Opinion
H048080
05-04-2022
THE PEOPLE, Plaintiff and Respondent, v. ADALBERTO CORONADO, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. 18CR006551)
Greenwood, P. J.
A jury found defendant Adalberto Coronado guilty on numerous counts of sexual assault on children, child abuse, and corporal injury to a spouse. The trial court imposed a total term of 60 years to life in prison.
Coronado contends the trial court erred by admitting expert testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS). He argues the evidence should have been excluded as insufficiently reliable under People v. Kelly (1976) 17 Cal.3d 24 (Kelly); that there was an insufficient showing that the subject of expert testimony was beyond the common understanding of jurors; that its probative value was substantially outweighed by the danger of undue prejudice under Evidence Code section 352; and that its admission violated his due process rights.
For the reasons below, we conclude these claims are without merit. We will affirm the judgment.
Coronado also petitions this court for a writ of habeas corpus. (In re Coronado, H049473.) We deny his petition in a separate order on this date.
I. Factual and Procedural Background
A. Procedural Background
The prosecution charged Coronado with 11 counts: counts 1 and 2-aggravated sexual assault of a child (Pen. Code, § 269, subd. (a)(5)); counts 3 and 4-continuous sexual abuse (§ 288.5, subd. (a)); count 5-forcible lewd act upon a child (§ 288, subd. (b)(1)); counts 6 through 9-child abuse under circumstances likely to produce great bodily harm or death (§ 273a, subd. (a)); count 10-corporal injury to a spouse (§ 273.5, subd. (a)); and count 11-possession of matter depicting a minor engaged in sexual conduct (§ 311.11, subd. (a)). As to counts 3 through 5, the information further alleged Coronado committed the offenses against more than one victim. (§ 667.61, subd. (b).) Count 11 was dismissed before trial.
Subsequent undesignated statutory references are to the Penal Code.
The jury found Coronado guilty on all remaining counts except count 4 and found the enhancements true. After the jury failed to reach a verdict on count 4, the trial court declared a mistrial on that count. The trial court imposed an aggregate term of 60 years to life in prison.
B. Facts of the Offenses
Coronado was married to Jane Doe 3. They had five children: the eldest, stepdaughter Jane Doe 1; the middle daughter, Jane Doe 2; their son John Doe; a younger daughter, Jane Doe 4; and a baby. They lived together in a mobilehome until the end of August 2017, when Jane Doe 3 left the home with the children. The prosecution alleged Coronado abused and sexually assaulted three of the children and battered his wife in 2016 and 2017. Coronado denied all allegations of physical and sexual abuse.
1. Jane Doe 1 (Counts 1, 2, 5, and 6)
Jane Doe 1 was 15 years old when she testified at trial. She was 13 years old in August 2017 when her mother left the mobilehome with her (Jane Doe 1) and the other children. Jane Doe 1 testified about numerous incidents in which Coronado subjected her to emotional, physical, and sexual abuse. The police came to the home three times, but Jane Doe 1 did not tell them what was going on because she was afraid she would get in trouble.
Jane Doe 1 testified that Coronado would regularly hit her with his hands, a belt, a hanger, and tools. He once hit her with a wooden broom handle. He hit the other children with the belt as well, and he threw one of them down the hallway. He frequently punished the children by telling them to walk outside naked.
Coronado would regularly smack Jane Doe 1 on the buttocks and grab her breasts. On one occasion, when she was taking a shower, Coronado opened the shower door, grabbed her butt and waist, and put his fingers in her vagina. On another occasion, they were in his bedroom when he started rubbing up against her and grabbed her waist and buttocks. She tried to get away, but he would not let her leave. He pulled her pants and underwear down to her knees, got on top of her on the bed, and put his finger in her vagina. She did not tell her mother what happened because she was afraid that if she told her mother, Coronado would beat them both.
2. Jane Doe 2 (Counts 3 and 7)
Jane Doe 2 was 12 years old when she testified at trial. In August 2017, she was 10 years old. She testified that Coronado hit her with his hands, a belt, a hanger, and tools. She also saw him hit her siblings on numerous occasions. Coronado forced her and her sister to walk outside naked, and John Doe was forced to wear a dress.
Coronado touched Jane Doe 2's breasts under her clothing on more than 20 occasions. She saw him touch Jane Doe 1's "private area" as well. Jane Doe 2 felt she could not ask her mother to make him stop because she was afraid it would start a fight, and he would hit her mother. Jane Doe 2 had seen Coronado hitting her mother, and she saw him throw her sister down the hallway. Jane Doe 2 also saw him hit John Doe with a tool.
3. John Doe (Count 9)
John Doe was 10 years old when he testified at trial. He was eight years old in August 2017. John testified that Coronado hit him, his mother, and his two older sisters. Coronado used belts, wrenches, and a broken broomstick, and it happened nearly every day. John did not feel like he could ask his mother to stop it because she would get hit badly. Every time she stepped in, Coronado hit her badly, so she stopped trying. Coronado made John wear a dress on two occasions, and Coronado made John go outside with his sisters while they were naked and he was wearing the dress.
John testified that Coronado touched John's penis under his clothes on more than 10 occasions. John could not refuse because Coronado would hit him. John also saw Coronado touch Jane Doe 1 on her breasts and under her underwear. The police would come to the house but John never told them what was happening because Coronado told them to lie, and John was afraid of him.
4. Jane Doe 3 (Count 10)
Jane Doe 3 testified that she saw Coronado abuse her children during the period from 2016 to 2017. This included hitting the children-specifically Jane Doe 1, Jane Doe 2, and John Doe-with his fists, a belt, or tools, and touching their private parts. Jane Doe 3 was afraid not to comply because it would make things worse for herself and the children. She saw Coronado touch Jane Doe 1's breasts and pubic hair. As to Jane Doe 2, Jane Doe 3 saw Coronado touching her breasts, and hitting her with his hands and a tool. As to John Doe, the abuse including hitting and touching his private area. Coronado forced the girls and John to go outside while the girls were naked and John was wearing a dress. Coronado would force John to pull his pants down and "flick his penis . . . to make sure it was growing."
Jane Doe 3 did not call the police because she was scared and had nowhere to go. She thought calling the police would make things worse. She also depended on Coronado financially. She had a car, but he took the keys away from her. When she finally left the mobilehome, she walked into the city with the children, caught a bus to Salinas, and rented a car.
II. Discussion
Coronado contends the trial court erred by admitting expert testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS). He argues the evidence should have been excluded as insufficiently reliable under Kelly, supra, 17 Cal.3d 24; that there was an insufficient showing of any myths or misconceptions to dispel; that the probative value of the evidence was substantially outweighed by the danger of undue prejudice under Evidence Code section 352; and that its admission violated his due process rights. To the extent trial counsel may have failed to object, Coronado argues counsel rendered ineffective assistance. The Attorney General contends the trial court properly admitted the evidence, and that Coronado has waived some of these claims by failing to object below.
A. Background
Coronado moved pretrial to exclude testimony about CSAAS on the grounds it was inadmissible under Kelly; that the prosecution had not presented evidence of any need to rebut a myth or preconception; that it could be misapplied by the jury; and that a limiting instruction would be inadequate to prevent the misapplication of the evidence.
The prosecution proffered the expert testimony of psychologist Dr. Anna Washington to testify to commonly held myths and misconceptions about how child victims of sexual abuse behave. The prosecutor stated her testimony would be offered to rebut misconceptions such as how victims would never show affection or have positive feelings towards their abusers; would not go places or do things with their abusers; would want to see their abusers get in trouble; would appear frightened with their abusers; would immediately disclose the abuse; would cry or appear distressed when talking about the abuse; would always remember specific details of the abuse; and would always report the abuse when given the opportunity. The prosecutor assured the court the evidence would not be used as a "diagnostic tool." The trial court ruled such evidence would be admissible, conditioned on a foundational showing that would make it relevant to rebut those misconceptions.
Dr. Washington, a psychologist at the UC Davis Child and Adolescent Abuse Resource and Evaluation Center, testified at trial as an expert on the effects of sexual assault on children. She had never discussed the facts of this case with the prosecutor, she did not review any police reports, she did not meet with any of the victims, and she was not present when any of the other evidence was introduced at trial.
Dr. Washington testified it is common for children who have been sexually abused to show positive reactions or feelings towards their abuser because the child often has an established, preexisting positive relationship with the abuser. The child may want to go places and spend time with the abuser. Second, Dr. Washington testified it is a myth that children would appear a certain way, look frightened, or avoid their abuser. Third, it is a myth that children often report the abuse immediately. Children commonly delay their disclosures, or they may never tell anyone about the abuse. They may be afraid of losing their positive relationship with the abuser. They may be afraid the abuser will go to jail or that there will be other negative consequences. It may also be too overwhelming for the child to talk and think about traumatic experiences. Finally, even if the child is directly approached by an adult or law enforcement, it is common for abused children to deny the abuse happened. Even if they tell one person about it, they may still deny it to another. This is particularly likely to happen when the abuser still has access to the child.
After the close of evidence, the parties agreed to instruct the jury with a modified version of CALCRIM No. 1193 as follows: "You have heard testimony from Anna Washington regarding common misconceptions concerning the behavior of child abuse victims. [¶] Anna Washington's testimony is not evidence that the defendant committed any of the crimes charged against him. You may consider this evidence only in evaluating the believability of Jane Doe l's, Jane Doe 2's, and John Doe's testimony."
B. Legal Standards
CSAAS evidence is admissible for limited purposes. It may not be used to prove the alleged sexual abuse actually occurred, but CSAAS is admissible "for the limited purpose of disabusing the fact finder of common misconceptions it might have about how child victims react to sexual abuse. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 418.) The prosecution may explicitly identify misconceptions about victims' behavior that CSAAS testimony is intended to rebut. (People v. Harlan (1990) 222 Cal.App.3d 439, 449-450 (Harlan).) Such evidence may be relevant and admissible where a victim's conduct relates directly to those misconceptions. (Id. at p. 450.) "For instance, where a child delays a significant period of time before reporting an incident or pattern of abuse, an expert could testify that such delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust." (People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker).)
"The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion." (People v. McDowell (2012) 54 Cal.4th 395, 426.) Evidence Code section 352 gives trial courts discretion to "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." (Evid. Code, § 352.) "Rulings under Evidence Code section 352 come within the trial court's broad discretion and will not be overturned on appeal absent a showing of an abuse of that discretion." (People v. Brooks (2017) 3 Cal.5th 1, 43.)
C. Admissibility of CSAAS Evidence under Kelly and the Rules of Evidence
Coronado contends the evidence should have been excluded because it was not sufficiently reliable under Kelly, supra, 17 Cal.3d 24, and Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747. The Attorney General contends the Kelly standard does not apply to this evidence because it is not based on a new scientific method.
Coronado concedes that courts have held CSAAS evidence-provided it is used in a limited fashion as permitted by Bowker, supra-is not subject to the Kelly standard for new scientific methods. (See Harlan, supra, 222 Cal.App.3d at p. 449, citing People v. Stoll (1989) 49 Cal.3d 1136, 1161.) Coronado argues nonetheless that Kelly applies to the expert's testimony in this case because in response to the prosecutor's foundational questions establishing her expertise, Dr. Washington stated she was an experienced psychologist who kept current on the latest research. Coronado argues this "sounded scientific" and the jury was asked to believe her testimony because of her scientific background. But that by itself is not a basis for applying Kelly, and nothing in Dr. Washington's background would distinguish her from any of the other experts who gave CSAAS testimony deemed admissible by the courts of this state.
Coronado argues that even if the Kelly standard does not apply to CSAAS evidence, it was insufficiently reliable under Evidence Code section 801. "Trial judges have a critical gatekeeping function when it comes to expert testimony beyond merely determining whether the expert may testify at all. Expert evidence that does not require a Kelly analysis must still be admissible under Evidence Code section 801, which mandates it be 'of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject.' [Citations.]" (People v. Azcona (2020) 58 Cal.App.5th 504, 513 (Azcona).) Azcona, however, was not concerned with the reliability of CSAAS testimony. Coronado cites no binding authority to support his position, and he relies instead on authorities from other states to argue the CSAAS testimony was unreliable. (See State v. J.L.G. (2018) 234 N.J. 265 [deciding reliability of "general acceptance" standard of Frye v. United States (D.C. Cir. 1923) 293 F. 1013] (J.L.G.).) As Coronado concedes, the courts of this state have rejected the analysis of the J.L.G. court. (People v. Munch (2020) 52 Cal.App.5th 464, 470.) We see no basis in this case to conclude the trial court abused its discretion in following California and federal authorities deeming CSAAS testimony admissible.
Coronado then argues that even if the CSAAS evidence was sufficiently reliable, the trial court erred by admitting it because it was not beyond the common understanding of the jurors. The Attorney General argues Coronado waived this claim by failing to object below. We agree with the Attorney General, but the claim fails on the merits as well. The California Supreme Court explained why jurors may lack a common understanding of how child sexual abuse victims react as follows: "Most jurors, fortunately, have been spared the experience of being the parent of a sexually molested child. Lacking that experience, jurors can rely only on their intuition or on relevant evidence introduced at trial. It is reasonable to conclude that on the basis of their intuition alone many jurors would tend to believe that a parent of a molested child, naturally concerned for the welfare of the child and of other children, would promptly report the crime to the authorities, just as a parent would be likely to do if the child complained of someone who had beaten him or stolen his pocket money." (People v. McAlpin (1991) 53 Cal.3d 1289, 1302.) Coronado argues that the public's understanding of and beliefs about child abuse have evolved since the time of that opinion, but the record contains no facts or evidence to support this argument. Absent a record of how public understanding has changed, we remain bound by the California Supreme Court's holdings on this point. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450.)
Finally, Coronado contends the evidence should have been excluded under Evidence Code section 352 as substantially more prejudicial than probative. We are not persuaded. The probative value of the evidence was based on the victims' delayed disclosures and reluctance to disclose the abuse when questioned by the police. Coronado argues the evidence was unduly prejudicial because the jury was likely to misconstrue it as corroboration for the allegations of abuse, but the trial court instructed the jury against such misuse of the evidence. "We presume absent contrary indications that the jury was able to follow the court's instructions." (People v. Pinholster (1992) 1 Cal.4th 865, 919, disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405.) Absent a showing to the contrary, we presume the jury followed the trial court's instructions not to use the testimony as evidence that Coronado committed any of the charged crimes.
Coronado complains that the instruction was inadequate because it failed to tell jurors not to use the evidence as a diagnostic tool in assessing his guilt, but his trial counsel expressly agreed to the modified instruction as a product of negotiations with the prosecutor. Absent any claim of ineffective assistance of counsel for that decision, Coronado has no grounds to challenge the instruction on appeal. In any event, admission of Dr. Washington's testimony was not an abuse of discretion under Evidence Code section 352.
For the reasons above, we conclude these claims are without merit.
D. The Admission of CSAAS Evidence Did Not Violate Due Process
Coronado contends the admission of CSAAS evidence violated his federal due process under the Fourteenth Amendment. He argues the jury likely used the evidence to infer he was guilty. As noted above, the trial court instructed the jury not to misuse the evidence in this fashion, and Coronado points to nothing in the record showing the jury failed to adhere to this instruction. He cites nonbinding authorities from other state courts, but California courts have rejected this position as set forth above. We decline to depart from the longstanding holdings of these courts. We conclude this claim is without merit.
E. Ineffective Assistance of Counsel
Coronado contends trial counsel rendered ineffective assistance to the extent she may have failed to preserve any of the above claims by adequately objecting below. But we conclude none of the claims raised above have merit, and hence any objections on those grounds would have been futile. Declining to lodge a futile objection does not constitute ineffective assistance. (People v. Anderson (2001) 25 Cal.4th 543, 587 [defense counsel does not provide ineffective assistance of counsel by declining to lodge a futile objection].) This claim is without merit.
For all the reasons above, we will affirm the judgment.
III. Disposition
The judgment is affirmed.
WE CONCUR: Grover, J., Lie, J.