Opinion
A148349
04-12-2018
THE PEOPLE, Plaintiff and Respondent, v. ANGEL DE JESUS MARROQUIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51425552)
Defendant Angel Marroquin was convicted of five counts of committing a lewd act (Pen. Code, § 288, subd. (a)) and one count of committing an aggravated lewd act (§ 288, subd. (b)) with a 12-year-old girl (Jane). On appeal, defendant challenges only his conviction on the aggravated count. He contends: (1) the court erred in failing to instruct on unlawful sexual intercourse (§ 261.5, subd. (c)) as a lesser included offense; (2) there is no substantial evidence of force or duress to support the jury's verdict; (3) CALCRIM No. 1111, which instructs the jury that consent is not a defense to the charged crime, violated his rights to due process, to present a defense and to trial by jury; and (4) the admission of expert testimony on child sexual abuse accommodation syndrome violated his rights to due process and trial by jury. We find no prejudicial error and shall affirm the judgment.
All statutory references are to the Penal Code unless otherwise noted.
Factual and Procedural Background
Defendant was charged by amended information with one count of aggravated sexual assault of child - rape (§ 269, subd. (a)(1); count 1), one count of aggravated sexual assault of child - digital penetration (§ 269, subd. (a)(5); count 2), five counts of aggravated lewd act on a child under 14 (§ 288, subd. (b)(1); counts 3, 4 5, 8, and 9), and two counts of lewd act on a child under 14 (§ 288, subd. (a); counts 6 and 7).
The information charged defendant only under the general terms of the statutes. In response to a request for clarification by the jury, the court instructed the jury that count 3 refers to digital penetration, count 4 refers to the allegation that defendant touched Jane's breasts, count 5 refers to the allegation that defendant kissed Jane on March 31, count 6 refers to the allegation that defendant kissed Jane at the quinceanera, count 7 refers to the second alleged kiss at the quinceanera, count 8 refers to the rape alleged under count 1, and count 9 refers to the allegation that defendant digitally penetrated Jane a second time on March 31.
The following evidence was presented at trial.
Jane testified that she met defendant in November or December 2012 when she was 12 years old. He was a friend of her mother's boyfriend, and would sometimes visit. In March 2013, Jane "started getting feelings for him like not as a friend but as something else." Defendant was sweet to her, called her pretty, and complimented her hair. Around that time, they began texting each other. When defendant texted that he loved her, she responded "Oh, I love you too." He replied: "I don't love you as a friend, ... cousin . . . , [or] sister. I love you as something else. I guess you can imagine."
Two or three days later they both attended a quinceanera. In texts beforehand defendant asked Jane if she wanted to be his partner for the party. She agreed but added she wanted to go with her mother. At the party, defendant sat next to her. When he touched his hand to her thigh she moved it away. Later, defendant followed her outside and kissed her. She kissed him back, and then he hugged her and said she looked pretty. She felt happy, special, and excited. She testified they snuck a kiss on a second occasion while out to dinner with defendant and her mother. (1RT 95-96.)
On March 24, 2013, defendant asked Jane to send him a "sexy" selfie. The following texts then were exchanged: Defendant: "I feel like making love to you, you know."; Jane: "And why don't you go ahead and do it?"; Defendant: "Because you don't want to."; Jane: "And who told you I don't want to?"; Defendant: "You, love. Oh love, you said no, and I respected you."; Jane: "Okay, and what would have happened if I had not told you to stop?"; Defendant: "Oh, what wouldn't I have done to you?"; Jane: "I don't want you to respect me that much anymore, baby."; Defendant: "Oh my love, but I have to respect you."; Jane: "No, don't do it anymore."; Defendant: "Are you sure, baby?"; Jane: "Yep." At the conclusion of the texts, defendant reminded Jane to delete the messages.
Over the course of the next few days, defendant and Jane exchanged additional texts discussing whether Jane wanted to have intercourse with defendant and when they could meet.
On March 30, she and defendant arranged to go shopping together. In his living room, defendant started hugging and kissing her and trying to touch her. She wanted to kiss him, but felt it could lead to having sex, which she did not want to happen. She testified that although she and defendant had exchanged texts regarding sex, she did not want to have sex with him that day. She explained, "I had feelings for him, and I felt . . . attraction towards him. And . . . I wanted to know what it was to have sex, and . . . it was easy for me to tell him that I wanted to have sex with him. [¶] And when he took me to his apartment and . . . he was planning to have sex with me, I didn't want to. [¶] . . . [¶] I wasn't ready." As he was hugging her he was "kind of pushing her while walking her to his room. Once there, she said, "No," to make him stop. He said, "Well, if you are not going to have sex with me, I'm going to tell your mom we kissed." That scared her because she did not want her mother to be mad at her.
Jane testified defendant touched her breasts over and under her clothes and pushed her to his bed. She fell to his bed, she testified, and when she tried to stand, he pushed her again. As he got on top of her she was crying and telling him to stop. He took off her clothes and grabbed her so she ended up on top of him. She testified he digitally penetrated her and then had intercourse with her. She said stop repeatedly and was crying by the end of the incident.
Afterwards, defendant drove to a hospital pharmacy where he purchased "Plan B" medication and told her to take it so she would not get pregnant. Then they stopped at Marshalls to buy a shirt before defendant dropped her at her home.
That evening, Jane and defendant attended a party with her family and friends. In the month that followed, Jane sent defendant numerous texts saying she loved him and numerous texts indicating that she wanted to have intercourse with him again.
Jane's mother discovered the texts on May 1. Her mother told her that defendant did not really like her, because he had lied to her about not having a girlfriend. Any feelings she had for defendant disappeared at that point.
Defendant was interviewed by police on May 2. A tape recording of his interview was played for the jury. Defendant acknowledged having sex with Jane. He thought she was 14 or 15 years old, but after they had sex learned she was 12 years old. He claimed that Jane wanted them to date, to be girlfriend and boyfriend. He told police that one day she called him and texted him asking him to pick her up at the store and she wanted to see him. He guessed she wanted to talk about sex. When he picked her up, she said she wanted to be with him alone and he could take her wherever he wanted. At his house she started kissing him. He admitted "the body is weak." When she suggested they go to his bed, he took her to his room and she lay on the bed. She asked him to join her. They kissed. She touched his penis inside his pants. She pulled down her own pants and underwear. They both pulled down his pants. He denied touching her breasts. He denied he put his fingers inside her vagina, but agreed he touched her vagina outside of her clothes. He denied telling Jane that he was going to tell her mother that she was not a good girl. He told the officers Jane asked him to get the Plan B pill saying she was taking a class on sex and that the pill would prevent her from getting pregnant. He knew if she did become pregnant he would go to jail for getting involved with a minor. Defendant denied kissing Jane at the party for quinceanera.
Dr. Anthony Urquiza, licensed psychologist and professor in the Department of Pediatrics at UC Davis Medical Center, testified for the prosecution as an expert on child sexual abuse accommodation syndrome (syndrome). He explained that the syndrome is not a process for determining whether somebody is guilty or innocent, but is an educational tool developed for therapists to explain to how children respond to sexual abuse so that can better treat the sexually abused child and educate the child's parents. The syndrome explains the "common characteristics and . . . those dynamics that drive those common characteristics to dispel any misperceptions or myths that those therapists had so they have a better understanding of what goes on in abusive relationships."
The jury found defendant not guilty of the crimes and lesser-included offenses charged in counts 1, 2 and 4. On counts 3, 5, 6, 7 and 9 the jury found defendant not guilty of an aggravated lewd act on a child under 14, but guilty of a nonforcible lewd act on a child. On count 8, the jury found defendant guilty as charged of an aggravated lewd act. As to counts 8 and 9 the jury also found that defendant had substantial sexual contact with Jane.
Defendant was sentenced to the midterm of eight years on count 8, and to a consecutive term of two years on count 6. The court imposed concurrent terms of six years on counts 3, 5, 7 and 9. Defendant timely filed a notice of appeal.
Discussion
1. Any error regarding the court's alleged failure to instruct on unlawful sexual intercourse was harmless.
A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts alleged in the accusatory pleading, include all the elements of the lesser offense, so that the greater cannot be committed without also committing the lesser. (People v. Smith (2013) 57 Cal.4th 232, 240; People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5.) A trial court must instruct sua sponte on any lesser included offense "which find[s] substantial support in the evidence." (People v. Breverman, supra, 19 Cal.4th at p. 162.)
Defendant contends that under the accusatory pleading test, section 261.5, subdivision (c) (sexual intercourse with a person under the age of 18 by one more than three year older) is a lesser included offense of the offense charged in count 8, violation of section 288, subdivision (b)(1) (lewd touching committed with the use of force, fear or duress). He notes that while the amended information charged him only in general terms with a violation of section 288, subdivision (b), the record establishes that the lewd touching to which count 8 was intended to refer was the same act of sexual intercourse alleged as the basis of the rape charge in count 1. Defendant points to (1) the prosecutor's statements, made in support of the request to amend the information, that counts 8 and 9 were "intended to be alternative charges to counts 1 and 2" and that "if there is a conviction on all those counts, they could be 654'd to one another" and (2) the court's instruction to the jury that "count 8 refers to the same conduct alleged in count 1 (rape)." Citing People v. Ortega (2015) 240 Cal.App.4th 956, 970, defendant argues the accusatory pleading test is not to be applied narrowly so as "to allow the prosecutor, by controlling the language in the charging document, to also control whether the jury considers that lesser offense." According to Ortega, "evidence adduced at the preliminary hearing must be considered in applying the accusatory pleading test when the specific conduct supporting a holding order establishes that the charged offense necessarily encompasses a lesser offense." (Id. at p. 967.) Although defendant's argument does not rely on testimony at the preliminary hearing, the reasoning in Ortega would seem to apply equally here, given the explicit acknowledgment of the specific conduct to which count 8 referred.
Defendant acknowledges that section 261.5, subdivision (c) is not a lesser included offense to section 288, subdivision (b)(1) under the statutory elements test. To prove that a defendant is guilty of a violation of section 288, subdivision (b)(1), the People must prove that (1) "The defendant willfully touched any part of a child's body either on the bare skin or through the clothing"; (2) "In committing the act, the defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else"; (3) "The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child"; and (4) "The child was under the age of 14 years at the time of the act." (CALCRIM No. 1111.) To prove a defendant is guilty of unlawful sexual intercourse with a minor in violation of section 261.5, subdivision (c), the People must prove that (1) "The defendant had sexual intercourse with another person"; (2) "The defendant and the other person were not married to each other at the time of the intercourse"; and (3) "At the time of the intercourse, the other person was under the age of 18 and more than three years younger than the defendant." (CALCRIM No. 1071.)
We therefore assume that the court had a sua sponte obligation to instruct on unlawful sexual intercourse as a lesser included offense in this instance and that the court erred in failing to give it. Nonetheless, even on this assumption, the failure to do so was harmless. We review the failure to instruct on a lesser included offense for prejudice under the Watson standard. (People v. Breverman, supra, 19 Cal.4th at p. 178; People v. Watson (1956) 46 Cal.2d 818, 836.) Accordingly, reversal is required only if, " 'after an examination of the entire cause, including the evidence' [citation], it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred." (Ibid.) A " 'probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)
Defendant argues that if the jury had been offered the option of the lesser crime of unlawful sexual offense under section 261.5, subdivision (c), it is reasonably probable jurors would have concluded he was guilty only of that lesser count. He contends it "is possible that jurors chose aggravated lewd act out of a belief that [he] should be punished for engaging in sexual intercourse with a 12-year-old girl. Instructing on the lesser included offense of unlawful sexual intercourse (§ 261.5(a) and (c)) would have satisfied this perceived vacuum."
The argument fails because the jury was instructed on another lesser offense, which it rejected, clearly indicating that it would not have found defendant to have committed only the section 261.5, subdivision (c) offense. The jury was instructed on both section 288, subdivision (b)(1) (lewd touching committed with the use of force, fear or duress) and the lesser included offense of violation of section 288, subdivision (a) (lewd touching absent those aggravating factors). The jury rejected the lesser offense, opting to convict defendant of the aggravated offense under section 288, subdivision (b). The crime of unlawful sexual intercourse under section 261.5, subdivision (c) would have been a lesser offense to a violation of section 288, subdivision (a). The jury, having rejected the lesser offense under section 288, subdivision (a) and convicted on the greater offense under section 288, subdivision (b), cannot be expected to have convicted him of the still lesser offense under section 261.5, subdivision (c) had that option been included in the instructions.
2. Substantial evidence supports the jury's verdict under section 288 , subdivision (b).
Defendant argues that Jane's "testimony that [he] used force and duress to overcome her will is so implausible that his count 8 conviction violates due process and cannot be upheld." The implausibility contention rests in large part on uncontroverted evidence that prior to the acts in question Jane sent emails to defendant explicitly stating her desire to engage in sexual intercourse with him and subsequent to those acts emailed her desire to spend more time with defendant. Defendant's argument continues, "Confirming its inherent improbability, the jury necessarily rejected her testimony that force and duress were used on the six other counts including sexual intercourse and related intimate acts. (Counts 1, 2, 3, 4, 5, and 9.) As a result of the testimony's inherent improbability and the absence of any substantial evidence that sexual intercourse was accomplished by force and duress, appellant's conviction on count 8 violates due process and cannot be upheld."
Initially, even if there were an inconsistency between the verdicts under counts 1 and 8, that would provide no basis for reversing the conviction under count 8. (People v. Miranda (2011) 192 Cal.App.4th 398, 405.) In all events, the verdicts are not inconsistent. A rape is committed under section 261, subdivision (a)(2), where intercourse is "accomplished against a person's will" by means of force or duress. Section 288, subdivision (b), on the other hand, requires only that the lewd act be accomplished by use of force or duress. The statute does not require that the act be accomplished against the child's will. Thus, to find defendant guilty under count 8, the jury was not required to find that defendant used force or duress to overcome her will. Given this distinction, the jury could acquit defendant on count 1, having found the evidence insufficient to establish a lack of consent, but convict under count 8, having found sufficient evidence that the intercourse was accomplished by force or duress.
To find that defendant raped Jane, the jury was required to find, among other things, that Jane did not consent to the intercourse. (CALCRIM No. 1000.) The jury was instructed that "To consent, a girl must act freely and voluntarily and know the nature of the act. [¶] A girl who initially consents to an act of intercourse may change her mind during the act. If she does so, under the law, the act of intercourse is then committed without her consent if: [¶] 1. She communicated to the defendant that she objected to the act of intercourse and attempted to stop the act; [¶] 2. She communicated her objection through words or acts that a reasonable person would have understood as showing her lack of consent; [¶] AND [¶] 3. The defendant forcibly continued the act of intercourse despite her objection. [¶] . . . [¶] Intercourse is accomplished by force if a person uses enough physical force to overcome the girl's will. [¶] . . . [¶] The defendant is not guilty of rape if he actually and reasonably believed that the girl consented to the intercourse and actually and reasonably believed that she consented throughout the act of intercourse. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the girl consented. If the People have not met this burden, you must find the defendant not guilty." In contrast, the find that defendant committed an aggravated lewd act based on the same act of intercourse, the jury was instructed that "[i]t is not a defense that the child may have consented to the act." (CALCRIM No. 1111.)
In People v. Soto (2011) 51 Cal.4th 229, 243, the court explained, "A perpetrator may use duress, menace, or threats against a victim even if this conduct does not ultimately influence the victim's state of mind. In the context of lewd acts with a child under 14, it is the defendant's menacing behavior that aggravates the crime and brings it under section 288(b)." The court continued, "the legal definition of duress is objective in nature and not dependent on the response exhibited by a particular victim. In People v. Leal [(2004)] 33 Cal.4th 999, we held that 'duress,' as used in section 288(b)(1), means ' "a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." ' [Citations.] Because duress is measured by a purely objective standard, a jury could find that the defendant used threats or intimidation to commit a lewd act without resolving how the victim subjectively perceived or responded to this behavior. Consistent with the language of section 288 and the clear intent of the Legislature, the focus must be on the defendant's wrongful act, not the victim's response to it." (Id. at p. 246, fns. & italics omitted.) " 'While the fact that the victim actually consents to a lewd act might render the use of force unnecessary, the victim's actual consent does not eliminate the fact that the defendant actually uses violence, compulsion or constraint in the commission of the lewd act, nor does the victim's consent diminish the defendant's culpability or immunize the defendant from suffering the penal consequences that arise from a forcible lewd act.' " (Id. at p. 245; see also People v. Garcia (2016) 247 Cal.App.4th 1013, 1023-1024.)
Here, Jane testified that defendant pushed her on to the bed and threatened to tell her mother about their prior kisses if she did not have intercourse with him. Contrary to defendant's argument, this testimony was not inherently implausible. "The inherently improbable standard addresses the basic content of the testimony itself—i.e., could that have happened?—rather than the apparent credibility of the person testifying. Hence, the requirement that the improbability must be 'inherent,' and the falsity apparent 'without resorting to inferences or deductions.' [Citation.] In other words, the challenged evidence must be improbable ' "on its face" ' [citation], and thus we do not compare it to other evidence (except, perhaps, certain universally accepted and judicially noticeable facts). The only question is: Does it seem possible that what the witness claimed to have happened actually happened?" (People v. Ennis (2010) 190 Cal.App.4th 721, 729.) Here, there is no doubt that the conduct described by Jane could have happened. Although her communications with defendant before and after the act weigh on the credibility of her testimony regarding force and duress, the jury was entitled to weigh that evidence and apparently found her testimony credible. The conduct described by Jane is clearly sufficient to support the jury's finding of force or duress. Moreover, because the threat was made solely with respect to intercourse, the evidence supports the jury's selection of the aggravated offense on count 8 and explains the failure to find similar aggravation on the remaining counts.
3. CALCRIM No. 1111 is a correct statement of the law.
Defendant contends that the court's instruction "that consent is not a defense to the charged lewd act by means of duress violated [his] rights to present a defense and trial by jury. (6th & 14th Amends.)" He acknowledges that in Soto, supra, 51 Cal.4th 229, the California Supreme Court upheld the challenged instruction (CALCRIM 1111). We are bound to follow that ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) Accordingly, the argument is preserved but not entitled to further discussion.
Defendant also contends the court's instructions failed to sufficiently explain "how to apply the duress definition where consent is a defense (count 1) and how to apply the same definition where consent is not a defense [(count 8)]." Defendant did not request a modifying instruction nor has he explained what additional instruction should have been given. He argues that "the court's failure to instruct sufficiently to explain the law of duress resulted in a fundamentally unfair trial by creating at least three different views about the ability of consent to negate duress—either rendering duress unnecessary; or taking the minor's circumstances into consideration, including her consent; or having no role at all." We disagree. If the jury applied an objective standard and focused on the effect of defendant's threat on a reasonable child in Jane's circumstances, it followed the instructions and the law as set forth in Soto. In that event, the failure to have provided clarifying instructions was not prejudicial. If, as defendant suggests, the jury applied a subjective standard and considered whether Jane consented, the jury incorrectly added an element necessary to convict, but the error would have benefitted rather than prejudiced the defendant.
4. The court did not abuse its discretion in admitting expert testimony on child sexual abuse accommodation syndrome.
In California, testimony on child sexual abuse accommodation syndrome is admissible to rebut common misconceptions the jury might hold about how child victims react to sexual abuse. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301; People v. Housley (1992) 6 Cal.App.4th 947, 957.) The admissibility of this evidence is based on Evidence Code section 801, subdivision (a), which authorizes expert testimony on a subject that is " 'sufficiently beyond common experience that the opinion of [the] expert would assist the trier of fact.' " (People v. Brown (2004) 33 Cal.4th 892, 905-906.) " 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.' " (People v. McAlpin, supra, at p. 1301.) Thus, the evidence is admissible to rehabilitate a child victim's credibility when the defense suggests that the child's conduct after the incident is inconsistent with his or her testimony regarding the molestation. (Id. at p. 1300; see also Brown, supra, at p. 906.)
Because our Supreme Court has recognized that such evidence may be relevant, useful, and admissible, we are in no position to consider different conclusions reached by courts in other states or to hold, as defendant suggests, that child sexual abuse accommodation syndrome evidence is inadmissible for all purposes. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
Because of the danger that a jury improperly could use such evidence to corroborate the child's testimony and infer that the abuse occurred, courts have imposed limitations on the admission of the evidence. (People v. Housley, supra, 6 Cal.App.4th at p. 955.) The expert's testimony must be addressed to specific myths or misconceptions suggested by the evidence. (Id. at p. 955.) And the court must instruct the jury that the expert's testimony is not evidence that the molestation claim is true, but may be considered only to evaluate whether the child's conduct is inconsistent with having been molested. (Ibid.)
"[T]he decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.' " (People v. McAlpin, supra, 53 Cal.3d at p. 1299.) "The erroneous admission of expert testimony only warrants reversal if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (People v. Prieto (2003) 30 Cal.4th 226, 247.)
Defendant argues that the trial court abused its discretion in admitted the expert testimony in this case because the prosecution failed to identify a myth or misconception that justified admission. We disagree. The prosecution is not required "to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation." (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.) Here, the expert's testimony was admissible to show that Jane's desire to continue her relationship with defendant after the incident, as evidenced by her texts, was not necessarily inconsistent with her testimony that defendant forced her to have intercourse. Consistent with this justification, the prosecutor argued, "[Y]ou heard the testimony . . . about how those who are abused can still love their abuser, how that's not inconsistent with being molested. The text messages are [not] reasonable doubt in this case, ladies and gentlemen. They are just a reflection of that. It's just a victim confused, and uncertain about what is going on, trying to remain in this relationship, trying to think what adults do. She has poor judgment, no doubt, but that doesn't mean what she wanted to have happen [what] happened on March 30th. She was raped by the defendant."
Defendant also argues that the expert testimony "was entirely without foundation because Jane had manifested none of the symptoms driving children into abuse therapy - depression, anxiety, acting out, poor school performance, suicidal tendencies. [Her] experience, therefore was outside the therapeutic setting in which the child sexual abuse accommodation syndrome was developed and applied." In his reply brief defendant clarifies that he believes the evidence was not relevant because Jane's "conduct did not fit the pattern of the children studied . . . to develop the child sexual abuse accommodation syndrome theory. Jane invited sex; had sex once; subsequently expressed her hope for more sex with [defendant]; suggestively emailed with [defendant]; had her mother discover the emails; and then claimed force and/or duress. The issue was not whether the sexual intercourse occurred, but whether in this case the sexual intercourse was occasioned by force, duress or consent."
It does not appear that this argument was asserted in the trial court. We need not rely on waiver, however, because the argument lacks merit. Defendant cites no authority for the proposition that the admission of such expert testimony requires a prior showing that the child was suffering from symptoms typical of child sexual abuse victims. To the contrary, here, as in most cases, the expert testified that he had not interviewed Jane and had no information about the facts of the case. He, like other experts on the subject, testified only generally about the dynamics and characteristics of the relationship between an abuser and a victim. (See, e.g., People v. Patino, supra, 26 Cal.App.4th at p. 1742.) The presence or absence of these characteristics of the syndrome goes to the weight of the evidence, not its admissibility. Defendant challenged the applicability of the syndrome in this instance and the jury was able to evaluate the significance of the expert's testimony in considering the believability of Jane's story. There was no error in the admission of the expert's testimony.
Disposition
The judgment is affirmed.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Siggins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------