Opinion
D074689
10-04-2019
THE PEOPLE, Plaintiff and Respondent, v. JOHN JAMES VAN DRUTEN, Defendant and Appellant.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor, and Amanda Lloyd, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS293976) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed. Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor, and Amanda Lloyd, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted John James Van Druten of six felony counts of committing a lewd act on a child (Pen. Code, § 288, subd. (a)). The jury found true with respect to each count the allegation that the defendant had substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd. (a)(8)). The jury also convicted him on two misdemeanor counts of child molest, both related to showing the victim pornographic videos (§ 647.6, subd. (a)(1)). The trial court sentenced him to a total term of 18 years in state prison.
Statutory references are to the Penal Code unless otherwise indicated.
Van Druten contends the trial court erroneously admitted evidence of a prior, uncharged sexual offense and expert testimony regarding myths and misconceptions related to behaviors commonly exhibited by sexually abused children. He also contends that, even if the expert testimony was admissible, the jury was not properly instructed regarding its limited purpose. Finally, he contends the trial court abused its discretion in imposing the upper term during sentencing. We reject these contentions and affirm the judgment in its entirety.
FACTUAL BACKGROUND
A. Initial Disclosure
After spending several years in Arizona during his military service, G. moved back to San Diego with his wife, S., and their children: four-year-old daughter, A. (the victim), and a two-year-old son. In August 2016, they moved into a combined family home with G.'s mother, and S.'s mother and father (Van Druten). Eight months later, in April 2017, as S. was getting the children showered before bedtime, A. told S. that Van Druten (whom A. called "grandpa") had shown her his "canar[y]," and it "is pink." A. also said that grandpa had shown her a video of "a boy with white pee going into a lady's mouth." S. asked A. if grandpa had touched her, and she said no. S. asked if A. had touched grandpa, and initially A. said no. However, after S. gave A. a hug and told her it was a good thing that A. told her these things, A. said, "maybe [she had] lied, maybe . . . [she] did touch him."
S. testified that the family sometimes referred to a man's penis as a "bird," and A. knew a canary is a bird.
S. confronted Van Druten, who immediately apologized and said "it will never happen again." He denied touching A. and denied that A. touched him. S. and G. filed a police report. Several days later, Van Druten sent S. an email with the subject line, "My asking for forgiveness," which stated:
"I write this knowing that I have wronged your family, and I truly am so very sorry. I really need some help for my problem, and I am sure that you're all angry. If I could find a highly recommended place for sexual addiction, I would welcome that as a beginning event for help. God forgives all sinners, and I have prayed much in the past few days. I am a Christian that sinned. Lord heal us.
"Bills are coming due soon. I am willing to pay my share as long as I work. Mom could help you with that. I know you have many decisions, like will you stay at [the home.] I know that I have lost my rights to you and your family. That is a big price to pay.
"I know that my life is in danger, but I hope that feeling diminishes. I will not come near the home. I promise you that.
"I have made many steps to repent to God and ask him for forgiveness. Your family may not, but I do pray for that.
"You may wish to see me suffer. I understand that.
"I don't want to be incarcerated. I want to keep working. And if you sell the house, I am willing to let you keep all the equity while I keep working, stay away from your family, and start anew with your mother.
"I need help with this. You're a Christian. We are all sinners. I want help to fix me. I have never done something like this before. I need someone who specializes in this to dig deep and really help me. Help me, please. I need to fix myself. . . . John"
B. Forensic Interview
Police investigators arranged a forensic interview of A. at the local children's hospital. A., five years old at the time, told the forensic interviewer that her grandpa locked the door when they were in the bathroom, "showed out his, his bird," and "did this," gesturing as if she were masturbating a penis. She said he was lying down on the floor in the bathroom while this occurred and "white stuff came out and went on his belly." A. described "the white stuff" as looking "like milk." She said her grandpa told her "it was sticky." She said, "He said it was fun, but it wasn't fun for me. [¶] . . . [¶] [I]t was bad for me." She said, "he would do [it] like every day." A. said, "my grandpa tells me I have to keep it a secret from my mom and dad," but that she did not keep it a secret because it is "good" "to tell the truth."
The forensic interviewer asked A, "where is his bird?" A. pointed to her groin. A. said his "bird" looks "like a banana."
A. told the forensic interviewer grandpa wants her to touch his "bird" a lot and "sometimes" she touched it "a little." Pointing to her groin, she said, "This keeps my grandpa warm, and his bird makes me warm. [¶] . . . [¶] [B]ut I don't like that." She said this happened "because I put it on my grandpa's bird, but with his pants on and mine," and then "we hug."
A. said that grandpa "likes touching his bird, and he likes doing it," and "he also does it on his bed." A. said that she knows grandpa "likes [her] vagina" because "he told me."
A. described an incident where she pulled her pants down and "touched his bird again." "And then he did this again," she said, gesturing as if masturbating a penis, and "then he rinsed it off with water." A. said she pulled her pants down "[b]ecause he just wanted to see it," and he "said that it looks pretty."
A. said these things happened in her grandpa's bedroom and bathroom during the day while her mom and dad were at work, and her grandma was downstairs.
A. described an incident where her grandpa "went pee and I, and I had to hold it, my grandpa said." She said, "I had to hold his bird . . . ." while he "went pee" "[i]n the toilet." She said she "swished it around." Another time, she said, "his water didn't work anymore, so he went in the tub."
A. said she locked the door when she was in grandpa's room. She said she liked going in grandpa's room because he had snacks, like chips, pretzels, doughnuts, chocolate raisins, and marshmallows.
A. initially denied having seen movies with people without clothes, but later told the interviewer that her grandpa used his tablet to show her "yucky movies" "about what he does." She said the movies had "boys and girls" and "the guys were, were putting their bird into the girl." When asked what part of the girl, A. gestured to her groin.
C. Charges
Charges were initially filed in June 2017; an information filed in November alleged eight counts of committing a lewd act on a child (§ 288, subd. (a)), each with a special allegation that the defendant had substantial sexual conduct with a child under age 14 (§ 1203.066, subd. (a)(8)). The information further alleged two misdemeanor counts of child molest (§ 647.6, subd. (a)(1)). The charges were tried to a jury in August 2018.
The information was subsequently amended to remove the special allegation with respect to counts 7 and 8, which involved two lewd act incidents in which it was alleged Van Druten kissed the child's lips.
D. Trial
1. S. (Mother)
At trial, S. recounted for the jury A.'s disclosure regarding grandpa's "canary" and read the email Van Druten had sent. She also recounted an incident that occurred in the shared family home some time prior to the "canary" discussion. She was with her husband when she overheard Van Druten tell A., " 'don't forget our secret.' " After Van Druten left the room, her husband approached A. and asked what secret they were talking about. A. referenced " 'the candy, the chocolate that [she] ate.' " S. said this made sense at the time because A. was not supposed to be consuming candy as she recently had dental issues.
S. testified that, when she came home from work, A. would sometimes be in Van Druten's room. This occurred "less than half the time."
S. also recounted an incident that occurred when she was five years old. She recalled being in Van Druten's bedroom while pornography played on the television. She recalled touching the tip of his erect penis, which was protruding from his shorts or underwear, and there was a liquid substance there. She did not recall whether he asked her to do that. She recalled rushing to the bathroom, washing her hands, wiping them off, and leaving the room. As a teenager, S. had disclosed the incident to G., her boyfriend at the time. When she was 22, she and G. confronted Van Druten regarding the incident while her mother was present, but her mother "was distracted" and "there was not a reaction out of them."
2. A. (Victim)
A., now six years old, testified at trial. She said that Van Druten had shown her his "bird" "more than once," but she had never touched it. He only showed her his bird when everybody else was in a different room. It made her feel "gross" when he would show it to her.
She testified she had seen "white stuff" come out of his "bird"; afterward "he would just wipe it off." She also testified that he showed her a video on a tablet; she saw "white stuff come out of the boy's birds and into the girl's mouths." It made her feel "gross."
She testified that grandpa did not touch her vagina and that she did not recall previously testifying that she said he had. She did not recall whether she had held his "bird" while he went "pee." She did not recall telling her mother that grandpa's "canary" is pink.
A. did recall Van Druten telling her not to tell her parents, but she did not recall what he would say when he told her not to tell her parents. The following exchange occurred:
"Q. What made you think that he didn't want you to tell your mom or your dad?When asked what she meant by "gross stuff," A. testified that "he would, like, always—he would—he would—he would tell me to pee on him," and that she did that one time, in his bathroom. She testified she did not remember what other bad things grandpa did with her.
"A. Because every time when he did it, he closed the door.
"Q. And that would be because he didn't want anyone to see?
"A. Yes.
"Q. Okay. [A], what would he do? Can you tell us the truth and tell us what he would do when he would close the door?
"A. Yes.
"Q. What would he do?
"A. He would do gross stuff."
Portions of A.'s testimony at a prior hearing were read for the jury. In prior testimony, A. described how grandpa would do "bad stuff" in his bedroom—that he wanted her to touch his "bird," which meant penis, and that she did touch grandpa's bird with her hand more than once. She did not want to touch it, but she felt that she had to. She would hold her hand still. Grandpa would tell her he wanted her to "touch his bird"; this happened in the bathroom. Grandpa also touched his own bird in the bathroom, when he was standing up and lying down.
More than once A. saw "white stuff" come out of grandpa's bird and go "on his belly"; he would wash it off in the sink. More than once A. held grandpa's "bird" when he was "going pee" in the toilet. More than once grandpa's hand touched A.'s vagina. This happened when A. had clothes on and when she had clothes off. More than once he told her, "I like your vagina." Sometimes grandpa asked to see her go to the bathroom and watched her go to the bathroom.
Sometimes grandpa would show her movies on his phone where the people had no clothes. This happened when she was on his bed with him. A. testified the people were "[d]oing the same thing that me and my grandpa did"—"me touching his bird." More than once, grandpa kissed her on her lips when she was in his bedroom.
She denied kissing grandpa in the bathroom, denied kissing his bird, and denied he put his "bird" in her vagina. He told her to keep it a secret, and she did, but then she told her mom, and then she told her dad.
3. G. (Father)
G. testified that, when they were teenagers, S. confided that, when she was five years old, "her father was watching pornography around her and he had his penis out and she actually touched it." He testified that, years later, he thought everything was different. He did not think to take precautions before moving his family into the same house as Van Druten because he "was fooled by God." He explained that Van Druten "went to church and made it seem like it would be an okay thing to do."
After he learned what had happened to A., G. was able to retrospectively identify "red flags," including how, when he came home from work, A. would be in Van Druten's room with the door closed, and how Van Druten would take A. out, "just them two," and buy her toys—"so many toys." G. testified he once overheard Van Druten whisper to A., " 'Remember our little secret.' " G. waited until Van Druten left the room and asked A. what the secret was. A. initially denied having a secret and then said the secret was that her grandfather had given her a chocolate, which she was not supposed to eat.
4. Forensic Interviewer
The forensic interviewer testified and a video of A.'s forensic interview was played for the jury.
5. Dr. Jayme Jones
Dr. Jayme Jones, a doctor of clinical psychology, testified regarding myths and misconceptions surrounding child abuse, including disclosure and reporting by victims in child molest cases. Dr. Jones testified that not all children disclose during their first forensic interview and may need second or third interviews to make disclosures. She noted that most people never disclose sexual abuse at all. Children are even less likely to disclose when the abuser lives in the same home, because there is a sense of dependency on that person and concern for other people affected by the disclosure.
Dr. Jones testified that when children decide to disclose, they normally disclose to a friend or family member. Children display a vast range of behaviors and emotions when disclosing abuse, from the "looking like a mannequin with no emotions disclosure to sobbing and hysterical to running around the room." A child may disclose one piece of information to one adult and another piece of information to another adult, depending on their comfort level and what questions are asked. A child may also disclose incrementally, meaning she might "test[] the waters" and say a little bit about what happened, and depending on the reaction, she may or may not say more. A five- or six-year-old child may tell the story a different way each time.
Dr. Jones testified that children who are molested by people they have relationships with, like family members, teachers, or other adults, tend not to disclose immediately because the abuse happens in a relationship where the child has both positive and negative experiences, complicating things and creating a dilemma for the child.
Delayed disclosure also occurs when children feel responsible for the abuse. The longer the child does not talk about it, the more the child may feel responsible and guilty. The child may also feel shame or embarrassment.
That the abuse happens in secrecy sends a message that the child is not supposed to talk about it. And when the abuser explicitly tells the child to keep it a secret, disclosure is even less likely. Many children between the ages of four and seven do not understand that they are being molested as it is happening and only realize it as they learn about sexual norms or child abuse, often as teenagers.
Children between the ages of five and six may repress memories of abuse by not actively thinking about them or not fully encoding the memories because they are in shock. A person molested at a young age may be able to put the memory out of his or her mind for a time only to have something trigger it later in life.
Dr. Jones acknowledged generational molest and indicated it is not uncommon for people who molested children, nieces, or nephews to then molest grandchildren, great nieces, or great nephews. She explained that if no one discloses, the abuse may continue. A child molested by a family member may later want to reestablish a relationship with the abuser as an adult, hoping that the positive aspects of the relationship can be rekindled without the negative parts being there.
Dr. Jones testified that the concept of "grooming" refers to a child molester taking small steps to build a relationship and gain trust with the child, and then to introduce sexual behaviors in a subtle manner. An example of grooming is using pornography to normalize sex and to suggest to children this is what relationships look like.
Dr. Jones testified that five- and six-year-old children are unable to remember details like dates, times, or frequency of the abuse. A child who discloses sexual abuse may recant or retract her allegation of abuse for a variety of reasons, but usually with the goal of removing a negative consequence to the disclosure. Or, a child may say something did not happen and then later say it did, because a child's comfort and willingness to talk at a particular moment, or with a particular audience, will vary. To get a child to provide specific information about the abuse, an interviewer will probably have to ask follow-up questions.
Dr. Jones testified that she had not interviewed A. or anyone else involved in the case. She had not read any of the police reports and did not know anything about the facts of this case. She was only testifying about child molest victims in general.
6. Van Druten
Van Druten testified that he was blind in one eye. His bathroom, which has a locking door, is just off his bedroom. One day, he was in his bathroom with the door shut, but not locked, while watching pornography on his tablet computer and masturbating. He noticed A. was there watching him. He had not seen the door open because of his lack of peripheral vision due to the blind eye. He testified he was "completing it," and "the white stuff [wa]s coming out the top," and he was "sort of surprised." He stated:
"But I didn't kick her out of the room because I wanted to get up and clean myself off as fast as possible. So I cleaned myself off in the sink, zipped my pants back up, and I tried to explain to her what was going on as easy as possible without getting complex about it. She probably saw one of the videos too because I turned around, and she seen a video of what was described as unclothed people doing things that should not be seen by little kids."
Van Druten testified this happened the same day S. confronted him about what A. told her, and he thought she was referring to the masturbation. He testified he told S., " 'Your daughter caught me masturbating this afternoon. I didn't touch her. She didn't touch me, and that's the only time anything ever happened.' "
Van Druten testified that he never touched A. inappropriately and never showed her pornographic videos other than this one, accidental time. A. was his first grandchild, and he would give her sweets, play with her, or do things like take her to the dentist.
Van Druten denied the incident involving S. occurred and denied S. ever confronted him or his wife about it. He testified the apologetic email referred to his "lifetime habit" of masturbation.
7. Instructions and Closing Arguments
The jury was instructed with CALCRIM No. 1110, lewd act on a child, which required a finding that "the defendant committed the [lewd] act with the intent of arousing, appealing to or gratifying the lusts, passions or sexual desires of himself or the child." In closing, defense counsel argued that the prosecution had not carried its burden of proving guilt beyond a reasonable doubt and emphasized the inconsistencies in A.'s statements and testimony. Referencing Dr. Jones's testimony, defense counsel suggested that additional follow-up questions should have been asked to confirm the details of A.'s allegations.
The jury was also instructed with CALCRIM No. 1122, annoying or molesting a child.
8. Conviction and Sentencing
The jury convicted Van Druten on six felony counts of committing a lewd act on a child (§ 288, subd. (a)): child touched defendant's penis, first time (count 1); child touched defendant's penis, second time (count 2); child touched defendant's penis while peeing, first time (count 3); child touched defendant's penis while peeing, second time (count 4); defendant touched child's vagina, first time (count 5); defendant touched child's vagina, second time (count 6). The jury found true with respect to each count the allegation that the defendant had substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd. (a)(8)). The jury also convicted him on two misdemeanor counts of child molest, both related to showing the victim pornographic videos (§ 647.6, subd. (a)(1)). The trial court sentenced him to a total term of 18 years in state prison.
The jury found Van Druten not guilty on two felony counts of lewd act on a child (§ 288, subd. (a)), related to the two incidents in which it was alleged Van Druten kissed the child's lips.
DISCUSSION
I.
Evidence Code Section 1108 Evidence
Van Druten contends the trial court abused its discretion and violated his constitutional rights when it admitted testimony regarding a prior incident involving S. Specifically, Van Druten argues that the prior act did not qualify as a "sexual offense" amounting to a crime under Evidence Code section 1108, and the evidence should also have been excluded under Evidence Code section 352.
Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
A. Additional Factual Background
Prior to trial the prosecution moved to admit evidence of another sexual offense, the uncharged incident involving S. Van Druten moved in limine to exclude the evidence.
The trial court held a hearing on the cross motions. At the hearing S. testified that she had "a negative experience" with her father (Van Druten) when she was five years old (approximately 25 years prior to S.'s testimony). She recalled being in her father's bedroom when a pornographic movie was being shown on the television. Her father was lying on his bed, and his penis was exposed and erect, "kind of pointing upwards out of his shorts." S. remembered "touching the tip of his penis" where there was some "liquidy substance." She recalled she "got freaked out," ran to wash her hands in the bathroom, left his bedroom, and did not return.
The trial court granted the prosecution's request to admit the evidence under Evidence Code section 1108, concluding the evidence was not inadmissible under Evidence Code section 352. The court found the uncharged conduct was similar to the charged offenses, and the evidence would not be unduly time consuming or likely to confuse or mislead the jury. The court acknowledged the event was remote in time, but, citing People v. Waples, concluded it was not too remote. The court found the uncharged conduct was not more inflammatory than the charged offenses, and concluded admitting the evidence would not be an undue burden on Van Druten.
People v. Waples (2000) 79 Cal.App.4th 1389, 1395 (Waples) ["20 years is not too remote" under Evidence Code section 1108].
As discussed ante, the evidence was admitted at trial. The jury was instructed with CALCRIM No. 1191A, Evidence of Uncharged Sex Offense, as follows:
"The people presented evidence that the defendant committed the crimes of lewd or lascivious act on a child under 14 years and child molesting that were not charged in this case. Those crimes are defined for you in these instructions.
"You may consider this evidence only if the people have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses.
"Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by the preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the people have not met this burden of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and based on that decision also conclude that the defendant was likely to commit and did commit the crimes . . . charged here.
"If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crimes of lewd and lascivious act[:] child under 14 years and child molesting. The people must still prove each charge and allegation beyond a reasonable doubt."
In closing, the prosecution reiterated S.'s account of the incident when she was five, and emphasized that, although S. said she touched his penis, she did not say he told her to do it. The prosecutor argued this indicated the story was true because, if she had come to lie, "Don't you think she would say, he told me to grab his penis, he told me to stroke it, and she would have had much, much more detail if she were coming here with the story." The prosecutor explained to the jury that if the people had proved this incident amounted to a lewd act by a preponderance of the evidence, then the jury could consider it to conclude Van Druten was inclined to commit the crimes in this case. Finally, the prosecutor argued Van Druten's defense was not credible. The crimes against A. were not the first time he had done this; he had done it to his own daughter.
B. Legal Principles
"The general public policy on character or propensity evidence is that it is not admissible to prove conduct on a given occasion." (People v. Cottone (2013) 57 Cal.4th 269, 285 (Cottone); accord, People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta); Evid. Code, § 1101.) But Evidence Code section 1108 creates a statutory exception to this rule for sex offense cases like this one. (People v. Erskine (2019) 7 Cal.5th 279, 295.) The statute provides in relevant part: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (Evid. Code, § 1108, subd. (a).) Both charged and uncharged prior sexual offenses may be admitted under this statute. (See Falsetta, at pp. 917-918; People v. Villatoro (2012) 54 Cal.4th 1152, 1160, 1164.)
Evidence Code section 1108 reflects the Legislature's recognition that sex offense cases have unique attributes. (Falsetta, supra, 21 Cal.4th at p. 918.) " 'Our elected Legislature has determined that the policy considerations favoring the exclusion of evidence of uncharged sexual offenses are outweighed in criminal sexual offense cases by the policy considerations favoring the admission of such evidence. The Legislature has determined the need for this evidence is "critical" given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial.' " (Id. at p. 911.) Evidence of this type is uniquely probative of a defendant's propensity to commit sex offenses and policy considerations outweigh the general prohibition against propensity evidence. (Cottone, supra, 57 Cal.4th at pp. 285-286; Falsetta, at pp. 911-912.)
"By reason of [Evidence Code] section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under [Evidence Code] section 352." (Falsetta, supra, 21 Cal.4th at pp. 916-917.) "Specifically, the court weighs factors such as the 'nature, relevance, and possible remoteness [of the evidence], the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses . . . .' " (People v. Merriman (2014) 60 Cal.4th 1, 41, quoting Falsetta, at p. 917.)
"On appeal, we review the admission of other acts or crimes evidence under Evidence Code section 1108 for an abuse of the trial court's discretion. [Citation.] The determination as to whether the probative value of such evidence is substantially outweighed by the possibility of undue consumption of time, unfair prejudice or misleading the jury is 'entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence.' " (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1097.)
C. Discussion
We reject Van Druten's contention that the court erred by admitting the prior act evidence involving S.
The Attorney General contends Van Druten forfeited certain claims—i.e., that the uncharged sexual offense evidence does not amount to a crime, and that his due process rights were violated—by not making a specific objection on those grounds in the trial court, and that he failed to preserve his Evidence Code section 352 objection when the evidence was presented at trial. Because we reject all of Van Druten's arguments on the merits, we do not address the forfeiture issue. And given our ruling on the merits, Van Druten's alternative argument that his counsel provided ineffective assistance by failing to object or preserve his claims on appeal fails. (See Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland) [defendant must show counsel's performance was deficient and that the deficient performance prejudiced his defense].)
1. Sexual Offense Under Evidence Code Section 1108
Van Druten contends the trial court erred in admitting the prior act evidence involving S. because the incident did not constitute a sexual offense within the meaning of Evidence Code section 1108. Specifically, Van Druten argues that the incident did not qualify as a violation of either Penal Code section 647.6 (annoying or molesting a child under 18) or Penal Code section 288, subdivision (a) (lewd or lascivious act on child under 14). We disagree.
"[T]he admissibility of uncharged conduct pursuant to [Evidence Code] section 1108 turns on the existence of a preliminary fact—namely, that the uncharged conduct constitutes a statutorily enumerated 'sexual offense.' [Citation.] The trial court must make a preliminary determination of whether the proffered evidence is sufficient for the jury to find, by a preponderance of the evidence, that the defendant committed an enumerated offense." (People v. Jandres (2014) 226 Cal.App.4th 340, 353 (Jandres).) We review the trial court's determination under the abuse of discretion standard of review. (Ibid.)
Evidence Code section 1108 defines "sexual offense" as including any conduct proscribed by Penal Code section 647.6 and Penal Code section 288. (Evid. Code, § 1108, subd. (d)(1)(A).) Penal Code section 647.6 applies to any "person who annoys or molests any child under 18 years of age." (See In re D.G. (2012) 208 Cal.App.4th 1562, 1571 [Penal Code section 647.6 prohibits " 'offensive or annoying sexually motivated conduct which invades a child's privacy and security.' "].) A violation of Penal Code section 647.6, subdivision (a), requires "(1) conduct a ' "normal person would unhesitatingly be irritated by" ' [citations] and (2) conduct ' "motivated by an unnatural or abnormal sexual interest" ' in the victim [citations]." (People v. Lopez (1998) 19 Cal.4th 282, 289.) Penal Code section 288, subdivision (a) criminalizes the commission of lewd acts "upon or with the body, or any part or member thereof . . . with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . ." " 'Any touching of a child under the age of 14 violates this section, even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim.' " (People v. Shockley (2013) 58 Cal.4th 400, 404.)
Specifically, section 647.6, subdivision (a)(1) provides, "Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment."
"Unlike section 288 (lewd act on a child), section 647.6, subdivision (a)(1) does not require a touching [citation], but does require conduct that would unhesitatingly disturb or irritate a normal person [citation]." (People v. Valenti (2016) 243 Cal.App.4th 1140, 1162.)
Here, S. testified at a pretrial hearing that, when she was five years old, her father showed her pornography while he lay in bed with his penis exposed and erect, "kind of pointing upwards out of his shorts." S. further explained that when she touched the tip of his penis, there was some "liquidy substance" on it; she then "got freaked out" and ran out to wash her hands and leave the bedroom. The trial court could reasonably conclude there was sufficient evidence that Van Druten's conduct toward S. was objectively offensive and annoying under section 647.6. S.'s inability to remember whether Van Druten specifically directed her to touch him does not render the evidence inadmissible. A normal person would unhesitatingly be irritated by Van Druten's conduct—allowing his five-year-old daughter to touch his erect penis while lying in bed watching pornography—and the trial court could infer from these circumstances that Van Druten's conduct toward S. was motivated by an unnatural or abnormal sexual interest. Similarly, the trial court could reasonably infer from the nature of the parties' relationship and the circumstances of the encounter described by S. that Van Druten acted willfully in causing S. to touch his erect penis, and it could further infer that Van Druten was acting with the intent to arouse or gratify his sexual desires—all within the meaning of section 288.
In summary, the trial court did not err in admitting the evidence under Evidence Code section 1108. There was sufficient evidence for a jury to find, by a preponderance of the evidence, that Van Druten committed a "sexual offense" against S. by violating Penal Code section 647.6 and Penal Code section 288. (See Cottone, supra, 57 Cal.4th at p. 283 [a judge screening proffered evidence excludes it only upon a finding that the showing of a preliminary fact " ' "is too weak to support a favorable determination by the jury." ' "].)
The trial court also properly admitted the propensity evidence under Evidence Code section 352.
Evidence that a defendant committed a sexual offense under Evidence Code section 1108 "is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant's disposition to commit the charged sex offense or other relevant matters." (People v. Cordova (2015) 62 Cal.4th 104, 132 (Cordova).)
Here, the challenged evidence was probative of Van Druten's propensity to molest and commit lewd acts on a child. (See Cordova, supra, 62 Cal.4th at pp. 133-134.) Compared to the charged crimes against A., the prior incident was not particularly inflammatory (People v. Loy (2011) 52 Cal.4th 46, 62 (Loy)), did not take up an undue amount of time at trial, and was not confusing to the jury. (People v. Frazier (2001) 89 Cal.App.4th 30, 41-42.) Although the prior incident occurred approximately 25 years prior to the instant offense, the remoteness of the evidence is not dispositive and this factor did not require the trial court to exclude the evidence. (See Waples, supra, 79 Cal.App.4th at p. 1395; People v. Branch (2001) 91 Cal.App.4th 274, 284-285 [30-year-old sex offense admitted].) To the extent there was a risk the jury would be tempted to convict Van Druten of the current charges to punish him for the prior uncharged offense involving S. (Branch, at p. 284), the trial court's instructions ameliorated that risk. Using CALCRIM No. 1191A, the trial court instructed the jury (1) it could consider the evidence of uncharged sex offenses only if the People proved by a preponderance of the evidence that Van Druten committed them, (2) if the People did not meet that burden, the jury was to disregard the evidence entirely, (3) if the jury decided Van Druten committed the uncharged sex offenses, it could consider that evidence to help decide whether he committed the charged offenses, and (4) evidence of other uncharged sexual offenses was one factor to be weighed "with all the other evidence" and was not sufficient by itself to prove his guilt of the current charges. Additionally, the court instructed the jury regarding its duty to weigh evidence and determine witness credibility, the presumption of innocence, and the prosecutor's burden of proof. These instructions properly focused the jury on the current charges and the limited manner in which it could consider the evidence of the uncharged sexual offense. We presume that the jury understood and followed these instructions. (People v. Edwards (2013) 57 Cal.4th 658, 746.)
Even assuming the trial court erred in admitting evidence of the uncharged sexual offense involving S., any error was harmless. We consider the potential prejudice resulting from the admission of this evidence under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Jandres, supra, 226 Cal.App.4th at p. 357.) We conclude it is not reasonably probable Van Druten would have obtained a more favorable result if the jury did not hear S.'s testimony regarding Van Druten's uncharged conduct when she was five years old. S.'s testimony was not the primary or most compelling evidence against Van Druten. A.'s statements to her mother, A.'s statements during the forensic interview, and Van Druten's email "asking for forgiveness," were overwhelming evidence of Van Druten's guilt on the charged offenses.
While A.'s trial testimony was not entirely consistent with all the details she previously provided, the jury was free to accord more weight to her earlier statements.
In summary, we conclude the trial court did not abuse its discretion in admitting evidence of the sexual offense involving S. under Evidence Code section 352, and any error in admitting the evidence was harmless.
As previously noted, Van Druten also contends the evidence was so prejudicial that it deprived him of his rights to due process and a fair trial, in violation of the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution. Our Supreme Court has repeatedly rejected similar due process challenges to a trial court's admission of evidence under Evidence Code section 1108. (Falsetta, supra, 21 Cal.4th at p. 922 [finding Evidence Code section 1108 constitutional]; People v. Lewis (2009) 46 Cal.4th 1255, 1288-1289 ["We decline defendant's invitation to reconsider our decision in Falsetta . . . ."]; Loy, supra, 52 Cal.4th at pp. 60-61 [adhering to Falsetta].) Because we have concluded that the evidence of the prior incident with S. was properly admitted under Evidence Code sections 352 and 1108, Van Druten's constitutional claims, even assuming they are cognizable on appeal, similarly fail. (See People v. Valdez (2012) 55 Cal.4th 82, 134 (Valdez).)
II.
Expert Testimony Regarding Child Sexual Abuse Victims
Evidence Code section 801 provides that a qualified expert may provide testimony "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." Van Druten contends the expert testimony here—regarding patterns of behaviors exhibited by child sexual abuse victims—is inadmissible under Evidence Code section 801 because it was offered to dispel myths and misconceptions that are no longer prevalent in society. Van Druten further argues: (1) even if the expert testimony was admissible, it constituted scientific opinion evidence without reliable foundation in violation of Kelly/Frye; (2) the testimony was more prejudicial than probative under Evidence Code section 352; and (3) admission of the testimony deprived him of his constitutional rights to due process and a fair trial because it unfairly corroborated and bolstered the credibility of S. and A. These three latter arguments, which were not asserted in the trial court, are forfeited. (Evid. Code, § 353, subd. (a); People v. Demetrulias (2006) 39 Cal.4th 1, 20-21 (Demetrulias).) We nonetheless address the arguments to show Van Druten's alternative claim that he was not provided effective assistance of counsel fails. (People v. Reyes (2016) 246 Cal.App.4th 62, 86.)
People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. 1923) 293 F. 1013. Although Frye was superseded by statute (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579; People v. Leahy (1994) 8 Cal.4th 587, 591-592), the test is still commonly cited as the Kelly/Frye rule.
A. Additional Factual Background
The prosecutor moved in limine to introduce expert testimony from a doctor of clinical psychology, to address certain myths and misconceptions related to child molest victims and to restore victim credibility. The prosecutor argued such testimony was relevant and was necessary to address the following misconceptions: (1) child abusers are typically strangers; (2) if a child is molested, she will promptly tell; (3) a child will obviously tell a non-offending parent; (4) a child will describe the incidents in detail; (5) the child will cry or appear distressed when disclosing the incidents; and (6) the child will relate the specific details of the molest incidents even if they happened repeatedly over a period of time. The prosecutor further argued that such expert testimony was not subject to Kelly/Frye because it amounted simply to medical knowledge and expertise about general topics.
Defense counsel objected contending "in this day and age" these purported myths and misconceptions were "common sense" and thus outside "the realm of an expert." Counsel requested that the prosecutor identify the myths and misconceptions that would be the subject of the expert's testimony, which the prosecutor did, and defense counsel requested reassurances from the prosecution, which it received, that the prosecution would not ask the expert hypothetical questions tracking the facts of this case.
The trial court allowed the evidence over defense counsel's objection. The court found that expert testimony would assist the trier of fact "for people outside the criminal justice system [¶] . . . [¶] or personal experience."
Dr. Jones testified generally about myths and misconceptions associated with child sexual abuse, with an emphasis on victims' disclosure of abuse. In her testimony, Dr. Jones emphasized that she had not interviewed A. or anyone else involved in the case, had not read any of the police reports, and did not know anything about the facts of this case. Her testimony addressed only child molest victims in general.
B. No Error in Admitting the Evidence
1. The Expert Testimony Is Relevant and Admissible
Expert testimony relating to the behavior of child abuse victims, such as delayed reporting and retraction, is often referred to as "child sexual abuse accommodation syndrome" evidence or "CSAAS" evidence. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin); see Bowker, supra, 203 Cal.App.3d at pp. 389, 392-394.) This testimony has long been held to be admissible in California for limited purposes: "[E]xpert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation." (McAlpin, at p. 1300.) " '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.' " (Id. at p. 1301.)
The theory of child abuse accommodation syndrome was first articulated in 1983. (People v. Bowker (1988) 203 Cal.App.3d 385, 389, fn. 3 (Bowker).) The syndrome has five stages—secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction. (Id. at p. 389.)
Our Supreme Court has repeatedly cited with approval case law allowing the use of CSAAS and similar evidence. (McAlpin, supra, 53 Cal.3d at p. 1300 [ratifying use of similar evidence regarding the failure of the parents of abused children to report incidents of molestation]; People v. Brown (2004) 33 Cal.4th 892, 906-907 (Brown) [analogizing CSAAS testimony to expert testimony regarding behavior of domestic violence victims, and finding the latter evidence similarly admissible]; People v. Ward (2005) 36 Cal.4th 186, 211 (Ward) [noting "[t]his court has frequently permitted the use of expert testimony to explain to lay jurors conduct that may appear counterintuitive in the absence of such insight"; concluding, "we see no reason to exclude such testimony as it relates to gang activities"].)
Van Druten's reliance on out-of-state authority does not persuade us that this evidence is within the common knowledge and experience of jurors and thus no longer the proper subject of expert testimony. We are bound by Supreme Court precedent approving the use of CSAAS testimony as relevant to disabuse jurors of commonly held misconceptions in child sexual abuse cases. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455); see People v. Perez (2010) 182 Cal.App.4th 231, 245 [Supreme Court's reasoning in McAlpin and Brown regarding admissibility of CSAAS testimony remains binding on the Courts of Appeal].) The trial court did not err when it concluded that most jurors "outside of the criminal justice system" lack the personal experience to understand behaviors exhibited by victims of child sexual abuse. Because these experiences are outside the common knowledge of jurors, it was reasonable for the court to conclude the challenged expert testimony on the common reactions of child molestation victims would assist the trier of fact. (Evid. Code, § 801, subd. (a).) We therefore reject Van Druten's argument that the CSAAS testimony was not relevant or admissible here.
Van Druten cites several out-of-state cases that have criticized or disallowed CSAAS testimony. (See Commonwealth v. Dunkle (1992) 529 Pa. 168, 181-182; State v. Schimpf (Tenn. Crim. App. 1989) 782 S.W.2d 186, 194; State v. Davis (Ohio Ct. App. 1989) 581 N.E. 2d 604, 611.) These cases are contrary to California cases admitting CSAAS evidence. We also are unpersuaded by Van Druten's reliance on media reports, the " 'MeToo' " and " 'Times Up' " movements, the "Catholic Church scandal," and " 'Law and Order Special Victims Unit' " episodes, to support his claim that there is no longer any misconception about the behavior of sexual abuse victims. Even assuming jurors can glean some general, accurate information from these sources, Van Druten's claim fails. As the court in McAlpin observed, " 'the admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard.' " (McAlpin, supra, 53 Cal.3d at pp. 1299-1300.)
2. Kelly/Frye Does Not Apply
We reject Van Druten's argument that the challenged testimony was admitted in violation of Kelly/Frye. Like Van Druten's argument that the evidence is irrelevant, this argument conflicts with established precedent.
"Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law." (People v. Stoll (1989) 49 Cal.3d 1136, 1156 (Stoll).) The rule applies only if "the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury. The most obvious examples are machines or procedures which analyze physical data." (Ibid.) The California Supreme Court has emphasized " '[i]t is important to distinguish in this regard between expert testimony and scientific evidence. When a witness gives his personal opinion on the stand—even if he qualifies as an expert—the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge that all human beings are fallible. . . .' [¶] '[A]bsent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly[].' " (People v. Jones (2013) 57 Cal.4th 899, 953.)
The CSAAS testimony here does not constitute a new scientific method of proof which purports to provide any "definitive truth" regarding the matters at issue. (Stoll, supra, 49 Cal.3d at p. 1156.) California courts have long held that the Kelly/Frye rule does not apply to the admission of CSAAS testimony. (See People v. Gray (1986) 187 Cal.App.3d 213, 218-220 (Gray); People v. Harlan (1990) 222 Cal.App.3d 439, 448- 450 (Harlan).) Dr. Jones was not relying on scientific methods or procedures to establish any facts specific to this case or to Van Druten's guilt. Instead, she provided opinion testimony which addressed misconceptions regarding the conduct of sexually abused children based on her training and clinical experience. "The Kelly/Frye rule does not apply to this type of evidence." (Harlan, at p. 449.)
Van Druten claims this court—in Bowker, supra, 203 Cal.App.3d 385—misread the Supreme Court's decision in People v. Bledsoe (1984) 36 Cal.3d 236, and that Bowker in turn has been "uncritically cited to justify admission" of CSAAS testimony. We disagree. As we explained in Bowker, Bledsoe held that expert testimony regarding "rape trauma syndrome" could not be used to show a rape actually occurred, but was admissible to " '[disabuse] the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.' " (Bowker, at p. 391, quoting Bledsoe, at pp. 247-248.) Bowker extended this reasoning to the use of CSAAS testimony. (Bowker, at pp. 392-394.) Bowker was not incorrectly decided and did not misread Bledsoe. The Supreme Court recognized the same distinction—that expert testimony regarding rape trauma syndrome is admissible to disabuse the jury of misconceptions but not to prove a defendant committed rape—in McAlpin when discussing Bledsoe. (McAlpin, supra, 53 Cal.3d at p. 1300.) The Supreme Court then cited with approval "a series of decisions" in which the Courts of Appeal, including Bowker, "have extended to [CSAAS testimony] both the rule and the exception of People v. Bledsoe, supra, 36 Cal.3d 236." (McAlpin, at p. 1300) Given the Supreme Court's own recognition of the same framework outlined in Bowker, we reject Van Druten's claim that Bowker was incorrectly decided or that it has been incorrectly applied to CSAAS testimony. We therefore agree with the numerous cases holding that expert testimony about CSAAS is not subject to the requirements of Kelly/Frye. (See, e.g., Harlan, supra, 222 Cal.App.3d at pp. 448-449; Gray, supra, 187 Cal.App.3d at pp. 219-220; 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.)
Later, the Supreme Court cited McAlpin with approval in Brown, supra, 33 Cal.4th at pages 905-906, when it extended the same principles to expert testimony about the common behaviors of domestic violence victims.
3. The Probative Value of the Evidence Was Not Outweighed by its Potential for Prejudice
We reject Van Druten's argument that Dr. Jones's testimony was admitted in violation of Evidence Code section 352. "Rulings under Evidence Code section 352 come within the trial court's discretion and will not be overturned absent an abuse of that discretion." (People v. Minifie (1996) 13 Cal.4th 1055, 1070.) "A trial court's discretionary ruling under this statute ' "must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice." ' " (People v. Williams (2008) 43 Cal.4th 584, 634-635.)
The testimony here was probative to help explain the conduct of child sexual abuse victims like A. and S., and to help restore their credibility. The evidence at trial indicated that A. delayed in disclosing the abuse, potentially for months, and when she did disclose it, disclosed it incrementally. Also, she either recanted, failed to recall, or simply refused to acknowledge certain incidents when she testified. The defense sought to challenge A.'s credibility based on this conduct. Accordingly, the expert testimony was necessary to "rehabilitate [a] witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation," and relevant "because it tended to rehabilitate the testimony of . . . a corroborating witness." (McAlpin, supra, 53 Cal.3d at pp. 1300, 1302.) The very purpose of such testimony "is to support another witness's credibility." (Ward, supra, 36 Cal.4th at p. 211.)
The expert's testimony was not unduly prejudicial or inflammatory. "[T]he test for prejudice under Evidence Code section 352 is not whether the evidence in question undermines the defense or helps demonstrate guilt, but is whether the evidence inflames the jurors' emotions, motivating them to use the information, not to evaluate logically the point upon which it is relevant, but to reward or punish the defense because of the jurors' emotional reaction." (Valdez, supra, 55 Cal.4th at p. 145.) Prejudicial evidence is not synonymous with evidence damaging to the defense. (People v. Karis (1988) 46 Cal.3d 612, 638.) Applying this standard, there is no basis for concluding the trial court erred. We reject Van Druten's suggestion that the jury might have misinterpreted or misused the evidence "as a diagnostic tool of [A.] being molested"—in other words, to prove he is guilty of the charged crimes. Dr. Jones emphasized that she had not spoken to A. or read the police reports, and that her testimony related to child molest victims in general. She testified only as to her opinions based on her training and clinical experience, and did not provide an opinion regarding the veracity of A.'s (or S.'s) allegations against Van Druten. The trial court properly weighed the probative value of the CSAAS evidence and concluded its value was not substantially outweighed by the danger of misinterpretation or other prejudice under Evidence Code section 352.
4. Van Druten Has Not Established His Constitutional Rights Were Violated
We reject Van Druten's claim that the CSAAS evidence violated his constitutional rights to a fair trial and due process. Van Druten's constitutional claims are premised on the same arguments—that CSAAS evidence is irrelevant (because there were no misconceptions that needed to be corrected) and unreliable—which we already rejected. "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (Falsetta, supra, 21 Cal.4th at p. 913.) Van Druten has failed to establish how his fundamental right to a fair trial was violated by the introduction of Dr. Jones's testimony. It is well-settled that "introduction of CSAAS testimony does not by itself deny appellant due process." (People v. Patino (1994) 26 Cal.App.4th 1737, 1747.) Where, as here, CSAAS evidence is used to explain behavior of a victim whose credibility has been attacked—such as delayed reporting of the molestation—and not to prove the defendant's guilt, there is no due process violation. (See id. at pp. 1744-1745, 1747; McAlpin, supra, 53 Cal.3d at pp. 1300-1302.) We therefore reject Van Druten's claim that admission of the CSAAS evidence violated his constitutional rights.
5. Any Error in Admitting the Testimony Was Harmless
Even assuming the expert's testimony was admitted in error, any error was harmless for reasons already discussed, ante. Dr. Jones did not testify about the facts in this case, and it was clear she knew nothing about the victim or the defendant. By contrast, the jury had direct testimony from A., S., and Van Druten. The jury had the opportunity to assess A.'s statements to the forensic interviewer and on the stand, and to assess Van Druten's account. The jury also was able to consider the email Van Druten wrote to S. after she confronted him with A.'s initial allegations. Based on this evidence, and irrespective of Dr. Jones's testimony, the jury could readily reject Van Druten's defense that, despite A.'s testimony about multiple instances of sexual abuse, A. accidentally walked in on him one time while he was masturbating and nothing else happened. We therefore conclude it is not reasonably probable Van Druten would have obtained a more favorable outcome had the testimony been excluded.
Because Van Druten has not established federal constitutional error, we must determine whether it is reasonably probable the jury would have reached a different result had the evidence been excluded. (Watson, supra, 46 Cal.2d at p. 836; see Bowker, supra, 203 Cal.App.3d at p. 395 [applying Watson standard to admission of CSAAS testimony].)
III.
Failure to Provide Limiting Instruction Sua Sponte
Van Druten contends the trial court had a sua sponte duty to provide a limiting instruction regarding the CSAAS testimony and erred because the jury was instructed only with CALCRIM No. 332. Alternatively, Van Druten contends counsel provided ineffective assistance by failing to request the limiting instruction.
A. Additional Factual Background
Van Druten contends the trial court should have instructed the jury, using CALCRIM No. 1193, that the expert's testimony about CSAAS "is not evidence that the defendant committed any of the crimes charged against him," and that the jury "may consider this evidence only in deciding whether or not [the victim's] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony."
When the trial court indicated to the parties it would allow the expert testimony regarding victims of child molestation, it invited Van Druten to request a limiting instruction regarding the CSAAS evidence, stating, "if you do [ask for a limiting instruction], we can talk about that." Counsel replied, "okay," and never requested a limiting instruction.
The jury was instructed with CALCRIM No. 332, Expert Witness:
"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 reasons the expert gave for any opinion, and the facts or information on 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."
B. Discussion
Van Druten and the Attorney General both recognize there is a split of authority as to whether the trial court has a sua sponte duty to instruct with CALCRIM No. 1193 when CSAAS evidence is admitted. (Compare People v. Housley (1992) 6 Cal.App.4th 947, 959 (Housley) [holding that trial courts have sua sponte duty to provide a limiting instruction "in all cases in which an expert is called to testify regarding CSAAS"] with People v. Mateo (2016) 243 Cal.App.4th 1063, 1074 (Mateo) [disagreeing with Housley and holding a limiting instruction "need only be given if requested"].) Based on our record, we need not decide whether Housley is correctly decided.
We conclude that even if the court had a sua sponte duty to instruct pursuant to CALCRIM No. 1193, the absence of an instruction was harmless error under the standard set forth in Watson. (Mateo, supra, 243 Cal.App.4th at p. 1074; Housley, supra, 6 Cal.App.4th at p. 959.) The Mateo court concluded no prejudice was shown by the failure to instruct, reasoning that "[w]here, as here, the expert testifies regarding the behavior of abused children as a class, there is little, if any, chance the jury will misunderstand or misapply the evidence." (Mateo, at p. 1074.) In Housley, the Court of Appeal concluded that, even if a sua sponte instruction had been provided, there was no reasonable probability of a more favorable result because the CSAAS testimony was presented in general terms, it was clear that the expert had no contact with the victim or knowledge of the underlying facts, and under such circumstances the jury would not have misunderstood or misapplied the expert testimony as proof that the victim was in fact sexually abused. (Housley, at p. 959.)
Van Druten contends the court's failure to provide a limiting instruction amounts to federal constitutional error because it "interfered with the jury's essential role as assessor of witness credibility." He forfeited this argument by not raising it in the trial court. (Demetrulias, supra, 39 Cal.4th at pp. 20-22.) It also lacks merit. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 413, fn. 34 ["contrary to defendants' apparent argument, every state law error does not automatically result in a violation of the federal Constitution"].) The authority he cites is not on point. (Bollenbach v. U.S. (1946) 326 U.S. 607, 613 [judge gave inaccurate instruction in response to jury question]; U.S. v. Scheffer (1998) 523 U.S. 303, 313 [inadmissibility of polygraph evidence].) Moreover, for the reasons discussed post, we reject Van Druten's argument that the alleged error interfered with the jury's role here.
Similarly, in this case, it is not likely the jury was misled or confused by Dr. Jones's testimony. Dr. Jones emphasized she was only discussing child molest victims in general. She explained that she was not familiar with the facts of the case, had not interviewed any of the witnesses or the victim in the case, and had not read any police reports. In addition, the jury was instructed that it was not required to accept the expert's opinions as true or correct, that it had to determine the meaning and importance of any opinion, and that it could disregard any opinion that it found unbelievable, unreasonable, or unsupported by the evidence. Contrary to Van Druten's suggestion, the prosecutor's statements during closing argument did not result in the improper use of CSAAS testimony. The prosecutor emphasized that the People bore the burden to prove the charges beyond a reasonable doubt and argued that standard was met with A.'s testimony. The prosecutor's statement that witness testimony was "right on point" with the expert's testimony did not suggest that the expert's testimony proved Van Druten molested A., but rather that A.'s delay in disclosing the abuse, her incremental disclosure, and her inconsistent statements regarding the abuse did not necessarily indicate that her allegations should be discredited. We further reject Van Druten's suggestion that the expert testimony inappropriately "corroborated" the testimony of S. and A. The expert never expressed an opinion as to whether A. or S. had been molested or were being truthful, and the prosecutor never encouraged the jury to interpret the CSAAS testimony in this manner. We therefore conclude it is not reasonably probable the jurors used the CSAAS testimony in an objectionable manner or that Van Druten would have achieved a more favorable result had a limiting instruction like CALCRIM No. 1193 been given.
As previously discussed, it is well settled that CSAAS testimony is relevant and admissible "to rehabilitate [a] witness's credibility" (McAlpin, supra, 53 Cal.3d at pp. 1300, 1302) and to "support another witness's credibility" (Ward, supra, 36 Cal.4th at p. 211); the evidence here was properly admitted for that limited purpose.
Because Van Druten cannot establish he was prejudiced by counsel's failure to request a limiting instruction, his ineffective assistance of counsel claim also fails. (Strickland, supra, 466 U.S. at p. 687; see People v. Ledesma (1987) 43 Cal.3d 171, 217 [generally, for purposes of a claim of ineffective assistance of counsel, prejudice must be affirmatively proved].) Furthermore, Van Druten cannot establish counsel's performance was deficient because the record sheds no light on why counsel did not request the limiting instruction—even when directly invited to do so by the trial court. (People v. Maury (2003) 30 Cal.4th 342, 394 ["A reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide."].) "As a tactical matter, competent counsel could rationally conclude that it would be counterproductive to request an instruction highlighting [CSAAS] expert testimony supporting the victim's credibility." (Mateo, supra, 243 Cal.App.4th at p. 1076.)
IV.
Sentencing
Van Druten contends the trial court abused its discretion in applying the upper term, rather than the middle term, and in imposing consecutive sentencing on counts 1 through 6. We reject these contentions.
A. Additional Factual Background
At sentencing, defense counsel requested the low term and requested the court run some of the charges concurrently. Van Druten made a statement to the court, stating he was "sorry for what happened, the event back in April of 2017," and that it "was not a preplanned event." He stated he hoped to spend time with his church friends and his wife, and asked for "mercy" and "forgiveness." S. and G. made statements to the court, explaining how Van Druten's actions had negatively impacted their family.
The trial court expressed "shock[]" at Van Druten's statement because he was "still pretending this didn't happen." The trial court—acknowledging its implicit finding that Van Druten was not credible—stated, "your excuse that you gave at trial—[i]t was so unbelievable you got on the stand and lied, but so unbelievable that you couldn't come up with a better statement . . . ." The trial court stated Van Druten had "expressed absolutely no remorse" other than "parrot[ing] the words," had "never expressed a tear for anybody but [him]self" and "never acknowledged . . . the harm that you have caused to that little girl." The trial court also criticized Van Druten for telling the probation officer he had no sexual attraction to minors, when he had molested his granddaughter over a period of "at least eight months, nine months, when she was four and five."
The trial court repeatedly emphasized that Van Druten had a right to a trial on the charges and indicated it would never punish a defendant for exercising that right.
Van Druten incorrectly contends there is "no evidence" in the record to support the court's statement regarding the length of time the abuse went on. A.'s statements to the forensic interviewer and her testimony support the inference that the abuse occurred over a period of time. The record established that A. had lived in the combined family home with Van Druten for a period of eight months before disclosing the abuse. S. and G. overheard Van Druten encouraging A. to keep their "secret" some time before A. disclosed the abuse. S. testified that A. was often in Van Druten's room when she came home from work. In all, the evidence in the record supports the inference that the abuse occurred over a period of several months, as the trial court indicated.
The trial court identified two mitigating factors: that Van Druten had no criminal record and he served his country (Cal. Rules of Court, rule 4.423(b)(1) and (c)). With respect to Van Druten's lack of criminal record, however, the court observed that "this is not the kind of crime you do out in public," and "we have an example of what happened 25 years ago." As such, the court declined to "giv[e] [defendant] much credit for not having a criminal history."
The trial court identified multiple aggravating factors: the victim was particularly vulnerable, the crimes involved planning (citing the candy in the bedroom and time spent in bed with the victim showing her pornographic videos), and the defendant took advantage of a position of trust (Cal. Rules of Court, rule 4.421(a)(3), (8) & (11)).
The trial court also recognized that the crimes caused the victim substantial harm, stating: "You have absolutely no empathy or understanding of the harm that you caused. . . . [¶] I'm so horrified by . . . your failure to appreciate what you have done, how you have altered your granddaughter's life."
Courts have recognized that lewd conduct on a child "may have lifelong consequences to the well-being of the child." (People v. Christensen (2014) 229 Cal.App.4th 781, 806.)
The court further stated: "Society really needs to be protected because there's no reason to believe you learned your lesson. You don't accept responsibility. I have no reason to believe that given the opportunity, you wouldn't do the same thing again. [¶] . . . I mean, if you're released, you're out there in society, and you may come across another young child . . . [and] some opportunity to be alone with a child. . . . I think you need to be punished, and I think you need to be away. [¶] So I am giving what I believe is the maximum sentence that I can give."
The court indicated that, "due to the nature and the repeated offenses and the distinct offenses" that all the sentences should run consecutively. The trial court found the aggravating factors "far exceed any mitigating factors" and sentenced Van Druten to the upper term of eight years on count 1, and plus one-third the midterm on counts 2 through 6 (two years each) for a total prison sentence of 18 years.
B. Discussion
" 'A trial court's decision to impose a particular sentence is reviewed for abuse of discretion and will not be disturbed on appeal "unless its decision is so irrational or arbitrary that no reasonable person could agree with it." ' [Citation.] 'In exercising . . . discretion in selecting one of the three authorized terms of imprisonment . . . , the sentencing judge may consider circumstances in aggravation . . . .' [Citation.] 'Only a single aggravating factor is necessary to make it lawful for the trial court to impose' the upper term." (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1182; see People v. Black (2007) 41 Cal.4th 799, 813 ["the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term"].) Here, the trial court recognized several aggravating factors: the victim was particularly vulnerable, the crimes involved planning, and the defendant took advantage of a position of trust (Cal. Rules of Court, rule 4.421(a)(3), (8) & (11)). Each of these circumstances independently justifies imposition of the upper term.
Similarly, a trial court has "broad discretion to impose consecutive sentences when a person is convicted of two or more crimes." (People v. Shaw (2004) 122 Cal.App.4th 453, 458; § 669.) One factor affecting the decision to impose consecutive rather than concurrent sentences is whether the "crimes and their objectives were predominantly independent of each other." (Cal. Rules of Court, rule 4.425(a)(1).) Another is whether the "crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Id., rule 4.425(a)(3).) A circumstance in aggravation may be considered in deciding whether to impose consecutive sentences, unless it is also used to impose the upper term or to otherwise enhance the sentence. (Id., rule 4.425(b)(1), (2).) Here, the trial court indicated the sentences should run consecutively "due to the nature and the repeated offenses and the distinct offenses." The jury found Van Druten guilty on six separate counts of lewd act on a child—two incidents where A. was directed to touch his penis, two incidents where A. was directed to touch his penis while he urinated, and two incidents where he touched A.'s vagina. These verdicts and the evidence presented at trial support the court's conclusion that the crimes were distinct, committed at different times, and not so closely in time as to indicate a single period of aberrant behavior. The trial court did not abuse its sentencing discretion here.
The jury clearly rejected Van Druten's account that the allegations stemmed from a single incident of A. accidentally walking into the bathroom where he was masturbating.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.