P. v. Huffman

Filed 11/30/05 P. v. Huffman CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. MELVIN LYNN HUFFMAN, Defendant and Appellant.

H027708 (Santa Clara County Super.Ct.No. EE223023)

Defendant Melvin Lynn Huffman was convicted of lewd and lascivious conduct with a child (Pen. Code, § 288, subd. (a))[1] and sentenced to more than 50 years in prison. On appeal, he challenges the admission of evidence of his prior child molestation conviction, uncharged sexual offenses and other bad acts. He also asserts prejudice from the trial court’s refusal to appoint an expert witness on child suggestibility and from the trial court’s ruling in allowing a support person to accompany the child victim on the witness stand. Finally, he claims the trial court abused its discretion in not dismissing his prior strike conviction. We find no error and affirm the judgment.

STATEMENT OF FACTS

The essential facts of this case are brief: In October 2001, defendant rented a room in the home of the H. family. About a year later, on October 1, 2002, Mr. H. came into the living room where defendant was watching television with the two youngest H. daughters, Jane, then age eight, and Diana, then age six. Mr. H. saw defendant quickly remove his hand from between Jane’s legs, and leave the room. Mr. H. called Jane into his bedroom and told her to tell the truth, that he saw what happened. After first denying that anything had happened, Jane admitted that defendant had touched her private parts numerous times when she was playing with him. We set forth the evidence at trial.

I. Prosecution Case

A. Current Charges

Nine-year-old Jane testified that she lived with her two sisters and their parents, and that defendant had lived with the family as a boarder. She liked him because he played games with her and her younger sister Diana and watched television with them. Jane said that during defendant’s stay in their home he touched her body over her clothes. She said he touched her bottom where she went to the bathroom number two and her front part where she went to the bathroom number one.[2] Jane referred to her vaginal area as her “chin.”[3] She said defendant touched each part more than 10 times on different occasions when her parents were not in the room. Sometimes Diana was in the room, and according to Jane, defendant also touched Diana when she was sitting on the couch watching television.

Jane described the way defendant would touch her with his fingers by moving them around. She also said he sometimes touched her private parts with his fist. Jane said defendant would touch her and Diana when they all played a game called “bake the fish,” where the girls would pretend to cook and eat a fish-shaped magnet. She said defendant touched her and Diana at times when they were sitting on the couch watching television. He also touched her private parts sometimes when he picked her up in his arms.

Jane testified that one day her father came out of his bedroom and saw defendant touching her body parts while she and Diana were sitting on the couch watching television. She thought her father saw this on two different days. On the first day, she was sitting upside down on the couch, with her legs up on the back of the couch, and her head hanging down. Defendant was standing behind the couch and was pinching her bottom where she goes to the bathroom. When her father came out of his bedroom, defendant quickly took his hand away. Her father then called her into his bedroom, closed the door and told her he had seen something. Jane said she did not tell her father what had happened because she “thought it was good.” On cross-examination, Jane said her father got angry and was shaking. She said when he yells at her or is angry, she is frightened. Jane said that when her father asked her a second time what defendant had done, she told him the truth.

Jane testified that a few days later, her father again walked out of his room and saw defendant touching her and Diana on their bottoms while they were sitting on the couch watching television. Her father took the girls into his bedroom and questioned them about what happened. Jane said her father was angry and shouting at her to tell the truth, and she did. She was frightened because her father was yelling and shaking. Jane also testified that her father told Diana what happened and Diana said in Vietnamese that defendant had been touching her private parts. Diana told her father that she was telling the truth.

Jane said that when she talked to Deputy Pham, she told him the truth. When the prosecutor asked: “[W]hy did you tell your dad that [defendant] was touching you,” Jane answered: “He wanted to know the truth, so I didn’t lie.”

Seven-year-old Diana testified that she sometimes played with defendant and her sister Jane, but Jane played with him more. She said that she saw defendant touch Jane’s body about three times when they played the game of “bake the fish.” Diana thought defendant touched Jane on her stomach. In confusing statements, Diana also said she saw defendant touch Jane on her back three times when they were watching television. Although Diana remembered her father calling her and Jane into his room one time, she did not tell her father that defendant had touched her. When Diana was asked directly if defendant touched her, either when they were playing bake the fish or when they were watching television or in a way that made her feel uncomfortable, she responded no or that she didn’t remember.

Mr. H. testified that in October 2001, he rented a room in his house to defendant, although he originally believed the room was for defendant’s Vietnamese girlfriend Tammy Luu, who had seen the advertisement in a Vietnamese newspaper. Mr. H. saw that defendant sometimes played with his two younger daughters, Jane and Diana, and the girls seemed to enjoy him.

Mr. H. further testified that on October 1, 2002, he came out of his bedroom directly into the living room where the girls were on a sofa, facing him and watching television. Jane was lying upside down with her legs over the back of the sofa. Defendant was standing behind the sofa. Mr. H. saw defendant touching Jane on her private parts or vulva over her clothes with his left hand. When defendant noticed Mr. H., he quickly pulled his hand away, and left the room. Mr. H. reported feeling very bad and angry, but he had to leave to pick up his oldest daughter at school. When he returned about 15 minutes later, he called Jane and Diana into his room and closed the door. He was still very upset, but he was not shaking as much as before. Mr. H. told Jane that he had seen what happened, but he wanted her to tell him the truth. At first Jane said that nothing had happened. Then, in an angry voice, he said “You have to tell me the truth. I know what happened.” With a sometimes raised voice (although he denied yelling at her), he demanded two or three times that Jane tell him the truth. Mr. H. said he did not tell Jane exactly what he had seen. Finally, Jane responded in Vietnamese that defendant had touched her, and pointed to her private part. Jane said that defendant had touched her there many times, and that he had also touched Diana. Mr. H. then asked Diana if defendant had touched her. According to Mr. H., Jane told Diana not to tell lies, and Diana said in Vietnamese that defendant had touched her back, and pointed to her anus.

Mr. H. said he was unsure what to do, so he called Tammy Luu and told her he wanted defendant to leave. When Mr. H. saw defendant the next morning, he told him to leave right away. He refused to listen to defendant’s explanation. He then called the police. Mr. H. also testified that he never asked his daughters to lie to anyone about what had happened; he told them to tell the truth.

Jane and Diana were interviewed by Santa Clara County Sheriff’s Detective Guy Kuyat and Deputy Alan Pham on October 3, 2002. The videotapes of the interviews were played for the jury, and transcripts were provided. During the interview, Jane said the defendant had touched her, over her clothes, on her “dit” (buttocks) and on her “chim” (genitals). Jane said she did not tell her father when defendant touched her because she thought it was good. She said he had also touched Diana. Jane said defendant touched her more than 10 times on her buttocks and more than 10 times on her “chim,” but he never put his hand underneath her clothing.

B. Prior Conduct

Robert D., a 39-year-old man, testified that when he was a child, he and his younger sister Barbara lived in Redding, California with their mother and defendant, her live-in boyfriend. When Robert was about 11 years old, he frequently saw defendant take Barbara up to a room in the attic. Robert said that when he was 11 or 12, lying on his bed in his bedroom, defendant came in with his penis erect and tried to put his penis in Robert’s mouth. Robert remembered pushing defendant away. On another occasion when Robert was about 12 and his mother was away from the house, defendant, who was naked, had Robert and Barbara take off their clothes and had Barbara touch and kiss Robert’s penis. Defendant was fondling Barbara at the same time and had her also hold his penis. The incident was interrupted by the children’s mother coming home. Defendant told Robert not to tell anyone, and Robert never told, because he was afraid defendant would beat him. Robert said that defendant beat him, Barbara and their mother. After about four years, Robert and Barbara moved to live with their grandmother in San Francisco, but Robert did not tell anyone about defendant.

Robert’s sister, Barbara D., also testified at trial. Barbara was then in custody for bank fraud and admitted an extensive criminal history, including convictions for robbery, forgery, burglary and other crimes. Barbara stated that when she was four, defendant began making her orally copulate him in her bedroom at night or when her mother was gone. He also would put his penis between her legs and orally copulate her. Defendant ordered her not to tell anyone. This continued frequently throughout the years she lived there, until she was about eight. Barbara recalled an incident when she was about six, in which defendant, who was naked and masturbating, had her perform oral sex on her brother Robert in a room in the attic where pornographic magazines were kept. Barbara also testified that defendant physically abused her mother. When Barbara was about eight, she told her mother about the sexual assaults, but her mother had just given birth to her half-sister Letishia and she could not leave defendant. So Barbara and Robert were taken to live in San Francisco with their grandmother. Barbara also said that when she was about 20, she visited her mother and sister in Redding, and defendant ejaculated on her head.

Letishia H. was defendant’s 28-year-old daughter. She testified about the facts surrounding defendant’s conviction for lewd and lascivious conduct with her when she was 12. She said she came downstairs to read on a hot summer night. She was dressed in shorts and a top, and defendant, watching television, wanted her to sit on his lap. She did and noticed his hand was down his pants. She did not want to loosen her shorts when defendant told her to, so he tried to take them off. She told him not to, but he pushed her shorts aside and attempted to insert his penis into her vagina. She tried to resist, but he held her on his lap. Although he did not penetrate her, he did ejaculate on her shorts. Defendant told her not to tell anyone what happened or he would kill her. Letishia believed him because she knew that defendant was violent and that there was a lot of fighting in the house. She ran upstairs when she heard sounds from upstairs. The next morning she told her grandmother, who had been sleeping in her bedroom. She also reported the incident at school, and defendant was arrested. Letishia was removed from the home.

People’s Exhibit 12 was a certified copy of an abstract of judgment, showing defendant’s conviction on December 12, 1988, for a lewd and lascivious act upon a child, section 288, subdivision (a) in Shasta County. This was admitted by stipulation.

District Attorney Investigator Carl Lewis testified as an expert on Child Sexual Abuse Accommodation Syndrome (CSAAS). He explained that CSAAS is a pattern of behaviors (including secrecy, helplessness, entrapment and accommodation, delayed, conflicted and unconvincing disclosure, and retraction) which can accompany child sexual abuse. He emphasized that CSAAS is not diagnostic tool, but simply helps to explain some unexpected behaviors in children who may be the victims of sexual abuse. Lewis acknowledged that sometimes CSAAS has been used inappropriately because it was not designed to be used for diagnosis. Lewis also admitted that children sometimes make false allegations of abuse and that interviewing a child victim in a suggestive or even therapeutic way can taint an investigation. He testified that certain investigation techniques can lead to unreliable or unbelievable statements, especially if the child is forced to create a story or is encouraged to report as well as another child did. He pointed out that a good investigator remains open-minded and conducts a thorough investigation, regardless of what his or her initial beliefs were. In any investigation, it is important to know about the child’s background as well as the emotional context of the child’s home and relationships. Investigator Lewis testified that he had neither knowledge of nor involvement in the present case.

C. Defense Case

Defendant’s girlfriend Tammy Luu testified that she helped him find the room to rent in the H.’s home. She said about twice a week she slept in the bedroom with defendant and they had a normal adult sexual relationship. Luu said in early October 2002, when she was visiting defendant, Mr. H. told her he wanted defendant to move out because he saw defendant touch his daughter. When Luu told defendant, he asked why Mr. H. would say that about him and said he would talk to him.

STATEMENT OF PROCEDURE

An amended information, filed June 18, 2003, charged defendant with two counts of committing a lewd and lascivious act upon a child, count 1 involving Jane Doe, and count 2 involving Diana Doe.[4] (§ 288, subd. (a).) Each count also carried a “One Strike” allegation (§ 667.61, subds. (b) and (e)) and a probation ineligibility clause (§ 1203.066, subd. (a)(5)). Various sentencing enhancements were also alleged, including the One Strike law (§ 667.61, subds. (a) and (d)), the “Habitual Sexual Offender” law (§ 667.71), the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12), and prior prison term for violent felony (§ 667.5, subd. (a)).

On November 24, 2003, the jury convicted defendant of count 1 (molestation of Jane). The jury was unable to agree as to count 2 (molestation of Diana), which was ultimately dismissed. Defendant admitted his prior 1988 conviction for lewd acts with a child for purposes of the various sentencing allegations. He also admitted that he had served a prior prison term for a violent felony.

Defendant’s motion for new trial and his motion to strike his prior conviction were both denied. The trial court sentenced defendant to a total term of 50 years to life, plus a consecutive three-year enhancement for the prior prison term.[5]

DISCUSSION

I. Evidence Code Section 1108

A. Background

Defendant moved in limine to exclude evidence of his prior conviction for violating section 288, subdivision (a), evidence of the circumstances of that offense (molesting his daughter Letishia), and evidence of the uncharged sexual offenses against his stepchildren Robert and Barbara. The prosecutor responded that the evidence was admissible under Evidence Code section 1108 to show defendant’s propensity to commit such crimes, and under Evidence Code section 1101, subdivision (b) to show intent and absence of mistake. The trial court noted that it found the evidence to be “extremely relevant” to show intent, absence of mistake, and the credibility of the complaining witnesses. The court also found the probative value of the testimony of Letishia, Robert, and Barbara would not be outweighed by its prejudicial effect, and thus ruled the testimony admissible.[6]

B. Due Process Claim

Evidence Code section 1108 provides in pertinent part: “(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” In People v. Falsetta (1999) 21 Cal.4th 903, 907, the California Supreme Court found this statute to be constitutional. In his brief on appeal, defendant challenges the statute as violating the due process clause of the United States Constitution. However, he acknowledges that this court is bound by our Supreme Court’s decision in Falsetta, but states that he “offers the present analysis to preserve his ability to take his challenge to a higher court if need be.” We therefore do not address this issue, but stand on Falsetta. (See also U.S. v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1026-1027, 1031 [analogous provision in Federal Rules of Evidence, rule 414, does not violate federal constitutional rights].)

C. Evidence Code section 352

The Falsetta court noted that Evidence Code section 352 provided a necessary safeguard to the constitutionality of Evidence Code section 1108. (People v. Falsetta, supra, 21 Cal.4th at p. 916.) Defendant insists the trial court erred in admitting the evidence of his prior sex offenses because the evidence was more prejudicial than probative and should have been excluded under Evidence Code section 352.[7] “We review a challenge to a trial court’s choice to admit or exclude evidence under section 352 for abuse of discretion. [Citation.] We will reverse only if the court’s ruling was ‘arbitrary, whimsical, or capricious as a matter of law. [Citation.]’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282.)

“Evidence of a prior sexual offense is indisputably relevant in a prosecution for another sexual offense.” (People v. Fitch (1997) 55 Cal.App.4th 172, 179.) “By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. (Evid. Code, § 352.) This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.]” (People v. Fitch, supra, 55 Cal.App.4th at p. 183.)

In People v. Harris (1998) 60 Cal.App.4th 727, the court described the factors that should be used in evaluating admissibility of evidence of other sex crimes under Evidence Code section 352. These factors include: (1) the inflammatory nature of the evidence; (2) the probability of confusion if the prior sex offense did not result in a criminal conviction; (3) the remoteness in time of the uncharged act from the charged offense; (4) the consumption of time introducing evidence pertaining to the uncharged offense; (5) the probative value of the evidence, especially as to degree of similarity. (People v. Harris, supra, 60 Cal.App.4th at p. 740; see also People v. Ewoldt (1994) 7 Cal.4th 380.)

Defendant claims that under the Harris factors, his prior offenses were dissimilar to the current allegations and thus were prejudicially inflammatory, in that they were much more serious, involving skin-to-skin contact, and actual sexual conduct of oral copulation and attempted penetration. He also points out that the allegations by Robert and Barbara were not reported or charged, and he attempts to minimize his prior conviction of molestation of Letishia, arguing that there was no physical evidence.

The Attorney General states that defendant’s “prior offenses were very similar in nature to the current offense” in that defendant “engaged in sexual acts with young children with whom he resided, showing a preference, perhaps, for young girls, invariably breaching the trust of his victims and his other cohabitants, and taking advantage of the extreme youth of his victims.” We agree. And examining the Harris factors, we find no abuse of the trial court’s discretion in admitting the evidence.

First, as to the probative value of the evidence: “The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough [that] the charged and uncharged offenses are sex offenses as defined in section 1108.” (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41, fn. omitted.) In People v. Mullens (2004) 119 Cal.App.4th 648, the court concluded that even if the offenses were dissimilar, their admissibility is appropriate if the incidents involved allegedly improper touchings of young girls. “Any dissimilarities in the alleged incidents went to the weight, not the admissibility, of the evidence.” (Id. at p. 660.)

As to the inflammatory nature of the prior offenses, even uncharged crimes which are far more serious than the crimes for which the defendant is on trial are appropriately admitted, according to the Frazier court. (People v. Frazier, supra, 89 Cal.App.4th at pp. 40-41.) In Frazier, the court further noted that the fact that the offenses occurred 15 or 16 years earlier does not make evidence of those offenses irrelevant. Rather, it shows a pattern of molesting young female relatives. (Id. at p. 41.)

The Frazier court also concluded that the risk of the jury punishing the defendant for uncharged crimes, especially when they were much more serious, is counterbalanced by instructions on reasonable doubt, the necessity of proof as to each of the elements of a lewd act with a minor, and the instruction to the jury that it must not convict the defendant of any crime with which he is not charged. (People v. Frazier, supra, 89 Cal.App.4th at p. 42.)

Evidence of delay in reporting the prior crimes also goes to the weight of the testimony, not its admissibility. (See People v. Mullens, supra, 119 Cal.App.4th at p. 660.) And, finally, the introduction of this evidence was not unduly time consuming: the testimony concerning defendant’s prior offenses took approximately 100 pages of a 700-page trial transcript. The majority of the testimony at trial concerned defendant’s current charged offenses.

In sum, our review of the case law and the record fails to support defendant’s argument that he was unduly prejudiced by the admission at trial of evidence of his prior sexual offenses. His prior conviction was established in part by admission into evidence of the abstract of judgment of that crime. And there is nothing in the record to indicate jury confusion or bias or animosity.

As we have concluded that the evidence of defendant’s prior sexual offenses was properly admitted under Evidence Code section 1108, we need not discuss defendant’s second attack, that it should not have been admitted under Evidence Code section 1101, subdivision (b) either. We do note, nevertheless, that defendant’s intent was in issue here, whether the touching of Jane over her clothes was innocent or inadvertent, and as such, evidence of defendant’s prior sex offenses against young children living in the same household would be probative.

II. Denial of Funds for Expert Witness

Defendant next contends the trial court deprived him of essential constitutional rights to the effective assistance of counsel, to a fair trial, and to present a defense by failing to order funding for an expert witness on child witness suggestibility.

A. Background

In April 2003, defendant filed ex parte and under seal an application for funding for an expert witness on the suggestibility of a child victim/witness. The application noted that Jane had testified at the preliminary hearing that her father had taken her into his room, told her he saw what happened and demanded that she tell him the truth about the touching. The expert witness was requested to evaluate whether Jane’s statements about what happened were the result of suggestion or improper questioning by her father. Defendant proposed that the expert would review the police reports, the videotaped interviews and the preliminary examination testimony to determine whether the questioning of Jane was improper or intimidating. In an attached declaration, trial counsel declared that he had received training on the suggestibility of child witnesses and he believed Jane’s statements were the product of intimidation. Counsel believed an expert analysis by Dr. Philip Esplin (from Arizona) was necessary to show the defense theory of the case, that Jane’s statements were suggested to her by the questions from her father.

The trial court denied this request for expert fees.

A few weeks later, defendant filed a request for reconsideration of appointment of ancillary legal services, based on the same defense theory, and essentially repeating the same arguments. However, this request was accompanied by over 100 pages of professional articles describing psychological studies of child witnesses, demonstrating the effects of interview techniques and the problems of suggestibility. The trial court again denied the request, stating “the services requested are not reasonably necessary to a fair and competent defense.”

A petition for writ of mandate/prohibition filed in this court on July 15, 2003, was summarily denied. (Huffman v. Superior Court (July 25, 2003, H026206).)

Following the verdict, defendant moved for new trial on the ground that he was denied a fair trial as a result of the pretrial ruling denying his request for funding for an expert witness. Defendant cited to portions of the trial transcript reflecting Jane’s and her father’s testimony about his initial questioning of her, and asserted that her father both intimidated her into saying defendant touched her and placed answers to his questions in her mind by suggesting that he saw the touching. Defendant also made reference to the police interview tape of Jane which was shown to the jury, and labeled it problematic although not classically suggestive. Defendant requested that the trial court review the testimony of Jane and her father and Jane’s interview with the police to determine whether he was denied a fair trial by the absence of an expert witness on child witness suggestibility.

At the hearing on the motion for new trial, the court stated that it had reviewed the testimony of Jane and of Mr. Lewis (the CSAAS expert). The court opined that there had not been a sufficient defense showing to warrant court funding for expert services and noted that trial counsel had cross-examined Lewis “quite thoroughly,” and had not called the defense CSAAS expert to testify in rebuttal.[8] The court denied the motion for new trial. Defense counsel then explained to the court that the motion for new trial had nothing to do with either CSAAS expert, but was directed to the issue of funding for an expert on child witness suggestibility. The court responded: “Nevertheless, I have reviewed the testimony, as I indicated, and the papers, and I simply don’t believe that you have established a—met your burden of showing that there was an unfair trial, and consequently, I’m going to deny your motion.”

B. Analysis

In Corenevsky v. Superior Court (1984) 36 Cal.3d 307, our Supreme Court declared that the right to counsel guaranteed by both the federal and state Constitutions includes the right to effective counsel, and thus also includes the right to reasonably necessary ancillary defense services. (Id. at p. 319.) It follows that indigent defendants are entitled to public funds for these reasonably necessary services. (Id. at p. 320; People v. Gaglione (1994) 26 Cal.App.4th 1291, 1303-1304, disapproved on other grounds by People v. Martinez (1995) 11 Cal.4th 434, 452.)

Evidence Code section 730 authorizes the court to appoint an expert to investigate, to prepare a report and to testify as a witness “relative to the fact or matter as to which the expert evidence is or may be required.”[9] Equal protection requires that in a proper factual situation a court must appoint an expert that is needed to assist an indigent defendant in his or her defense. (People v. Hurley (1979) 95 Cal.App.3d 895, 898-899.) “However, it is only necessary investigative services to which an indigent defendant is entitled, and a motion for the appointment of an [expert] at public expense must be supported by a showing that the [expert] services are reasonably necessary. [Citations.]” (Puett v. Superior Court (1979) 96 Cal.App.3d 936, 939.) The burden is on the defendant to show that the expert’s services are necessary to his defense. (People v. Gaglione, supra, 26 Cal.App.4th at p. 1304.) Courts have recognized that it may be difficult in advance of trial for counsel to demonstrate an “undoubted need for such funds. However, he can at least advise the court as to the general lines of inquiry he wishes to pursue, being as specific as possible.” (Puett v. Superior Court, supra, 96 Cal.App.3d at p. 939; see also Corenevsky v. Superior Court, supra, 36 Cal.3d at p. 320.)

Finally, “[t]he decision on the need for the appointment of an expert lies within the discretion of the trial court and the trial court’s decision will not be set aside absent an abuse of that discretion. [Citations.]” (People v. Gaglione, supra, 26 Cal.App.4th at p. 1304.) Such an order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown. (Corenevsky v. Superior Court, supra, 36 Cal.3d at p. 321.)

Courts have allowed expert testimony on the suggestibility of child witnesses. (See U.S. v. Rouse (8th Cir. 1997) 111 F.3d 561; U.S. v. Reynolds (8th Cir. 1996) 77 F.3d 253; State v. Kirschbaum (Wis.App. 1995) 535 N.W.2d 462 [195 Wis.2d 11].) “A qualified expert may explain to the jury the dangers of implanted memory and suggestive practices when interviewing or questioning child witnesses, but may not opine as to a child witness’s credibility.” (U.S. v. Rouse, supra, at p. 571.)

Defendant points to the California Supreme Court case of People v. McDonald (1984) 37 Cal.3d 351, in which the high court discussed the importance of expert testimony in certain cases, such as where psychological factors could have affected the accuracy of eyewitness testimony. He maintains that expert testimony was important here on the suggestiveness or intimidation used to influence Jane’s testimony. But in his request for funding, defendant failed to make a sufficient showing that expert testimony was reasonably necessary to his defense. Although defendant pointed out Mr. H.’s visible anger, Jane’s reported fear, and his demands that she tell him what happened, there was no further specific showing that it was crucial to his defense that an expert investigate the likelihood of a false accusation. Nothing in the pretrial evidence suggested fabrications or demonstrated inconsistencies, such that an expert witness on the psychology of the suggestibility of child witnesses would be necessary to an effective defense. As the court in State v. Kirschbaum stated, in denying a similar request for expert funding: “[R]ather than making the requisite ‘showing of particularized need,’ [citation], there was only a broad assertion in . . . counsel’s affidavit that the psychologist would testify on the bias or suggestion that occurred in the interviews conducted with [the child witness].” (State v. Kirschbaum, supra, 535 N.W.2d at p. 467, fn. omitted.)

At the preliminary hearing, and in the recorded police interview, Jane’s statements were internally consistent and consistent with the preliminary hearing testimony of her father. Jane’s statements that defendant touched her private parts with his fingers, both at the time her father observed the act and at other times, remained unchanged, unhesitant and uncontradictory. In his request for funding, defendant made no specific showing that Jane’s statements were the product of her father’s questioning or that such an expert was reasonably necessary to his defense. This determination is placed within the discretion of the trial court, and on this record, we find no abuse of that discretion.

C. Motion for New Trial

As set forth above, in defendant’s motion for new trial, he requested the court to review the testimony of Jane and her father and Jane’s interview with the police. Defendant complains that the court read the testimony of the CSAAS expert Lewis, which was not related to the issue he raised. Defendant now criticizes the trial court as misunderstanding the basis for the motion for new trial and relying on the wrong testimony in making its ruling. (See People v. Cluff (2001) 87 Cal.App.4th 991, 998 [“A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence”].) However, our reading of the court’s remarks in context and our evaluation of the testimony as a whole support the trial court’s denial of the motion for new trial.

“We review a trial court’s ruling on a motion for a new trial under a deferential abuse-of-discretion standard.” (People v. Navarette (2003) 30 Cal.4th 458, 526.) We have previously determined that the trial court did not err in failing to provide funds for an expert witness based on defendant’s pre-trial motions. Now, having reviewed the testimony at trial, we conclude defendant has demonstrated no prejudice to him as a result of the court’s denial of the requested expert. (See People v. Worthy (1980) 109 Cal.App.3d 514, 523.)

Jane herself testified consistently and unhesitatingly that defendant touched her private parts on repeated occasions, including the time observed by her father. Mr. H. saw the illicit touching and then called Jane in to question her about what he had seen. Jane reported that her father got angry at her when she did not tell the truth, so after an initial denial, she told the truth. Both of these witnesses were thoroughly cross-examined at trial and were impeached with certain inconsistencies between their trial testimony and their preliminary hearing testimony. Moreover, defense counsel effectively used his cross-examination of CSAAS expert Lewis to present information about improper and suggestive techniques in questioning child witnesses. In closing argument, counsel insisted that certain techniques used in the police interview were subtle, but suggestive. Counsel also vigorously argued that Jane’s testimony was not reliable, and may have been a compelled accusation, due to her father’s anger. Thus, the jury was presented with defendant’s view of the evidence.

Overall, our review of the record reveals no prejudice, such that the trial court committed a “ ‘manifest and unmistakable abuse of discretion’ ” in denying a new trial on this ground. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 128.)

III. Witness Support Person

A. Background

Prior to Jane’s testimony at trial, the court held a hearing to determine her need for a support person to sit with her on the witness stand as she testified. Apparently Jane had had such a support person at the preliminary hearing, and defendant requested a hearing prior to trial on the necessity for such a person, pursuant to section 868.5 and this court’s decision in People v. Adams (1993) 19 Cal.App.4th 412 (Adams).

At the hearing, Jane was asked if she wanted a support person to sit with her on the stand while she was testifying, and she responded yes, because she sometimes gets embarrassed and scared and has stage fright. Jane reported her age as nine, almost ten. She said she was uncomfortable with the defendant in the courtroom, and she was also scared because he might do something. “Q. [Prosecutor:] . . . as you sit here right now with him in the room you are scared of him; is that what you are saying? [¶] A. Yes.” The trial court then reminded Jane that the support person could only sit next to her, but could not talk to her or help her answer questions. On cross-examination, defense counsel questioned her about the officers in the room with guns who would protect her if defendant tried to do anything, and asked how the support person who would not have a gun would be able to protect her. Jane responded: “Sometimes I’m too scared to leave, like talking too much.” Defense counsel then asked if what was really scaring her was being in the courtroom with all the people listening to her, and she responded yes. Defense counsel argued that the witness was actually frightened of the courtroom setting and not the defendant, and thus the presence of a support person would deprive defendant of his right of confrontation.

In ruling that a support person would not interfere with the defendant’s rights to confrontation or a fair trial, the trial court distinguished Adams as relying on a United States Supreme Court case where the victim was not physically present. “[T]hat’s not our situation at all. The child is going to be here. The defendant is going to be able to see her. She has indicated that she wants somebody to sit next to her, because she gets embarrassed and scared, and this is a nine year old that’s going to be talking about alleged sexual offenses committed on her. And I find that she has stated an appropriate basis. Whether she is afraid of the defendant or just being afraid of being in this situation, I think that she has expressed sufficient reason for having somebody present.”

B. Analysis

Defendant now argues that because Jane was primarily afraid of the courtroom setting, not the defendant, the trial court should have rejected her request to have a support person with her during her testimony. Defendant claims the insufficient showing of necessity for a support person violated his confrontation rights, because the support person impacted the jury’s view of the witness’s demeanor, according to Adams.

Under section 868.5,[10] a prosecuting witness in certain criminal cases is entitled to the support of two people at trial, one of whom may accompany the witness to the

witness stand. (§ 868.5, subd. (a).) As the court in People v. Patten (1992) 9 Cal.App.4th 1718, 1726, explained: “California is one of a number of states which has implemented statutes or procedures that allow a person to be present to render support to particular witnesses during their testimony. These procedures normally are focused on the young witness or the witness who is the victim of a sexual offense. The common reasons advanced for the procedure are to allow the witness to more easily come forward and to reduce the psychological harm and trauma the witness might experience. (Annot., Person Accompanying Witness (1990) 82 A.L.R.4th 1038.) The state’s interest in safeguarding the physical and psychological well-being of a minor or victim of sexual abuse can be a compelling one.”

In Adams, this court determined that the use of a support person at the witness stand does not in general deprive the defendant of a fair trial. (Adams, supra, 19 Cal.App.4th at p. 437.) But we also concluded that “the procedure of allowing a witness to testify accompanied by another person at the witness stand has an effect on jury observation of demeanor.” (Id. at p. 441.) Thus, we inferred that the trial court is required to make a case-specific finding of necessity, for the procedure to be invoked. (Id. at pp. 443-444.) The requirement for the prosecution to make such an individualized showing of necessity for a support person was drawn from two United States Supreme Court cases in which the defendants’ constitutional rights to confrontation were allegedly impinged. In Coy v. Iowa (1988) 487 U.S. 1012, 1021, the Supreme Court required individualized findings of necessity to justify child testimony from behind a screen. In Maryland v. Craig (1990) 497 U.S. 836, 855-856, the court required an evidentiary hearing to determine whether child testimony on one-way closed circuit television was necessary to protect the child.

In the present case, defendant makes much of the language in Adams, quoting from Maryland v. Craig as to how specific the finding of necessity should be: “ ‘The trial court must hear evidence and determine whether use of the . . . procedure is necessary to protect the welfare of the particular child witness who seeks to testify. [Citation.] The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. [Citations.] Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minim[i]s, i.e., more than “mere nervousness or excitement, or some reluctance to testify,” [citations].’ (497 U.S. at pp. 855-856.)” (Adams, supra, 19 Cal.App.4th at p. 443.) However, the procedure at issue in Craig, which the Supreme Court was specifically addressing, involved the testimony of the child from behind a protective screen, such that there was no face-to-face confrontation. Here, there was no denial of face-to-face confrontation.

Moreover, the situation in Adams itself differs from the case at hand. In Adams, the prosecuting witness who requested a support person was a 16-year-old girl, the victim of various sexual assaults by a coworker. Her proposed support person was her father, who was accused of assaulting her himself and who was also a witness in the trial. (Adams, supra, 19 Cal.App.4th at pp. 420-424, 434.) In addition, at the motion in limine on defendant’s objection to the father as a support person, no showing was made by the prosecution that the support person would be helpful to the witness or that his presence was necessary. (See § 868.5, subd. (b); see also People v. Johns (1997) 56 Cal.App.4th 550, 554-555.) Although the Adams court found this was error, it concluded the error was harmless beyond a reasonable doubt. (Id. at p. 444.)

As the court in People v. Lord (1994) 30 Cal.App.4th 1718 observed, “[i]n the case of a molested six-year-old victim, it is almost given that the support person’s presence is desired and would be helpful, and the statutory showing will be perfunctory.” (Id. at p. 1722.) (See also People v. Patten, supra, 9 Cal.App.4th at p. 1732 [“[t]he younger the victim the more likely the jury would understand the need for a support person under any circumstances”].) Here, the trial court heard nine-year-old Jane, who had been eight when the incidents occurred, state that she was uncomfortable with the presence of the defendant as well as uncomfortable in the courtroom setting. This was sufficient to allow the trial court to find that a support person was reasonably necessary in this set of circumstances. Moreover, defendant has failed to show any interference with the trial, any influence by the support person, or any prejudice to him from the person’s presence. We find no error.

IV. Evidence of Other Crimes

A. Background

In response to the prosecutor’s questions about why he had never told anyone that defendant was molesting him, Robert testified that he was afraid of being beaten and that defendant used to beat him. The prosecutor asked if defendant beat anyone else. Defense counsel objected on grounds of relevance, the Sixth and Eighth Amendments to the Constitution and California rules with respect to character evidence. The trial court overruled the objection, and Robert responded that defendant also beat his sister Barbara and his mother. The prosecutor asked more questions about defendant instructing Robert not to tell anyone. When Robert said that defendant had bad habits of beating, defense counsel objected on the basis of bad character evidence, speculation and hearsay. The trial court instructed Robert to limit his answer to “whatever it was that suggested to you the defendant was telling you or making it clear that you were not to tell anyone about this incident.” The record reflects several other exchanges during Robert’s testimony when the prosecutor asked him how he knew that defendant did not want him to tell anyone about the incidents or what kept him from telling, and defense counsel objected on grounds of relevance or speculation. Robert answered that he feared the beatings.

B. Analysis

Defendant now asserts the trial court improperly admitted this evidence of other crimes, and he was prejudiced by its admission. He argues that the evidence was not relevant, that it was more prejudicial than probative and that it was inadmissible character evidence. He further argues that the admission of evidence he beat Robert and other family members violated his right to due process and deprived him of a fair trial.

The Attorney General first points out that defense counsel did not object to the evidence on grounds that it violated Evidence Code section 352, i.e. that the evidence was more prejudicial than probative, nor did he object on the grounds of due process or fair trial. Thus he has waived objection on these grounds. (Evid. Code, § 353.)

Only relevant evidence is admissible. (Evid. Code, § 350.) As defined in Evidence Code section 210, relevant evidence is evidence, including evidence relevant to the credibility of a witness, “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” “The test of relevance is whether the evidence tends ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive. [Citations.] The trial court retains broad discretion in determining the relevance of evidence. [Citation.]” (People v. Garceau (1993) 6 Cal.4th 140, 177.) The exercise of that discretion will not be reversed absent a showing of abuse, or where there is a clear showing the trial court exceeded the bounds of reason, all of the circumstances being considered. (See People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)

Here, the evidence that defendant beat Robert was certainly relevant, as it went to the heart of Robert’s credibility and explained why he failed to tell anyone about the molestations. Robert was vigorously cross-examined about his delayed reporting, and evidence that he feared being beaten by defendant was relevant. Evidence that other family members were also beaten enhances Robert’s credibility on this point and reflects an atmosphere in the home which could be viewed as encouraging secrecy and ignoring problems. This evidence was also relevant to show how defendant obtained compliance with his desires.

Defendant further claims the evidence was inadmissible as evidence of his bad character. But the evidence was not offered for this purpose. Rather, as noted above, the evidence was relevant to show why Robert would not have told anyone when the molestation happened and why he did not report the incidents for many years.

In addition, Barbara testified that defendant was a violent man, who beat her mother and who gained her silence with threats of physical violence. Defendant made no objection to this testimony, and it was obviously probative as to Barbara’s credibility. We also note that Letishia testified without objection that defendant was violent. We find no error.

V. Denial of Romero Motion

Finally, defendant maintains that the trial court abused its discretion in failing to dismiss his prior strike conviction, a 1988 conviction for violating section 288, subdivision (a).

A. Background

After defendant admitted he had suffered a strike under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12), he moved to dismiss it, pursuant to section 1385. In his written motion, he offered as reasons to dismiss his strike: the relatively minor nature of the current offense, the length of the possible sentence, and the fact that his prior conviction resulted from unsubstantiated allegations with no physical evidence. At the hearing on the motion, defense counsel emphasized that the prior conviction concerned more serious conduct than the current “de minimis” touching over clothing and that defendant was already 52 years old, so that the mandatory sentence of 25 years, even without the doubling provision of the Three Strikes law, was essentially a life sentence.

Defendant’s criminal history showed two prior felony convictions: in 1989, defendant was sentenced to prison for six years for lewd and lascivious conduct, with his 12-year-old daughter (§ 288, subd. (a)), and in 1996, he received a 32-month prison sentence for failing to register as a sex offender (§ 290, subd. (g)(2)). Defendant also had four prior misdemeanor convictions, and violated parole in 1994, 1998 and 1999.

The trial court denied the request to dismiss the strike, stating: “I have considered both the Constitutional rights of the defendant and the interest of society and the fair prosecution of crimes in deciding whether to strike the strike in this case. I noticed that, one, the prior offense was extremely serious, although it appears from the records that the defendant has never accepted responsibility for that either; that he claimed his daughter, Leticia, was having behavioral problems, and when he disciplined her by grounding her, limiting her friends, or imposing a curfew, she rebelled and made this accusation that he molested her. [¶] He was paroled for that offense in 1994, and there was a violation of parole, I believe. He was then returned to prison in 1996 for 290 registration, failure to register, and I have it here, a 242/243. He received two years eight months at that time. There was a further violation of parole in 1998 and another one in 1999, and the current allegations were from 2002, so it doesn’t appear that Mr. Huffman has led a blameless life since the commission of the strike prior, which would suggest that he falls outside the spirit of the three strikes law. [¶] Further, although the defense maintains that the current offense is relatively minor, I think that it is offensive to maintain that lewd and lascivious conduct toward a child less than 14 years old is a minor offense. The prior offense did involve more serious charges, and they included an attempt to have intercourse with his 12[-]year-old daughter, and certainly such conduct is about as serious as it gets. [¶] In addition, the stepdaughter and stepson testified that they had also been molested by the defendant, although no charges were ever brought against him for those offenses, so it’s very difficult for the Court to consider this a nonaggravated offense, and I don’t believe the evidence supports the defense contention that the defendant only briefly touched Jane’s crotch over her clothes while she was playing on the sofa, as the brief suggests. [¶] Instead, the evidence showed that the defendant repeatedly touched Jane in her vaginal area and may have also molested her sister, Diana. Jane was seven years old when the defendant molested her; her sister, Diana, was five. Both had to go through the trauma of testifying in this trial, and certainly, Jane stands a good chance of being scarred by this molest for the rest of her life. If the girl’s father had not walked in on the defendant while he was molesting Jane, the conduct could have continued undetected and perhaps gone farther. [¶] [Defendant] is definitely not outside the spirit of the three strikes law, and it appears that a repeat child molester could be exactly the type of person that the citizens of California had in mind when they passed the three strikes law. I cannot imagine that a reasonable judge who heard all the evidence in this case, including the defendant—the testimony from the defendant’s prior 288 victims, could possibly find that the defendant is outside the spirit of the three strikes law. [¶] Therefore, the Court will not strike the defendant’s prior pursuant to . . . [section] 1385.”

B. Analysis

In the recent case of People v. Carmony (2004) 33 Cal.4th 367 (Carmony), the Supreme Court reviewed its decisions concerning section 1385 and the Three Strikes law. “Under section 1385, subdivision (a), a ‘judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.’ ‘In Romero, we held that a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, “in furtherance of justice” pursuant to . . . section 1385(a).’ (People v. Williams (1998) 17 Cal.4th 148, 158 (Williams).) We further held that ‘[a] court’s discretionary decision to dismiss or to strike a sentencing allegation under section 1385 is’ reviewable for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 531.)” (Carmony, supra, 33 Cal.4th at p. 373.)

Prior to Carmony, the high court had not specifically ruled on the correct standard of review for the alternate situation—where the trial court refused to strike a strike.[11] In Carmony, the court held that “a trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (Carmony, supra, 33 Cal.4th at p. 375.)

Abuse of discretion was further explained by the Supreme Court: “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at pp. 376-377.)

As the Carmony court reminded, the Three Strikes law was intended to restrict courts’ discretion in sentencing repeat offenders. The basic principle is to impose the enhanced punishment. “To achieve this end, ‘the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.” ’ [Citation.]” (Carmony, supra, 33 Cal.4th at p. 377.)

In Williams, the Supreme Court had advised: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to . . . section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 161.) The Supreme Court has thus established stringent standards that sentencing courts must follow in order to find such an exception. (Carmony, supra, 33 Cal.4th at p. 377.)

Defendant insists that substantial evidence does not support the reasons given by the trial court for refusing to dismiss his prior conviction. Defendant asserts that there was no physical evidence that he committed a crime against his daughter in 1988, and thus he should not be blamed for not accepting responsibility. He also argues there is no factual support that the current offense is aggravated; in fact it is a minor or de minimis offense, and the court’s statement that he might have continued this conduct is strictly speculation. He further claims that he is outside the spirit of the Three Strikes law in that his criminal history is not bad, and that a sentence of 25 years to life (without the doubling provision of the Three Strikes law) is long enough. We disagree.

First, the trial court noted that defendant’s prior offense was extremely serious. Indeed, the crime of lewd and lascivious conduct with a child (§ 288, subd. (a)) is both a serious (§ 1192.7, subd. (c)(6)) and a violent (§ 667.5, subd. (c)(6)) felony. The court further noted that defendant had not accepted responsibility for that crime. Defendant’s challenge to that statement, based on his argument that no physical evidence supported the conviction, ignores the fact of the conviction itself as well as Letishia’s testimony at trial.

Second, defendant’s assertion that the current offense is minor in comparison to his prior offense is not meaningful. As noted above, the crime of lewd and lascivious conduct with a child is both a serious and a violent felony. Even if the facts surrounding defendant’s prior conviction are more serious, that does not render defendant’s current commission of lewd and lascivious conduct with a child a minor or de minimis offense. In addition, the evidence in the present case reveals repeated touchings of Jane, and, as the trial court noted, the possible molestation of her younger sister, Diana. Even if the jury failed to convict defendant beyond a reasonable doubt of the charged crime against Diana, the trial court could consider the evidence of this charge at sentencing. (See People v. Dove (2004) 124 Cal.App.4th 1, 11.) These two victims were extremely vulnerable, being only eight and six years old at the time of the touchings.

Defendant refers to his prior criminal record as insubstantial and maintains he is therefore outside the spirit of the Three Strikes law. But, as the trial court emphasized, “a repeat child molester would be exactly the type of person that the citizens of California had in mind when they passed the three strikes law.” Three prior victims of defendant’s conduct testified at this trial that defendant had committed sexual offenses against them when they were young children living in the same household with him, two were his stepchildren and one was his biological daughter. In our view, this places him squarely within the reach of the Three Strikes law.

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Elia, Acting, P.J.

Bamattre-Manoukian, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] Jane marked these parts on a paper diagram of a girl.

[3] This is apparently a reference to the Vietnamese word for female genitals: “chim.” Jane also used the term “dit” for her buttocks. Jane and her parents spoke Vietnamese in part at home.

[4] Prior to trial, the court ruled that the victims would be referred to as Jane Doe and Diana Doe. (See § 293.5.)

[5] Defendant was sentenced to 25 years-to-life under the One Strike law. The term was then doubled under the Three Strikes law. A three-year enhancement was added for the prior prison term. The alternative sentencing under the Habitual Sexual Offender law was stricken. (See People v. Snow (2003) 105 Cal.App.4th 271.)

[6] The trial court later explicitly stated that the evidence of defendant’s prior sexual offenses was admissible under Evidence Code section 1108. The court made no explicit ruling on the admissibility of the evidence under Evidence Code section 1101, subdivision (b).

[7] Evidence Code section 352 provides: “The court in its discretion may 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.”

[8] Apparently funds were provided for a defense expert (Dr. Chorjel) on the topic of CSAAS.

[9] Evidence Code section 730 provides in relevant part: “When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of the action relative to the fact or matter as to which the expert evidence is or may be required.”

[10] Section 868.5 provides in relevant part: “(a) Notwithstanding any other law, a prosecuting witness in a case involving [list of crimes including sexual and nonsexual assaultive crimes and criminalized violations of certain court orders], shall be entitled, for support, to the attendance of up to two persons of his or her own choosing, one of whom may be a witness, at the preliminary hearing and at the trial, or at a juvenile court proceeding, during the testimony of the prosecuting witness. Only one of those support persons may accompany the witness to the witness stand, although the other may remain in the courtroom during the witness’ testimony. . . . [¶] (b) If the person or persons so chosen are also prosecuting witnesses, the prosecution shall present evidence that the person’s attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness. Upon that showing, the court shall grant the request unless information presented by the defendant or noticed by the court establishes that the support person’s attendance during the testimony of the prosecuting witness would pose a substantial risk of influencing or affecting the content of that testimony. In the case of a juvenile court proceeding, the judge shall inform the support person or person that juvenile court proceedings are confidential and may not be discussed with anyone not in attendance at the proceedings. In all cases, the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way. Nothing in this section shall preclude a court from exercising its discretion to remove a person from the courtroom whom it believes is prompting, swaying, or influencing the witness. [¶] (c) The testimony of the person or persons so chosen who are also prosecuting witnesses shall be presented before the testimony of the prosecuting witness. The prosecuting witness shall be excluded from the courtroom during that testimony. . . .”

[11] Most Courts of Appeal had used the abuse of discretion standard for review in this situation, but one court had concluded there was no authority granting the appellate courts the ability to review a court’s informed decision to not exercise its section 1385 power in the furtherance of justice. (See People v. Benevides (1998) 64 Cal.App.4th 728, 735, disapproved by Carmony, supra, 33 Cal.4th at p. 376.)