Opinion
F073652
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL DELACRUZ HERNANDEZ, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F14910605)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
At the conclusion of a jury trial, defendant Miguel Delacruz Hernandez was convicted of one count of continuous sexual abuse of a minor under 14 years old (Pen. Code, § 288.5, subd. (a)). On April 29, 2016, the trial court sentenced defendant to the upper term of 16 years in prison with custody credits of 229 days.
Unless otherwise designated, all statutory references are to the Penal Code.
Defendant contends on appeal the prosecution's reliance on child sexual abuse accommodation syndrome (CSAAS or accommodation syndrome) testimony violated his right to due process because such evidence fails to satisfy the requirements of the Kelly/Frye rule governing the admissibility of scientific evidence. Defendant argues CALCRIM No. 1193, the pattern jury instruction setting forth how the jury should evaluate accommodation syndrome testimony, impermissibly allows the jury to evaluate the believability of the victim's testimony, which in turn reduces the People's burden of proof. Defendant contends the prosecutor improperly referred to facts not in evidence by vouching for the victim's credibility. Defendant argues that in combination, there was cumulative error. The parties concede a no visitation order imposed on defendant at sentencing must be stricken and also concede there is clerical error in the abstract of judgment.
People v. Kelly (1976) 17 Cal.3d 24; Frye v. U.S. (D.C. Cir. 1923) 293 Fed. 1013 (Kelly/Frye)
FACTS
K. was 18 years old at the time of trial. Defendant was her aunt's husband and, in the past, they had babysat her. K. first met defendant when she was five or six years old. In 2003, when she was in the second grade, she would walk home from school with her cousin, J.M., to the home of her aunt and uncle, Sophia and defendant. Her grandmother would babysit her and J.M., but the grandmother had a lot of health problems and would often fall asleep.
Defendant would call K. into his room, put her on his bed, and pull her pants and underwear down. Defendant would position himself behind K. and put his penis inside her vagina. K. tried not to think about what was happening. K. felt sick in her stomach after these encounters. This happened two or three times a week throughout the school year. One time defendant put his penis in K.'s anus. Defendant also put his penis in K.'s mouth several times. She never saw anything come out of his penis.
Defendant sexually molested K. only during the school year because K. did not go to defendant's house during the summer. The acts continued to take place regularly the following year when K. was in the third grade. Although K. would tell defendant no, he would not respond. K. was six or seven years old at that time. K. went to a different school for fourth grade, and the sexual molestation stopped.
As she was growing up, K. had memories of what defendant did to her. Her memories became constant her junior year in high school. K. had her first "big boyfriend." Her friends would talk about him and ask K. if she was a virgin. This bothered K. because she did not know how to answer the question. When her friends mentioned this topic, it caused K. to remember all the events with defendant, and these memories affected her school studies. K.'s mother asked K. if she was having issues in school. K. initially told her mother she was not doing her homework or not paying attention. K.'s mother would make K. sit out during soccer practice and stay in the library. Soccer was important to K.
K. explained she wanted to tell her mother about the incidents but did not because she did not want to upset her mother or the rest of the family. K. was concerned about the effect of disclosure on her family. K. did not expect her parents to find out about the molestation on their own, and she was not looking forward to telling them about it. One day after being picked up from the library, K.'s mother was yelling at her about not doing her work. K. did not respond to her mother's questions because she was "zoned out." K. asked her mother if her aunt and defendant were still in a relationship. K. realized at that moment the secret she was keeping "was eating [her] alive." K. was about 16 years old when she told her mother what had happened between her and defendant. K.'s father called the sheriff that evening, and K. gave a statement to Detective Jennifer Federico.
On cross-examination, K. was asked if, when she was in second and third grades, she always told her mother when she was hurt or injured. K. replied she had told her mother right away when she broke her thumb when she was little. K. knew the relationship between her aunt and defendant was not good. She was aware of difficulties in their relationship when she was in third grade because they would argue and not speak to each other. K. had never discussed the details of the case with her aunt or her mother.
K.'s mother (Mother) testified K. was the youngest of her three children. She owned a house that she rented to her sister, Sophia. Defendant moved in with Sophia at some point. Mother recalled K. would run from the house when Mother arrived to pick her up after being babysat, and she would ask her mother why it took her so long to arrive. K. would also say she did not like being without her parents around. More than once, K. left her backpack behind at the house. K. avoided defendant. Mother remembered the day K. told her defendant had sexually molested her. Mother had cried and yelled.
Sophia testified she was getting divorced from defendant at the time of trial. Sophia married defendant in 2004. K. was her youngest niece. In 2002, defendant had a job but he would miss work a lot, and he was let go a few months later. In 2003, defendant worked at a pallet company but hurt his back and claimed he could not work. Defendant wanted Sophia to check in with him in advance when she was coming home from work. Defendant told Sophia that K. was a crybaby and she was always complaining or crying. Sophia noticed K. seemed nervous around defendant, but she never saw him do anything inappropriate to K., and she did not think much of K.'s behavior at the time. Sophia found out defendant had children with two other women in Mexico and he was still married to one of them. Sophia was advised her marriage to defendant was invalid.
J.M. was 19 years old at the time of trial and was working for K.'s father. J.M. recalled defendant was often at the house when J.M. came home from school in second grade. Defendant had J.M. go outside to do chores, and he was not allowed back in the house again until defendant told him to come inside. This happened every day after school. J.M. recalled an incident when he was taking out trash, heard a strange noise, and saw a shadow in the garage area. J.M. could not find defendant or K. Afterwards, he saw K. come from a place she had no reason to be. J.M. asked K. if she was okay; she said she was. J.M. never saw defendant do anything inappropriate to K. and did not see defendant in the garage where he had seen K. come from that day.
Fresno County Deputy Sheriff John Erickson testified that on November 4, 2013, he was dispatched regarding a report of a prior molestation, and he interviewed K. alone. She told him after she would walk home from school, defendant would take her to a back bedroom away from her grandmother and molest her. Erickson notified the Fresno Police Department of the reported molestation because that agency had jurisdiction over the investigation.
Detective Federico was assigned to this case in November 2013. She questioned K. on November 18, 2013. After the questioning began, K.'s mother left and only Federico and Detective Neal Cooney were present with K. K. identified defendant from a photographic lineup as the person who had performed three different kinds of sex acts on her. Federico also spoke with J.M. and Sophia. The parties stipulated district attorney senior investigator Jesse Perez, if called to testify, would confirm he spoke with Mother on February 25th. Mother had stated that on one occasion she went to pick up K. at defendant's house, and K. ran out of the house ready to go. Furthermore, when Mother asked K. where her backpack was, K. said she did not need it and wanted to go home.
Margie Jessen, a Doctor of Nursing Practice as well as a registered nurse and the owner and founder of forensic nurse specialists, had testified as an expert about 50 times and had performed forensic exams on approximately 600 children. Dr. Jessen did a nonacute exam on K. on November 23, 2013. K. told Dr. Jessen there was penile penetration of her vagina and anus as well as oral copulation. Jessen made no positive physical finding at the exam; this was not surprising to Jessen. K.'s hymen was intact, and Dr. Jessen explained she has found the hymen intact in 95 percent of the exams she performs.
Accommodation Syndrome Testimony
David Love testified as an expert on CSAAS. Love had a graduate degree in psychology with a specialty in child sexual abuse and sexual therapy. He was the founder and executive director of Valley Community Counseling Services in San Joaquin County. Love was a part-time instructor at the UC Davis Medical Center, the University of the Pacific, and University of California, Los Angeles. Love had testified about CSAAS five or six times a year for 30 years. No information was given to Love concerning this case, he had not spoken to the victim or to any trial witnesses, and he had not read any reports or accounts of what happened.
Love explained the memory process of the brain. The brain encodes or stores memory. If one has an emotional experience, the brain encodes the feelings of anger, hate, and love accompanying the experience. Encoding takes place in the amygdala, the hippocampus, and the frontal cortex of the brain. Those areas of the brain can be underactive or overactive in people with different kinds of emotional or mental health disorders and retrieval of memory can be affected. One does not immediately remember everything that has happened during a lifetime, but there can be triggers to memory, like the cooking smells of turkey or menudo can recall "Christmas at grandma's house." Those would be examples of memories triggered by scent. Feelings and memories can be triggered by all of the five senses. This is the way the brain processes and keeps historical memory.
Love described accommodation syndrome as a collection of symptoms and behaviors describing common experiences and reactions among children who have been sexually molested. Love was part of the group of professionals who created the terminology used when describing accommodation syndrome. The symptoms of accommodation syndrome have five general categories. Not every child who is molested exhibits all five categories. The general categories are secrecy, helplessness, entrapment and accommodation, delayed conflicted and unconvincing disclosure, and retraction. He explained one in three females are molested or raped by the time they are 18 and so are one in five males.
According to Love, secrecy refers to the fact children often keep their molestation a secret for a long time. Love stated molesters evaluate children and groom them so they will keep a secret. Guilt imposed by the molester and by society also plays a role in children keeping the molestation secret. Victims often feel partially responsible for what happened to them.
The next category, helplessness, builds on secrecy. Ninety-four percent of molested children are molested by someone with whom they have a preexisting relationship. The molester's relationship presents a circumstance where the child is expected to be compliant, which sets up a power imbalance, and the children believe nobody would believe them if they were to disclose the abuse. The abuse tends to occur in environments where children would normally feel safe, such as their own home or church. The threat of loss of family often plays a significant role in the molested child's sense of helplessness. Trust also plays a role and is an element in the adult controlling the child.
Love stated entrapment and accommodation refer to how children feel trapped and will create coping mechanisms in order to live with the abuse without disclosing it. Love described common coping strategies children will use, such as engaging in avoidance behavior, running away from home, or disassociating—emotionally shutting down, so they are not mentally present when the molestation occurs. Children are unsophisticated and untrained, making it common for them to go along with the offender's conduct. Delayed, conflicted and unconvincing disclosure refers to the theory that delay in disclosing abuse is the norm for children. According to Love, 74 percent of children who have been sexually abused have not told anyone about it a year after the abuse. Love is suspicious of unproven, undocumented information because it can be the result of confabulation. When law enforcement questions a child about alleged sexual abuse, they will sometimes get only pieces of a story. If there are several interview sessions, each time the victim explains what happened is a triggering mechanism that helps the victim to remember more details about what happened than the previous account.
Usually a victim should remember more details in later interview sessions than during earlier ones. But if the interviewer keeps asking the child about a particular detail, such as the color of the shirt the victimizer was wearing, in later questioning sessions the witness can start to guess the color of the shirt because of the persistent questions about it. If the victimizer never owned a shirt of the color stated by the victim, and is not confronted by the interviewer about this fact, it can be a problem leading to a fabrication arising from a blank part of the data. This is confabulation. Children do not remember all the details of traumatic events.
Among the reasons children do not immediately disclose molestation are fear, confusion, and the lack of a person they trust. For each child, the safeties the child has and the people the child trusts are different and can be affected by the victimizer. Testifying as a witness is very stressful for most people. Love also explained retraction is normal and does not mean the abuse did not happen. The victims of abuse do not always think constantly about what happened to them. To survive, they often turn to disassociation. Abused children can develop disorders with diet, eating, and sleep. There can be a change in behaviors at school, or abuse of drugs and alcohol. A trigger in someone's life can kick in an emotion from the amygdala and associate it with an event in the hippocampus so the person can remember it. Love used the example of a child in a store who remembered a past bad event because a man in the store smelled like the child's abuser. This is a common occurrence with war veterans.
CSAAS is not a diagnostic tool but a way for clinicians to understand symptomatic behaviors. It is an educational tool and can rebut myths or disbeliefs about things in order to assist a child with trauma. Love acknowledged that one of the founders of CSAAS wrote an article in 1992 stating CSAAS was not a diagnostic tool and it was abused by defense attorneys and by prosecutors. The article explained CSAAS should not be used by defense attorneys to explain the facts did not fit so the alleged victim was not molested and also should not be used by prosecutors to argue the facts fit CSAAS so therefore the alleged victim was molested; CSAAS cannot be used as a diagnostic tool.
Love elaborated this point by explaining attention deficit hyperactive disorder (ADHD) is a clinical condition mental health professionals diagnose routinely. If a patient has a set of symptoms fitting into an ADHD pattern, the professional can fairly confidently make the correct diagnosis. A pattern of behaviors associated with a life circumstance such as retirement syndrome or battered women syndrome does not fall within a diagnostic category. Love further explained that just because someone displays certain behaviors does not automatically mean the person was sexually abused; it could be stress related. They are not diagnostic behaviors but symptomatic behaviors. At different ages or stages of development, abused children can act out with anger, use drugs or alcohol, get in trouble, run away from home, become bullies, or have problems in school.
DISCUSSION
I. Alleged Kelly/Frye Error
Introduction
Defendant contends the accommodation syndrome testimony was scientific in nature, violating the admissibility requirements set forth in Kelly and its progeny. Defendant argues the common misperceptions of child abuse victims the accommodation syndrome testimony is meant to counteract no longer exist. Because defendant believes the accommodation syndrome testimony failed to meet the requirements for the admissibility of scientific evidence, defendant further argues his due process rights were violated by this evidence. Defendant's argument that accommodation syndrome testimony is scientific in nature has been rejected by the California Supreme Court. We therefore do not find the Kelly requirements for admitting scientific evidence applicable to CSAAS testimony.
Analysis
California courts have long been willing to forgo admission of new scientific methods used to detect, analyze, or produce evidence absent a credible threshold showing that the pertinent scientific community no longer views the methods as experimental or of dubious validity. Kelly is only applicable to new scientific techniques. (People v. Leahy, supra, 8 Cal.4th at p. 605; People v. Webb (1993) 6 Cal.4th 494, 524; People v. Stoll (1989) 49 Cal.3d 1136, 1155-1156.)
Frye has been superseded in federal courts by the standard articulated by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 589-598, which makes widespread acceptance an important factor in ruling evidence admissible, but no longer requires general acceptance as an absolute prerequisite to admissibility. (Id. at pp. 588, 594.) Kelly/Frye remains the law in California. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 831, fn. 7, citing People v. Leahy (1994) 8 Cal.4th 587, 591, 593-604.)
The most obvious examples of new scientific methods involve machines or procedures that analyze physical data. Lay jurors may easily, but erroneously, assume such procedures are objective and infallible. Kelly/Frye has also been applied to less tangible procedures carrying an equally undeserved aura of certainty, like posthypnotic testimony of a rape complainant. The Kelly/Frye rule is not limited to techniques analyzing physical evidence. "[A]bsent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly/Frye." (People v. Stoll, supra, 49 Cal.3d at p. 1157.) Our Supreme Court has found prejudicial error in the exclusion of defense expert testimony on the psychological factors undermining the accuracy of eyewitness identification. (Ibid.; People v. McDonald (1984) 37 Cal.3d 351, 372-373, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 912-914.)
When an expert witness gives his or her testimony on the stand, jurors may temper their acceptance of such testimony "'with a healthy skepticism born of their knowledge that all human beings are fallible.'" (People v. Stoll, supra, 49 Cal.3d at p. 1157.) The Kelly/Frye rule has never been applied to expert medical testimony, even when the witness is a psychiatrist and the subject matter is as esoteric as the reconstitution of a past state of mind, prediction of future dangerousness, or the diagnosis of an unusual form of mental illness not listed in the diagnostic manual of the American Psychiatric Association. (Ibid.; see People v. McDonald, supra, 37 Cal.3d at pp. 372-373.) Use of psychological tests and the proffering of psychological testimony based on those tests raises none of the concerns addressed by Kelly/Frye. Such methods are not new to psychology or the law "and they carry no misleading aura of scientific infallibility." (Stoll, supra, at p. 1157.)
In People v. Bledsoe (1984) 36 Cal.3d 236, 246-247 (Bledsoe), the California Supreme Court considered whether a rape counselor's testimony concerning rape trauma syndrome was subject to the Kelly/Frye standard for admissible scientific evidence. In Bledsoe, the counselor testified the victim of a rape exhibited signs of rape trauma syndrome. The court noted rape trauma syndrome was at that time a recent concept. Bledsoe explained expert testimony on rape trauma syndrome could be particularly useful in disabusing the jury of widely held misconceptions about rape and rape victims, allowing the jury to evaluate the evidence free of the constraints of popular myths. (Bledsoe, supra, at pp. 247-248.) Bledsoe found, however, the expert's testimony was not introduced to rebut common misconceptions about the presumed behavior of rape victims, but instead "as a means of proving—from the alleged victim's post-incident trauma—that a rape in the legal sense had, in fact, occurred." (Id. at p. 248.)
Bledsoe found rape trauma syndrome was not devised to determine the truth or accuracy of a particular past event, distinguishing it from tests evaluated against the Kelly/Frye standard of reliability such as fingerprints, blood tests, voiceprints, or battered child syndrome. Instead, rape trauma syndrome was developed as a therapeutic tool to help identify, predict, and treat emotional problems experienced by the counselors' patients. The purpose of the tool was to teach therapists not to be judgmental of their patients in order to promote full disclosure by rape victims. Bledsoe noted that as a rule, rape counselors do not explore inconsistencies in their patients' descriptions of the facts of their incident, and there were no studies attempting to verify the truth of the patient's recollections to determine the legal implication of the factual accounts. (Bledsoe, supra, at pp. 249-250.) Bledsoe concluded rape trauma syndrome testimony was not admissible to prove a witness was actually raped. (Id. at p. 251.)
In People v. Bowker (1988) 203 Cal.App.3d 385, 388-390, a psychologist testified about a child victim of sexual abuse using the accommodation syndrome to explain inconsistencies in two children's testimony. This included testimony that it was important that young children between four to 12 years old be believed. The expert added that although children may give inconsistent versions of what happened to them, inconsistency is commonplace and should not invalidate a child's response. (Ibid.) The defendant's counsel requested the jury be admonished the psychologist was not being asked if the witnesses were telling the truth or if the children showing characteristics of accommodation syndrome were telling the truth. The trial court refused the request but advised the jury the expert was not expressing an opinion as to the children witnesses, had not examined the witnesses, and was not testifying as to whether the witnesses were molested. (Id. at p. 389.)
The court in Bowker noted the Supreme Court in Bledsoe applied Kelly/Frye to exclude expert psychological testimony based on rape trauma syndrome because it was not relied upon in the scientific community for the purpose the prosecution used it for—to show a rape actually happened. Instead, rape trauma syndrome was developed as a therapeutic tool, and this form of testimony failed the Kelly/Frye test. (People v. Bowker, supra, 203 Cal.App.3d at p. 391.) Bowker explained CSAAS had been found inadmissible to prove sexual abuse occurred or a particular witness was credible in several cases. (Id. at pp. 391-392)
Bowker concluded Bledsoe must be read to reject use of CSAAS evidence as a predictor of child abuse. Bowker reasoned it was one thing to say child abuse victims often exhibit certain characteristics or behavior not inconsistent with a child being molested, and quite another to conclude that where a child meets certain criteria, it can be predicted with a reasonable degree of certainty the child was abused. (Bowker, supra, 203 Cal.App.3d at p. 393.) Bowker nonetheless recognized Bledsoe permitted testimony targeting specific myths or misconceptions suggested by the evidence. (Id. at pp. 393-394.) To achieve this goal, Bowker found the evidence should be tailored to identify the myth the People seek to rebut, and the jury must be simply and directly instructed that the expert's testimony is not intended and should not be used to determine whether the victim's claim of molestation is true. (Id. at p. 394.)
The expert's testimony was problematic for multiple reasons identified by the Bowker court, but among the more serious was the expert constructed a scientific framework into which the jury could pigeonhole the facts of the case. Another concern raised in Bowker was the CSAAS testimony was given during the People's case-in-chief rather than during rebuttal. (Bowker, supra, 203 Cal.App.3d at p. 395.) Even though the trial court advised the jury not to use CSAAS testimony as a predictor of child abuse, the jury could superimpose the victims on the same theory and conclude abuse occurred. Given the strength of the People's case, however, Bowker concluded the expert's testimony was not the critical factor in establishing the defendant's guilt and any error was harmless. (Ibid.)
In People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, the Supreme Court reaffirmed its analysis in Bledsoe that expert CSAAS testimony is admissible to rehabilitate a witness's credibility when the defendant suggests conduct by the victim after the incident such as a delay in reporting is inconsistent with the victim's testimony claiming molestation. Such testimony can be useful to disabuse jurors of commonly held misconceptions about sexual abuse. The evidence is not admissible to show the witness was in fact sexually abused. (McAlpin, at p. 1301.) In McAlpin, an officer who investigated child molestation cases testified it was not uncommon for parents of abused children to delay reporting the abuse after they learned about it. He also testified there was no typical profile of child molesters and they came from all walks of life. The Supreme Court held this evidence was admissible. (McAlpin, at pp. 1302-1304.)
McAlpin noted "[m]ost jurors, fortunately, have been spared the experience of being the parent of a sexually molested child." (McAlpin, supra, 53 Cal.3d at p. 1302.) Lacking such experience and left with only their intuition and relevant evidence to guide them, it was reasonable for jurors to conclude the parent of a molested child would immediately report an incident to the authorities. Because the expert could provide a basis for the jury to not follow this kind of misconception, the evidence proffered by the prosecution was admissible under Evidence Code sections 210 and 801. (McAlpin, at p. 1302.) McAlpin cited with approval two appellate court cases holding CSAAS testimony, while not admissible to prove a molestation happened, was admissible to explain occurrences such as late reporting. (Id. at p. 1300; People v. Gray (1986) 187 Cal.App.3d 213, 217-220 [rejecting argument that CSAAS testimony was subject to Kelly/Frye scrutiny]; People v. Roscoe (1985) 168 Cal.App.3d 1093, 1097-1098.)
In a footnote, McAlpin cited several other cases accepting CSAAS testimony as long as it did not seek to prove molestation happened. Most of the cases cited by McAlpin rejected the applicability of Kelly/Frye to psychological CSAAS testimony. (McAlpin, supra, 53 Cal.3d at p. 1301, fn. 4; People v. Harlan (1990) 222 Cal.App.3d 439, 448-449 [rejecting application of Kelly/Frye to psychological testimony concerning late reporting based on psychologist's clinical experience]; People v. Stark (1989) 213 Cal.App.3d 107; 113-117 [CSAAS testimony]; People v. Bergschneider (1989) 211 Cal.App.3d 144, 158-160, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 1015, 1028; People v. Sanchez (1989) 208 Cal.App.3d 721, 732-736, disapproved on other grounds in People v. Jones (1990) 51 Cal.3d 294, 307 [rejecting application of Kelly/Frye to CSAAS testimony]; People v. Bothuel (1988) 205 Cal.App.3d 581, 587-589, disapproved on other grounds in People v. Scott (1994) 9 Cal.4th 331, 347; People v. Luna (1988) 204 Cal.App.3d 726, 733-737, disapproved on other grounds in People v. Jones, supra, at p. 305 [rejecting Kelly/Frye scrutiny of CSAAS testimony].)
As long as CSAAS testimony is not used to show sexual molestation actually happened, and is used for the limited purpose of disabusing a jury of misconceptions it might have about how a child reacts to molestation such as delayed reporting of the alleged molestation, the evidence is admissible and it is not subject to Kelly/Frye scrutiny. (People v. Wells (2004) 118 Cal.App.4th 179, 187-190.) The jury should be instructed the evidence is admissible solely for the purpose of showing the victim's reactions as demonstrated by the evidence and are not inconsistent with having been molested, and the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true. (People v. Housley (1992) 6 Cal.App.4th 947, 954-959.)
During cross-examination, defense counsel questioned K. about her awareness of problems in the relationship between her aunt and defendant. K. waited from the time she was in third grade until she was 16 years old and in high school before reporting defendant's molestation to her mother. Defense counsel emphasized this fact during cross-examination by asking K. whether she immediately reported physical injuries to her mother when she was younger. Defense counsel in closing argument also referred to the remoteness of the alleged molestation occurring in 2003. Late reporting of the incident was therefore placed at issue by defendant, and the People did not have to wait until rebuttal to introduce CSAAS testimony. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino).) The prosecution introduced CSAAS testimony not to prove K. was molested by defendant, but to explain why she delayed reporting the incidents and the psychology of late reporting. The expert CSAAS testimony here was not similar to inadmissible testimony in other cases cited by defendant involving scientific processes subject to Kelly/Frye evaluation.
David Love testified he did not review any of the facts of this case and explained CSAAS evaluation could not be used to diagnose molestation, only to treat symptoms. Love explained CSAAS could not be used to show a victim had been molested. The jury was instructed that Love's testimony concerning CSAAS was not evidence defendant committed any crime charged against him. CSAAS testimony was not used here improperly to prove K.'s charge of molestation. Thus, the concern noted in Bledsoe for improper use of unestablished scientific techniques to prove an event happened did not exist here.
Furthermore, the Kelly/Frye rule does not apply to psychological testimony, especially when such testimony is limited in scope to rebut a commonly held misconception about how a victim of abuse reacts afterward. According to defendant, all of the law enforcement programs on television demonstrate jurors do not have misconceptions about how victims of sexual abuse react after they are molested. Defendant also points out K. did not recant her testimony, one of the criteria evaluated in CSAAS.
There are several problems with these arguments. We cannot assume the average juror is familiar with "[h]undreds of episodes of Law and Order SVU." It is a further stretch for us to assume the average juror is acquainted with the psychology of child molestation victims, including that the delayed reporting of sexual abuse is not uncommon. There was a contested issue at trial concerning K.'s delay in reporting the defendant's molestation of her. Significant segments of Love's testimony touched on the psychology of late reporting, including memory recall triggers, accommodation, power advantages by adults, fear of losing family, and disassociation. All of these matters were at issue here. Love's testimony concerning retraction was a brief portion of his explanation of CSAAS and only served to explain CSAAS's five basic categories. It was not a central focus of his testimony.
Defendant cites People v. Robbie (2001) 92 Cal.App.4th 1075, 1086, footnote 1, which criticized the proposition that public misconceptions about sex offenders required expert testimony to challenge those misconceptions. The Robbie court, however, did not reach the issue of whether there are public misconceptions about sex offenders because in that case defense counsel did not object to the expert testimony. The observation by the Robbie court is obiter dictum and not stare decisis and therefore not binding on any court. (Ball v. Rodgers (1960) 187 Cal.App.2d 442, 449-450; Childers v. Childers (1946) 74 Cal.App.2d 56, 61-62 [there is no kinship between stare decisis and obiter dictum]; see Haight v. Joyce (1852) 2 Cal. 64, 66-67.) An appellate decision is not authority for everything said therein but only for the points actually involved and decided. (Association for Los Angeles Deputy Sheriffs v. Superior Court (2017) 13 Cal.App.5th 413, 443, review granted Oct. 11, 2017, S243855.) Furthermore, we do not find footnote 1 of Robbie to be persuasive.
Defense counsel even used Love's CSAAS testimony as a shield in her closing statements, arguing trauma could cause a false memory of sexual abuse and the lack of grooming or talking to K. by defendant did not fit the CSAAS profile. The impact of CSAAS testimony was not entirely to the People's advantage.
The use of CSAAS expert testimony here comes well within the permitted scope of psychological testimony not subject to the Kelly/Frye rule. Furthermore, the CSAAS testimony did not suggest the allegations of sexual abuse were true. Love clearly explained CSAAS was not diagnostic, and the limiting instruction to the jury made this point clear. There was no error in the trial court's ruling permitting CSAAS testimony.
II. Instruction on Jury Evaluation of CSAAS Testimony
Introduction
In pretrial motions, defense counsel requested that if the prosecution relied on CSAAS testimony, the court had a sua sponte duty to instruct the jury with CALCRIM No. 1193. The court instructed the jury with this instruction as follows:
"You have heard testimony from David Love regarding Child Sexual Abuse Accomodation [sic] Syndrome. David Love's testimony about Child Sexual Abuse Accomodation [sic] 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 [K.]'s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony."
Defendant contends the instruction impermissibly broadened the use of CSAAS testimony to enhance the believability of the victim's testimony, which in turn violates due process of law and a fair trial. Defendant argues the instruction goes beyond use for the limited purpose of determining whether the victim's actions were not inconsistent with molestation and allows the jury to use CSAAS testimony to corroborate claims of abuse. Defendant also argues he was deprived of his rights to due process and a fair trial. We reject these contentions and find no error in the trial court's use of the instruction.
Analysis
In Patino, supra, 26 Cal.App.4th 1737, this court noted CSAAS testimony could not be used to prove a molestation actually occurred. There, the defendant argued such testimony was prejudicial because it bolstered the victim's account of events and diminished the defendant's case, violating his constitutional rights to confront witnesses and to due process. Patino noted CSAAS testimony explained the state of mind of the complaining witness, and aspects of CSAAS were as consistent with true testimony as with false testimony. Such testimony must be used with caution by the trial court. Patino acknowledged CSAAS testimony was admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to molestation. (Id. at p. 1744.)
Patino observed that identifying a myth or misconception has not been interpreted as requiring the prosecution to expressly state on the record the evidence that is inconsistent with a finding of molestation. It is sufficient if the victim's credibility has been placed in issue due to paradoxical behavior, such as a delay in reporting molestation. (Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) Admission of CSAAS testimony during the prosecution's case-in-chief is not error as long as the victim's credibility has been placed at issue. (Id. at p. 1745.) Patino held the prosecution did not misuse CSAAS testimony during its case-in-chief because the complaining witness's credibility was at issue. (Id. at pp. 1745-1747.) Patino also found the defendant was not denied due process or the right to a fair trial by the use of CSAAS testimony. (Id. at p. 1747.)
Patino noted the trial court advised the jury with CALJIC No. 10.64. (Patino, supra, 26 Cal.App.4th at p. 1746.) Defendant asserts this instruction far better protects a defendant from a jury erroneously evaluating CSAAS testimony. We disagree with this assertion because CALJIC No. 10.64 informs the jury CSAAS testimony assumes molestation occurred, which is confusing at best and at worst directly contradictory to the trial court's instruction that CSAAS testimony is not to be used as proof the molestation happened. Defendant's argument was rejected in People v. Gilbert (1992) 5 Cal.App.4th 1372. Gilbert argued he should have an instruction stating CSAAS testimony assumes the molestation in fact occurred. This argument was based in part on proposed instructions discussed in Bowker. (People v. Gilbert, supra, at p. 1387; People v. Bowker, supra, 203 Cal.App.3d at pp. 393-394.) Gilbert analyzed the issue as follows:
CALJIC No. 10.64 was set forth as follows in Patino: "'A witness has given testimony relating to the child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim's molestation claim is true. Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt. Thus, you may consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim's reactions, as demonstrated by the evidence, are not inconsistent with her having been molested.'" (Patino, supra, 26 Cal.App.4th at p. 1746, fn. 2.)
"As part of its final instructions to the jury, the court said 'you are reminded that testimony of Dr. Everstine was offered and may be considered by you only for the purpose of understanding and explaining the behavior of one or more of the alleged victims in this case, and not as proof that the molestation occurred as to any one or more of the alleged victims.'
"Gilbert complains that these instructions did not advise the jury that evidence of this kind 'assumes that a molestation has in fact occurred and that the complaining witnesses['] reactions were common explanations of a factual event,' and therefore the jury was allowed to use the evidence 'without being fully instructed that this evidence is premised on a molestation having in fact occurred.'
"There was no error. Gilbert's argument is based on explanatory language, in Bowker, which in our view was patently intended to make the opinion clear to the attorney or judge who read it and not to be incorporated (at least in the unelaborated form Gilbert suggests) in an instruction to the jury. The instructions the trial court gave were clear, accurate, and sufficient. We would consider it unnecessary, and potentially confusing and misleading, to add the language Gilbert proposes." (People v. Gilbert, supra, 5 Cal.App.4th at p. 1387.)
The Gilbert court's analysis is persuasive, especially its finding that CALJIC No. 10.64 informs the jury CSAAS presumes the claim of molestation is true. As Gilbert observed, this is potentially confusing and misleading.
Defendant reads CALCRIM No. 1193 in isolation, ignoring the other instructions clarifying how the jury is to evaluate the believability of witnesses. The trial court's instructions included CALCRIM No. 220, the reasonable doubt instruction, which included the presumption of the defendant's innocence and the People's burden of proof. The instructions also included CALCRIM No. 226, which explained how the jury was to judge the credibility or believability of witnesses while deciding if the testimony is true and accurate.
The jury was also instructed with an elaborated version of CALCRIM No. 303:
"During the trial certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and no other. And at the time that evidence came in, I mentioned it to you that you can only use it for a certain purpose, and I believe that was testimony that the statement wasn't offered to prove the truth of the statement, just for the impact on the person they we're [sic] talking about."
The jury was specifically instructed with CALCRIM No. 332 on the limitation of use of expert testimony:
"A witness was allowed to testify as an expert and to give opinions. You must consider the opinions but you are not required to accept them as true or correct.
"The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reason the expert gave for the opinion, and the facts and information in which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.
"An expert may be asked a hypothetical question. A hypothetical question asked a witness to assume certain facts are true and give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the affect [sic] of the expert's reliance on that fact and evaluate the expert's opinion."
The trial court must instruct the jury on the law applicable to the case. The proper test for judging the adequacy of instructions is to decide whether the trial court fully and fairly instructed on the applicable law. On appeal, we consider the instructions as a whole. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) In addition to the standard instructions on burden of proof and evaluation of witness testimony, the jury was instructed on how to evaluate expert David Love's opinion as well as how to evaluate evidence admitted for a limited purpose. Jurors are instructed to consider the instructions together. Jurors are presumed to understand, correlate, and follow the court's instructions. (People v. Johnson (2015) 61 Cal.4th 734, 770; People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Hernandez (2010) 181 Cal.App.4th 1494, 1502.)
Defendant argues CALCRIM No. 1193 runs afoul of his due process and fair trial rights because CSAAS testimony can be used "in evaluating the believability of [K.'s] testimony." Defendant's point that CALCRIM No. 1193 impermissibly broadened the scope of CSAAS testimony is unconvincing. The challenged language does not state or imply K.'s testimony is more believable because of CSAAS evidence. It merely states CSAAS testimony can be used in evaluating K.'s believability as a witness. This is the current state of the law. The instruction correctly states the law, especially on the fundamental point that CSAAS evidence cannot be used to determine the reported molestation actually happened. The jury received full and legally accurate instructions. Defendant was not deprived of due process or a fair trial.
III. Alleged Prosecutorial Misconduct
Introduction
The trial court overruled defense counsel's objection to the prosecutor using a picture of injuries he sustained after he jumped into a shallow pool and then comparing his injuries to those K. suffered. Defendant argues this constituted prosecutorial misconduct because the prosecutor argued facts not in evidence and defendant could not confront and cross-examine the prosecutor. Defendant also argues the prosecutor's argument improperly vouched for the complaining witness. Defendant contends the misconduct deprived him of his rights to due process as well as a fair trial. Although this tactic was a questionable one, it was harmless.
During the prosecutor's closing argument, he posited defendant likely did not fully penetrate K.'s vagina or anus with his penis due to her young age, the risk of bleeding, and a greater likelihood his conduct would be discovered. Defense counsel argued Dr. Jessen made no findings of physical trauma to K. Counsel emphasized the long passage of time since the alleged incidents and further noted that if nothing happened at all, there was nothing to show. During the prosecutor's rebuttal argument, he sought introduction of a photograph of himself after he suffered a facial injury from jumping into a shallow pool. An unreported conference occurred between the judge and the parties out of the presence of the jury. The parties have conferred during the pendency of this appeal and prepared a settled statement of this conference.
In the settled statement prepared for this appeal, the trial court noted defense counsel objected to the introduction of the photograph. The court observed during defense counsel's argument, she referred to the lack of physical injury to K. as evidence the molestation did not happen. Defense counsel also used slides during her closing argument to refer to the concept of reasonable doubt.
The court ruled the prosecutor could argue the lack of visible injury was not evidence the molestation did not occur either because the molestation did not cause injury or any injuries healed with the passage of time. The court ruled the prosecutor could use the photograph of himself as a demonstrative aid during rebuttal, but placed conditions on its use. The prosecutor was prohibited from using the photograph to argue whether the victim did or did not heal. He was prohibited from using the photograph to argue any injury to the victim did in fact heal. Finally, the prosecutor was limited to using the photograph to argue the existence or nonexistence of injuries was of little value in determining whether the alleged molestation occurred, and for the unremarkable argument that any injury inflicted could have healed given the significant passage of time. The photograph was projected on a screen for approximately 15 to 30 seconds. The photograph was included in the settled statement along with defense counsel's projections depicting reasonable doubt.
Prior to the prosecutor's rebuttal argument, the trial court instructed the jury: "Ladies and gentlemen, both counsel are using photographs that are not evidence in the case, of Elvis and other things. This photograph is also not evidence. It is just giving you an illustration. Don't use it for any purpose."
The prosecutor continued his argument, pointing to the picture of himself and highlighting the purplish tint on the teeth, as well as the bloodshot, watery eyes. Referring to himself as an idiot, the prosecutor said that while at a friend's spa connected to a pool, he assumed the spa was the same depth as the pool. He jumped in, causing the injuries visible in the photograph. The prosecutor said he was showing the photograph to the jury for two reasons: "One, don't do that. Number two, your body heals. This happened two-and-a-half years ago, maybe three this summer, and it is on the face—" Defense counsel's objection on the ground these facts were not in evidence was overruled.
The prosecutor continued, noting defense counsel wanted to argue "the forensic exam was normal and therefore something was askew with that, and let's keep in mind that this is an injury ... that occurred 11 years ago. It wasn't to a face. It was to a young child. It was to a vagina, to an anus. A vagina is a lot different obviously than a face. It has elasticity that was testified to, it has blood vessels, that's what the body does. And as Dr. Jessen told you, findings is—because there was no findings does not mean molestation didn't occur."
The prosecutor reviewed Dr. Jessen's testimony that of the 600 examinations she had performed on children, 96 percent had no findings. The prosecutor reminded the jury Dr. Jessen had noted there was a five-day window forensic examiners need to do an examination, and 11 years had passed here. The prosecutor told the jury Dr. Jessen had referred to an article published in a professional journal that had studied 36 adolescent rape victims who became pregnant and 34 of them still had intact hymens. The prosecutor argued this did not mean they had not been not raped.
Analysis
During argument to the court or the jury, advocates are given significant leeway in discussing the legal and factual merits of a case. Generally, however, it is improper for the prosecutor to misstate the law, and particularly to attempt to absolve the prosecution from its obligation to overcome reasonable doubt on all of the elements of the charged offense. Bad faith by the prosecutor is not necessary to establish this error. To the extent it suggests a prosecutor must act with a culpable state of mind, the term "prosecutorial misconduct" is a misnomer. (People v. Centeno (2014) 60 Cal.4th 659, 666.)
A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct. Reversal under the federal Constitution is necessary only when these methods infect the trial with such unfairness as to make the resulting conviction a denial of due process. (People v. Salcido (2008) 44 Cal.4th 93, 152, citing Darden v. Wainwright (1986) 477 U.S. 168, 181.) A prosecutor's conduct not rising to the level of a constitutional violation is misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that can be drawn from the evidence. (People v. Ledesma (2006) 39 Cal.4th 641, 726.)
Referring to facts not in evidence during closing argument is misconduct. (People v. Kirkes (1952) 39 Cal.2d 719, 721-724 [prosecutor told jury he would not prosecute someone whom he did not believe to be guilty and referred to facts not in evidence that could have been presented].) Prosecutors may illustrate their arguments using common experience, history, or literature, even if such illustrations refer to matters not in evidence. (People v. Harrison (2005) 35 Cal.4th 208, 248 [biblical references can be proper literary allusion]; People v. Sandoval (1992) 4 Cal.4th 155, 193 [biblical reference a fair response to defense counsel's argument].)
The prosecutor's use of the photograph of himself after he sustained an injury to his face to illustrate the healing process was questionable. Whether the prosecutor's use of the photograph was misconduct is close. However, the trial court's restrictions on its use and the admonition to the jury to not consider the photograph as evidence but only as an illustration could cure any error. (See People v. Visciotti (1992) 2 Cal.4th 1, 80.) Any reasonable jury would understand the trial court's admonition and not consider the photograph to be evidence in the case. Furthermore, the prosecutor did not personally vouch for K.'s credibility beyond making permissible arguments during closing arguments. The prosecutor did not say or imply he had any personal knowledge of any witness's credibility or knew of matters not presented to the jury that would support the testimony of the witnesses.
Assuming arguendo the prosecutor's use of the photograph with reference to his own healing process was misconduct, a defendant's conviction will not be reversed for such misconduct unless it is reasonably probable a result more favorable to the defendant would have been reached without the misconduct—the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Crew (2003) 31 Cal.4th 822, 839; People v. Barnett (1998) 17 Cal.4th 1044, 1133.) Reversal is required only if, when the challenged comments are viewed in the context of the prosecutor's entire argument, there is a reasonable likelihood the jury understood or applied them in an improper or erroneous manner. In conducting this inquiry, reviewing courts do not lightly infer the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. (People v. Wilson (2005) 36 Cal.4th 309, 337-338; People v. Reyes (2016) 246 Cal.App.4th 62, 77-78.)
If the prosecutor had only referred to his own injuries and healing during rebuttal, the potential for misunderstanding by the jury would be far greater. This did not happen here because the prosecutor, after briefly drawing a comparison to himself, focused quickly on the testimony of Dr. Jessen. Dr. Jessen referred to a published clinical report about pregnant adolescent rape victims who later showed no signs of tearing to their hymens. Dr. Jessen's testimony was presented at trial and was the subject of proper argument by the prosecutor. The prosecutor's physical injuries were to his face. There is very little likelihood the jury confused or conflated the prosecutor's experience with what happened to K.
Furthermore, the trial court instructed the jury with CALCRIM No. 222. This instruction unequivocally advises the jury to consider only the testimony of witnesses and admitted exhibits as evidence, and that nothing the attorneys say is evidence. The instructions given clearly and unambiguously instructed the jury to disregard the prosecutor's use of the photograph as evidence. Jurors are credited with intelligence and common sense. We presume they generally understand and follow the instructions. (People v. McKinnon (2011) 52 Cal.4th 610, 670; People v. Holt (1997) 15 Cal.4th 619, 662.)
In relevant part, the jury was instructed as follows with CALCRIM No. 222:
"'Evidence'" is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else [the court] told you to consider as evidence.
"Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence."
Defendant has failed to establish it is reasonably probable a result more favorable to him would have been reached without the alleged prosecutorial misconduct. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Crew, supra, 31 Cal.4th at p. 839; People v. Barnett, supra, 17 Cal.4th at p. 1133.) Reversal under the federal Constitution is necessary only when the conduct infects the trial with such unfairness as to make the resulting conviction a denial of due process. (People v. Salcido, supra, 44 Cal.4th at p. 152, citing Darden v. Wainwright, supra, 477 U.S. at p. 181.) The prosecutor's use of the photograph did not deprive defendant of due process or a fair trial.
IV. Cumulative Error
Where, as here, defendant's assignments of error are rejected, there is no cumulative error. Assuming that there was prosecutorial misconduct during rebuttal argument, this was found to be harmless. There was, therefore, no prejudicial error to accumulate. (People v. Hensley (2014) 59 Cal.4th 788, 818; see People v. Jenkins (2000) 22 Cal.4th 900, 1056; People v. Bradford (1997) 15 Cal.4th 1229, 1382; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
V. No Contact Order
At the time of trial, K. was 18 years old. At sentencing, the trial court ordered defendant not to have contact with K. pursuant to section 1202.05. The parties agree this was error because section 1202.05 authorizes a no contact order on a defendant where the victim is under 18 years old. Where the victim is 18 years old, the statute does not authorize a no contact order. (People v. Scott (2012) 203 Cal.App.4th 1303, 1323.) The clerk's minutes from the sentencing hearing and the abstract of judgment do not refer to the court's no contact order, which appears only in the reporter's transcript of the sentencing hearing.
VI. Clerical Error
Clerical error can be corrected at any time, including on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705.) The abstract of judgment states the crime occurred in the year 2013. The parties agree this is clerical error and the offense occurred in 2003. This case is remanded to amend the abstract of judgment to correct this mistake.
DISPOSITION
The trial court's no contact order is stricken. The case is remanded for the trial court to amend the abstract of judgment to reflect defendant's offense was committed in 2003. The trial court shall forward the abstract of judgment to the appropriate authorities. The judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.