Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. CC769754
Duffy, J.
A jury convicted the defendant herein, Anastacio Gonzales, of five counts of aggravated sexual assault on a child under age 14. He claims that the trial court abused its discretion in admitting evidence of a prior uncharged sexual assault on another victim, in admitting expert testimony about physical evidence of abuse, and in admitting evidence regarding child sexual abuse accommodation syndrome. He also claims that he was given ineffective assistance of counsel. We find none of his claims to have merit and will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
I. Convictions and Sentence
An information charged defendant with five counts of aggravated sexual assault on a child under age 14 in violation of Penal Code section 269. A jury convicted him on all counts and the trial court sentenced him to 75 years to life in state prison.
II. Facts
The victim, defendant’s daughter, testified at trial that defendant repeatedly and regularly molested her over a period of a year and several months when she was between six and eight years old, on days on which he had informal custody of her following the end of his relationship with her mother. The molestations occurred approximately in the years 2000 to 2002, in the home of defendant’s parents, where defendant lived. Defendant and the victim would sleep in the same bed at night. He would remove her pajamas and underwear and sodomize her. He did this some 10 to 25 times and perhaps much more often than that. He stopped when she had her appendix removed at age eight. On most occasions she would try to resist the assault by rolling over so that her rectum was inaccessible, but he would roll her back and begin or resume sodomizing her. Each time the experience of being penetrated was painful. On one occasion he accompanied the molestation by striking the victim on her right cheek and putting a pillow over her head.
Because the victim was afraid both of losing her father and of physical abuse he might inflict on her, she kept defendant’s abuse to herself until she was about 12 or 13 years old, when she told a friend of similar age about it. At the time, both the friend and the victim were present at a day care center where their mothers worked. The friend told an employee of the center about the abuse. The employee told the victim’s mother, the victim’s mother and aunt asked the victim about any possible abuse, and the victim acknowledged being abused years before. The victim’s mother called the police and defendant was arrested. Other facts will be related as necessary to address defendant’s claims.
The first adult to ask the victim if she had been molested was the victim’s aunt. The victim became upset and agitated. The victim’s aunt testified that she asked her where defendant had hurt her. The victim, who by then was “crying too hard to answer,... just kind of pointed to between her legs.” The aunt questioned the victim further—the record suggests that the aunt’s questioning was leading—and the victim said that defendant had engaged in vaginal sexual conduct. The aunt did not ask about sodomy and the victim did not mention it.
DISCUSSION
I. Issues Regarding Evidence Presented Under Evidence Code Section 1108
Under the authority of Evidence Code section 1108, the prosecution moved to introduce evidence that defendant committed an uncharged sexual offense against his then 13-year-old sister. The motion stated that in or about 1989 defendant assaulted his sister and exposed himself to her but she was able to escape. According to the motion, defendant later told her he had attempted the sexual assault to teach her a lesson about men.
Defendant opposed introduction of the evidence on the grounds, as relevant to his appeal, that the evidence would be substantially more prejudicial than probative (Evid. Code, § 352) and violate his constitutional right to due process of law. He argued that the incident occurred long ago, that introducing evidence of it would be inflammatory, and that its alleged details had little bearing on the particulars of the alleged crimes against his daughter.
The trial court disagreed and ruled that the evidence could be introduced. Thereafter defendant’s sister, who was 32 years old at the time of trial, testified before the jury that defendant sexually assaulted her when she was 13. The attack involved an attempted rape, again in the home of defendant’s parents, where defendant and his sister both lived. Defendant grabbed his sister, kissed her, and threw her across a bed. Her head struck the top of a dresser, causing her to be dazed. Defendant pulled down her pants and her underwear came off. As he pressed down on her she began to lose consciousness and could feel her neck crack under defendant’s weight. Nevertheless, she was able to fight him and thwart the rape. He desisted and later stated, “ ‘I was just joking around. Just goofing around.’ ” As a result of the incident, defendant’s sister ran away from home and tried to commit suicide. Ten years later he told her he had assaulted her “ ‘to teach you a lesson about men.’ ”
A. Constitutionality of Evidence Code Section 1108
Subdivision (a) of Evidence Code section 1108 provides: “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.” Defendant renews his claim that introducing evidence under this provision is unconstitutional because doing so violates the due process clause of the Fourteenth Amendment to the United States Constitution.
The provision carves out an exception to the rule against admitting character evidence (People v. Wilson (2008) 44 Cal.4th 758, 797) and permitted the jury to hear the testimony of defendant’s sister despite the risk that the jury might interpret it as evidence of defendant’s propensity to commit sodomy or rape.
Defendant observes that the California Supreme Court has found the provision to be constitutional. He is correct. (People v. Wilson, supra, 44 Cal.4th at pp. 796-797.) He advances his claim to preserve it for review elsewhere. We, of course, are bound by the high court’s pronouncement (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and must reject his claim.
B. Admissibility Over Evidence Code Section 352 Objection
Defendant also renews his claim that the trial court should have excluded the evidence because it was substantially more prejudicial than probative (Evid. Code, § 352). We do not agree.
The trial court did not abuse its “broad discretion” (People v. Wilson, supra, 44 Cal.4th at p. 797; see Evid. Code, § 352) in permitting the jury to hear the evidence. “The evaluation of the potential for prejudice must consider numerous factors, including ‘[the prior sex offense’s] nature, relevance, and possible remoteness, 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, or excluding irrelevant though inflammatory details surrounding the offense.’ [Citation.] Other relevant factors include whether the uncharged acts are more inflammatory than the charged conduct, the possibility the jury might confuse the uncharged acts with the charged acts and seek to punish the defendant for the uncharged acts, and the time required to present the evidence of the uncharged acts.” (People v. Daniels (2009) 176 Cal.App.4th 304, 316-317.)
The trial court noted significant similarities between the two incidents in that both involved family members, both occurred in the home, both involved young girls, and both involved attempted or completed sexual penetrations. In sum, the similarities made the evidence probative (see People v. Daniels, supra, 176 Cal.App.4th at p. 317) because the corroborative elements lent credibility to the account of defendant’s daughter. The testimony of defendant’s sister undoubtedly was damaging to the defense, but that is not a legal impediment to its introduction. “ ‘The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. “[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is ‘prejudicial.’ The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” ’ ” (Ibid.)
A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.) The trial court could reasonably view the evidence, as described to it before the fact of its introduction (a description that would prove accurate), as having a probative value that was not substantially outweighed by the risk of prejudice (Evid. Code, § 352) by virtue of the similarities between the two courses of conduct. Finally, defendant notes the passage of years between the uncharged conduct and the charged conduct. But that is but one factor to be considered in the calculus of probativeness and prejudice (People v. Daniels, supra, 176 Cal.App.4th at p. 316) and the difference in time between the uncharged and the charged conduct was about a single decade, not that long a period. We find no abuse of discretion.
On appeal, defendant calls our attention to a number of dissimilarities laid bare by the facts themselves or by inferences a reasonable trier of fact could draw from those facts, e.g., that defendant’s attack on his sister was markedly violent and his sexual abuse of his daughter was not. Be that as it may, defendant’s observations do not convince us that the trial court’s ruling fell outside the bounds of reason.
II. Admitting Expert Testimony About Lack of Lingering External Trauma
Defendant claims that the trial court abused its discretion in admitting expert testimony that the lack of any external physical signs of forcible sodomy meant nothing because years after such penetration it was unlikely that any such indicia would remain even if there had been an initial injury, which itself was unlikely. Defendant maintains that the witness lacked the qualifications to provide that opinion. We find no abuse of discretion.
After the authorities learned of the molestation, they took the victim to a hospital for a medical examination. Her external genitalia and her rectal area were examined for any evidence that might be garnered. No external traumatic injuries were observed. The person who so testified, Mary Ritter, is a pediatric physician’s assistant who followed her training with ten years’ work in private pediatric practice and then, beginning in 1987, with work for a child sexual abuse evaluation clinic, the Center for Child Protection in the Department of Pediatrics at the Santa Clara Valley Medical Center. She testified that she had performed “something close to 4,500” examinations on children brought to that clinic. She also serves as “a trainer in the medical evaluation of child sexual abuse” and trains doctors and nurses for the California Clinical Forensic Medical Training Center. She has written articles about medical evaluation of child sexual abuse and has testified as an expert in some 300 cases. The trial court qualified her as an expert in the area of pediatric forensic sexual assault examinations.
Toward the end of direct examination, Ritter noted the lack of physical evidence of anal penetration and the prosecutor asked, “based on that information, would your conclusion be that there had never been any penetration into this child’s anus?” Ritter replied in the negative and at the same time defense counsel objected that the question lay outside the scope of the witness’s expertise. The trial court overruled the objection and Ritter thereafter testified that “when children have penetrating anal events, it’s very common that there is no injury at all. When I see children even right away after alleged anal penetration, I usually don’t see any... abnormal findings.” “When we do see injury, on those unusual times when we see anal injury, it tends to be redness and bruising more than tearing that would leave scars, and the redness and bruising heals in just a matter of few days.” After a number of years, i.e., the time gap between the sodomies of the victim here and Ritter’s examination of her, it would be even more unusual to see evidence of external trauma.
Defendant argues that the witness’s “experience and training included nothing as to the genesis of injuries. Thus, she was unqualified to opine whether or not it would be consistent with a claim of anal rape for there [to] be no evidence of penetrating trauma.”
“ ‘We are required to uphold the trial judge’s ruling on the question of an expert’s qualifications absent an abuse of discretion. [Citation.] Such abuse of discretion will be found only where “ ‘the evidence shows that a witness clearly lacks qualification as an expert....’ ” ’ ” (People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063.)
We think that defendant takes too narrow a view of the witness’s expertise and discern no possibility that the trial court abused its discretion. Ritter had many years’ experience studying the visible effects of child sexual abuse and the court could reasonably conclude that she was well qualified to testify that external trauma to the anus is rare to begin with and when trauma occurs it tends to heal quickly, so that the lack of any evidence of trauma to the victim here, following an examination performed years after the sexual abuse, did not mean that the sodomies did not occur.
III. Ineffective Assistance of Counsel
Defendant claims that his counsel performed ineffectively by eliciting testimony from the victim’s aunt and a police detective that they believed the victim’s account of the abuse.
Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) “The ultimate purpose of this right is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result.” (Ibid.)
A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendant’s claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
Defendant cites People v. Melton (1988) 44 Cal.3d 713, for the proposition that “[l]ay opinion about the veracity of particular statements by another is inadmissible on that issue.” (Id. at p. 744.) The Supreme Court has characterized Melton, however, as a case that “involved lay opinion from those who had no personal knowledge of the facts. Such opinions are of little assistance in deciding the credibility of testimony by percipient witnesses who do have personal knowledge. There is a difference between asking a witness whether, in his opinion, another is lying and asking that witness whether he knows of a reason why another would be motivated to lie.” (People v. Chatman (2006) 38 Cal.4th 344, 381.) These two witnesses knew the facts of the case and Melton is inapposite.
Defendant cites another Supreme Court case, People v. Coffman and Marlow (2004) 34 Cal.4th 1, but that case involved a different consideration, namely the fact that lay jurors ordinarily are as capable of judging credibility as are expert witnesses: “The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert’s opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful.” (Id. at p. 82.)
To the extent that the witnesses’ responses were unhelpful to the defense, nevertheless we discern no deficient performance. “A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” (People v. Maury (2003) 30 Cal.4th 342, 389.) In sum, defendant “must show that counsel’s action or inaction was not a reasonable tactical choice” (People v. Jones (2003) 30 Cal.4th 1084, 1105) and must do so based on the record before us, a difficult task.
The record shows, in our view, that counsel asked the questions in an effort to show that the victim had made inconsistent responses, thus undermining the basis for the two witnesses’ opinions and calling into question the accuracy of their testimony generally. We are unable to say that this was an unreasonable tactical choice. “At all points, ‘[j]udicial scrutiny of counsel’s performance must be highly deferential.’ ” (Wong v. Belmontes (2009) ___ U.S. __, __ [130 S.Ct. 383, 384-385] (per curiam).) We will not second-guess the performance of defense counsel on these two occasions. There was no ineffective assistance of counsel.
IV. Facial Challenge to Admissibility of Child Sexual Abuse Evidence
Defendant claims that the trial court erred under state law in admitting evidence on the subject of so-called child sexual abuse accommodation syndrome, often referred to by its acronym CSAAS.
The prosecution moved in limine to introduce child sexual abuse accommodation syndrome testimony. On grounds that there is no scientific basis for the purported syndrome and that testimony regarding the syndrome would lack probative value and would be substantially more prejudicial than probative, defendant opposed the motion. The trial court, however, granted the motion, and eventually, over defense counsel’s reiterated objection, the jury heard testimony on the topic from Carl Lewis, a senior investigator in the district attorney’s office.
Defendant acknowledges that the child sexual abuse accommodation syndrome testimony admitted in his case “was in accordance with guidelines set forth in applicable current California caselaw.” However, he argues in essence that testimony on this topic is inadmissible as a matter of law. He urges that child sexual abuse accommodation syndrome amounts to “junk science.” He maintains that it is based on the false “premise that jurors really believe certain myths, such as that all rape victims do not delay in reporting a rape or that child molesters are gay, alcoholic, shabby old men who linger in play yards, luring unsuspecting children with candy or money.”
In light of defendant’s challenge, which is solely facial, and his concession that the particulars of the witness’s testimony were unobjectionable, we need not recite the details of Lewis’s testimony. In essence, Lewis expounded on five factors that the syndrome may involve: secrecy, helplessness, entrapment and accommodation, seemingly incongruous forms of disclosure, and retraction. We discern no reason to depart from recent precedent, to wit: “CSAAS cases involve expert testimony regarding the responses of a child molestation victim. Expert testimony on the common reactions of a child molestation victim is not admissible to prove the sex crime charged actually occurred. However, CSAAS testimony ‘is admissible to rehabilitate [the molestation victim’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. [Citations.]’ ” (People v. Sandoval (2008) 164 Cal.App.4th 994, 1001; see People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 [dictum].) Moreover, it appears that our Supreme Court definitively reached the same conclusion in People v. Brown (2004) 33 Cal.4th 892, 906, in which case we are bound by its reasoning (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455). The foregoing rule applies when the facts could raise a question about the victim’s credibility in the jurors’ minds, even if the defendant merely leaves it for the jury to wonder about a seemingly incongruous reaction to child sexual abuse rather than expressly trying to cast a doubt on the victim’s credibility. Here, we note, the victim delayed reporting the abuse for years and gave inconsistent accounts about the part of her body that defendant invaded. Testimony regarding the syndrome could help the jury to understand the victim’s comportment in these regards. We reject defendant’s claim.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mihara, Acting P. J., McAdams, J.