Opinion
C082695
04-06-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT GENE WALTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F03964)
Defendant Robert Gene Walton was charged with seven counts of a lewd or lascivious act upon a child under 14 (Pen. Code, § 288, subd. (a)) and two counts of administering a controlled substance to a minor (Health & Saf. Code, § 11353)). A jury convicted defendant on all but one of the controlled substance counts.
Unless otherwise designated, statutory references are to the Health and Safety Code.
Defendant contends, and the People concede, that he was improperly charged under section 11353 for administering a controlled substance, because the statute does not apply to the substance in question, flurazepam. We agree that defendant's conviction on this count must be reversed.
Defendant further contends that his conviction on all seven counts under Penal Code section 288, subdivision (a), should be reversed because defense counsel rendered ineffective assistance by failing to object to the inadmissible testimony of a prosecution expert. The expert, Dr. Anthony Urquiza, testified that the percentage rate of false allegations of child sexual abuse was very low, between 1 and 6 percent, and favorably described a Canadian study which found that there were no false reports made by child victims, only by parents in custody disputes. This testimony invaded the province of jurors to determine witness credibility and tipped the scale in favor of conviction on all seven counts, notwithstanding inconsistent statements by the victim about the number and nature of sexual abuse incidents. We agree defendant did not receive a fair trial as a result of defense counsel's failure to object to Dr. Urquiza's testimony.
The judgment is reversed and the case remanded for a new trial.
Because we reverse on that basis, we do not reach the other issues defendant raised.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Charges
The second amended information alleged five counts of lewd conduct upon the child victim, M.D., occurring in Merced County and two counts occurring in Sacramento County, all taking place at some point between March 12, 2014, and March 25, 2015, when M.D. was eight and nine years old.
Count one alleged a lewd act involving "defendant's mouth to the victim's vagina at [the] old house" in Merced County. Count two alleged "defendant's penis to victim's anus" at the old house. Count three alleged M.D.'s "mouth to defendant's penis" at the old house. (Counts two and three alleged that this was the "first time" these acts occurred.) Count four alleged "defendant's penis to victim's anus" at the old house. Count five alleged M.D.'s "mouth to defendant's penis" at the old house. (Counts four and five alleged that this was the "second time" these acts occurred.) Count six alleged "defendant's penis to victim's anus" at the "new house" in Sacramento County. Count seven alleged "defendant rubbed victim's vagina" at the new house.
Counts eight and nine alleged defendant administered a controlled substance, flurazepam, to M.D. in Merced and Sacramento Counties, respectively.
II
The Prosecution's Case
A. M.D.'s Testimony at Trial
M.D. was 10 years old when she testified at trial. She said she had two younger brothers. She identified defendant in court as the person who had sexually abused her and "used to be my father."
M.D. did not know what to call what defendant did to her, but she could remember the first time it happened. She lived in Winton and was eight or nine at the time. She woke up in her room feeling sick. M.D.'s mother was at work. Just M.D., defendant, and M.D.'s brothers were at home. Defendant came in and asked what was wrong. He closed the door. Defendant said he knew something that could make M.D. feel better. M.D. testified, "that's when the sexual abuse began." He took off his clothes and told M.D. to take off her clothes. M.D. was lying on her bed on her stomach. Defendant put his "private" that he used to "pee" in M.D.'s "private" where she would "poop." Defendant stopped when M.D.'s mother texted that she was coming home. Defendant and M.D. got dressed and he went out of her room to watch TV with her brothers.
M.D. testified that defendant did this other times. She was not sure how many but it "was way more than three times."
M.D. testified that there was a time in Winton when defendant brought M.D. into his room. Defendant said he was sick and needed her help, by doing what he wanted. M.D. said she didn't want to do it, so he "bribed" her with the promise of $4, a toy, and McDonald's. She then said yes. She said yes also because he was her dad and she was scared. M.D. could not remember how defendant got her into his room.
Defendant showed her a video on his cell phone of "adult boys" doing "sexual things." Defendant told her this is what they would be doing. Defendant told M.D. to "suck on his private." One of M.D.'s brothers opened the door a little bit. Defendant pulled up his pants, told M.D. to hide, and told her brother to go away. M.D. could not remember anything else that happened. Prompted by the prosecutor, M.D. testified that "[w]hite stuff" came out of defendant's "thing." M.D. could not remember what happened to the white stuff.
Both these incidents happened when M.D. lived in Winton. M.D. testified that the only other incident there was the first time she had described.
M.D. moved to Sacramento when she was nine. M.D. testified that a sexual incident happened there once. M.D. was watching TV in her room at night, lying on her stomach with her dog between her legs. Defendant came in, started petting her dog, and then started touching her with his hand over her clothes where she would "pee." M.D. testified defendant did the "same thing as the first time" but added "I actually don't remember that time." Prompted by the prosecutor, M.D. testified that defendant used lotion that was in her closet. Defendant put the lotion on his "private where he pees." Again prompted by the prosecutor, M.D. testified that after defendant was done touching her, he closed the door and got undressed. M.D. said she did not remember what defendant did after he got undressed.
When defendant was done, he gave M.D. some of her mother's sleeping medicine. He called her out to the kitchen and got the medicine off the top of the fridge. M.D. remembered walking through the hall to her room, falling down, and defendant picking her up and putting her in her bed. She had to hold on to his arm because the room was spinning fast. M.D. fell asleep. She did not know if defendant stayed there because she "literally blacked out."
M.D.'s mother, Courtney, testified at trial that she took a prescription sleeping medication in 2014 and 2015. As in the trial proceedings, we refer to M.D.'s mother by her first name, with no lack of respect meant. Courtney never gave her prescription medication to her children. She gave her children melatonin, a natural sleep aid. Officer Todd Hengel, a detective in the Sacramento County Sheriff's child abuse bureau, testified that Courtney identified the prescription pills as flurazepam. Detective Hengel spoke to defendant on the telephone about Courtney's prescription medication. Defendant said one time he had given M.D. one of Courtney's sleeping pills because she had taken a nap earlier in the day and he was concerned she could not sleep at night.
During these incidents, defendant told M.D. not to tell, that he would be in big trouble, and he knew what he had done wrong. M.D. asked, "Why are you doing it then?" Defendant had told her twice that he would not do it again but he did.
M.D. put a stop to it by telling her mother. One day when M.D. was outside playing, she was praying and talking to God that she didn't want to do this anymore. Her mother wasn't home because she and defendant were fighting and in a divorce. Her mother was staying with a friend. M.D. went in her room, called her mother, and told her what had happened. Her mother told her to pack some clothes and M.D. went to get her backpack from defendant's car. M.D. left her phone in her room. Her mother was trying to call M.D. on her phone. Then M.D.'s mother called defendant's phone and said she wanted to speak to M.D.
M.D. took defendant's phone and went into the closet in her room and shut the door. But she didn't see defendant listening at the corner of her door. M.D. told her mother what defendant was doing to her, when it started, and when it ended. When M.D. was done talking to her mother, defendant asked her why she was "talking about that stuff." M.D. told him her mother was taking her to the doctor. Defendant made her swear to God she wasn't lying about telling on him. He said, "I need to know. Because if the cops come, I need to be ready." M.D. did not tell her mother sooner because she didn't know what to do. After M.D. told her mother what defendant was doing, M.D.'s mother came home. The police were on their way.
M.D. testified that after her disclosure her mother caught her watching videos on a tablet about sexual abuse using Barbies. M.D. was watching the videos to find out what defendant was doing to her "because I didn't have a clue."
Detective Hengel testified that Courtney told him M.D. was very good at using the tablet to get access to the Internet.
The prosecutor's final question to M.D. on direct examination was "[i]s there anything else we haven't talked about this morning that you haven't told me about what [defendant] did to you?" M.D. answered, "No."
On cross-examination, M.D. testified that a few days before the incident where defendant gave her the pill, her mother and defendant had a big argument and the police came.
M.D. confirmed that, after she told police about defendant touching her, "Corey" became her new father and is currently living with the family.
M.D. denied that her mother told her to make accusations against defendant.
B. Deputy Rowe's Testimony
Sacramento County Sheriff's deputy Kionna Rowe testified that, on March 25, 2015, she was dispatched to a residence on a call from M.D.'s mother that her daughter was being molested by defendant. Upon arriving, Deputy Rowe met Courtney, who told Deputy Rowe that defendant had been putting his penis in M.D.'s vagina and anus. Courtney stated she was out to dinner when she got M.D.'s call. Courtney confronted defendant on the phone and went home to talk to him more, but he was gone. Courtney introduced Deputy Rowe to M.D. Deputy Rowe asked to speak to M.D. alone.
Deputy Rowe spoke to M.D. alone in the kitchen. M.D. was crying, but not sobbing. She was very upset, a little nervous, and reticent to talk. M.D. knew why Deputy Rowe was there because M.D.'s mother told M.D. that she had called the police.
Deputy Rowe spoke to M.D. for about an hour. M.D. confirmed that she knew the difference between the truth and a lie. M.D. said the truth is when you tell what really happened. M.D. said you don't keep things from God and so you're supposed to tell the truth.
M.D. said that day she was home alone with defendant, which is when defendant typically touched her and did things to her. M.D.'s brothers were there but she believed defendant was going to do it. M.D. did not want to lie anymore, she felt like she was lying to God.
M.D. said that when her mother was gone, defendant would put his, as she spelled it out, "d-i-c-k in her b-u-t-t." M.D. confirmed that she understood what she was saying about parts of the body by pointing to the genital area between the legs of a stuffed bunny. On cross-examination, Deputy Rowe acknowledged that her report stated that M.D. pointed to her own private parts and did not mention a stuffed bunny. M.D. used "pee pee" and "d-i-c-k" to describe the male body part, "b-u-t-t" to describe her anus, and "pee pee" to describe her vagina.
Deputy Rowe testified that M.D. said defendant would put his penis or "d-i-c-k" in her butt and that on one occasion white stuff came out on her back and it was warm. Immediately after saying that, M.D. said, "My mom would know what it is. Because I'm sure he does it to her too" or something to that effect. One time defendant put his "pee pee" in her mouth. Defendant also licked her "pee pee."
M.D. did not state that defendant had given her pills during these incidents or bribed her with McDonald's or $4. M.D. did not mention defendant using his penis in a "blindfold game."
Detective Hengel acknowledged that Deputy Rowe's report did not include any statements by M.D. about: defendant drugging her or showing her pornography; McDonald's or $4; hurt, pain, or blood; or a blindfold game.
Deputy Rowe was trying to get a parameter regarding when these incidents occurred. She thought it was once or twice at the old house "in Modesto or something" and once or twice at the home in Sacramento where Deputy Rowe interviewed M.D. The most recent encounter M.D. could recall was two weeks prior. M.D. stated that defendant had licked her "pee pee" one time. M.D. said that defendant kept promising that this would be the last time.
Deputy Rowe and her sergeant determined not to have a hospital examination conducted of M.D. for proof of molestation, due to the lapse of time since the last incident. On July 6, 2015, a doctor specializing in child abuse pediatrics performed a forensic sexual assault examination of M.D. The examination was to look for injury to the genitals, not to collect DNA. M.D. had a "normal" examination with no findings of injury related to sexual trauma. The doctor agreed that a normal examination does not mean that sexual abuse did not occur and it is actually typical to have normal findings in this type of examination.
M.D. said her brothers were at home in the front room or watching TV during these incidents. On one occasion, one of her brothers walked in when defendant was doing this to her, and defendant instructed him to get out and close the door. Her mother was never home when it happened. M.D. was always scared when her mother left because M.D. knew it would happen again.
The first time occurred when she went to her room because she wasn't feeling well. Defendant came in and said that he had something that would make her feel better.
Deputy Rowe obtained an emergency protective order to keep defendant from coming into the home and served it on him at 3:00 in the morning the next day. Defendant was sleeping on the couch. Defendant was nice, not combative, and asked what was going on. Officers explained that he could not stay in the house; he packed some essentials and was escorted out. He appeared intoxicated and smelled of alcohol.
C. The SAFE Interview
On April 21, 2015, a trained forensic interview specialist conducted a special assault forensic evaluation (SAFE) interview of M.D. The interview was played for the jury.
When asked to tell why she was there, M.D. responded, "Well, I'm here because what my dad did to me." She explained: "Well, he would have S-E-X" with me. Defendant would also give M.D. her mother's "night pills." M.D. told her mother about the pills before she disclosed defendant's sexual acts with her. Defendant got mad at M.D. and screamed at her because she had told her mother about the sleeping pills. The pills made her dizzy and sick.
Courtney could not recall M.D. sharing that defendant had given her a sleeping pill prior to March 25, 2015. However, Detective Hengel testified that Courtney said that defendant had told her that he gave M.D. one of the pills after she took a late nap.
M.D. said that defendant would show her videos of what he was going to do to her. She was still watching them after defendant "was tooken away." But "then, they found out on the tablet on YouTube." Her mother said M.D. was not in trouble because she wouldn't understand the videos. M.D. said "the pills and the S-E-X were pretty much together. And then [defendant] started having me watch the videos."
M.D. said the first time that sex happened was a Saturday while her mother was at work. She was eight but remembered it "really well"; it was the first time. M.D. woke up and didn't feel good. Defendant came in her room, closed the door, and said there was something that would make her feel better. Then defendant had sex with M.D. but she didn't understand what it was.
M.D. woke and said she didn't feel good. Defendant was in the kitchen and came into M.D.'s room. M.D. was lying down in bed and then she sat up. Defendant was kneeling by M.D.'s bed. M.D. was wearing a nightgown, underwear, and a bra. Defendant shut the door, locked it, and told her brothers to watch TV. M.D. told him she wanted to go back to sleep. Defendant took off his shirt, pants, socks, underwear, shoes, and sunglasses. M.D. went under the covers. Defendant got on top of her after he got undressed but she was still dressed. Then he took the covers off M.D. followed by her nightgown, underwear, and bra. She said, "Then he put his thing - I don't know what it's called. [¶] . . . [¶] He put his thing in my B-U-T. And then he licked my privates. And then he put his thing in my mouth." M.D. said it hurt. She was on her stomach and his hands were on her shoulders. Defendant's "white stuff" came out on her back and it felt weird because it was warm. He wiped it off with a napkin.
M.D. expressed reluctance about describing the specifics of each incident: "I just wanna say like everything he does. 'Cause I don't want to have to go through it every time." The interviewer explained that she did not want to mix up the incidents. M.D. said, "Well, he pretty much makes me do everything, every time."
M.D. then explained the "tasting game" they played when she was little. Defendant would have her taste things with a blindfold on. One time, when defendant started to have sex with M.D., she was choking because she thought it was a spoon. But defendant "was using his thing."
M.D. continued that the first time after he put his penis in her anus, he licked her vagina. He told her to turn over on her back to do this and was holding her legs. Then defendant stopped and asked M.D. if she felt better, and she said yes, even though she didn't. Defendant didn't do anything else the first time. Before defendant started, he said that he could go to jail for this because it was against the law. M.D. thought that if defendant knows he's going to jail, why did he do it?
M.D. said the first incident occurred the summer after second grade. She said, "I was in break, so well - 'cause he's done this about four, about say two or three years." M.D. acknowledged, however, that last year was the first time.
The interviewer asked if there was "another time you remember really clearly." M.D. described an incident at the old house in defendant's room when her brother came in. Defendant told her to hide and she did because she doesn't like to disobey. Defendant told her he felt sick and this is the only thing that would make him feel better. M.D. told him she didn't want to do it, because he had said she would never have to do it again. Defendant said he was going to give her $4, take her to McDonald's, and get her a toy. M.D. said, "But, did he make the deal? No." "So he still owes me a buck, McDonalds, and a toy." M.D. also said she actually wanted to do it for defendant because he said he was sick.
Both M.D. and defendant took their clothes off. M.D. said, "[a]nd then he made me suck his thing again." "I say his thing, 'cause I don't know what it's called." Defendant made her hold it and suck it. He was standing and she was kneeling like defendant had showed her in video on his phone of what an adult boy and girl were doing. M.D. said she wanted to stop. Defendant made her stand over the bed and he put his penis in her anus. He was moving and M.D. told him to stop because it hurt. Defendant said hold on, he was almost done, and then he was done and there was white stuff on her back. He wiped it off with napkins. Then M.D. got dressed and asked for the $4 to go get McDonald's and a toy. Defendant said he had tricked her, and M.D. thought, I'm not doing that again. This happened a couple days after the first time.
Before describing the second incident, M.D. asked, "Can I only talk about two times?" The interviewer responded, "I know at least these two times, and we might have to be in one more time." M.D. said, "He's done it more than three times." "But I don't want [to] talk about all of them." The interviewer said, "We won't have to do all of 'em."
M.D. told the interviewer another incident happened in her room in the new house, "[b]ut, I don't want to say anymore." The interviewer and M.D. then had the following exchange:
"KB: . . . So, how many times did it happen at the old house?
"MD: Three.
"KB: Three. Three times at the old house. How many times at the new house?
"MD: Three.
"KB: Three times at your new house too. Okay.
"MD: So that's six.
"KB: Okay, And has it happened since you turned nine?
"MD: It just happened once.
"KB: Yeah?
"MD: So that's seven.
"KB: Okay. So seven times. And one of the times happened when you were nine."
After a break, M.D. said, "I'm pretty - now that I think of it? I'm pretty sure it only happened, happened twice at the new place 'cause [it] happened once before my birthday and once on my birthday." M.D. said the time before her birthday was the incident where M.D. was watching TV in her room with her dog between her legs. Defendant put sunscreen lotion from M.D.'s closet on his penis before he put it in her anus. Defendant was moving back and forth and saying it feels so good, over and over. M.D. said, "But it doesn't feel good at all for me." M.D. was falling asleep, and defendant asked, what was the matter, because he was putting his penis in her anus. M.D. said defendant stopped because she was tired and they got dressed. Later in the interview, M.D. said that defendant stopped when he was done. She said defendant "went on my back again." When asked what came out, M.D. said, "I don't know. I - I've never seen it." Defendant wiped the stuff up with M.D.'s dirty striped shorts. M.D. got a drink of warm milk and went to bed. Her mother was away; she had gone to an Oakland Raiders game.
M.D. gave the bottle of lotion to her mother, who gave it to Detective Hengel.
M.D.'s mother, Courtney, testified that she gave a pair of M.D.'s striped shorts to Detective Hengel because M.D. said defendant "had gone on" them. The shorts had been laundered. Detective Hengel provided them to the crime lab to be screened for biological fluids. A criminalist in the lab examined the shorts for semen. The criminalist ran a number of tests and did not detect semen. She testified that it is possible that laundering would wash away semen and possible that it would not.
Detective Hengel acknowledged that the Oakland Raiders had not played a game past January since 2003.
M.D. told the interviewer that the incident where she was watching TV occurred on her birthday. M.D. wasn't sure if the incident before her birthday was at the new house or the old house. M.D. said, "He did it so many times; It's hard to remember." "Those are the only ones I remember." Asked about the time at the new house before her birthday, M.D. said it was the time with her dog that she had already described. Defendant did it two weeks after they moved into the new house in February. M.D. said there was another time at the new house, "but I don't remember what he did or anything."
M.D. said defendant showed her video at the time when her dog was between her legs and "showed me every time." She didn't remember what defendant showed because she was falling asleep and then woke up. Defendant showed her video when he was doing it; he would keep moving back and forth between the video and what he was doing. His penis was in her anus while he was showing her video on YouTube on his phone.
M.D. said he only licked her vagina once and made her suck his penis twice, but every time he would put his penis in her anus. Defendant licked her vagina in Modesto. Defendant had M.D. suck his penis twice in Modesto.
Defendant gave M.D. her mother's night pills every time before they started and even times when defendant didn't do anything to her. The pills were in the cabinet. The pills were blue. Defendant told M.D. not to ask for these pills. Defendant said they would help M.D. sleep but they kept her up and made her dizzy and scared. M.D. would ask defendant to come lay down with her because she was scared, and she would hold on to his arm because she was dizzy and felt like she was spinning. M.D. said defendant would give her the pills before sex but sometimes would not. M.D. thought that she was not supposed to have these pills and told her mother about them the day she told her mother about what defendant was doing to her. M.D. said that her mom counted the pills and noticed they were gone. M.D. told her mother about taking them.
M.D. described the events of her disclosure to her mother in substantially the same manner as her trial testimony. M.D. provided additional detail on the events after she told her mother. Her mother came home and told M.D. to get in the car, but she and her mother went into her room to finish packing and locked the door. Corey, her mother's friend, told defendant to go outside so they could talk. Defendant came banging on the door to her room. Then he took off. M.D. went to stay with Corey and came back the next morning. Her aunt arrived at the house at 2:00 in the morning and defendant was in the backyard and he had alcohol. Her aunt told him to leave because she was going to call the police.
D. Courtney's Testimony
Courtney married defendant in 2009. They decided to divorce in 2015. Defendant was not M.D.'s father. Defendant was the father of M.D.'s brothers. While married, Courtney and defendant lived in Merced County in a house in Winton with the three children. For four months, Courtney's friend, Theresa F., and her girlfriend lived with them. The family moved to Sacramento on January 27, 2015. Defendant had been working at Overhead Door in Sacramento and commuting. They moved because the commute was too expensive. Theresa did not live with them when they moved to Sacramento; she and Courtney were not on speaking terms by then.
Defendant was employed when the family was living in Sacramento and on and off when they were living in Winton. Courtney worked evening and morning shifts at various times for AT&T. When defendant was not working and on weekends, he watched the children; if he was working, the children went to a sitter. In August 2014 Courtney worked daytime hours for West America and then Bank of America, Monday through Friday and part of Saturday. Defendant was either unemployed or working the graveyard shift. He watched the children during the day.
In 2014, while they were living in Winton, Courtney went to at least two Oakland Raiders games. If defendant didn't go to the game, he watched the children.
Courtney was out to dinner with Corey when M.D. called on her cell phone about what happened with defendant. Corey was defendant's work partner at Overhead Door and a family friend. Corey frequently would come over and spend time with the family. As of March 25, 2015, Courtney and Corey were not in a romantic relationship. March 25 was the first one-on-one time that Courtney had with Corey. After March 25, their relationship did become romantic. On that day, Corey moved into the house Courtney had shared with defendant. The children now call Corey daddy.
Detective Hengel testified that Courtney told him she was dating Corey when she split up with defendant.
Sometime in mid-to-late March 2015, Courtney and defendant decided to divorce. They had not yet discussed child custody. On March 25, 2015, Courtney had been staying nights with a coworker for a week and defendant was at home with the children.
When M.D. called, she said she was in her closet hiding. She said she didn't want to keep a secret anymore and she was scared. M.D. said defendant had been doing things to her. She said he had been touching her and he put his thing in her.
Courtney told Corey they had to go immediately. She said defendant's been molesting M.D. Courtney called 911 and reported that defendant was molesting M.D. Corey drove them to the house.
When they got to the house, the sheriff's deputies were not there but arrived shortly after. Courtney went to M.D.'s room, told her to pack her stuff, and told the other children to pack. Defendant was there, sitting on the couch and asking, "What's going on?" Courtney "completely tuned him out" and walked past him, not saying anything. Defendant went outside to talk to Corey, and then defendant walked in, grabbed something, and left.
The sheriff's deputies arrived within minutes, guns drawn. They were there for hours. M.D. had a lengthy conversation in the kitchen with a female deputy. Courtney was not present during the interview.
Courtney never suspected defendant would do anything like this. M.D. would not tell Courtney the extent of what had happened with defendant.
E. Testimony of Dr. Anthony Urquiza
Dr. Anthony Urquiza, a psychologist, testified as an expert regarding child sexual abuse accommodation syndrome (CSAAS) and the effects of sexual abuse on children. CSAAS is an educational tool to explain why children who have been sexually abused act in a particular way that might not be easily understandable. CSAAS is not a diagnosis. The issue of whether a child has been abused or not is not the question. CSAAS addresses the pattern of behavior and characteristics that occur when a child has been abused. The assumption is that the child has been abused. CSAAS does not apply to a child who has not been abused.
Dr. Urquiza explained that children are usually abused by somebody with whom they have an ongoing relationship, not a stranger. The abuser is usually bigger, older, stronger, and perhaps in a position of authority.
There are five parts of CSAAS: secrecy, helplessness, entrapment and accommodation, unconvincing and delayed disclosure, and retraction and recantation.
Children keep abuse secret because of coercive strategies by the perpetrator to keep them quiet, either by overt threat or intimidation. Another coercive strategy involves the perpetrator giving children things or doing things they enjoy to develop a positive affectionate relationship with the victim.
Children may be afraid to disclose sexual abuse because it could break up the family, get the abuser in trouble, or get the victim in trouble. Children are ashamed and embarrassed by sexual abuse.
Helplessness counters the misperception that children will do something to keep themselves sexually safe, which rarely happens. It's unreasonable to expect children involved in an ongoing relationship with someone who has power and control over them to do anything to ensure their safety.
Entrapment is a way of saying that a child—who is being abused, must keep it secret, and can't stop it—is trapped. Accommodation refers to how children cope with child abuse. Children who are sexually victimized have an enormous amount of shame, embarrassment, humiliation, sometimes fear, trauma, and disgust. To cope with those feelings, children use disassociation as a strategy, which involves disconnecting or detaching functioning or awareness of what's happening. When children talk about abuse in therapy, they don't have any emotional expressions, which is a dissociative response.
Delayed disclosure is tied to secrecy. It is common for children to wait weeks or months or years before they are able to disclose being sexually abused. The closer the relationship between the perpetrator and the victim, the longer it takes for the victim to disclose. Disclosure initially is tentative and vague, without a lot of specific information. Children will take a while to tell everything about what happened. Children usually will have told law enforcement or a social worker or somebody before they see a therapist. Therapists will hear additional things because children have been able to understand more about what happened and do not fear that there's going to be a consequence of disclosure. After the initial statement, disclosure is a process where children are better able to talk more about what happened, though it is still incredibly difficult. If a child discloses some details to one person and others to another person, the child may have more security in one relationship than another or on that day feel less fearful.
Children can describe what they experience but have difficulty with intangibles, such as how long the abuse lasted or how many times it occurred.
Retraction and recantation is an explanation for why children take back or recant disclosure of sexual abuse. The best predictor of recantation is pressure by a family member to take back the disclosure.
Dr. Urquiza testified that he was familiar with child suggestibility, which relates to asking a child a question in a way that might lead to a specific answer. Younger children will change their answers to fit suggestive questions. It is possible older children might be suggestible but suggestibility drops substantially after age four or five. The way to guard against suggestibility is to ask a question in a neutral form. Neutral questioning takes information that children have provided and asks for further information.
Dr. Urquiza testified there are about 14 studies on false allegations of sexual abuse. False allegations do occur but fairly rarely or infrequently.
When asked about statistics on false allegations from the studies, Dr. Urquiza testified: "The range is low as about 1 percent of cases that come before law enforcement or CPS [child protective services] are determined to have been false allegations of sexual abuse and about as high as about 6 percent of cases. I usually reference a Canadian study that's probably one of the best studies that we have about false allegations. And what they found is 4 percent of cases that came to the attention of law enforcement or CPS were determined to have been false allegations. Now, roughly, that's in the middle of that one to 6 percent range."
Dr. Urquiza continued: "What's interesting about that Canadian study is that in none of those cases was it the child that made an allegation that was determined to be false; it was somebody else, which raises sort of the realm of false allegation tends to occur in certain types of custodial disputes: So a parent making an allegation of false sexual abuse that's false in order to acquire custody of a child." Dr. Urquiza concluded: "In that study none of the children made the allegation that was determined to be -- that raised the false allegation."
Dr. Urquiza confirmed that he did not know M.D. He had not talked or interviewed anyone involved in the case or reviewed any reports. The prosecutor had not shared any details about the case.
On cross-examination, Dr. Urquiza testified that the responsibility for determining whether somebody is guilty of a crime rests with the jury, not an expert. He also agreed that researchers in the mid-1990's said one should look for corroborating evidence in determining whether sexual abuse occurred.
III
Defendant's Case
A. Testimony of Character Witnesses
Shannon H. testified that she had known defendant for 22 years. He is her children's uncle. She saw defendant interact with her daughter when she was a little girl. Shannon H. never observed defendant say anything inappropriate regarding a little girl. She confirmed that she did not have a negative opinion about defendant being inappropriate around little girls, and the molestation charges against him did not change that opinion. She confirmed that she believed that defendant had a character for being truthful and the charges against him did not change that opinion.
Shannon H.'s daughter, now 19, also confirmed in her testimony that she has seen defendant around little girls and interact with little girls, including herself. She confirmed she has never seen him do or say anything inappropriate with little girls. Her opinion is that defendant has never been inappropriate around little girls. She stated her belief that defendant is telling the truth and the molestation charges against him did not change that belief. She said, "I have been around him my whole life and he's done nothing like that." She confirmed that M.D.'s testimony that defendant molested her would not change her opinion that defendant was not capable of inappropriately touching children. She stated, "I believe [defendant] is telling the truth."
Edward F. testified that he has known defendant for five years through family contacts and relatives. Defendant also has done quite a bit of work for Edward F. Outside of work, Edward F. has spent time with defendant on four or five occasions. He confirmed that he has seen defendant around little girls and interact with little girls. He confirmed that he has never observed defendant do or say anything inappropriate to little girls or say anything inappropriate about them. Edward F. did not know of any reason why anyone would consider defendant to have behaved inappropriately around little girls. He confirmed that the charges against defendant would not suggest to him that defendant has been inappropriate with little girls. Edward F. believed defendant to be truthful and nothing about the charges against defendant would change his opinion about defendant's character or his being a truthful person.
B. Theresa F.'s Testimony
Theresa F. testified that she was best friends with Courtney for three or four years from 2011 until the end of 2015. She lived with Courtney's family in 2014 from May to October or November. She stayed in the middle bedroom of their three bedroom house with M.D. and her then six-year-old daughter.
Theresa F. was not working at that time. Courtney was working, first at AT&T and then Bank of America, fulltime during the day. Theresa F. helped care for the children and did dishes and laundry.
Initially during her stay, defendant was not employed. In August 2014 defendant got a job working nights at a spice factory. He would come home in the early morning hours.
When defendant came home, the kids were going to school, except for D.D. who was too young. M.D. was in an after-school program. Courtney would pick up M.D. after she got off work at 5:00 p.m. Defendant would pick up one of M.D.'s brothers from school at 3:30 p.m.
Theresa F. was married when she was staying with Courtney's family and her wife stayed with her there for some period of time. They had had marital problems and Theresa F. had lost her job.
Theresa F. confirmed that while staying with Courtney's family, she saw defendant interact with his children and her daughter. She confirmed that she never saw or heard defendant do or say anything inappropriate with M.D. or her daughter. She testified that, even knowing the charges against defendant, she would leave her eight-year-old daughter with him now. Theresa F.'s opinion was that defendant has always been truthful.
C. Testimony of Dr. William O'Donohue
Dr. William O'Donohue, a professor of clinical psychology, testified as an expert in the area of suggestibility of CSAAS, analyzing child sexual abuse allegations, and typical behavior of child molesters.
Dr. O'Donohue explained that memories can be false. Memory can be tainted through suggestibility, which can create false memories. It is easier to taint the memories of a child. They have more primitive cognitive abilities and part of their job is to listen to adults and please them and try to infer what an adult thinks is accurate. Studies show that, with four- to five-year-old children, 60 to 90 percent are suggestible, as opposed to 25 to 30 percent of adults. As the child ages, suggestibility goes down. Late teenagers will be similar to adults. With eight- or nine-year-old children, the phenomenon will be 40 or 50 percent.
One researcher asked children who had gone to Disneyland if they saw Bugs Bunny there. Bugs Bunny is an MGM character and would not be at Disneyland. But 50 percent of children will recount that they saw and interacted with Bugs Bunny.
A person with a false memory believes it and does not know it's a lie. However, suggested memories are often stated more vaguely. Children will give more implausible details than adults because they lack contextual knowledge.
Dr. O'Donohue testified that core detail is a central feature of a memory. Core detail is the feature or event that's more impactful and thus remembered. Dr. O'Donohue confirmed that the number of incidents of molestation is a core detail, unless it has happened many times. But if a person said it happened twice, then five times, then three times, and then seven times; that is inconsistency in core details. Children can consistently tell core details of their sexual abuse. He confirmed that child abuse is traumatic so there would be heightened awareness of how many incidents occurred. Children would essentially be testifying on how many times they had been traumatized. Drugs associated with abuse would be central events.
The reason for the child's initial disclosure of sexual abuse, which Dr. O'Donohue referred to as "outcry," is critical to determine whether there were unusual features that give rise to alternative hypotheses than sexual abuse. A child questioned repeatedly about sexual abuse in a leading manner seeking a certain response, and with an implicit bribe of McDonald's, could give rise to an alternative hypothesis of suggested memory as opposed to an accurate memory. There are studies of mothers being responsible for suggested memories.
Dr. O'Donohue explained the concept of "stakeholder." A mother in a custody battle is a stakeholder in a child abuse allegation because it would increase her custody or visitation while the father would get less. A child can have a stake in trying to divert attention from misbehavior. The stakeholder concept intersects with suggestibility.
Dr. O'Donohue testified he had never seen a male child molester groom a girl by showing male homosexual pornography. Grooming involves trying to sexualize the situation to increase the likelihood of sexual contact and to normalize the contact the molester anticipates. Dr. O'Donohue had seen behavior where a man shows heterosexual pornography to a girl but not gay pornography.
Dr. O'Donohue testified to his opinion that applying CSAAS to a case where a child alleges sexual abuse is a bad idea because it is a false theory. The theory does not have much data to support it and is vaguely stated. He had written an article that listed "20-some problems" with CSAAS where the characteristics posited by the theory were not found in cases where abuse had clearly occurred.
Dr. O'Donohue confirmed that CSAAS does not take into account false allegations of child sexual abuse. Dr. Roland Summit, in his first article on the syndrome, assumed that all child abuse allegations are true. The properties of the syndrome—delayed disclosure, secrecy, accommodation, unconvincing disclosure, and recantation—would also hold true for a false allegation. Dr. Summit wrote a subsequent article that it was inappropriate to use CSAAS in court to try to diagnose abuse or discriminate between false and true allegations.
Dr. O'Donohue discussed the McMartin daycare case where children reported that nearly 10 individuals had sexually abused them. Transcripts of the forensic interviews were examples of what not to do, involving leading and repetitive questions. The interviewer did not pursue alternative hypotheses. The current belief is that a mentally ill mother interviewed her child in a leading way and reported that the child alleged abuse. People sent letters to others involved with the daycare facility spreading the allegations. There were no convictions and the trial was one of the most expensive in California history. It became a textbook example of the need to explore the circumstances of the mother's interaction with the child, evaluate the forensic interviews, determine whether the investigation was unbiased, and whether other plausible hypotheses such as suggestibility were evaluated.
Dr. O'Donohue opined that to determine if a child has truly been sexually abused you can look for corroborating evidence—DNA, witness statements, sexually transmitted diseases—which is often absent. You can look at the consistency of a child's allegations and whether there was recantation. You inquire if the allegations have unusual features like vague recollection, fantastical details, or logistical implausibilities like anal sex that does not hurt.
Dr. O'Donohue testified regarding psychological trauma associated with child sexual abuse and that application of post-traumatic stress disorder (PTSD) in determining whether a child has been sexually abused. Pursuant to a stipulation of the parties, the jury was informed that this testimony was stricken based on a pre-trial ruling that there would be no testimony whether M.D. suffered any anxiety or PTSD as a result of her alleged sexual abuse.
D. Defendant's Testimony
Defendant testified that, by the end of February 2015, defendant observed Courtney flirting with Corey. Courtney got Corey's telephone number and was texting him. Courtney found reasons to go to Corey's house, such as dropping off food. One time in mid-March, defendant invited Corey over and noticed Courtney sticking out her tongue at him and Corey winking at her. Defendant went to bed and expected Courtney to join him. She never came to bed that night. The next morning defendant called Courtney and she said she was with Corey. When she came home with Corey, defendant asked if something was going on with them. Courtney denied it and told him there was nothing going on.
A few nights before the allegations of sexual abuse came out, defendant noticed more flirting and told Courtney she should not be friends with Corey. Courtney got upset and said she did not love defendant anymore and thought they should split up. Defendant asked if she was serious and said if he took off his ring that they were done. Courtney said she was serious and defendant took off the ring. Defendant said, "Then we're going to get a divorce now and I'm going to take custody of the kids and you need to find somewhere else to live." Courtney got upset and left that night. On March 25, 2015, Corey moved into defendant's home.
On March 25, 2015, defendant was watching TV when Courtney and Corey pulled up in his truck. Defendant asked what was going on; he didn't expect Courtney since she was staying elsewhere. Courtney walked right past him. Corey told defendant that Courtney said defendant had been molesting M.D. Defendant tried to talk to Courtney to find out what was going on, but she wouldn't open the door. He banged on the door but she wouldn't let him in. Defendant was very uncomfortable with the situation and left. He came back later that night. Defendant remembered being escorted out of the house by a deputy because there was a protective order. He denied touching M.D. to the deputy.
Afterwards, defendant contacted Courtney to get his phone which he had left behind in the home. There was heterosexual pornography on the phone that defendant and Courtney used to watch. Defendant never showed M.D. pornography. M.D. was not supposed to have defendant's phone but he had found her with it in the past. M.D. was very savvy about accessing the Internet. When defendant got his phone back, he noticed an application on it called "Gallery," which was black but had a "play symbol" like a video.
Defendant had played a game with M.D. and her brother. where he would blindfold them, take things out of the fridge, let them taste it, and ask them to tell him what it was, and vice versa. He never used his penis with M.D. in playing the tasting game.
Defendant gave Courtney's sleep medication to M.D. one time. M.D. was grounded and ended up taking a late nap. Defendant couldn't find the melatonin, which M.D. took because she had sleeping problems, and gave M.D. Courtney's medication, saying it was her mother's medication and not to ask for it. The next day M.D. told Courtney and they discussed it.
Courtney went to one Raiders game in October 2014. Defendant did not molest M.D. on her birthday, which is March 12, while Courtney was at a Raiders game.
Defendant denied each lewd act with M.D. that he was charged with and that he gave M.D. flurazepam each time he molested her. Defendant stated, "I have never molested [M.D.]"
Defendant was arrested on July 22, 2015. Since the molestation allegations were made against him, defendant has not had access to his children.
III
Jury Deliberations and Verdict
The jury deliberated for 10 minutes on June 22, 2016, and returned for a full day of deliberations at 9:10 a.m. on June 23, 2016. By 9:11 a.m. on June 23, the jury had submitted a question to the trial court: "If the jury is hung on some counts, but can reach a decision in other[s] - is that allowed? We apologize, we just need further instruction."
At 10:26 a.m. on June 23, the jury requested a read-back of certain testimony, including "Deputy Rowe's when [M.D.] talks about 'white stuff.' "
Responding to the first question on June 23, the trial court stated: "In light of the request for readback . . . the court will await further communication from the jury regarding the state of deliberations."
At 4:15 p.m. on June 23, the jury concluded deliberations for the day.
On June 24, 2016, at 9:10 a.m., the jury recommenced deliberations. At 9:18 a.m., the court reporter read the jury the testimony requested, including Deputy Rowe's testimony regarding the "white stuff," concluding at 9:36 a.m. At 10:10 a.m., the jury communicated the following request: "We want to hear all of Deputy Rowe's testimony." The testimony was read to the jury, a task that took approximately two hours.
On June 27, 2016, at 9:10 a.m., the jury began deliberating and at 2:13 p.m. communicated that they had reached a verdict. The jury found defendant guilty on counts one through seven regarding lewd acts upon M.D., not guilty on count eight for administering flurazepam to M.D. in Merced County, and guilty on count nine for administering the drug in Sacramento County.
The court sentenced defendant to nine years on count nine and two years on each of counts one through seven, for a total sentence of 23 years.
DISCUSSION
Conviction for Providing Flurazepam
The jury found defendant guilty on count nine for violating section 11353 by providing M.D. with flurazepam in Sacramento County. The trial court sentenced defendant to nine years in prison on this count, which it deemed the principal charge because it carried the highest potential sentence. On appeal defendant contends, and the People agree, that section 11353 does not apply to flurazepam. Therefore, defendant did not commit a crime in providing the drug to M.D. Accordingly, we reverse defendant's conviction on count nine for insufficient evidence. (See People v. Harris (2006) 145 Cal.App.4th 1456, 1460-1461 [conviction for violation of Pen. Code, § 4573.5 prohibiting bringing drugs "other than controlled substances" into a correctional facility reversed because statute by its terms does not apply to controlled substances such as medical marijuana]; see also People v. Fenton (1993) 20 Cal.App.4th 965, 966-967 [conviction for violating Pen. Code, § 4573 reversed because statute does not proscribe smuggling a controlled substance into jail when the inmate has a physician's prescription].)
Count nine alleged that defendant violated section 11353 "in that said defendant did unlawfully, being a person of 18 years of age and older, sell, offer to sell, furnish, administer, give, and offer to sell, furnish, administer, and give to [M.D.], a minor a controlled substance, to wit, FLURAZEPAM." Defendant admitted that on one occasion he gave M.D. one of her mother's prescription pills. In closing argument, defense counsel conceded that defendant gave flurazepam to M.D. The jury also was instructed that defendant was charged in counts eight and nine "with administering Flurazepam, a controlled substance, to someone under 18 years of age." The jury acquitted defendant on count eight but found him guilty on count nine. The verdict form stated that the jury found defendant guilty "of a violation of Section 11353 of the Health and Safety Code of the State of California, (administrating to [M.D.], a minor, a controlled substance, to wit, Flurazepam, in the County of Sacramento), as charged in Count Nine of the Information."
Section 11353 provides that an adult who gives a controlled substance to a minor shall be imprisoned for three, six, or nine years. However, flurazepam is not on the list of controlled substances that section 11353 provides is illegal for an adult to give to a minor. Section 11353 applies to "any controlled substance classified in Schedule III, IV, or V which is a narcotic drug . . . ." Section 11057 lists the controlled substances included in schedule IV. Flurazepam is a schedule IV controlled substance but is not listed as a "narcotic drug." Subdivision (c) of section 11057 listing "Narcotic drugs" does not include flurazepam. Subdivision (d) of section 11057 listing "Depressants" includes "Flurazepam." (§ 11057, subd. (d)(14).) Thus, section 11353 does not apply to flurazepam because it is a schedule IV depressant, not a schedule IV narcotic drug. (See People v. Miller (2012) 202 Cal.App.4th 1450, 1455, fn. 3 [section 11350 prohibiting possession of drugs formerly classified as narcotics does not apply to diazepam, which is listed as a schedule IV drug, but under the heading "Depressants," separate from "Narcotic drugs"]; cf. People v. Kraft (2000) 23 Cal.4th 978, 1013 [flurazepam is a drug similar to diazepam].)
Defendant contends, and the People also concede, that defendant's conviction for violating section 11353 cannot be corrected to a violation of section 11380, a statute that does apply to giving a minor a schedule IV drug which is not a narcotic drug. Section 11380 provides that "[e]very person 18 years of age or over who violates any provision of this chapter involving controlled substances which are . . . classified in Schedule III, IV, or V and which are not narcotic drugs . . . or who unlawfully furnishes . . . those controlled substances to a minor shall be punished by imprisonment in the state prison for a period of three, six, or nine years." (§ 11380, subd. (a).)
However, the People agree that defendant is correct that section 11375 prohibiting possession and sale of certain controlled substances eliminates the application of section 11380 to flurazepam. Section 11375 provides that "[a]s to the substances specified in subdivision (c), this section, and not Sections 11377, 11378, 11379, and 11380, shall apply." Subdivision (c) of section 11375 includes "Flurazepam." (§ 11375, subd. (c)(5).) Subdivision (b) of section 11375 provides for the punishment of persons who sell or offer to sell a substance such as flurazepam and makes it an infraction or misdemeanor to possess such substances without a prescription. As summarized by the People, under section 11375 "it is unlawful for a person to possess Flurazepam without a prescription, possess it for sale, or sell it. But it is not unlawful for a person to administer Flurazepam to a minor under section 11375, 11353, or 11380." (See People v. Kennedy (2001) 91 Cal.App.4th 288, 294-295 [section 11377 proscribing simple possession of Valium (brand name for diazepam) is inapplicable because only possession for sale or sale of Valium is unlawful under section 11375].)
Defendant's conviction on count nine will be reversed.
Expert Testimony on the Rate of False Child Abuse Allegations
Defendant contends that "his counsel was ineffective for not objecting to testimony that amounted to the statistical probability that [defendant] was guilty of sexually assaulting M.D." Defendant refers to the expert testimony of Dr. Urquiza regarding 12 to 14 studies finding that the rate of false allegations of sexual abuse ranged from 1 percent to 6 percent. In addition, Dr. Urquiza highlighted "a Canadian study that's probably one of the best studies that we have about false allegations." Dr. Urquiza testified that this study found that "4 percent of cases that came to the attention of law enforcement or CPS were determined to be false." However, the false allegations were made by parents seeking custody. "In that study none of the children made the allegation that was determined to be -- that raised the false allegation."
This same testimony by Dr. Urquiza has been the subject of two recent Court of Appeal cases, both of which found it to be inadmissible: People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson) and People v. Julian (2019) 34 Cal.App.5th 878 (Julian).
In Wilson, the court surveyed more than a dozen decisions of non-California courts holding that expert testimony on the statistical percentage of false or, conversely, truthful allegations of sexual abuse, was inadmissible. (Wilson, supra, 33 Cal.App.5th at pp. 568-570, citing, e.g., United States v. Brooks (C.A.A.F. 2007) 64 M.J. 325, 329-330; United States v. Mullins (C.A.A.F. 2010) 69 M.J. 113, 116; Powell v. State (Del. 1987) 527 A.2d 276, 279-280; Wheat v. State (Del. 1987) 527 A.2d 269, 274-275; Wilson v. State (Tex.Ct.App. 2002) 90 S.W.3d 391, 393; Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 737-739 (Snowden); United States v. Magnan (10th Cir. 2018) 756 Fed.Appx. 807, 813-814; State v. Lindsey (1986) 149 Ariz. 472, 475 [720 P.2d 73,75]; State v. Myers (Iowa 1986) 382 N.W.2d 91, 92, 97-98; State v. Parkinson (Ct.App. 1996) 128 Idaho 29, 35-36 [909 P.2d 647, 654]; Aguirre v. State (Kan.App. 2016) 379 P.3d 1149; State v. W.B. (2011) 205 N.J. 588, 611-614 [17 A.3d 187, 201-202]; State v. Kinney (2000) 171 Vt. 239, 252-253 [762 A.2d 833, 843-844]; State v. Catsam (1987) 148 Vt. 366, 370-371 [534 A.2d 184, 186-188].)
The court in Wilson concluded "the clear weight of authority in our sister states, the federal courts, and the military courts finds such evidence inadmissible. We find the reasoning of the cases compelling. Dr. Urquiza's testimony had the effect of telling the jury there was at least a 94 percent chance that any given child who claimed to have been sexually abused was telling the truth. And, although Dr. Urquiza's testimony on this point was not expressly directed to [the child victims in the case], the practical result was to suggest to the jury that there was an overwhelming likelihood their testimony was truthful. In so doing, this testimony invaded the province of the jury, whose responsibility it is to 'draw the ultimate inferences from the evidence.' " (Wilson, supra, 33 Cal.App.5th at p. 570, quoting People v. Melton (1988) 44 Cal.3d 713, 744.)
The court continued that, "[e]ven assuming one could determine that only 1 to 6 percent of sexual abuse allegations are false, that fact would not be helpful to the jury because it tells the jury nothing about whether this particular allegation is false. Are [the victims] in the 4 percent or in the 96 percent? The jury must evaluate [the victims'] testimony, together with all the other evidence, to decide this question, and it should do so without statistical evidence placing a thumb on the scale for guilt." (Wilson, supra, 33 Cal.App.5th at p. 571.)
However, the court in Wilson concluded that there was no prejudice. (Wilson, supra, 33 Cal.App.5th at p. 572.) The court noted among other things that the defendant rebutted the statistical evidence through an expert witness who testified that the 4 percent number in the Canadian study reflected only cases where there was positive proof that the child's allegations were false, and it was not possible to know the actual ratio of true to false allegations. (Ibid.)
In Julian, Dr. Urquiza again testified regarding statistical data on false allegations, presenting a similar percentage range of false allegations, praising the Canadian study, and highlighting that children were not the source of false allegations. (Julian, supra, 34 Cal.App.5th at pp. 883-884.) The court in Julian agreed with the defendant that "Urquiza's statistical probability testimony went beyond the permissible scope of CSAAS evidence, was highly prejudicial, and deprived him of his right to a fair trial." (Id. at p. 885.)
The court noted that expert testimony on CSAAS is admissible to rehabilitate the victim's credibility as a witness when the defendant suggests, for example, a delay in reporting is inconsistent with molestation. (Julian, supra, 34 Cal.App.5th at p. 885.) Such expert testimony is necessary to counter juror misconceptions about child sexual abuse and explain abused children's contradictory behavior. (Ibid.) But this evidence is not admissible to prove a child has been sexually abused. (Ibid.) An expert witness may not describe the components of the syndrome in a way to allow the jury to apply it to the facts of the case to conclude the child was sexually abused. (Id. at pp. 885-886, citing People v. Bowker (1988) 203 Cal.App.3d 385, 393 (Bowker).) Further, it is not proper for an expert to present conclusions that child abuse victims should generally be believed or are credible despite their inconsistent accounts. (Julian, supra, at p. 886; Bowker, supra, at p. 394.) "Where expert opinions on the statistical probability of guilt are admitted, the jury may be 'distracted' from its 'requisite function of weighing the evidence on the issue of guilt,' and may rely instead on this 'irrelevant' evidence." (Julian, supra, at p. 886, quoting People v. Collins (1968) 68 Cal.2d 319, 327 (Collins).)
In Julian, as here, the jury had to decide between the credibility of the child victim's testimony and the defendant's. The court in Julian reasoned that Dr. Urquiza's testimony invited jurors to decide that the defendant was guilty based on statistical probabilities, and not the evidence properly presented at trial. (Julian, supra, 34 Cal.App.5th at p. 886.) The court held that "Urquiza's statistics were not admissible as CSAAS evidence." (Ibid., citing Bowker, supra, 203 Cal.App.3d at pp. 393-394.)
Citing many of the same non-California authorities as the Wilson case, the court in Julian concluded that "[t]his statistical probability evidence deprived Julian of his right to a fair trial." (Julian, supra, 34 Cal.App.5th at p. 886.) In particular, the court relied on Snowden, where the Eleventh Circuit vacated a conviction of five counts of child abuse. (Ibid.; Snowden, supra, 135 F.3d at p. 739.) "At trial [in Snowden] an expert witness testified that 'child witnesses in sexual abuse cases tell the truth' 99.5 percent of the time. [Citation.] The court said, 'That such evidence is improper, in both state and federal trials, can hardly be disputed.' [Citation.] 'The jury's opinion on truthfulness of the children's stories went to the heart of the case.' [Citation.] 'Witness credibility is the sole province of the jury.' [Citation.] Allowing this expert testimony to 'boost the credibility of the main witness against [the defendant]' resulted in a 'fundamentally unfair' trial. [Citation.]" (Julian, supra, at p. 886, quoting Snowden, supra, at pp. 738-739.)
As here, defense counsel in Julian did not object to Dr. Urquiza's statistical evidence on false allegations and the defendant contended counsel was ineffective in failing to object. (Julian, supra, 34 Cal.App.5th at p. 887.) Applying the test of ineffective assistance in Strickland v. Washington (1984) 466 U.S. 668, 686-692—whether counsel's failure to object (1) fell below the standard required of reasonably competent attorneys, and (2) was prejudicial to the defendant's case—the Julian court agreed with the defendant. (Julian, supra, at p. 888.) Applying this test, we likewise find that defense counsel was ineffective in this case.
The People argue that the defense counsel's failure to object did not fall below an objective standard of reasonableness because (1) no California case had established that expert evidence of the statistical probability of false allegations of child sexual abuse was inadmissible, and (2) defense counsel had a tactical reason not to object to avoid highlighting Dr. Urquiza's testimony.
However, the People acknowledge that the court in Julian summarily held that the failure to object fell below the standard of reasonable competence, declaring "there is no justification for counsel's failure to object to Urquiza's statistical evidence on false allegations. It was inadmissible and it improperly suggested Julian was guilty based on statistical probabilities that were irrelevant to this case." (Julian, supra, 34 Cal.App.5th at p. 888.)
Moreover, Julian cited existing California case law disapproving expert testimony suggesting that child sexual abuse victims are credible or expert opinion on the statistical probability of guilt. (Julian, supra, 34 Cal.App.5th at pp. 885-886.) For example, Julian quoted Bowker, in which the court said it is improper for an expert on CSAAS "to present 'predictive conclusions' [citation], such as alleged child abuse victims 'should be believed' or 'abused children give inconsistent accounts and are credible nonetheless.' " (Id. at p. 886, quoting Bowker, supra, 203 Cal.App.3d at pp. 393, 394.) Julian also quoted the California Supreme Court, more than 50 years ago, in Collins holding that "expert opinions on the statistical probability of guilt" are irrelevant and may distract the jury from its duty to weigh the evidence of guilt. (Julian, supra, at p. 886, quoting Collins, supra, 68 Cal.2d at p. 327.) The existence of Bowker and Collins, as well as the legion of non-California cases cited by Wilson and Julian, belies the notion that there was no existing legal authority supporting an objection to Dr. Urquiza's statistical testimony.
The People's contention that defense counsel may have wanted to avoid highlighting Dr. Urquiza's testimony on the statistical probability of false allegations ignores the prominence of this evidence. The prosecutor specifically referred to Dr. Urquiza's testimony in her rebuttal closing statement to combat the defendant's core theory that Courtney promoted false allegations of sexual abuse in order to obtain child custody in a divorce proceeding. The prosecutor reminded the jury that Dr. Urquiza cited a Canadian study that "in these cases where there are the child custody disputes or divorce proceedings, the only person who is saying that this sexual abuse is occurring is the parent. Never once was it the child saying that these things happened to them." Dr. Urquiza's testimony essentially put the probability of a false allegation of sexual abuse by a child such as M.D. at zero. Defense counsel thus left unchallenged by objection the inadmissible evidence which was most damaging to the defendant's central theory.
On the second prong of the ineffective assistance test, in Julian, the court concluded that Dr. Urquiza's statistical evidence was "highly prejudicial because this case was a credibility dispute between [the child's] testimony and [the defendant's]." (Julian, supra, 34 Cal.App.5th at p. 888.) This case also involved a credibility dispute between M.D. and defendant. There was no corroborating evidence and defendant presented witnesses who declared him incapable of inappropriate conduct with a child.
In that context, the prejudice to defendant is apparent for a number of reasons. To begin with, unlike Wilson, the defense expert, Dr. O'Donohue did not challenge the statistical evidence itself. (Wilson, supra, 33 Cal.App.5th at p. 572.) His testimony focused on false memories, the circumstances of initial disclosure, a parent as a stakeholder in a custody dispute, and his critique of CSAAS. There was no evidence to rebut the very low numbers that Dr. Urquiza testified to regarding the percentage rate of false allegations.
Further, M.D.'s statements about the nature and number of incidents of sexual abuse were noticeably different in the three different forums in which she described them: at trial, to Deputy Rowe, and in the SAFE interview. (Julian, supra, 34 Cal.App.5th at p. 888.) At trial, M.D. described three incidents of sexual abuse, two in Winton and one in Sacramento, including details regarding defendant attempting to bribe her with money, McDonald's and a toy, showing her pornographic videos, and giving her Courtney's sleep medication. Deputy Rowe testified that in the interview M.D. said that sexual abuse occurred once or twice in Modesto and once or twice in Sacramento. According to Deputy Rowe's report of the interview, M.D. did not mention defendant giving her Courtney's sleep medicine, showing her pornographic videos, or bribing her. In the SAFE interview, M.D. said there were three incidents in Winton and four in Sacramento, for a total of seven, then changed the Sacramento number to two, one before and one after her birthday, but described the incident before her birthday as the same as the incident on her birthday.
M.D. at trial referred to defendant's penis as his "private." When asked if she had another word for it, M.D. answered, "I don't know what it is." To Deputy Rowe, M.D. spelled it out as defendant's "d-i-c-k" and also called it his "pee pee." In the SAFE interview, M.D. stated that she didn't know what defendant's penis was called and referred to it as his "thing."
M.D. testified at trial and told Deputy Rowe and the SAFE interviewer, that defendant's "white stuff" came out on her back. But when the SAFE interviewer later asked what came out, M.D. said she didn't know what it was because she had never seen it.
In trial testimony, M.D. acknowledged that she got in trouble for watching videos about sexual abuse using Barbie dolls in order to understand what defendant had done to her. In the SAFE interview, M.D. stated that after defendant was taken away she continued to watch the pornographic videos he had shown her until they were discovered on a tablet.
M.D.'s accounts of the specific sexual acts differed. At trial, for example, in the second incident where her brother came into defendant's room, M.D. testified that she could only remember that defendant made her perform oral sex. Deputy Rowe testified that in the interview M.D. said that "there was a time where [defendant] put his pee pee in her mouth." M.D. also told Deputy Rowe about the occasion when her brother came into the room. But M.D. did not say that oral sex occurred at that time. In the SAFE interview, M.D. said that, during the second incident, defendant showed her a pornographic video of oral sex between a man and woman, made her perform oral sex, then put his penis in her anus, and white stuff was on her back when he was done.
In closing, the prosecutor conceded "in terms of any inconsistencies that might be between her statements to Deputy Rowe, her statements in the SAFE interview, and what she said here in court. Are there inconsistencies? Absolutely there are." The prosecutor maintained that inconsistencies were to be expected from a nine-year-old girl testifying about sexual abuse. The prosecutor asked rhetorically, when M.D. testified about being sexually abused, "right here in front of us when she came into this courtroom . . . did she disclose every single act that she did in the SAFE interview? No, she didn't. She did describe three specific times as she did in the SAFE interview, but not every single act." Jurors, in effect, heard the prosecutor make the argument that inconsistencies were to be expected and the primary evidence on the seven counts alleging seven acts of sexual abuse was the SAFE interview, the only time where M.D. disclosed "every single act" that led to the charges.
Given this sequence of events, there was a significant risk that the jury ultimately concluded that the SAFE interview combined with Dr. Urquiza's statistical evidence about the very low rate of false allegations of child abuse was sufficient to support a guilty verdict on all seven counts, notwithstanding the inconsistencies between M.D.'s statements at trial, to Deputy Rowe, and in the SAFE interview. "But the jury's duty to decide the facts does not include considering inadmissible statistical information [citation] or using studies of statistical odds to determine guilt. [Citations.]" (Julian, supra, 34 Cal.App.5th at p. 889.) Because defense counsel failed to object to this evidence, defendant did not receive a fair trial. (Ibid., citing Strickland v. Washington, supra, 466 U.S. at pp. 686-687.)
DISPOSITION
The judgment is reversed and the case is remanded for a new trial.
/s/_________
RAYE, P. J. We concur: /s/_________
BUTZ, J. /s/_________
HOCH, J.