People v. McLish CA3

Filed 7/8/15 P. v. McLish CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C076480

Plaintiff and Respondent, (Super. Ct. No. 13F00770)

v.

EFFRIM E. McLISH,

Defendant and Appellant.

Defendant Effrim McLish was a friend of victim S.’s mother. Defendant molested S. when she was 11 years old and then a year later molested S.’s best friend, 13-year-old A. A jury found defendant guilty of one lewd act against each victim, and the trial court sentenced him to 10 years in prison. Defendant appeals, contending: (1) the trial court erred in admitting evidence of child sexual abuse accommodation syndrome; (2) the standard jury instruction on child sexual abuse accommodation syndrome (CALCRIM No. 1193) lessened the People’s burden of proof; (3) this court must review the victims’ confidential school records to

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determine whether the trial court correctly determined there was nothing discoverable; and (4) the trial court abused its discretion in imposing an upper term sentence, and to the extent this contention is forfeited, defense counsel was ineffective. We find no error or ineffective assistance and affirm. FACTUAL AND PROCEDURAL BACKGROUND A Count One With Victim S. S. was 11 years old in 2011 and lived in Sacramento with her mother. Defendant used to visit. Once while S. was in her mother’s bedroom, defendant touched her back and then moved his hands down her legs and then told her to flip over and started touching her sides. He then got on his knees and started rubbing her vagina. S. was scared and nervous, but she did not do anything to stop the molestation. Later that day, defendant came into S.’s room, sat next to S., and began rubbing his stomach. Defendant said he had a bug bite. Defendant then asked S. if she wanted to feel it, and S. said, “Sure.” Defendant took S.’s hand and put it down his pants, where she felt skin that felt like a hard ball. S. told her mom about the molestation, and her mom was shocked. The mom told defendant he could not come to the house anymore because of what he had done, but defendant denied the molestation. Defendant stayed away for about a week, but then returned. S. did not report to police what had happened because she was scared and her “mom loved [defendant] so much, [S.] didn’t want to hurt her [mom].” B Count Two With Victim A. A. was a schoolmate and neighbor of S.’s and her best friend. On a Friday night in November 2012, when A. was 13, A. spent the night at S.’s house. Defendant was the only other person home. While S. was making dinner, defendant asked A. how old she was. A. told him 13, and defendant responded, “you have really a nice body for your