Opinion
B220998
09-14-2011
THE PEOPLE, Plaintiff and Respondent, v. KRZYSZTOF WOLINSKI, Defendant and Appellant.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Daniel C. Chang and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA058130)
APPEAL from a judgment of the Superior Court of Los Angeles County. Jose I. Sandoval, Judge. Affirmed.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Daniel C. Chang and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Krzysztof Wolinski appeals from convictions on multiple counts of rape, sodomy and child abuse for which he was sentenced to 66 years 8 months in prison. He contends: (1) it was error to deny his Penal Code section 1538.5 motion to suppress evidence found in a warrantless search of his home; (2) he was denied the right to a fair trial by the admission of evidence of child sexual abuse accommodation syndrome (CSAAS); (3) instructing the jury on CSAAS denied him due process; and (4) the instruction defining lewd or lascivious conduct was inadequate. We affirm.
All undesignated statutory references are to the Penal Code.
In a 24count information, defendant was charged with forcible rape of a person unable to give consent (§ 261, subd. (a)(2)); sexual intercourse with a minor (§ 261.5, subd. (c)); willful harm or injury to a child under circumstances likely to create great bodily injury (§ 273a, subd. (a)); sodomy (§ 286, subd. (b)(1)); forcible sodomy (§ 286, subd. (c)(2)); lewd or lascivious act on a child of 14 or 15 years of age (§ 288, subd. (c)(1)); oral copulation (§ 288a, subd. (b)(1)); possessing child pornography with intent to distribute (§ 311.2, subd. (d)); and criminal threats (§ 422). As to each count, two prior prison term enhancements were also alleged. (§ 667.5, subd. (b).) During trial, the People dismissed the criminal threats charge and the information was amended to change the two charged violations of section 311.2, subdivision (d) to violations of section 311.4, subdivision (c) (use of a minor to create pornography). A jury found defendant guilty on all charges and found true both prior prison term enhancements.
FACTS
A. The People's Case
Because there is no issue as to the sufficiency of the evidence to support the judgment, we need not recite the sordid facts of this case in detail. It is sufficient to state that, viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio)), the evidence showed that defendant is S.W.'s biological father. S.W. was born in Poland in 1990 and grew up there having little contact with defendant who lived in the United States with his second wife, Jeana F. (stepmother). Two weeks before her 13th birthday, defendant began communicating with S.W. by telephone and mail. Defendant told S.W. that if she came to the United States, he would get her a job as a model. In October 2004, 14-year-old S.W. came to the United States for a two-week visit with her father and stepmother. Four days after her arrival, defendant got her drunk and had sexual intercourse with her. S.W. did not tell anyone, including stepmother, because she was afraid. About one and a half weeks after she arrived, defendant took S.W.'s passport away. A few days before she was supposed to return to Poland, defendant made S.W. call her mother in Poland to tell her S.W. was not coming back. After that call, defendant would not let S.W. call her mother again because, he said, it was too expensive. In the years that followed, defendant allowed S.W. to do things her mother in Poland would not have allowed, including smoke cigarettes and marijuana and drink alcohol, all of which he supplied for her. Over the next several years, defendant engaged in various sex acts with S.W. hundreds of times; this occurred almost every day, sometimes more than once a day. Defendant also physically abused S.W. on more than one occasion. Defendant threatened various consequences if S.W. told anyone what defendant was doing, including kicking her out of the house, sending her to foster care and sending her to Juvenile Hall. Unable to speak English and with no one to help her, S.W. continued to comply with defendant's demands because she was afraid of what he would do if she did not.
Stepmother described instances of inappropriate behavior she witnessed between defendant and S.W. She also saw defendant hit and slap S.W. Stepmother left defendant six months after S.W. arrived because he was becoming abusive toward stepmother. But she did not know that defendant was sexually abusing S.W.; S.W. never told her.
Several times, defendant videotaped himself having sex with S.W. When she was cleaning the house in late 2006, S.W. found one such tape in the VCR machine in the living room. S.W. hid it in her bedroom and later gave it to her boyfriend, Hugo G., for safekeeping.
On January 11, 2007, S.W. came home from school during a lunch break which triggered a verbal and physical confrontation with defendant. S.W. was afraid he would kill her. She tried to hide in the bathroom and call 911, but defendant broke down the door and disconnected the phone call. A few moments later, the telephone rang. S.W. heard only defendant's side of the conversation. When questioned by the police that day, S.W. asked them to have Hugo G. bring the videotape she had given him. Hugo G. did so and S.W. gave the tape to the police.
Los Angeles Police Officer Russell Graybill and his partner, Amado, arrived at defendant's apartment at 11:37 a.m. on January 11, 2007, in response to a 911 call. Based on that call, the officers questioned S.W. about the battery defendant claimed S.W. committed upon him. S.W. told Graybill that defendant had been molesting her, that there were photographs on a computer showing her engaging in sex acts with defendant and that she had given her boyfriend, Hugo G., a videotape to hide which showed the same. Hugo G. was called and told to bring the videotape. While waiting for Hugo G. to arrive with the videotape, S.W. directed Graybill and Amado to the computer with the photographs. Defendant remained seated at the dining room table while Amado brought the photographs up on the computer.
When Detective Stefanie Diaz and her partner Julie Mackey responded to the location, they encountered S.W., who had a cut lip, scratches on her neck, bruises on her arms and a bump on her head. Either Graybill or Amado gave Diaz the videotape. After defendant gave the officers written consent to search his residence, Diaz viewed a portion of the videotape on a machine in the residence. Diaz concluded that defendant and S.W. were the people depicted in the video. Items seized during the search of the residence included defendant's laptop computer and CPU tower, S.W.'s laptop and a video camera. That same day, Diaz and Mackey interviewed defendant at the police station. Defendant did not know the interview was being audio recorded. A CD-ROM of that recording and a transcript were played for the jury. In the interview, defendant admitted having sexual intercourse with S.W. on two occasions.
The videotape S.W. gave to the police was played for the jury. S.W. and defendant spoke Polish on the tape, but the jury was given a transcript with the English translation and a Polish interpreter interpreted the tape as it was played for them. In addition to the videotape, sexually suggestive and explicit photographs defendant took of S.W. were also introduced into evidence.
B. The Defense Case
Defendant testified he came to the United States from Poland in 1991, after separating from S.W.'s mother. In 2003, he was diagnosed with multiple sclerosis. In 2004, he arranged for S.W. to come live with him in the United States because she was having problems in school in Poland. Defendant never gave S.W. alcohol or marijuana and never had any kind of sexual relations with her; he is not the person seen in the videotape having sex with S.W. Defendant accused S.W. of failing school, running away, smoking marijuana, drinking alcohol, stealing, assaulting defendant and making false accusations. In January 2006, S.W. was placed on probation for assaulting defendant with a baseball bat.
Defendant was at home on January 11, 2007, because the school had called to tell him that S.W. was absent in violation of her probation. When defendant caught S.W. trying to sneak in the house that morning, he called the school police. A physical altercation with S.W. followed in which she kicked and bit defendant. S.W. ran upstairs and called 911; defendant hung up the phone because he thought she was calling her boyfriend. When the 911 operator called back, defendant told her he was waiting for the school police; the operator said she was sending officers, too. Defendant was also expecting an investigator from the Los Angeles County Department of Children and Family Services (DCFS) later that day in response to a false report by Hugo G.; defendant intended to tell the DCFS investigator to take S.W. away with her. When Officer Graybill arrived, defendant told Graybill that S.W. had assaulted him; Graybill came into the apartment, handcuffed S.W. and took her outside. Defendant went back into the apartment and closed the door. Then, Graybill knocked on the door and, when defendant opened it, Graybill forced defendant back into the apartment at gunpoint. Several hours later, Diaz and Mackey arrived. Graybill and Amado drove defendant to the police station. On the way there, they told him of S.W.'s accusations. Defendant denied the accusations. At the police station, defendant was not shown the videotape; he did not see it until several months later in the context of a custody hearing. Defendant was not the man in the video. The man in the video did not have certain tattoos that defendant had at the time the video was allegedly made. Defendant is also not the man in the still photographs.
During the interview with Diaz and Mackey, defendant said he had sex with S.W. but it was not true. He was simply telling the officers what they wanted to hear.
C. Rebuttal
Sexual assault nurse examiner Sandra Wilkison performed a "suspect exam" on defendant on January 11, 2007. He had no tattoos anywhere on his body. Previously, during the People's case-in-chief, stepmother testified that when she lived with defendant he did not have any tattoos.
DISCUSSION
A. Section 1538.5 Motion to Suppress
Defendant contends the trial court erred in denying his section 1538.5 motion to suppress evidence found in the January 11, 2007 search of his residence. As we understand his argument, it is that (1) his Fourth Amendment rights were violated when Graybill entered the apartment at gunpoint without a warrant or consent; (2) defendant's signature on the consent to search form was not a voluntary and knowing consent because he did not understand what he was signing; and (3) even assuming he understood what he was signing, the illegality of Graybill's prior entry vitiated any subsequent consent. We conclude that any error in admitting the evidence found in defendant's apartment on January 11, 2007, was harmless.
1. Standard of Review
In ruling on a section 1538.5 motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the law to the facts to determine whether the rule has been violated. We review the trial court's findings of fact for substantial evidence but independently review its selection of the applicable law and application of that law to the facts. Issues relating to the suppression of evidence derived from police search and seizure are reviewed under federal constitutional standards. (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1195 (Walker), citing People v. Robles (2000) 23 Cal.4th 789, 794 (Robles).)
2. Search and Seizure Principles
Under the Fourth Amendment (and the California Constitution), a warrantless search of a private residence is unreasonable per se unless it falls within a recognized exception to the warrant requirement. The two recognized exceptions applicable here are the giving of consent to search (Robles, supra, 23 Cal.4th at p. 795; Walker, supra, 143 Cal.App.4th at pp. 1196, 1198) and exigent circumstances (Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163, 172). We begin with "exigent circumstances." Regardless of the strength of the probable cause to arrest, warrantless entry into a home requires "exigent circumstances." (People v. Ortiz (1995) 32 Cal.App.4th 286, 291.) " 'Exigent circumstances' " refers to " 'an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.' [Citations.] 'There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.' [Citation.]" (Id. at pp. 291-292; see also People v. Thompson (2006) 38 Cal.4th 811, 818 [exigent circumstances include hot pursuit of a fleeing felon, imminent destruction of evidence, the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the home].)
Next, we turn to consent. It is the prosecution's burden to prove that the defendant's " 'consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.]' [Citation.] " (Zamudio, supra, 43 Cal.4th at p. 341.) A search or seizure made pursuant to a consent secured immediately following an illegal entry is "inextricably bound up with the illegal conduct and cannot be segregated therefrom." (People v. Haven (1963) 59 Cal.2d 713, 719; see also Burrows v. Superior Court (1974) 13 Cal.3d 238, 251.) But evidence is not the tainted product of prior police misconduct if the challenged evidence has been discovered " ' " 'by means sufficiently distinguishable to be purged from the primary taint.' " ' [Citation.]" (People v. McWhorter (2009) 47 Cal.4th 318, 360.) " 'The degree of attenuation that suffices to dissipate the taint "requires at least an intervening independent act by the defendant or a third party" to break the causal chain in such a way that the second confession is not in fact obtained by exploitation of the illegality. [Citations.]' [Citation.]" (Ibid.)
Finally, even assuming a search is unlawful and the evidence should not have been admitted against the defendant, reversal is not required where " 'other evidence of his guilt was so overwhelming that the alleged error was harmless beyond a reasonable doubt.' [Citation.]" (People v. Memro (1995) 11 Cal.4th 786, 847 (Memro), citing Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
3. The Section 1538.5 Motion and Hearing
Here, defendant's section 1538.5 motion sought to suppress "any and all observations and evidence of items [found] inside his residence" on January 11, 2007, and February 28, 2007. At the hearing, defense counsel clarified that he sought to exclude (1) the items listed on the property report and property receipt which identified the items recovered from the residence on January 11, and (2) three Polaroid photographs depicting S.W. and defendant, which S.W. gave to Mackey on February 28. Defendant and Mackey testified at the hearing.
In a separate motion, defendant sought to exclude statements he made to police following his arrest on the grounds that those statements were obtained in violation of his right to counsel. The motions were heard simultaneously. The trial court denied the motion to exclude defendant's statement, concluding that defendant's statement was voluntary and that he knowingly waived his right to counsel. In his opening brief, defendant did not challenge the admissibility of his statement to police, only the admissibility of evidence seized in the search of his home. In a heading in his reply brief, defendant makes a passing reference to suppression of his statements to police based on the allegedly illegal search. Discussion of this point is unnecessary inasmuch as defendant sets forth no legal argument in support of it. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary."].)
A CD and transcript of defendant's tape-recorded postarrest interview were also introduced into evidence. But since these were only relevant to the motion to exclude defendant's postarrest statement, which is not an issue on appeal, it is unnecessary to summarize the contents of that interview.
a. Detective Mackey's Testimony
On January 11, 2007, Detective Mackey was directed to respond to an apartment complex on De Soto Avenue in Chatsworth. When Mackey arrived a few minutes after 2:00 p.m., S.W. was being detained outside by uniformed officers. Mackey was aware police officers had already been in the residence, but she was not told that anything had been removed from the residence. Mackey was informed of a VHS cassette tape showing defendant having sex with S.W., but she could not recall whether the tape was there when she arrived or whether it was en route. In any case, the cassette was not found in the residence, it was brought to the location by S.W.'s boyfriend and given to Officer Graybill.
Within half an hour of arriving and after the cassette had been obtained from Hugo G., but before it had been viewed by the police, Diaz presented defendant with a "Consent to Search" form. Defendant was not in custody when he printed his name and signed the form in Mackey's presence. Mackey and Diaz did not enter the residence until after defendant signed the form. After defendant signed the form, Mackey and Graybill entered the apartment and viewed the videotape. Meanwhile, Diaz directed officers where to look for evidence in the apartment. Every item that was found, where it was found and by which officer, was listed in the property report. For example, in defendant's office, Officer Lugo found a DVD with S.W.'s name on it, defendant's laptop and computer and S.W.'s computer. Under the bed in defendant's bedroom, Officer Graybill found a box with a vibrator in it. Another vibrator was found in a drawer in S.W.'s office. A marijuana pipe and a box of condoms were found in defendant's nightstand. Officers also found a box of eight video cassettes.
Defendant was arrested and transported to the Van Nuys police station that day. There, Mackey and Diaz interviewed defendant; the interview was audio recorded but not video recorded. No notes were shown to defendant during the interview. Detective Diaz told defendant that police had obtained a videotape at the house which showed defendant having sex with S.W. While at the police station, Mackey was told about pictures of S.W. and a male engaging in sexual activity but she did not know whether these were actual photographs or images found on one of the computers recovered at the residence.
About a month later, on February 28, 2007, Mackey and Diaz met S.W. and the landlord at the residence so that S.W. could retrieve some of her personal belongings. Mackey and Diaz went into the residence with S.W. but did not actually search for anything. S.W. handed Mackey some photographs that S.W. said she found underneath a nightstand in defendant's bedroom. Mackey understood that when they lived in the residence together, S.W. and defendant slept in the bedroom together and S.W. kept her belongings in a nightstand next to the bed.
b. Defendant's Testimony
Defendant called 911 on January 11, 2007, after an altercation with S.W. during which she bit his right thumb. Defendant testified, "I told the [911] operator that they are more than welcome to [come], because I'm already awaiting the police from the campus." The officers responding to the call entered defendant's residence, handcuffed S.W. and took her outside. Defendant closed the door behind them and went to attend to his bleeding thumb. When defendant opened the front door in response to a knock moments later, officers forced defendant back into the house at gunpoint and directed him to sit on the couch. S.W. and Graybill walked around the residence together. Defendant saw officers holding videotapes and CD's. The officers had been in the apartment for two or three hours, and defendant was still inside when Mackey and Diaz arrived at the location. Diaz and Mackey asked defendant to step outside so that they could talk to him in private. While defendant was standing on the porch outside the front door, he used his Blackberry to call an attorney who was representing him in an unrelated matter. The attorney asked to speak to one of the officers at the scene. Defendant tried to hand the Blackberry to Diaz, but Diaz said she did not need to talk to defendant's attorney because defendant was not in trouble and not under arrest. She said that if anything changed, defendant would be allowed to make a call. Diaz then instructed Graybill to handcuff defendant. Defendant printed his name on the Consent to Search form because he was asked his name; he did not sign the form because of the injury to his thumb. When he was told what was going to happen, defendant asked to call his attorney again, but the officers refused his request.
While at the location, Mackey did not notice that defendant was wounded in any way. Later, while defendant was being interrogated, she noticed a wound on his thumb.
At the police station, defendant was advised of his rights. When asked whether he wanted to talk about "it," defendant said he did not know. He explained to the officers that he was "petrified" and that he wanted "a chance that my attorney would participate." Although he said he did not want to talk to them, defendant continued to talk to the police for more than an hour. He did so because he was told that if he cooperated he could go home. While one officer talked to defendant, another officer was writing notes and showing them to defendant. The notes said things like, "Work with us," "Give us something. If you want to go home cooperate." Defendant did not really recall telling Diaz and Mackey to write out a statement for him and he would sign it.
4. The Trial Court's Ruling
The trial court denied the section 1538.5 motion. It expressly disbelieved defendant's testimony that he printed his name on the consent form but did not sign it and found the items were seized pursuant to a valid consent to search. The trial court did not explain its ruling on the items seized on February 28, and defendant did not seek clarification of the grounds for that ruling.
5. Analysis
The evidence shows that the police made three warrantless entries into defendant's residence on January 11, 2007; first, when they entered to detain S.W. and take her outside; second, when defendant opened the door in response to knocking and officers forced him back into the house at gunpoint and directed him to sit on the couch while S.W. and Graybill walked around the apartment; and third, after defendant signed the Consent to Search form. There is no dispute that the first entry was with defendant's consent so that the officers could detain and remove S.W. from the premises. Mackey's testimony constitutes substantial evidence supporting the trial court's factual finding that defendant knowingly and voluntarily consented to the third entry. Resolving the conflict between Mackey's testimony and defendant's contrary testimony regarding the third entry, the trial court expressly credited Mackey's evidence and discredited defendant's. This leaves the question of whether the second warrantless entry was constitutional and, if not, whether its unconstitutionality vitiated defendant's consent to the third entry.
There is no evidence that defendant consented to the second entry. The People argue that exigent circumstances warranted Graybill's initial entry. But the flaw in this argument is that defendant's challenge is not to Graybill's initial entry; it is Graybill's re-entry at gunpoint that defendant maintains was unconstitutional. Inasmuch as S.W. was safely out of the house with police officers when Graybill re-entered at gunpoint, there were no exigent circumstances that warranted the second entry. Since defendant did not consent to the second entry and there were no exigent circumstances warranting that entry, the second entry constituted an unreasonable search and seizure.
We need not decide whether defendant's consent to the third entry was sufficiently attenuated to dissipate the taint of the illegal second entry. This is because the other evidence of defendant's guilt was so overwhelming that the alleged error in admitting evidence found in the apartment as part of the second and third entries was harmless beyond a reasonable doubt. (Memro, supra, 11 Cal.4th at p. 847; Chapman, supra, 386 U.S. at p. 24.) S.W. testified to numerous incidents of sexual assault. Her accusations were corroborated by the videotape which police obtained from Hugo G., not in the search of the residence. Defendant admitted to police that he had sex with S.W. on two occasions. Under these circumstances, any error was harmless beyond a reasonable doubt.
We asked the parties for supplemental briefing on whether the record supported a finding that S.W., who was close to 17 years old at the time of the search, consented to the second entry. Defendant takes the position that, inasmuch as S.W.'s consent was not the theory urged by the prosecution at the suppression hearing, it cannot be the basis upon which we affirm. As a general rule, an appellate court reviews the lower court's ruling, not its reasoning. (Zamudio, supra, 43 Cal.4th at p. 351, fn. 11.) But review of an order denying a section 1538.5 motion to suppress is an exception to this general rule. "As a parallel to the requirement that a defendant state specific grounds for his suppression motion . . . the People have been held on appellate review to the particular 'justification' or 'theory' urged by them in the trial court." (People v. Manning (1973) 33 Cal.App.3d 586, 601.) Accordingly, although the evidence suggests that S.W. may have consented to the second entry on January 11, 2007 (see, e.g., People v. Hoxter (1999) 75 Cal.App.4th 406, 413; People v. Santiago (1997) 55 Cal.App.4th 1540, 1544), this was not the basis of the prosecutor's theory in opposition to defendant's suppression motion and we do not address the point further.
B. Evidence of CSAAS
Defendant contends he was denied due process and a fair trial as the result of admission into evidence, over defendant's objection, of expert testimony concerning CSAAS. He makes two arguments: (1) the evidence was irrelevant because CSAAS "did not apply to the facts of this case and because there are no longer misconceptions to correct" and (2) the evidence was inadmissible under the Kelly/Frye test. Both arguments lack merit.
People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and Frye v. United States (1923) 293 F. 1013 (Frye).
1. The Challenged Evidence
Dr. Joyce Medley, a psychologist, specialized in treating children and adolescents with posttraumatic stress disorders. These disorders may result from a variety of precipitating incidents, including sexual assaults. Medley described CSAAS as "a pattern of behavior that we have seen in children who have been sexually molested, particularly in areas of incest." Five behaviors are associated with the syndrome: (1) secrecy; (2) helplessness; (3) entrapment accommodation; (4) delayed reporting; and (5) retraction. Medley explained that the "accommodation" part of the syndrome sometimes manifests in a feeling of helplessness so great that the child stops even trying to protect herself. Particularly, when the abuser is someone the child is dependent on for the necessities of life, the child will sometimes act as if they are enjoying the abuse so as to please the perpetrator. This also can lead to delayed reporting because the child is afraid no one will take care of them if the abuser is not there to do so. Shame and guilt also play a big part in delayed reporting, as does the child's fear that she will not be believed. As the child matures and develops a support system, he or she will sometimes report the abuse. Often, the reporting comes out in dribs and drabs over time. Medley had no information about this case; her testimony was intended to explain CSAAS generally.
2. Relevance
"Expert opinion testimony must be '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .' (Evid. Code, § 801, subd. (a).) We review the trial court's ruling in this regard for abuse of discretion." (People v. Smith (2003) 30 Cal.4th 581, 627.)
"[I]t has long been held that in a judicial proceeding presenting the question whether a child has been sexually molested, CSAAS is admissible evidence for the limited purpose of disabusing the fact finder of common misconceptions it might have about how child victims react to sexual abuse." (In re S.C. (2006) 138 Cal.App.4th 396, 418.) It is " 'not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting— is inconsistent with his or her testimony claiming molestation. [Citations.] "Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior." ' [Citation.]" (People v. Brown (2004) 33 Cal.4th 892, 906 (Brown) [analogizing misconceptions about domestic violence, rape and child abuse victims], citing People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 [analogizing rape trauma syndrome and CSAAS to stress reactions of parents of child abuse victims] and People v. Housley (1992) 6 Cal.App.4th 947, 955 (Housley) [CSAAS evidence admissible to disabuse misconceptions suggested by the evidence].) CSAAS evidence is relevant "if the victim's credibility is placed in issue due to paradoxical behavior, including a delay in reporting a molestation." (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.)
Here, the credibility of S.W.'s accusation was at issue. It is immaterial that, as defendant points out, other jurisdictions hold a different view of the relevance of CSAAS evidence. We are bound to follow our Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), which in Brown recognized the relevance of rape trauma and CSAAS evidence. (Brown, supra, 33 Cal.4th at p. 906.) Defendant's assertion that the public no longer holds the misconceptions CSAAS is intended to address is unpersuasive for the same reason. The trial court acted within its discretion in concluding that CSAAS evidence was useful to the jury's understanding of the case.
3. Kelly/Frye
The trial court concluded that it did not need to make a Kelly/Frye determination and, even if it did, Medley's testimony satisfied Kelly/Frye. We agree with the trial court that, contrary to defendant's assertion, Kelly/Frye does not apply to CSAAS evidence used for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to molestation. (People v. Harlan (1990) 222 Cal.App.3d 439, 449; see also People v. Stoll (1989) 49 Cal.3d 1136, 1157 [expert testimony on psychiatric diagnoses routinely admitted without reference to Kelly/Frye]; People v. Wells (2004) 118 Cal.App.4th 179, 189; Housley, supra, 6 Cal.App.4th at p. 955.)
C. CALCRIM No. 1193 - CSAAC
Defendant contends CALCRIM No. 1193, which was given without defense objection, is flawed. He argues that this is so for two reasons. First, because the instruction "creates a mandatory presumption that, if the jury finds the victim's reactions based on the evidence are consistent with CSAAS theory, then it should or could conclude that a molestation did in fact occur." Second, because the instruction impermissibly shifted the burden of proof to defendant. But any such error has been forfeited by defendant's failure to timely object. (People v. Guerra (2006) 37 Cal.4th 1067, 1138 (Guerra), overruled on another ground in People v. Randle (2008) 43 Cal.4th 76, 151, disapproved on another point in People v Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Even if not forfeited, we would find the objection without merit.
CSAAS evidence may not be used to prove the facts of the charged offense. (People v. Morgan (1997) 58 Cal.App.4th 1210, 1216.) Accordingly, in all cases in which an expert is called to testify regarding CSAAS, the trial court has a sua sponte duty to instruct: "(1) such evidence is admissible solely for the purpose of showing the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested; and (2) the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true." (Housley, supra, 6 Cal.App.4th at p. 959.) In this case, the trial court's duty to so instruct was satisfied by CALCRIM No. 1193, which reads as given: "You have heard testimony from Joyce Medley regarding child sexual abuse accommodation syndrome. [¶] Ms. Medley's testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not [S.W.'s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony." The instruction does not, as defendant asserts, tell the jury that it could presume the elements of the crime were proved based on the CSAAS evidence, nor does it shift the burden of proof to defendant. On the contrary, it properly limits the use the jury may make of the CSAAS evidence to evaluating the victim's credibility.
CALCRIM No. 1193 was given twice: once immediately before Medley testified about CSAAS and again as part of the packet of jury instructions.
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D. CALCRIM No. 1112 - Lewd or Lascivious Act on a 14-year-old Child
Defendant contends that CALCRIM No. 1112, which was also given without defense objection, is flawed because it does not require the jury to find the touching was done in a lewd manner, an element of the offense. But any such error has been forfeited by defendant's failure to timely object. (Guerra, supra, 37 Cal.4th at p. 1138.) Even if not forfeited, the objection is without merit.
In counts 4 through 8, defendant was charged with committing a lewd or lascivious act on a 14-year-old child in violation of section 288, subdivision (c)(1). Section 288, subdivision (a) makes it a crime to willfully and lewdly commit any lewd or lascivious act on a 14- or 15-year-old child with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.
Without objection, the trial court gave CALCRIM No. 1112, which reads: "The defendant is charged in Counts 4 through 8 with a lewd or lascivious act on a 14-year-old child who was at least 10 years younger than the defendant in violation of Penal Code section 288(c)(1). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully touched any part of a child's body either on the bare skin or through the clothing; [¶] 2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; [¶] 3. The child was 14 years old at the time of the act; [¶] AND
4. When the defendant acted, the child was at least 10 years younger than the defendant. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required."
Our colleagues in Division Five recently held that violation of section 288, subdivision (a) does not require that the touching itself be lewd and lascivious, only that the intent be such. (People v. Sigala (2011) 191 Cal.App.4th 695, 700, quoting People v. Martinez (1995) 11 Cal.4th 434, 444.) The court in Sigala approved CALCRIM Nos. 1110 (lewd or lascivious act on child under 14 years of age) and 1120 (continuous sexual abuse of child under 14 years of age), which instruct that the "touching need not be done in a lewd or sexual manner." We find the reasoning of the court in Sigala persuasive and equally applicable to CALCRIM No. 1112 and violation of section 288, subdivision (c)(1). Under Sigala, CALCRIM No. 1112 is not flawed because a finding that the touching was done in a lewd manner is not an element of the offense.
DISPOSITION
The judgment is affirmed.
RUBIN, ACTING P. J.
WE CONCUR:
FLIER, J.
GRIMES, J.