(4a) Relying on Bledsoe, numerous Court of Appeal decisions have held that Kelly-Frye similarly precludes an expert from testifying based on the child sexual abuse accommodation syndrome (CSAAS) that a particular victim's report of alleged abuse is credible because the victim manifests certain defined characteristics which are generally exhibited by abused children. (See In re Sara M. (1987) 194 Cal.App.3d 585, 593 [ 239 Cal.Rptr. 605]; Seering v. Dept. of Social Services (1987) 194 Cal.App.3d 298, 310-311, 313 [ 239 Cal.Rptr. 422]; People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099 [ 215 Cal.Rptr. 45]; People v. Willoughby (1985) 164 Cal.App.3d 1054, 1069 [ 210 Cal.Rptr. 880].) (5) (See fn. 7.)
CSAAS as a means of predicting sexual abuse has been the subject of considerable criticism because the syndrome assumes the existence of abuse, and was not developed as a method of detecting abuse. See In re Sara M., 194 Cal.App.3d 585, 593, 239 Cal.Rptr. 605, 611 (Ct.App. 1987); People v. Gray, 187 Cal.App.3d 213, 217-18, 231 Cal.Rptr. 658, 660-61 (Ct.App. 1987). Similarly, in Glendening v. State, 536 So.2d 212, 220 (Fla. 1988), cert. denied, 492 U.S. 907, 109 S.Ct. 3219, 106 L.Ed.2d 569 (1989), the Florida Supreme Court held, without any discussion of the Frye standard, that one who qualifies as an expert in the area of interviewing children concerning sexual abuse could give an opinion during the prosecution's case-in-chief that the child victim had been sexually abused, but that the witness could not testify that it was the child's father who had committed the offense.
( Id. at p. 394.) Archer contends his trial counsel should have anticipated Bowker on the basis of In re Sara M. (1987) 194 Cal.App.3d 585, 592 [ 239 Cal.Rptr. 605], which held that child sexual abuse accommodation syndrome testimony does not meet the Kelly-Frye standards and which was filed August 28, 1987, well before the trial occurred here. Archer relies upon People v. McCary (1985) 166 Cal.App.3d 1 [ 212 Cal.Rptr. 114] in which the Court of Appeal found ineffective assistance of counsel when trial counsel failed to object to an ex post facto application of Proposition 8 even though People v. Smith (1983) 34 Cal.3d 251 [ 193 Cal.Rptr. 692, 667 P.2d 149], the California Supreme Court's opinion barring such ex post facto application of Proposition 8, had not been filed until after the defendant in McCary had pled guilty.
(Ibid., italics omitted.) In support of her argument that the juvenile court erred in admitting expert testimony regarding false memory syndrome, Angelina relies heavily on In re Sara M. (1987) 194 Cal.App.3d 585 (Sara M.). In Sara M., the court held that under the Kelly-Frye test, expert testimony regarding "child molest syndrome" was not admissible to prove that a child was molested.
For over 20 years, California courts have allowed expert testimony regarding CSAAS for a limited purpose. (See People v. Bowker (1988) 203 Cal.App.3d 385, 391 (Bowker), citing In re Sara M. (1987) 194 Cal.App.3d 585; Seeing v. Dept. of Social Services (1987) 194 Cal.App.3d 298, 310-311, 313; People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099 (Roscoe).) To the extent our Supreme Court has recognized that CSAAS evidence may be relevant, useful, and admissible in a given case, our role as an intermediate appellate court does not allow us to rule otherwise.
According to her, "CSAAS is inadmissible altogether in dependency hearings." Appellant's counsel cites " Sara M. [sic] (1987) 194 Cal.App.3d 585, 594 [ 239 Cal.Rptr. 605]," for this proposition. However, she misstates the holding of this court in that case.
Thus, such syndrome evidence has been admitted solely to disabuse jurors of "common sense" misconceptions about the behavior of persons in the affected groups, such as rape victims and abused children, and not to prove a fact in issue. (See People v. Bledsoe (1984) 36 Cal.3d 236, 249-250 [ 203 Cal.Rptr. 450, 681 P.2d 291]; In re Sara M. (1987) 194 Cal.App.3d 585, 589-591 [ 239 Cal.Rptr. 605] ; see also People v. Humphrey, supra, 13 Cal.4th at p. 1088.) The difficulty of establishing a scientific basis to use syndrome testimony to establish a fact in evidence has been noted.
( People v. Cegers, supra, 7 Cal.App.4th at p. 999.) Although child molestation syndrome evidence has been held inadmissible under Kelly to prove that a child is a dependent minor ( In re Sarah M. (1987) 194 Cal.App.3d 585 [ 239 Cal.Rptr. 605]), and rape trauma syndrome evidence has been excluded as irrelevant to prove that a rape occurred ( People v. Bledsoe (1984) 36 Cal.3d 236 [ 203 Cal.Rptr. 450, 681 P.2d 291]), the confusional arousal syndrome evidence was not based on the compilation of a profile of characteristics common to persons who unconsciously commit assault upon being suddenly awakened. As the Cegers court explained: "The doctor was not engaged in assembling a set of behavioral characteristics for the purpose of showing that Cegers's unusual conduct could in some way be explained.
The court concluded that the strictures of Kelly-Frye should be utilized in determining the admissibility of testimony concerning the syndrome and also the related question whether the evidence should be excluded on the basis of Evidence Code section 352 The court concluded that it was "dealing with a new and emerging scientific theory or method of diagnosis and not mere expert testimony. . . ." It found the analysis of the confusional arousal syndrome to be a scientific theory similar to the rape reaction syndrome, or the child molest syndrome, and hence subject to restrictions in use in a jury trial, citing In re Sara M. (1987) 194 Cal.App.3d 585 [ 239 Cal.Rptr. 605] and People v. Bledsoe (1984) 36 Cal.3d 236 [ 203 Cal.Rptr. 450, 681 P.2d 291]. After reviewing and analyzing the Kelly-Frye rule and finding it applicable to this case, the court concluded: "To sum up, I find that the evidence of the syndrome is inadmissible due to lack of foundational proof that the syndrome or syndromes have been generally accepted by the scientific psychological/psychiatric community."
. . ." ( In re Sara M. (1987) 194 Cal.App.3d 585, 593 [ 239 Cal.Rptr. 605].) In turn, the court in Sara M. relied on People v. Bledsoe (1984) 36 Cal.3d 236 [ 203 Cal.Rptr. 450, 681 P.2d 291] as authority for the proposition that the expert's testimony should be excluded under the Kelly/Frye rule.