NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

RAMIREZ, P.J.

A jury convicted defendant, Jonathan Thompson, of four counts of committing lewd and lascivious acts on a minor (Pen. Code, § 288, subd. (a)) and further found that more than one victim was involved (§ 667.61, subd. (c)(5)). He was sentenced to prison for 15 years to life and appeals, claiming a variety of mistakes were made during trial. We reject his contentions and affirm.

FACTS

Defendant molested his two stepdaughters over a lengthy period of time. Facts pertinent to the issues discussed will be mentioned in connection with those issues.

ISSUES AND DISCUSSION

1. Admission of CSAAS1 Evidence

Before the prosecution expert on CSAAS began testifying, defense counsel objected to her anticipated testimony on the basis that it lacked foundation, in that she had not interviewed either victim, that it may not be consistent with what the second victim had testified to,2 and that it was irrelevant in that it was "common sense" and the second victim had already explained why she did not promptly report the abuse. Counsel also objected on the basis of Evidence Code section 352. The prosecutor countered that it didn't matter that the expert had not interviewed either victim. He maintained that her testimony was relevant to the defense's theory that both victims were biased and that the second victim reported the abuse because she had been intimidated by the first victim. The prosecutor added that the testimony was also relevant because the defense was going to "smear" the first victim. He asserted that it was not just "common sense." The trial court ruled that it would allow "generic testimony regarding characteristics or behavior generic to alleged molestation victims."

The expert testified that CSAAS is not a diagnostic tool in that "we cannot say that because a child exhibits this . . . or that . . . component of the syndrome that they have been sexually abused. . . . The syndrome assumes that the child has been sexually abused . . . . [I]t's a way of describing the behaviors that they may exhibit afterwards. So you can't say that because a child exhibited this certain aspect of the syndrome . . . that, therefore, they have been sexually abused." The expert said that the syndrome attempts to explain the dynamics involved in either a single incident of or ongoing sexual abuse, mainly in families, where the child is dependent in some way on the abusing adult. She described the five hallmarks of the syndrome—secrecy, helplessness, entrapment and accommodation, delayed disclosure and retraction—and she explained why these could occur. She testified that the author of the syndrome opined that secrecy and helplessness are usually always present in sexual abuse, but the remaining three may or may not. She was asked, without objection by the defense, whether reactions to abuse vary among different children. She responded that victims react in very different ways to abuse, depending on their temperaments. She was asked, again without objection from the defense, what reactions were common to abuse victims. She said that they "can become suddenly depressed. Their grades might change in school. They might start acting out differently, maybe angry. As they get older in their teenage years, they can abuse drugs [or alcohol]. . . . [¶]. . . [I]t usually is seen as a change in behavior . . . ." During cross-examination, the expert testified that she had not interviewed either victim and had no idea whether either exhibited behaviors consistent with the syndrome.

During argument to the jury, the prosecutor said, "[The first victim] said she's a liar. She has lied in the past. She's stolen a car, was on a high-speed chase from police. She is a troubled kid. Ask yourself why."

Defendant here objects, for the first time, to that portion of the expert's testimony in which the latter described reactions that are common to child sexual abuse victims and to the prosecutor's remarks during argument. His failure to object to both below forecloses his current claim. (Evid. Code, § 353; People v. Clark (1990) 50 Cal.3d 583, 613.)

As a fall-back position, defendant claims his trial attorney was incompetent for failing to object to this portion of the expert's testimony and to the prosecutor's remarks and he is entitled to a reversal of his convictions due to it. We disagree. There was no testimony that either victim suddenly became depressed or that their grades fell during the time they alleged defendant was molesting them. There was also no evidence that either used drugs or alcohol as teenagers.3 While several witnesses, including one of the victims herself, variously labeled the victims as liars, there was no testimony that the girls were truthful previously, but suddenly began to lie around the time they alleged defendant molested them. In fact, the first victim admitted that she had not always told the truth throughout her life and evidence was introduced that she told conflicting stories about defendant's interaction with her and his fitness to be a parent before the abuse began and she lied to the detective about this case after the abuse stopped. Similarly, she testified that she stole her uncle's car without permission and led police in a chase after the abuse stopped. Although defendant contacted a friend in 1995 and voiced concerns to her about the first victim's behavior at school, the jury was instructed that this evidence was not proof that the first victim was, in fact, having problems at school at that time. Moreover, whatever problems the first victim might have been having were not described as being sudden-onset or a change from her prior behavior.4 Defendant described a deterioration in his relationship with the second victim when she was 13 or 14, but he attributed it to the fact that she had just finished living with her grandmother in Northern California for one year and the grandmother did not like him. He claimed that the first victim reported that he had abused her because she, her mother and defendant had gotten into a physical fight, but this was after the abuse stopped and the first victim was living with her uncle. Thus, there was no evidence that either victim experienced a change in behavior, as the CSAAS expert referenced, that could have been attributed to the abuse they suffered. Therefore, there is no reasonable probability that absent this testimony, defendant would have enjoyed a better outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).)

Given the above, the prosecutor's remark is equally non-prejudicial because it did not dove-tail with the expert's testimony. The first victim's theft of her uncle's car and subsequent police chase was not a sudden change in behavior but another chapter in a life marked by lies and her inability to get along with members of her immediate family, including the second victim.

Both victims testified to having a very unstable home life, primarily caused by the frequent break-ups and reconciliations of their mother and defendant, the family's moving from place to place and the fact that their mother worked two jobs and necessarily was not the most involved parent she could have otherwise been. Additionally, it was clear that the mother had taken defendant's side in this intra-family battle, abandoning her daughters. The fact that the second victim moved to Northern California to live with her grandmother for a year before she began high school and the first victim moved in with her aunt and uncle when she was 14 speaks volumes about their home life. While the prosecutor was free to suggest that the abuse, alone, of the first victim led to her stealing her uncle's car and going on a chase with police, the fact is that her pattern of bad behavior began before the molestations occurred and the final manifestations of it, i.e., the auto theft/chase, was equally, if not more explainable by the terrible home life she endured. Therefore, we cannot conclude that had the prosecutor's remark been successfully objected to by defense counsel, there is a reasonable probability that the outcome of this trial would have been different. (Strickland, supra, 466 U.S. at p. 694.)

2. Limiting Instruction on CSAAS Evidence

Unfortunately, the record before this court contains neither the lists of jury instructions requested by the parties nor a transcript of the discussion between them and the trial court concerning the instructions. All that is known is that the standard limiting instruction on CSAAS evidence was not given. That instruction, as would have been pertinent here, provides, "You have heard testimony . . . regarding child sexual abuse accommodation syndrome. . . . [T]estimony 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 . . . [the victim's] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of . . . her . . . testimony." (Judicial Council of California Criminal Jury Instruction, CALCRIM No. 1193.)

The only mention made of this evidence during arguments to the jury was the following remarks by the prosecutor, " . . . I put [the CSAAS expert] on . . . not because she interviewed [the second victim], not because she has some great insight to this case. That's not why I put her on. But to talk about how kids react. Everyone reacts differently. But in her experience, . . . over 50 percent—I can't believe the exact percent—don't ever disclose."

Defendant here claims that the trial court had a sua sponte duty to give such an instruction and its absence from this trial requires reversal of his convictions. He points out that People v. Housley (1992) 6 Cal.App.4th 947, 958, 959 (Housley) held that there is such a duty, although in that case, the appellate court determined that the failure to give the instruction did not require reversal of the defendant's convictions. Defendant also points out that "[s]ince Housley was decided . . ., no published decision has disagreed with its conclusion." However, neither has any published decision agreed with its conclusion. On the other hand, the California Supreme Court has consistently held that cautionary instructions must be requested, a holding that has recently been reiterated in People v. Cowan (2010) 50 Cal.4th 401, 479, thusly, "Absent a request, a trial court generally has no duty to instruct as to the limited purpose for which evidence has been admitted. [Citations.] We have recognized a narrow exception to this rule in the `"occasional extraordinary case'" in which the evidence at issue "`is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.'" [Citations.]" (See cases cited therein.)

Be that as it may, we will assume, for purposes of this discussion only, that it was error for the trial court to fail to give such an instruction sua sponte. Defendant's convictions may not be reversed unless it is reasonably probable that a result more favorable to him would have been reached had the instruction been given. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224.)

Here, the expert's testimony was couched in general terms, described the behaviors of molestation victims as a class and did not concern the behaviors of these victims in particular. The expert made clear that the syndrome could not be used to determine if a child had, in fact, been molested. She had not met with the victims and had no knowledge of their behaviors. Thus, even under Housley, reversal is not required. (Housley, supra, 6 Cal.App.4th at p. 959.)

3. Admission of Evidence that the Second Victim Believed the First Victim's Accusation of Molestation by Defendant

Over speculation and hearsay objections, the second victim testified that, years after the molestations had stopped, she finally told her uncle about the molestations, because he told her that the first victim had told him something and he asked her if she believed what the first victim had told him and she said she could believe it because she had somewhat gone through the same thing. The uncle testified that he asked the second victim what she knew about defendant molesting the first victim and the second victim replied, "I told [the first victim] not to go into [defendant's bed]room." Over a relevancy objection, the uncle then testified that he asked the second victim if she believed the first victim's report of abuse and the second victim said she did because defendant had tried the same thing on her when she was younger.

Defendant here contends that whether the second victim believed the first victim was inadmissible opinion evidence and its admission requires reversal of his convictions. We disagree.

Defendant is correct that opinion testimony by one witness about the credibility of another witness is irrelevant. (People v. Melton (1988) 44 Cal.3d 713, 744, 745.) However, here, the question was being asked as a way of setting forth the circumstances under which the second victim, for the first time in her life, disclosed the abuse to another person, not as an attempt to get irrelevant and prejudicial evidence before the jury. The circumstances of the second victim's initial disclosure of abuse were highly relevant. Therefore, there was no error in admitting it.

In his reply brief, defendant asserts that the evidence of the circumstances of the second victim's disclosure to the uncle could have been admitted without reference to her belief that the first victim was telling the truth. However, that would leave the evidence in the following condition: The uncle told the second victim that the first victim claimed defendant had molested her. Prompted by this revelation, the second victim, for the first time in her life and years after the abuse has stopped, tells the uncle that the defendant has molested her, too. If the second victim did not believe that the defendant had molested the first victim, she would not have been prompted to tell the uncle that defendant molested her, too. Therefore, there was no way to avoid the implication that the second victim necessarily believed the first victim's accusation, or she would not have disclosed to the uncle.

Defendant contends that the prosecutor used this evidence to improperly assert during argument to the jurors that they should believe the first victim because the second victim believed her. We disagree. The prosecutor said," . . . [O]ne of the most important things in this case is how [the second victim] disclosed. . . . [T]hat is the lynchpin of the whole case. She doesn't go to the cops. She doesn't tell anyone. She keeps this bottled up in her for years and years and years. The only time she ever said something is to her uncle . . . . [¶] [The uncle] said he asked [the second victim] because [the first victim] has . . . a reputation for not being truthful. [The uncle asked the second victim,] `Hey, do you believe [the first victim]?' And [the second victim's] reply was . . . [,`]Yes, because it happened to me.' That's not someone that just makes up a lie [(referring to the second victim)]. Did [the second victim] just make up the lie there? [¶]. . . [¶] . . . [The second victim] just said how it was when she disclosed to her uncle. She didn't go to the cops herself to get [defendant] in trouble. If she wanted him in trouble, if it was some part of a scheme, why not go to the cops? . . . She simply told [her uncle] in response to, [`D]o you believe [the first victim?']" The prosecutor did not argue that the first victim should be believed because the second victim believed her. As already stated, the evidence merely described the circumstances under which the second victim finally disclosed the abuse that happened to her.

4. Exclusion of Evidence of the First Victim's Report of Physical Abuse by her Father

While the jury was being chosen, the first victim returned to her biological father's house in San Diego and got into an argument with him about school in the presence of his fiancée that resulted in a physical altercation. The following day, the information about what happened during that altercation somehow got relayed to someone at the first victim's school, who called Child Protective Services of San Diego (CPS). The victim consistently reported to this person at school and to the CPS investigator who interviewed her that she slapped her father, then he pinned her up against a wall, then he kicked her once in the stomach. The father disagreed only with the latter statement, denying that he had kicked her in the stomach. Apparently, his fiancée agreed with the father as to this disputed fact. CPS determined that no further action would be taken because there was no bruising and because it concluded that this was a fight between a teenager and her father. The trial court ultimately rejected defendant's request to introduce evidence about this incident5 and determined that its relevancy was outweighed by its prejudice in that the jury would be given no tools to determine whether the first victim's story that her father kicked her in the stomach was true or false absent testimony from the fiancé, which would create a mini-trial of whether the disputed fact existed.

Defendant here contends that the trial court abused its discretion in denying admission of the evidence. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.) We disagree.

Although earlier in the discussion of this issue, the trial court conceded that the evidence was relevant if the first victim got the authorities involved because she was unhappy about something occurring in her home, and this supported the defense theory about her motive for accusing defendant in this case, it was pointed out that the first victim did not contact the authorities in this case (she told her uncle after the molestation stopped) and there was no evidence how the authorities at her school learned about the incident with her father, triggering their call to CPS.

Defendant asserts that "it was not necessary [for the jury] to definitely determine whether the [first victim's account of the stomach kicking] was false." We completely disagree. It was absolutely essential for the jury to determine that the first victim was lying about the incident with her father in order for it to be relevant at all. If she was telling the truth, it did not support their theory that she falsely reported to authorities the acts of people she was unhappy with in an effort to get them into trouble. Unlike Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, which defendant cites in support of his position that the existence of mini-trials necessary for a jury to make a determination of the truth or falsity of an asserted fact does not justify exclusion of evidence concerning it, here the trial court's ruling did not, as in Andrews, "effectively le[ave the defendant's] testimony untarnished by depriving plaintiff of all available evidence to rebut it." (Id. at p. 947.) There was plenty of evidence, as already mentioned, that the first victim was a liar. There was also evidence that in 2001, when she was nine, she had set the wheels in motion to get defendant in trouble with CPS, only to completely retract her accusations when CPS appeared on the scene. Moreover, as the prosecutor pointed out, because there was no evidence as to how the first victim got what later became an investigation by CPS concerning the incident with her father started, the defense's theory that she attempted to get people she was unhappy with in trouble by falsely reporting them to the authorities could not be supported. Additionally, as the People correctly point out, even if the jury determined that the first victim lied about her father kicking her in the stomach, this proved only that she, in this one incident, exaggerated a fact while otherwise accurately portraying what had occurred, the latter of which arguably, alone, justified the intervention of CPS. This is not consistent with the defense's claim that the first victim had a habit of falsely accusing people of doing things to her, which would trigger an investigation by CPS.

Defendant incorrectly asserts that evidence concerning the stomach kicking incident "would have required one additional witness, [i.e., the father]." In fact, it would have required calling the first victim back onto the stand and having her testify about the incident and having her father testify, or introducing the stipulation agreed to by the parties,6 then, no doubt, the defense calling the father's fiancée to corroborate his account of the incident.

Defendant incorrectly characterizes the basis for the trial court's refusal to allow admission of the evidence by saying that it was because it would be time consuming. While the trial court noted that introduction of the evidence would trigger a trial within a trial, which necessarily would consume time, this, along with the fact that the jury would have to guess at whether the first victim or her father was lying about the incident, absent even more evidence, was the basis for its ruling. It is conceivable that if the defense called the father's fiancée to corroborate his version of the events, the prosecution would want to call other witnesses or introduce other evidence to prove that the father and/or the fiancée lied in general or were lying about this particular incident. Therefore, the trial court's reason for denying admission of the evidence was entirely reasonable.

5. Trial Court's Denial of Discovery to Defense

While the trial court was going through the documents that had been submitted by CPS in San Diego concerning the incident between the first victim and her father, the court came upon other documents, one of which addressed an allegation that had been made on February 20, 2008, that the first victim had been sexually abused.7 The court noted that the document did not say by whom the first victim had allegedly been abused and the outcome of the investigation by CPS in that case was "inconclusive." The court and the parties then turned their discussion back to the incident involving the first victim's father. Defense counsel said that he would like to see that portion of the records the court had in front of it that addressed this incident before he would enter into a stipulation that the first victim's initial report to whomever she spoke to at school was "exactly consistent" with her later statements to CPS. The court asked county counsel, who was present, to advise on the confidentiality of these records and whether it could show defense counsel that portion. County counsel wanted to put on the record the trial court's finding that that portion of the records could be viewed by defense counsel pursuant to Welfare and Institutions Code section 827. In the context only of that portion of the records, the court said that it was relevant and defendant's right to a fair and speedy trial necessitated disclosure of the information contained in it. Contrary to the assertion in defendant's opening brief, the trial court's remarks did not address that portion of the records which concerned the allegation that the first victim had been sexually abused in February 2008 or anything other than the incident with her father. County counsel advised the court that the presiding juvenile judge in San Diego County would have to review the records before defense counsel would be allowed to see a portion of them, therefore counsel was not permitted to view that portion that concerned the incident involving the first victim's father. Defense counsel then offered to stipulate that the first victim's initial report of this incident and her report of it to CPS were consistent, that her father told CPS that he did not kick her in the stomach and no action was taken by CPS. Contrary to defendant's present assertion, nothing in the record suggests that evidence of the aforementioned 2008 accusation of sexual abuse of the first victim, or anything else mentioned by the trial court,8 was relevant to this trial. Therefore, defendant's contention that his rights to confront and cross-examine witnesses and to present a defense were violated by the trial court's refusal to allow defense counsel to inspect the CPS records has no support in the record before this court. To the extent defendant here also argues that his rights to confrontation and cross-examination and to present a defense were violated by the trial court's refusal to allow defense counsel to inspect that portion of the CPS record concerning the incident with the first victim's father, the court's ultimate ruling that evidence concerning this incident was inadmissible under Evidence Code section 352, with which we have already agreed, renders his assertion moot. Defense counsel's only concern regarding the records of this incident was whether the first victim had reported the disputed stomach kick both initially and to CPS. Our review of the records shows that there was no inconsistency. Defense counsel's willingness to stipulate that there was no inconsistency waived the matter.

4. Cumulative Error

Having found no significant error in connection with the points already raised by defendant, we necessarily reject his contention that their cumulative effect requires reversal of his convictions.

5. Failure to Hold a Hearing on Jury Misconduct

After the verdict, one of the jurors contacted the trial court, who directed her to contact the prosecutor or defense counsel. As was revealed during the hearing on defendant's motion to disclose juror information due to juror misconduct, she was the only juror who was initially undecided at a time when the other 11 jurors voted to convict defendant. She alleged that during deliberations, a fellow juror, who was a correctional officer, told her that he was not returning to deliberate the following day—that this was it. She also claimed variously that this juror said that it was not the job of the detective in this case to interview witnesses—that that was the job of the prosecutor or of defense counsel. She also asserted that this juror had made this comment based on his work experience of reading reports. She further said that he stated that the victims were screwed up because of what defendant had done to them. She also said that this juror said that the defendant was a Marine, who was drilled to look people in the eye and lie. She said "at least one other juror" intimidated her into convicting defendant and she was not allowed to discuss her opinions.

At the beginning of the hearing on the request to disclose, the trial court noted that it had heard back from 10 jurors and none of them wanted their identifying information revealed to defense counsel. The jury foreperson testified that during the hour the jury deliberated, after having deliberated initially for 10-15 minutes, he went around the room to get everyone's opinion and let only one person speak at a time. He acknowledged that the juror who was a correctional officer wanted to say a lot, but within 20 minutes of deliberations, the foreperson took control of the room and shut him down. He said that all 12 jurors were allowed to speak during deliberations, the correctional officer-juror never told anyone to shut up, he did not speak over anyone, he never yelled at anyone and he never intimidated anyone. The foreperson said that while discussing the second victim, who was discussed first, the holdout juror wanted to relate facts in this case to experiences she had in her family, so they changed the topic and discussed the first victim. However, they allowed her to speak for five minutes and until she felt she said everything she had to say. Other jurors told her that her family experiences were irrelevant. However, they listened to her, then said that they should get "back on track." He said that during the discussion of the first victim, this juror interrupted another juror and said she was then convinced, based on what was being said about the first victim, that, as the other jurors had already concluded, defendant was guilty of the charged offenses involving the second victim. By that time, the correctional officer-juror was fairly quiet and had given up the idea that he was going to control deliberations. The foreperson saw no one harass the hold-out juror or tell her she had to vote a certain way. The foreperson told the jurors that if they had to be there for four days, they would be there for four days, until everyone felt that they had made the right decision—that they were not going to rush a decision. He did not recall hearing the correctional officer-juror said that he was not returning to deliberate the next day. He could not recall, but allowed that it might have happened, that this juror said in response to the hold-out juror's wanting to discuss the detective's role that it was not her job, but that of the defense, to interview witnesses. He said that after the verdicts were reached and the envelope containing them was sealed, the correctional officer-juror talked about his job experience. He denied that the correctional officer-juror imposed his job-gained knowledge of the legal system on the other jurors. In fact, the foreperson could not recall him discussing his experiences in terms of the detective's duties. He could not recall the correctional officer-juror saying that defendant screwed up the victims, but allowed that the latter may have said it after deliberations ended, when the foreperson was not supervising everything that was said. He said that the holdout juror was given an opportunity to speak, and, in fact, did "quite a bit," participating more than some of the others. He added that only half of the jurors actively participated in deliberations, while the others listened, unless specifically called upon to speak. He said there were no disagreements amongst the jurors during deliberations and all thought about what the others had to say, including what the holdout juror said.

Another juror testified that he did not hear the correctional officer-juror talk about the role of the detective, and no one said it was the job of the defense and not the detective to interview witnesses. He reported that one juror said that he saw a lot of files as part of his job, but nothing else.

The trial court concluded that all the foregoing constituted an insufficient showing to support a reasonable belief that juror misconduct had occurred. The court also concluded that a prima facie case had not been made that there was serious juror misconduct sufficient to warrant ordering all the jurors to appear in court for a hearing. The court observed that the only thing that "came close" to juror misconduct was the allegation that the correctional officer-juror said that it was not the detective's job to question witnesses, but the court could not determine if this constituted an effort to get extraneous information before the jury. The court concluded that if the correctional officer-juror said that he wasn't going to return the next day to deliberate, this was not misconduct, and the fact that the holdout juror may have been intimidated by this was her problem. Further, the comment that defendant had screwed up the victims was not misconduct.

Defendant here contends that prima facie showing of misconduct had been made and the trial court erred in failing to conduct a further hearing. He asserts that the holdout juror's allegation that the correctional officer-juror's statement that it was not the detective's job to interview witnesses established a prima facie case. However, it is notable that this juror gave conflicting accounts of this statement—at some points, she said he said it was the job of defense counsel and at others he said it was the job of the prosecutor. Moreover, we agree with the trial court that this statement did not amount to serious misconduct. We also disagree that the comment was of a character likely to have influenced the verdict. (People v. Hedgecock (1990) 51 Cal.3d. 395, 420-421.) Whether the comment was that the prosecutor should have interviewed witnesses or defense counsel should have, it was entirely extraneous to the real issue in this case, i.e., whether the victims were lying or defendant was.

DISPOSITION

The judgment is affirmed.

McKINSTER, J. and CODRINGTON, J., concurs.