Opinion
H024972.
10-7-2003
THE PEOPLE, Plaintiff and Respondent, v. LUIS GOMEZ, Defendant and Appellant.
Defendant Luis Gomez was charged by information with two counts each of forcible rape (Pen. Code, § 261, subd. (a)(2) — counts 1, 3), rape of a person incapable of giving consent (& sect; 261, subd. (a)(1) — counts 2, 4), forcible sexual penetration (& sect; 289, subd. (a)(1) — counts 7, 9), and sexual penetration of a person incapable of giving consent (§ 289, subd. (b) — counts 8, 10), as well as one count each of forcible sodomy (& sect; 286, subd. (c)(2) — count 5), sodomy of a person incapable of giving consent (§ 286, subd. (g) — count 6), kidnapping (& sect; 207, subd. (a) — count 11), and kidnapping to commit a sexual offense (§ 209, subd. (b)(1) — count 12). The information also included kidnapping allegations pursuant to section 667.61 as to counts 1, 3, 5, 7, and 9. All allegations related to victim "Tracy Doe" (hereafter, Tracy). A jury found defendant guilty of counts 2, 8, and 11, and not guilty of the other charges. The trial court sentenced defendant to nine years, eight months in state prison.
Further unspecified statutory references are to the Penal Code.
On appeal defendant contends that the trial court erred in failing to instruct sua sponte that a reasonable but mistaken belief that the victim was capable of consenting and actually did consent to the sexual conduct was a defense to counts 2 and 8. He further contends that any invited error by counsel in failing to request such an instruction constituted ineffective assistance. Lastly, he contends that the trial court erred when it denied his motion to strike the expert testimony as irrelevant and lacking in adequate foundation. We disagree with defendants contentions, and therefore affirm.
FACTS
Gloria C.s daughter Tracy was born in February 1972, and lives with her. Tracy has limited speech and mental ability. She cannot read or write, or tell time. She can do household chores, such as vacuuming, and warm up food in the microwave. She cannot use public buses. While Gloria is at work, Tracy is at Hope, which is a job warehouse for people with limited mental capacity. There they have simple, repetitive work tasks for Tracy to do, such as putting mailing labels on flyers. Tracy has a very short attention span.
In August 2000, Hope arranged a job for Tracy outside the Hope warehouse, at Old Navy at the Great Mall. She was supposed to work from 8:00 a.m. to noon, and Hope arranged for her to get to work and back with Outreach. Tracy has been using these kinds of buses since she was about four years old.
Gloria believes that Tracy knows what sex is, but does not think that Tracy understands the consequences of sex. Tracy has been pregnant twice; she had a child in 1991 that was immediately put up for adoption, and had the second pregnancy terminated. After Tracys second pregnancy, sometime between 1994 and 1998, Tracy began getting Depo-Provera shots every three months. In 1999, Tracy had a tubal ligation. Gloria has told Tracy that she cannot have any more children.
Carrie Molho, Ph.D., a staff psychologist at San Andreas Regional Center (SARC), testified as an expert in the field of clinical neuropsychology, specifically as it applies to evaluating developmental disabilities. She had never met Tracy, but reviewed records pertinent to assessing her developmental disability. Tracys SARC file covered her from the age of 13 to the time of trial. Tracys clinical diagnosis is mental retardation. Under DSM-IV definitions, mental retardation is a developmental disability that must be present before age 18. It is characterized by significant deficits in cognitive function and concurrent deficits in adaptive functioning. Significant deficits in cognitive functioning are characterized by an IQ (intelligence quotient) thats more than two standard deviations below the mean of 100. Between the ages of 13 and 19, Tracy took three IQ tests, and they all assessed Tracys IQ at 43 or 44, with an equivalent mental age of around 6 or 7 years old. This indicates that Tracy is in the moderately retarded range of mental retardation, and that she is clearly developmentally disabled. A person with moderate retardation would have difficulty acting appropriately in an emergency or other situation where safety awareness is involved.
DSM-IV refers to the Diagnostics and Statistical Manual, Fourth Edition.
In all three assessments Tracy was giving the Leiter International Performance Scale, a non-verbal problem-solving test that does not require any language component. It is basically a measure of abstract-problem solving.
Tracy testified that she goes to work in the morning at Hope, and then goes home. She knows that babies come from "moms stomach." She remembered having a baby, but did not know how the baby got inside her. She does not know what sex is. She remembered getting shots for allergies, but not so that she would not have a baby. She did not know what a tubal ligation is. She knows that she can longer have babies.
The trial court held an Evidence Code § 402 hearing to determine the competency of Tracy to testify during trial. The court declared Tracy competent to testify, and informed the jury of this prior to Tracys testimony. Tracy was administered the oath for child under the age of 10 years as previously stipulated to by the court and counsel.
She remembers the time she worked at Old Navy. She cleaned the bathroom and vacuumed; she did not like it. Laurel helped her. She got home on the bus. When she was asked if she remembered when she was working at Old Navy and something happened that she did not like while on the bus, Tracy replied, "He raped me," referring to defendant. She said that he did not take her home, but she did not remember where he took her. She did not want to go there with him. He raped her three times in the back of the bus. When she was asked to explain what "rape" means, and what part of his body defendant used, she circled the penile area of a picture of a boy, and called it "the penis." When asked where defendant put his penis on her, she circled the vaginal area of a picture of a girl, and called it "vagina." She did not want defendant to put his penis on her vagina. He had a white condom on his penis. She felt "mad," not happy, and scared; she thought that he might hurt her. She said, "No, dont do that to me." The next day Tracy told Laurel that the bus driver had put his penis in her, and Laurel said that he had raped her. That was the first time that Tracy heard the word "rape." After Tracy talked to a police officer, she went to the hospital and a lady there examined her vagina.
Laurel Burgio worked with Hope from May to August 2000 as a job coach. She was Tracys job coach at Old Navy. She was told that this was Tracys first job outside of the warehouse, and that she had trouble sometimes learning directions. Tracy would say "yes," and a job coach would think that Tracy understood, but Tracy would say "yes" to appease the person asking the question rather than really understanding. Burgio was also told by her supervisor that Tracy could be flirtatious and that previously she had been taken advantage of sexually.
Burgio had three clients including Tracy. They all met at Old Navy at 8:00 a.m. when they started. Burgio testified that if she had been the supervisor, she probably would not have placed Tracy at Old Navy. Tracy was low functioning, so they would do basic tasks like cleaning the dressing room. Tracy would finish with one dressing room and then would stand out in front of the next one not remembering what to do. Burgio basically did half of each dressing room because Tracy would need to know each time how to do it. Burgios other two clients needed to be told only once. Tracy could not master the time clock, and Burgio had to walk her through it three times each day. They had a 10 or 15-minute break during the day, and Burgios other two clients would go get something to eat, but Burgio had to stay with Tracy because she would wander off and would not remember where Old Navy was in the mall to come back.
Tracy was not very effective interacting with customers. Customers would ask her questions, and Tracy would never say, "I dont know;" she would just smile blankly or say "yes." She would giggle a lot when there was a man around her talking, but Burgio could not recall Tracy ever initiating any overt sexual conduct.
Tracy took the Outreach bus home after her four-hour workday. They would wait outside the main entrance of the mall for the driver to pull up. On August 24, 2000, they saw the bus parked in the back of the parking lot and then defendant approached them when they went back inside the mall. Defendant was wearing a uniform and spoke to Burgio a little in English, implying that he was there to take Tracy home. Burgio had never seen defendant before, and noticed that he had a blue condom in the breast pocket of his white shirt.
The next day at work, Burgio asked Tracy how her drive home went. Tracy replied, "I dont like that man. He put his penis inside of me." Burgio took Tracy into a bathroom and asked her to repeat what she said. After Tracy repeated what she said, Burgio took her to the employee break room, sat her down, and asked her what happened. Tracy again repeated what she had said. When Burgio asked Tracy if the bus driver put anything else inside of her, Tracy replied "no." When Burgio asked Tracy if she tried to stop the bus driver, Tracy said several times that she had said, "stop." Tracy said that the bus driver asked her "Do you want me," or "Do you like me," and she said, "No. I have a boyfriend." When Burgio asked Tracy if she had to use her mouth, Tracy said "no." When Burgio asked, "What about your bottom," Tracy said, "no." When Burgio asked, "Do you know what sex is," Tracy said, "yes, I do."
Burgio then said, "When two people like each other, they have sex. But when one person doesnt want the other person to have sex with them, and they do it anyways, its called rape. Do you know what happened to you?" Tracy replied that she was raped. Burgio asked Tracy, "Do you know what that means?" Tracy replied that she knew what it means to be raped. Burgio asked Tracy if she felt that she was raped and Tracy replied, "yes." Burgio then called her supervisor, and they waited in the break room for him to come to talk with Tracy. She was interviewed by the police and shown a photo lineup, but she did not see the bus drivers picture in the lineup.
Milpitas police officers Lap La and Armando Corpuz interviewed Tracy on Friday, August 25, 2000. Prior to interviewing her, La was told that Tracy had been sexually assaulted by a driver, and that she has the social capacity of a 14- to 15-year-old and the IQ of a 3- to 4-year-old. During the interview the Hope supervisor tried to make Tracy feel comfortable and secure, and held her hand. Tracy said that when she got into the bus, she was the only passenger. The driver drove her "far away," but Tracy did not know where she was. The driver parked the bus and took her shirt and pants off. Tracy said, "No, I dont like that." The driver threatened to hit her with his fist. Tracy said that the driver raped her, explaining that he had put his penis inside her vagina. Although she said that she had been raped three times, she responded, "yes," to both questions asking her if it was three times on the same day or on three different days.
Lisa Hand, R.N., testified as an expert in SART (sexual assault response team) examinations. She interviewed and examined Tracy on the evening of August 25, 2000. Tracy said that the mans penis penetrated her vagina two times and that his finger penetrated her vagina three times. The man attempted to put his penis in her rectum, but it did not go in. She said that he used a condom. She said that he had said something about hurting her, but she did not remember his exact words. She said that he grasped her right and left shoulders, and that her shoulder, vaginal, and rectal areas all hurt.
Hand found a bruise close to Tracys right breast, which had a slight abrasion in the middle of it. Tracy said that the man had scratched her with his fingernail. Hand also found reddish areas in the area just below the urethra and on the inner labia minora, and a nick in the skin on the inner labia minora. The degree of redness suggested a fairly significant blunt force trauma to the genitalia by a penis, and the nick is suggestive of digital penetration or manipulation. Hand also found a visibly reddened area on the inner vaginal wall, which is consistent with a forcible penetrating injury. Hand found nonsymmetrical bruising, two nicks, and an abrasion with recent bleeding around Tracys anus. This was consistent with attempted penal and digital penetration. If the reported sex had been consensual, any injuries would have healed by the time of Hands examination. In Hands opinion, Tracys examination was consistent with her report of nonconsensual sex and not consistent with consensual sex.
Milpitas police sergeant David Ostrander showed Burgio and Tracy a photo lineup the morning of August 30, 2000. Neither of them identified anybody in the lineup, but the lineup did not include a picture of defendant. Burgio called Ostrander just after noon that same day, and told him that she just saw the bus driver involved in the incident with Tracy inside the Great Mall. Milpitas police officer Jay Johnson arrested defendant at the Great Mall on the afternoon of August 30, 2000. At the time, defendant was wearing a white uniform shirt and had some papers and a package of condoms in his breast pocket. On September 8, 2000, Ostrander showed Tracy a second photo lineup. Defendants picture was included in the lineup, and Tracy immediately indicated that defendant was the person who had sexually assaulted her.
Robert Marshall, Division Manager for M.V. Transportation, testified that prior to July 2001, M.V. Transportation had a contract with Outreach for their transportation services. They transport physically and developmentally disabled and elderly clients to programs and appointments. Defendant was employed by M.V. Transportation and drove the Tango route on August 23 and 24, 2000. Company records, which are prepared by the drivers, showed that on August 23, while on overtime, defendant picked up Tracy at 1 p.m. and dropped her off at home at 1:30 p.m. after a four-mile trip, and that on August 24, defendant picked up Tracy at 12:15 p.m. and dropped her off at home at 12:45 p.m., after a 13-mile trip.
Milpitas police officer Paul Brilovich testified that he was asked to act as a Spanish-language interpreter for Sergeant Ostrander when Ostrander interviewed defendant on August 30, 2000. The interview was videotaped. Brilovich read defendant his Miranda warnings in Spanish, and defendant agreed to talk to the officers. Defendant is married and has a 3-year-old daughter. Defendant said that he had been employed by M.V. Transportation for approximately one year, and that his normal route is the Tango route. He had met Tracy at the Hope building about eight months prior to the interview, and they have had brief conversations and a friendly relationship. He admitted first picking up Tracy and taking her home on August 23 after he had finished his regular route. Before he started driving, Tracy came to the front of the bus to change the channel on the radio. Then, after he started driving, Tracy started caressing his face with her hands from behind him. He became nervous and got lost trying to find his way to her house. He told her to stop. She directed him how to get to her house. As she was getting off the bus, she came alongside him, kissed him on the lips, and grabbed his crotch.
Miranda v. Arizona (1966) 384 U.S. 436.
The next day he went back to the Mall to have lunch and to talk to Tracy, and found her waiting in the same area where he had picked her up the day before. The other women with Tracy asked if he was her driver and whether he would take her home. Tracy followed him onto the bus. He started to drive her home but did not call in to his company to tell them that until he saw another bus arrive. After he started driving, Tracy started caressing his face again. He pulled the bus over and asked Tracy what her intentions were. Tracy pointed to her breasts, pulled down her pants, and exposed her vagina to him. Defendant drove the bus to a secluded residential area and stopped. He then went to the back of the bus, pulled down his pants, and lay down. He put on a condom although his penis was not erect. Although he knew that it was wrong, he let Tracy straddle his lap and "take advantage of him." He said that he did not penetrate Tracy.
Brilovich told defendant that Tracy had said that he took her clothes off, but defendant denied it. Defendant said that he told Tracy that he did not want to do anything but she insisted. The officer asked defendant if he had penetrated Tracy with his finger, and he answered, "no." The officer confronted defendant with Tracys medical report that showed that there was penetration, and defendant admitted that it was possible that he penetrated her with his penis, and that he had ejaculated. Afterwards, he did not take off the condom; he did not know what happened to it. Defendant stated that he believed Tracy was intelligent because she was able to tell everything that happened in her favor while not all the blame was his. He knows that it is a crime to rape a woman, but felt what happened here was not rape.
Dr. James Crawford, Medical Director of the Center for Child Protection at Childrens Hospital in Oakland testified for the defense as an expert in the medical evaluation of physically mature individuals who make allegations of sexual assault. He sometimes evaluates young adults with significant developmental delay. He also routinely reviews the work of other examiners. In his unit, RNs do not do SART exams because they typically do not have the same clinical background as nurse practitioners or physicians do; they are not typically allowed to make a diagnosis. He is aware that in California the majority of adult SART exams are performed by RNs.
He reviewed the medical records and the examination that was done on Tracy. The photograph of what was supposed to be a reddish area below the urethra looked like normal tissue to him and was not definite proof of a forcible sexual assault. He did see what could be a nick in the skin, but it could have been caused by Tracy scratching herself. The abrasion could have been caused by Tracy scratching herself. The finding of redness in the vaginal wall could be the result of consensual sexual intercourse. Individuals who do not have a lot of sexual experience can sustain injuries from consensual activity. There was nothing in the photographs that would lead him to believe that there was definitely nonconsensual intercourse in this case. People can have consensual intercourse that leaves physical findings like what he saw in the photographs.
DISCUSSION
Defendant first contends that the trial court erred in failing to instruct the jury sua sponte that a reasonable but mistaken belief that Tracy was capable of consenting to the sex acts was a defense to counts 2 and 8. In a related argument, defendant contends that trial counsel rendered ineffective assistance of counsel by not requesting such an instruction.
The jury was instructed in relevant part that, "Defendant is accused in Count[] 2 . . . of having committed the crime of rape, in violation of Section 261(a)(1) of the Penal Code. [¶] Every person who engages in an act of sexual intercourse with another person not the spouse of the perpetrator, where that person is incapable because of a mental disorder or developmental or physical disability, of giving legal consent, and this incapacity is known or reasonably should have been known to the person committing the act, is guilty of the crime of rape, in violation of Penal Code Section 261(a)(1). [¶] In order to prove this crime, each of the following elements must be proved: [¶] One, a male and a female engaged in an act of sexual intercourse; [& para;] Two, the two persons were not married to each other at the time of the act of sexual intercourse; [¶] Three, the alleged victim was incapable of giving legal consent because of a mental disorder or developmental or physical disability; and [¶] Four, the other person knew or reasonably should have known of this incapacity. [¶] Any sexual penetration, however slight, constitutes engaging in an act of sexual intercourse. Proof of ejaculation is not required." (See CALJIC No. 10.02.)
"Defendant is accused in count[] 8 . . . of having violated Section 289(b) of the Penal Code, a crime. [¶] Every person who commits an act of sexual penetration and the victim is at the time incapable because of a mental disorder or developmental or physical disability, of giving legal consent and this capacity is known or reasonably should be known to the person committing the act, is guilty of a violation of Penal Code Section 289(b), a crime. [¶] Sexual penetration is the act of causing the penetration, however slight, of the genital or anal openings of any person or causing another person to do so — penetrate the defendants or another persons genital or anal opening for the purpose of sexual arousal, gratification or abuse by any foreign object, substance, instrument or device or any unknown object. [¶] The . . . words foreign object, substance, instrument or device include any part of the human body except the sexual organ. [¶] Unknown object includes any foreign object, substance, instrument or device, or any part of the body including a penis, when it is not known whether the penetration was by a penis or by a foreign object, substance, instrument or device or by any other part of the body. [¶] The specific intent to cause sexual abuse as used in this instruction means the purpose to injure, hurt, cause pain or because [sic] discomfort. It does not mean the perpetrator must be motivated by sexual gratification or arousal or have a lewd intent. [¶] In order to prove this crime, each of the following elements must be proved: [¶] One, a person committed an act of sexual penetration upon another person; [¶] Two, the alleged victim was at the time incapable because of a mental disorder or developmental or physical disability of giving legal consent; [& para;] Three, this incapacity was known or reasonably should have been known to the person committing the act; [¶] Four, the penetration was done with the purpose and the specific intent to cause sexual arousal, gratification or abuse." (See CALJIC No. 10.32.)
"In Counts . . . 2, [and] 8, . . . the word `consent means positive cooperation in an act or attitude as an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved." (See CALJIC No. 1.23.1.)
Defendant acknowledges that these instructions are a correct statement of the law. However, he argues that the court erred in failing to additionally instruct the jury sua sponte that if defendant held a reasonable but mistaken belief that Tracy had the capacity to consent to the sex acts, this was a defense to the two counts. (See CALJIC Nos. 10.65, 10.67.)
People v. Mayberry (1975) 15 Cal.3d 143 holds that a defendants reasonable and bona fide mistake of fact regarding a persons consent to sexual intercourse is a defense to rape. (Id. at p. 155.) "The Mayberry defense has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victims equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendants mistake regarding consent was reasonable under the circumstances." (People v. Williams (1992) 4 Cal.4th 353, 360-361, fn. omitted.)
As relevant to the facts of this case, a reasonable and good faith but erroneous belief that valid consent to an act of sexual intercourse has been obtained is a defense to a charge of rape of a person incapable of giving consent. (Cf. People v. Hernandez (1964) 61 Cal.2d 529, 535-536; People v. Giardino (2000) 82 Cal.App.4th 454, 471-472.) Thus, a Mayberry type instruction should be given where there is evidence to support such a defense, but there is no sua sponte duty for the court to give such an instruction where defendant does not tender the defense or request the instruction. (See e.g., People v. Romero (1985) 171 Cal.App.3d 1149, 1153-1157; People v. Rhoades (1987) 193 Cal.App.3d 1362, 1367-1370.)
Defendant admits that his trial counsel did not request a Mayberry type instruction. The question then here is whether defendant tendered the defense that he actually and reasonably held the belief, albeit erroneously, that Tracy had the capacity to give consent to sexual intercourse, and whether there was substantial evidence to support such a defense.
Defense counsel argued to the jury that Tracy "is legally capable of consent," and that, "even if she is not," defendant "did not know the nature and extent of her disability;" "he didnt know that she was legally incapable of consenting to sex." This was not sufficient for this court to find that defendant tendered the defense below that defendant raises on appeal. An erroneous belief that Tracy had capacity to give consent to sex was not a defense to the charges if the belief was not also bona fide and reasonable. Although defense counsels argument may be taken as a claim that defendant believed that Tracy had legal capacity to give consent, counsel did not argue that defendants belief was also bona fide and reasonable. Thus, defendant did not tender the defense below that he honestly and in good faith believed, albeit mistakenly, that Tracy had the capacity to consent to sex.
The jury was instructed that in order to find defendant guilty of counts 2 and 8 it had to find that defendant knew or reasonably should have known of Tracys incapacity to give legal consent because of a mental disorder or disability. This instruction adequately informed the jury that if it found that defendant had a good faith and reasonable belief that Tracy had capacity to consent, it could not find defendant guilty of counts 2 and 8. There was substantial evidence to support the jurys finding that defendant knew or reasonably should have known of Tracys incapacity: defendant had been driving for Outreach for approximately one year; Outreach transports physically and developmentally disabled clients to programs; Tracy is developmentally but not physically disabled; defendant first met Tracy at Hope eight months before the incident at issue, and had had brief conversations and a cordial relationship with her since then; Hope is a job warehouse for people with limited mental capacity. Given the record as a whole, any failure of the trial court to sua sponte specifically instruct the jury that a reasonable and bona fide belief of valid consent was a defense to the charges was harmless error. And, as defendant was not prejudiced by the failure to give this specific instruction, his claim of ineffective assistance of counsel also fails. (Strickland v. Washington (1984) 466 U.S. 668, 694.)
Defendant also contends that the trial court erred when it denied his motion to strike the expert testimony of Dr. Molho as irrelevant and as lacking in adequate foundation. As stated above, Dr. Molho testified as an expert in the field of clinical neuropsychology, specifically as it applies to evaluating developmental disabilities. Initially, defendant objected to Dr. Molhos testimony as irrelevant. Dr. Molho then testified that the assessments in Tracys file indicated that Tracy was developmentally disabled. Dr. Molho informed the court that, while she reviewed everything in Tracys file, she based her opinion only on standardized assessments that she is familiar with and that she is considered an expert on. She did not base her opinions on service plans and progress reports, as she did not know who wrote the information and thus did not know whether it was valid. Defendant then argued that Dr. Molhos opinion was lacking in adequate foundation because there were service plans and reports in Tracys file dealing specifically with learning about sexuality. The trial court refused to strike Dr. Molhos testimony.
Defendant contends that Dr. Molhos testimony was erroneously admitted on the issue of Tracys capacity to consent. He claims the capacity to consent is based on the alleged victims ability to understand the act and its consequences, and not based on the level of mental disability. Thus, defendant argues, Dr. Molhos testimony regarding Tracys IQ assessments was irrelevant.
"Opinion testimony is generally inadmissible at trial. (Evid. Code, §§ 800, 801.) Opinion testimony may be admitted in circumstances where it will assist the jury to understand the evidence or a concept beyond common experience. Thus, expert opinion is admissible if it is `[r]elated to a subject that is sufficiently beyond common experience [and] would assist the trier of fact. (Evid. Code, § 801, subd. (a).)" (People v. Torres (1995) 33 Cal.App.4th 37, 45 (Torres ).) "The jury need not be totally ignorant of the subject matter of the opinion to justify its admission. (Citation.) Such expert testimony will be excluded ` ". . . only when it would add nothing at all to the jurys common fund of information, i.e., when `the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness. . . ." (Citation.)" (People v. Herring (1993) 20 Cal.App.4th 1066, 1072-1073.)
"There are some crimes a jury could not determine had occurred without the assistance of expert opinion as to an element of the crime." (Torres, supra, 33 Cal.App.4th at p. 47, fn. omitted.) "For example, in cases charging rape of a person who, through mental disorder, is incapable of giving consent (citation), expert testimony is admissible to establish a necessary element of the crime—that the victim was incapable of giving consent due to a mental disorder. (Citations.)" (Id. at p. 47, fn. 3.) Here, although Dr. Molho did not specifically testify as to Tracys capacity to consent, she did testify that Tracy had a mental disability—moderate mental retardation—and that persons with moderate mental retardation have difficulty acting appropriately in an emergency or other situation where safety awareness is involved. Dr. Molhos testimony was related to a subject matter—whether Tracy has a developmental disability—that was sufficiently beyond common experience, and it assisted the trier of fact in making its necessary factual determination of whether Tracy had the capacity to consent. The trial court did not err in determining that Dr. Molhos testimony was relevant and admissible.
Nor did the court abuse its discretion when it refused to exclude Dr. Molhos testimony as lacking in adequate foundation. An expert may generally base her opinion on any "matter" known to her, including hearsay not otherwise admissible, which may reasonably be relied upon for that purpose. (Evid. Code, § 801, subd. (b).) "Of course, any material that forms the basis of an experts opinion testimony must be reliable. (Citation.) For `the law does not accord to the experts opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the experts opinion is no better than the facts on which it is based. " (People v. Gardeley (1996) 14 Cal.4th 605, 618.) Defendant argues that Dr. Molhos opinion was lacking in adequate foundation because she refused to consider all the information in Tracys file. However, Dr. Molho testified that she based her opinion on only that information from Tracys file that she considered reliable. Defendant had the opportunity to cross-examine Dr. Molho with regard to the sources in Tracys file of her expert opinion in order to support the argument that the basis of the opinion was suspect because there was other information in the file that Dr. Molho did not consider. That argument goes to the weight to be given the expert testimony, not its admissibility, however. No abuse of discretion is shown. (See e.g., People v. Yorba (1989) 209 Cal.App.3d 1017, 1026-1027; People v. Bolin (1998) 18 Cal.4th 297, 321-322.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., and Wunderlich, J.