellate decisions have found no constitutional defect in the permission in [Penal Code] section 288.5 to ignore the unanimity requirement[, but] submits those decisions are wrong . . . ." We disagree. Penal Code section 288.5 "does not deprive a criminal defendant of the right to a unanimous jury verdict under article I, section 16 of the California Constitution." (People v. Whitham (1995) 38 Cal.App.4th 1282, 1297 (Whitham).) "`The continuous-course-of-conduct crime does not require jury unanimity on a specific act, because it is not the specific act that is criminalized. The actus reus of such a crime is a series of acts occurring over a substantial period of time, generally on the same victim and generally resulting in cumulative injury. The agreement required for conviction is directed at the appropriate actus reus: unanimous assent that the defendant engaged in the criminal course of conduct.'" (Id. at p. 1296.) "The California Supreme Court has held that there is no constitutional infirmity to [Penal Code] section 288 convictions predicated exclusively on generic testimony. [Citations.] It follows that there is no violation of the right to a unanimous verdict inherent in the `"codification of generic proof in [Penal Code] section 288.5. . . ."' [Citations.] Accordingly, it is the number of acts of molestation which is the essential element of the crime, and not jury unanimity about which particular acts constitute the crime." (Id. at p. 1297.) Penal Code section 288.5 requires each juror to "find, beyond a reasonable doubt, that the defendant engaged in at least three acts of sexual abuse with the child victim within the prescribed time frame." (Id., at p. 1298, italics added.)

As to the United States Constitution, "the United States Supreme Court `has never held jury unanimity to be a requisite of due process of law" in state criminal trials. (Whitham, supra, 38 Cal.App.4th at p. 1298; McDonald v. City of Chicago, Ill. (2010) 130 S.Ct. 3020, 3035, fn. 14.) As to the Sixth Amendment, defendant argues that the recent Supreme Court case of McDonald v. City of Chicago, Ill. casts doubt on whether "the federal jury unanimity requirement is not incorporated against the states." Not so. McDonald confirms that five justices of the Supreme Court agreed in Apodaca v. Oregon (1972) 406 U.S. 404 that the Sixth Amendment does not require unanimous jury verdicts in state cases. (McDonald, at p. 3035, fn. 14.)6

The court did not err by instructing the jury they need not agree on the individual acts underlying defendant's commission of continuous sexual abuse under Penal Code section 288.5.

Defendant's Right to Due Process of Law and a Fair Trial Were Not Violated by Any Cumulative Effect of Errors

In his final contention, defendant asserts that, due to the cumulative effect of the alleged errors, he was denied due process of law and a fair trial. As discussed above, we have found no errors in this case.

DISPOSITION

The judgment is affirmed.

WE CONCUR.

RYLAARSDAM, ACTING P. J.

FYBEL, J.