Opinion
H042433
04-11-2017
THE PEOPLE, Plaintiff and Respondent, v. RUSSELL LAMAR KINTNER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1352968)
Defendant Russell Lamar Kintner was convicted by a jury of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a)), and sentenced to twelve years in prison. Defendant contends his conviction must be reversed because he received ineffective assistance of counsel and the trial court erroneously admitted expert testimony about Child Sexual Abuse Accommodation Syndrome. He also contends the trial court erred by imposing a fine in the amount provided for under Penal Code section 290.3 at the time of his sentencing rather than the lesser amount provided for under that statute at the time his offense was committed.
For the reasons explained, we find no error other than the imposition of the increased fine. We will therefore modify the judgment to reflect the correct fine and penalty assessment amounts and affirm it as modified.
I. BACKGROUND
In February 2013, the victim reported to police that more than fifteen years earlier, beginning when she was four or five years old, she was sexually abused by defendant, who lived in a neighboring apartment unit. After she reported the abuse, police arranged for her to call defendant on the phone and confront him with the allegations while they listened in to see if he would admit to any of the conduct (a pretext call).
During the pretext call, the victim told defendant "old memories" were causing her to have difficulty concentrating in school and she wanted to know why he touched her years ago. Defendant denied "taking advantage" of her, but stated they "were probably close and frolicking around and roughhousing." The victim said all she wanted was the truth so she could move on with her life, and defendant apologized, saying he was telling the truth and could not change the past. Defendant said he and the victim were "probably in the wrong position at the wrong time," but that he did not molest or hurt her. When the victim accused him of rubbing his penis on her back, defendant told her that if she had been leaning up against him "and there's something going on there," that was not the same as rubbing his penis on her. The victim accused him of exposing his genitals to her, to which defendant replied, "if [you were] lookin' up my shorts or somethin', I can't change that."
Several weeks after the pretext call, defendant was interviewed by two police officers. He acknowledged that the victim had been to his home on many occasions to play video games with his sons, and said she would rub up against him at times. When that happened, he would either back off or tell the victim to go home. Defendant described any touching as being accidental, and the officers expressed disbelief that anyone would remember an accidental touching from over fifteen years ago and pressed defendant to explain why he would have sent the victim home for an accidental touching.
Defendant was arrested and charged with continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a)). At trial, the victim testified that when she was young she would often go to defendant's neighboring apartment unit to play video games with his three sons. When she was sitting on the floor, defendant would come and lie down behind her, touch her back with his hand, and then reach around into her underwear and rub her vagina with his hands and fingers. The victim also remembered occasions when defendant would touch her vagina while pressing his penis against her back, leaving a wet spot. During the time she lived down the hall from defendant, from the age of four or five until the third grade, she would go to his apartment every day that his sons were there. In total, defendant touched her vagina more than twenty times, with the touching lasting up to fifteen minutes.
The victim never told her parents or anyone else about the abuse while it was occurring, though a friend testified that in middle school the victim revealed to her that she had been molested by defendant. Years later, an incident involving her younger sister prompted the victim to again disclose defendant's conduct. The sister was very upset after seeing a man masturbating in public when she was walking to school. In an effort to be supportive, the victim related her traumatic experience involving defendant. Her sister then told their parents, who ultimately called police.
The victim's mother testified that she had allowed her daughter to go to defendant's apartment to play with his sons. She once went to defendant's apartment to bring her daughter home and found the front door closed and locked. When she knocked on the door, defendant opened it and the victim came out from behind him. The victim later told her mother that defendant's sons had not been home at the time.
A woman who lived at the apartment complex as a child and regularly went to defendant's apartment to play video games testified about her experiences there. When interviewed by a defense investigator before trial, she stated she never saw anything unusual happen at defendant's apartment. In a later interview with a prosecution investigator she related that defendant had stroked her leg and exposed his penis to her. She testified at trial about the leg stroking and seeing defendant's penis sticking out of his pants when he was seated close behind her.
The court admitted this testimony under Evidence Code section 1108 (which allows evidence of other sexual offenses by a defendant) and Evidence Code section 1101, subdivision (b) (which allows evidence of other acts of misconduct by a defendant to prove, inter alia, lack of mistake and intent).
A licensed clinical social worker testified as an expert in Child Sexual Abuse Accommodation Syndrome. She testified that while she had no familiarity with this case or the victim, in general it is common for children who have been sexually abused to avoid talking about it and to return to the environment where the molestation occurred. She further explained it is common for children who have been abused to delay reporting the abuse, even into adulthood.
The prosecution played for the jury recordings of both the pretext call and defendant's interview with the detectives.
Defendant's son testified that he remembered the victim and other children coming to the apartment to play video games and he never saw his father inappropriately touch the victim or anyone else. The front door to the apartment was always left open when children were visiting.
A woman who was a childhood friend of the victim testified that she and the victim often went to defendant's house to play, and she never saw defendant do anything inappropriate. She recalled the apartment door always being open.
Defendant testified and denied touching the victim inappropriately. He stated he always left the front door open when children were there, and their parents would sometimes stop over to visit. When his son later attended high school with the victim, defendant talked with her when he saw her at a football game and also once gave her a ride home after school. He did not notice anything odd about either interaction.
The jury found defendant guilty of violating Penal Code section 288.5, subdivision (a) and the court sentenced him to the middle term of twelve years.
II. DISCUSSION
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends his trial counsel was ineffective because of two omissions: (1) failure to object to the admission of recordings of the pretext call and defendant's police interview, and (2) failure to object to the admission of statements made by the victim during the pretext call and by police officers during the interview.
The test for determining whether a criminal defendant received ineffective assistance of counsel is well settled. (People v. Jones (2010) 186 Cal.App.4th 216, 235.) We examine whether counsel's representation fell below an objective standard of reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 688.) If the representation did fall below that standard, we must also determine whether prejudice resulted, that is whether there is a reasonable probability that but for counsel's errors, the outcome of the proceeding would have been different. (Id. at p. 694.)
Of course, counsel is never required to make frivolous or futile motions, or indulge in idle acts. (People v. Reynolds (2010) 181 Cal.App.4th 1402, 1409.) If the evidentiary objections trial counsel did not make are without merit, then the failure to make those objections cannot support a claim that counsel's performance fell below the objective standard of reasonableness.
1. Failure to Object to Recordings of Pretext Call and Police Interview
Defendant argues his counsel was ineffective for not moving to exclude or otherwise objecting to the admission into evidence of the recorded pretext call and later police interview of defendant. He asserts that the admissions he made during the pretext call were inadmissible because they were obtained by police coercion, and that his statements from the police interview are inadmissible because the interview was tainted by the involuntary statements from the pretext call.
An involuntary confession is not admissible in a criminal proceeding. (People v. Williams (2010) 49 Cal.4th 405, 436.) A statement by a defendant is involuntary if the defendant's " 'choice to confess was not "essentially free" because his [or her] will was overborne.' " (Ibid.) Whether the confession is involuntary depends upon the totality of the circumstances, but relevant considerations include the crucial element of police coercion; the length of the interrogation; its location; and its continuity; as well as the defendant's maturity; education; physical condition; and mental health. (Ibid.) "In assessing allegedly coercive police tactics, [t]he 'courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.' " (People v. Smith (2007) 40 Cal.4th 483, 501.)
Even assuming the victim was acting as an agent of the police when making the pretext call, as defendant urges, we do not find the techniques employed during the call to be so psychologically coercive as to render defendant's statements involuntary under the applicable standards. Defendant argues the "psychological pressure to assist a young woman in distress" is what led him to make the incriminating statements during the pretext call. But the victim's pleas for defendant to tell her the truth because old memories were causing her difficulty in school is not the sort of technique that is so inherently coercive it would produce a statement both involuntary and unreliable. The California Supreme Court has found to be proper interrogation tactics going far beyond the pretext call in this case. (See, e.g., In re Walker (1974) 10 Cal.3d 764, 777 [not psychologically coercive for police to falsely tell a wounded suspect on the way to the hospital that he was likely to die, so he should confess while he was still able].)
In support of his theory of coercion, defendant cites Brewer v. Williams (1977) 430 U.S. 387 (Brewer), where a police officer elicited from a defendant the location of a murder victim's body by remarking that the victim's parents should have the right to give her a " 'Christian burial.' " Defendant's reliance on Brewer is misplaced, because there the Supreme Court decided only that the defendant's Sixth Amendment right to counsel had been violated when the officer questioned him about the location of the body without his lawyer present, and expressly did not consider the issue of whether the admission was obtained by coercion. (Id. at pp. 397-399.)
Defendant also refers to Evidence Code section 1160, which makes evidence of a party's apology inadmissible to prove liability in a civil action, but that statute does not apply in this criminal matter. Defendant argues that Evidence Code section 1160 shows apologies are not tantamount to an admission of guilt or liability, and defendant's apologies during the pretext call should not be interpreted as an admission of guilt. This kind of argument about how defendant's statements should be interpreted might have been properly directed to the jury, but it does not render the statements involuntary or inadmissible.
Defendant asserts that during the call the victim effectively made him a promise of leniency by representing that she wanted defendant to admit wrongdoing only so that she "can move on." He cites several cases holding that an implied or express promise of leniency can make a confession involuntary. (People v. Boyde (1988) 46 Cal.3d 212, 238; People v. Dowdell (2014) 227 Cal.App.4th 1388, 1401; People v. Perez (2016) 243 Cal.App.4th 863.) We are not persuaded by this argument. The victim's urging defendant to tell the truth so she could proceed with life and move on is neither a promise of leniency nor a promise to keep any admission private. Even if we were to construe her statements about wanting to move on as an implied promise of leniency, a victim telling a defendant she will not report his conduct to police (as defendant claims occurred here), is readily distinguishable from a law enforcement officer telling a defendant he will not be prosecuted in exchange for confessing (found impermissible in the cases defendant cites).
The statements defendant made during the pretext call were clearly voluntary such that any trial objection asserting otherwise would have been futile. Counsel's performance was therefore not deficient for failing to make such an objection. The only argument advanced by defendant as to why the recorded police interview was not admissible is that it was tainted by coerced statements from the pretext call. Since we have found no basis for objecting to the voluntariness of the pretext call, we also find no basis for objecting to the ensuing police interview.
2. Failure to Object to Statements in Pretext Call and Police Interview Other Than Defendant's
Defendant argues his counsel was ineffective for failing to object to the portions of the pretext call and police interview recordings containing statements made by the victim and the police officers who conducted the interview. He maintains that statements other than his own are inadmissible hearsay. (Evid. Code, § 1200.)
Defendant's hearsay argument fails to recognize that when a recorded interview is admitted into evidence, questions and statements from the interviewer are properly admitted, not for their truth but to give context to the responses. (People v. Maciel (2013) 57 Cal.4th 482, 524.) Were it otherwise, a recorded interview of a defendant would have very little evidentiary value. A jury could hardly be expected to make sense of a recording containing only one side of a conversation. Under the rule allowing for the admission of contextual statements, both the victim's statements from the pretext call and the officers' statements from the interview were admissible to give context to defendant's responses.
Defendant relies on People v. Sundlee (1977) 70 Cal.App.3d 477 (Sundlee) and People v. Sanders (1977) 75 Cal.App.3d 501 (Sanders) for the proposition that narrative statements by police officers during interrogations are inadmissible, but both cases are distinguishable. Sundlee is clearly inapposite because it did not involve an interrogation of a defendant at all; rather, the recording at issue was of a conversation between investigating officers. Sanders involved a situation where the prosecution sought to introduce the interrogating officer's statements not as context for the defendant's answers, but as the basis for adoptive admissions, since the defendant did not audibly respond to accusations about what occurred.
The defendant's total silence in Sanders apparently resulted from her quite literal understanding of the admonition regarding her constitutional rights (Sanders, supra, 75 Cal.App.3d at p. 508, fn. 5): [¶] "Q. [Officer] REYNOLDS: Now, I have to advise you of your rights. You have the right to remain silent, you understand that. [¶] "A. [Defendant] Yes, sir. [¶] "Okay. You have the right to the services of an attorney prior to making any statements to me or anyone else. You understand that? [¶] "A. (No response) [¶] "Q. You have to speak up. So I know. Are you saying yes? [¶] "A. I was just ... (unintelligible). [¶] "Q. No, you say yes to that. Do you understand that. [¶] "A. Oh, oh, I thought you said be silent."
Defendant also argues, in passing, that admission of statements from the recorded interview made by an officer who did not testify at trial violated the confrontation clause of the Sixth Amendment to the United States Constitution under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). But neither the Sixth Amendment nor Crawford is implicated here, because the statements were admitted not in lieu of a witness's testimony at trial (as prohibited by the Crawford rule against testimonial hearsay) but only to give context to statements made by defendant himself.
Defendant alternatively argues that, even if the victim's and officers' statements were properly admitted for a non-hearsay purpose, counsel was ineffective for failing to request an instruction informing the jury those statements could not be considered for their truth. While we acknowledge that a limiting instruction would have been appropriate, the decision to request an instruction limiting the purpose for which evidence may be considered is a quintessentially tactical one that will not ordinarily give rise to claim of ineffective assistance. (See People v. Maury (2003) 30 Cal.4th 342, 394 [counsel was not ineffective for failing to request a limiting instruction because a reasonable attorney could tactically conclude the risk of calling further attention to damaging evidence outweighed any benefit from giving the instruction].)
Defendant asserts as an additional ground for exclusion that any probative value of the evidence was substantially outweighed by its potential for undue prejudice and therefore it should have been excluded under Evidence Code section 352. Defendant maintains counsel's failure to object on that basis constituted ineffective assistance. We reject that argument because defendant's statements in the pretext call and interview were highly probative, and, as discussed, admitting the victim's and police officers' statements was necessary to provide context for defendant's statements.
Any objection to admitting statements by the victim and police officers in the recordings would have been futile. Even if a limiting instruction would have been appropriate under the circumstances, the failure to request one could have been a tactical decision. Trial counsel was therefore not ineffective for failing to object to portions of the pretext call and interview recordings.
B. EXPERT TESTIMONY REGARDING CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME
Defendant challenges the trial court's decision to admit expert testimony regarding Child Sexual Abuse Accommodation Syndrome. He contends the testimony was not relevant, was unduly prejudicial, and violated his right to a fair trial under the due process clause of the United States Constitution. He further contends that a portion of the testimony was impermissible vouching for the victim's credibility.
We review for abuse of discretion any ruling on the admissibility of evidence at trial. (People v. Waidla (2000) 22 Cal.4th 690, 717.) We will find an abuse of discretion only where the ruling is outside the confines of what is allowed under the applicable principles of law. (Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 25.)
Under Evidence Code section 801, expert testimony is admissible if it relates to a subject sufficiently beyond common experience, would assist the trier of fact, and is based on matter such as the special knowledge, skill, experience, training, and education of the expert witness. While courts should not admit expert testimony on topics so common that persons of ordinary education could reach a conclusion as intelligently as the witness, jurors need not be wholly ignorant of the subject matter. The pertinent question is whether, even if jurors have some knowledge on the subject, expert testimony would assist the jury. (People v. Prince (2007) 40 Cal.4th 1179, 1222.)
Child Sexual Abuse Accommodation Syndrome, or CSAAS, is a compilation of clinical psychiatric observations regarding patterns of behavior in children who are victims of sexual abuse. The expert testified that child victims often act in ways that are counterintuitive to adults, such as not reporting the abuse for many years and voluntarily returning to the environment where the abuse occurred.
Expert testimony regarding CSAAS may be admitted for the purpose of "disabusing the jury of misconceptions as to how child victims react to abuse." (People v. Bowker (1988) 203 Cal.App.3d 385, 392.) Such testimony "is admissible to rehabilitate [a 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." (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) In order to be admissible, the testimony must be targeted to a specific myth or misconception suggested by the evidence, and the jury must be instructed that the CSAAS testimony is not intended to determine whether a particular victim's claims of abuse are true. (Bowker, supra, 203 Cal.App.3d at p. 394.)
Defendant argues CSAAS testimony was not relevant in this case because the prosecution did not specifically identify an issue in dispute that the testimony was targeted to rebut. It is settled, however, that the prosecution is not required to expressly state the misconception that CSAAS is introduced to rebut; it is sufficient if the victim's credibility is placed in issue due to "paradoxical behavior" such as a delay in reporting abuse. (People v. Patino (1994) 26 Cal.App.4th 1737, 1745.) Here, the victim's credibility was squarely in dispute, and the defense theory centered around calling her allegations into question because she delayed reporting and returned to the scene of the abuse. The victim testified she never told anyone about the abuse as a child, and defense counsel pointedly elicited on cross-examination that she asked to stay at defendant's house for dinner even after the touching occurred and accepted a ride home from defendant in high school. On this record, we find no abuse of discretion in admitting CSAAS evidence in light of the defense position that the victim's allegations were not credible because she delayed reporting and continued to voluntarily interact with defendant.
Defendant asserts that since the victim was an adult at the time of trial, she could testify about her own reasons for not reporting the abuse earlier and CSAAS testimony is not relevant to explain the delay in reporting. It is true that the victim offered an explanation for the delay, testifying that she never reported the abuse as a child because she was scared and thought it was her fault. But expert testimony does not need to be the only available evidence of a particular issue in order to be admissible; it merely needs to assist the trier of fact. (See Evid. Code, § 801.) Although the victim explained her reasons for not reporting the abuse, expert testimony was potentially helpful to the jury in understanding the concept that abuse victims who delay disclosure are not necessarily less credible.
Defendant further argues that any relevance of CSAAS testimony is diminished because while "it might not have been well understood in 1983 or 1992 that molestation victims might delay in reporting," the public no longer holds that misconception today. We reject that argument for two reasons: first, because defendant suggests no method for how we would determine whether or not the public holds the misconception; and second, because even if the public is now better informed on the issue, expert testimony remains admissible when jurors have "some knowledge" of the subject matter. (People v. Prince, supra, 40 Cal.4th at p. 1222.)
Defendant alludes to the CSAAS testimony being unduly prejudicial and therefore inadmissible under Evidence Code section 352, but does not point to any unfair prejudice that would outweigh the probative value of the evidence we have already described (to rebut the argument that the victim's conduct rendered her not credible). The only prejudice defendant identifies is that the jury may have used the CSAAS evidence to conclude the victim was in fact telling the truth or was in fact molested. But the trial court instructed the jury with CALCRIM No. 1193, which states that the expert testimony cannot be used for those purposes. We must presume the jury followed that instruction. (People v. Nguyen (1995) 40 Cal.App.4th 28, 37.)
Defendant also takes issue with a particular portion of the expert's testimony, which he characterizes as the expert's opinion that "children do not lie about being molested." He argues it was an abuse of discretion to admit that statement because it constituted impermissible vouching for the credibility of the victim, and was beyond the scope of permissible CSAAS testimony. Defendant mischaracterizes the evidence. The expert actually testified, in response to a question about whether children lie about molestation, "Children can lie about sexual abuse. I have had cases that have, after investigation, turned out not to be accurate reports." The expert then went on to describe certain research with which she was familiar, some that indicated false allegations by children "almost never" happens, and some that indicated up to "90 percent of cases involve false allegations." The expert described other research that analyzed many different studies and concluded the overall percentage of false allegations is between two and eight percent, with most clustering around two to four percent. The expert clearly did not testify that "children do not lie about being molested." And to the extent she described the findings of different studies, experts are permitted to provide general information acquired through their training and experience, as long as it does not elicit case-specific facts. (People v. Sanchez (2016) 63 Cal.4th 665, 676.)
Defendant advances an alternative argument of ineffective assistance of counsel in the event we find the objection interposed by counsel to this line of questioning insufficient to preserve the issue for review. Because we consider the merits of the claim of evidentiary error, we need not reach defendant's argument of ineffective assistance on that basis. --------
Defendant contends the admission of the CSAAS evidence denied him a fair trial in violation of the due process clause of the United States Constitution. (See People v. Partida (2005) 37 Cal.4th 428, 439 [the erroneous admission of evidence under state law may result in a due process violation if it made the trial fundamentally unfair].) As discussed above, however, we have found no error in admitting the CSAAS evidence and therefore reject the due process argument.
C. THE PENAL CODE SECTION 290.3 FINE WAS ERRONEOUS
Defendant's final contention is that the court erred in imposing a $300 fine under Penal Code section 290.3, which now provides for a fine in that amount for defendant's conviction. But as defendant points out, the $300 fine amount did become effective until September 2006. (Stats. 2006, ch. 337, § 18, effective Sept. 20, 2006.) At the time the offense in this case was committed, the fine provided for by Penal Code section 290.3 was $200. (Stats. 1995, ch. 91, § 121, p. 346.) The Attorney General concedes defendant is correct, and we agree, because under ex post facto principles, the assessable amount of a fine is calculated as of the date of the offense. (People v. Saelee (1995) 35 Cal.App.4th 27, 30.)
The correct amount of the fine in this case, calculated as of the date of the offense, is $200. The corresponding penalty assessments must be calculated based on that fine amount and reduced to $340.
III. DISPOSITION
The judgment is modified to reflect the correct amount of the fine and penalty assessments. The clerk of the Superior Court is ordered to amend the abstract of judgment to reflect a fine under Penal Code section 290.3 in the amount of $200, and corresponding penalty assessments in the amount of $340. As modified, the judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Rushing, P. J. /s/_________ Premo, J.