Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. CH43344
NEEDHAM, J.
Jose Jesus Arevaloherrera appeals from a judgment of conviction entered after a jury found him guilty of multiple counts of lewd conduct upon a child under 14 years of age and continuous sexual abuse upon that child, his daughter. (Pen. Code, §§ 288, subd. (a); 288.5, subd. (a).) He contends the court erred in instructing the jury with CALCRIM No. 1193, pertaining to the use of Child Sexual Abuse Accommodation Syndrome evidence. He also contends the court erred in refusing to instruct the jury on lesser included offenses. We will affirm the judgment.
Except where otherwise indicated, all statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
Appellant was charged with three counts of lewd conduct on a child under the age of 14 (§ 288, subd. (a)) between July 18, 1996, and July 17, 1998, and one count of continuous sexual abuse (§ 288.5, subd. (a)) between July 18, 1998, and July 18, 2002. All counts were alleged to be serious and violent felonies. (§ 1192.7, subd. (c); 667.5, subd. (c).) The matter proceeded to a jury trial.
The offenses were alleged to have been committed upon “Jane Doe,” but the victim was identified at trial by her real name. Respondent refers to her by her real first name and the last name “Doe.” For purposes of clarity and privacy, we refer to her as “Doe.” Counts 1 through 3 alleged that the offenses were reported to law enforcement in September 2006, when the victim was under the age of 18 years, for statute of limitations purposes. (§ 803, subd. (f).)
A. Prosecution Evidence
Doe lived with her mother (Mother), her brother (Brother), and her father, appellant. Counts one through three pertained to a period in which they lived on 12th Street in Union City. Count four pertained to a time when they lived on Railroad Avenue.
In the interests of privacy, we refer to Doe’s family members by their relationships, meaning no disrespect.
1. Lewd and Lascivious Acts at 12th Street: July 18, 1996 to July 17, 1998
Beginning when Doe was eight years old, the family lived in a residence on 12th Street. There, Doe and Brother shared a bedroom. Both Doe and Brother testified that appellant often entered their bedroom and awakened Doe by touching her. Appellant touched Doe’s breasts and vagina. He masturbated with one hand while touching Doe with his other hand. Sometimes he took Doe into the living room, closing the bedroom door behind them. At times when he sat with her on the living room couch, appellant touched Doe’s breasts and Doe felt him get an erection. Appellant also told Doe to watch pornography with him, and Brother saw them watching pornography together as she sat on his lap.
2. Continuous Abuse at Railroad Avenue: July 18, 1998 – July 18, 2002
When Doe was ten the family moved to Railroad Avenue, where appellant’s sexual abuse of Doe increased. He molested Doe in her bedroom, the master bedroom, and the living room, touching her breasts and inserting his finger into her vagina. The abuse became more frequent once Mother was pregnant with another child and worked at night. More than ten times, and throughout Mother’s pregnancy, appellant took Doe into the master bedroom, took off his clothes, and rubbed his penis on her vagina and ejaculated. Appellant also pulled down Doe’s underwear and orally copulated her once when she was in her bed. On one occasion, he instructed Doe to orally copulate him, and she complied. Doe explained at trial that she allowed appellant to molest her because, although he was physically abusive and mean on other occasions, when he molested her “he was just being nice, so, like I guess I felt like he loved me.” Appellant warned Doe not to tell anyone about the molestation.
When Doe was eight or nine years old, she had told Mother that appellant molested her. Appellant came home and hit Doe. He and Mother telephoned appellant’s mother, who said Doe was lying. Doe did not tell anyone else about the molestations until she was 18 years old.
3. CSAAS Testimony
Psychologist Anthony Urquiza testified as an expert witness in the field of psychology. Among other things, he described Child Sexual Abuse Accommodation Syndrome (CSAAS), which consists of certain emotional behaviors commonly observed in children who have been sexually abused. Dr. Urquiza testified that he had not looked at the police reports or statements in this particular case, and he was not opining on whether anyone in particular had actually been abused. The trial court gave a limiting instruction, which we further discuss post.
B. Defense Evidence
Union City Police Officer Nicole Fay testified that when she spoke with Mother during the investigation of the case, Mother asserted that she had no prior knowledge of the molestations.
Dr. Lee Coleman, a psychiatrist, testified about CSAAS at length. Essentially, he opined that reliance on CSAAS may lead to erroneous assumptions, and CSAAS does not consider that children can make false accusations.
Dr. Coleman further opined that an interviewer and the dynamic of a child’s family may taint the interviewee’s recollection of events. In this case, Dr. Coleman asserted, the police used extremely improper techniques in interviewing Brother.
C. Jury Verdict and Sentence
The jury found appellant guilty as charged. The court sentenced him to an aggregate term of 16 years in state prison, comprised of the upper term of 16 years on count four, concurrent with: a six-year mid-term on count one, a consecutive two-year term (one-third the mid-term) on count two, and a consecutive two-year term (one-third the mid-term) on count three.
This appeal followed.
II. DISCUSSION
As mentioned, appellant contends the court erred in instructing the jury with CALCRIM No. 1193, and in failing to instruct the jury on lesser included offenses. We consider each contention in turn.
A. CALCRIM No. 1193
CALCRIM No. 1193 advises jurors in part that CSAAS evidence may be relevant to the alleged child victim’s believability. Appellant contends the court’s failure to give his proposed modification of the instruction, which would have deleted such language, compels reversal. We begin with a brief overview of CSAAS and a closer look at the colloquy and instructions in this case.
1. CSAAS
CSAAS evidence attempts to dispel certain myths or misconceptions about victims of childhood sexual abuse, by pointing out that such victims, as a group, often delay reporting abuse, provide inconsistent information, and recant or minimize prior reports of abuse. These behaviors, therefore, are not necessarily inconsistent with having been molested. (See People v. Housley (1992) 6 Cal.App.4th 947, 955-956.) In particular, children who have experienced sexual abuse may display behaviors of secrecy; helplessness; entrapment and accommodation; delayed, conflicted, and unconvincing disclosure; and retraction. (People v. Bowker (1988) 203 Cal.App.3d 385, 389.)
Expert witness testimony concerning CSAAS is “admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino).) Such evidence is routinely admitted in child sexual assault cases. (See People v. Brown (2004) 33 Cal.4th 892, 905-907; People v.McAlpin (1991) 53 Cal.3d 1289, 1300 [noting that CSAAS testimony “is admissible to rehabilitate [the alleged victim’s] credibility”] (McAlpin).)
2. Admission of CSAAS Testimony in This Case
Before trial, the prosecution moved to admit testimony regarding CSAAS. The defense filed a written objection, contending that expert witness testimony cannot be admitted to prove that the charged sexual abuse occurred. The defense also urged that the evidence was inadmissible under Evidence Code section 352.
In addition, the defense asked the court to replace or omit certain language in CALCRIM No. 1193. CALCRIM No. 1193 states that jurors may consider CSAAS evidence “only in deciding whether or not Jane Doe’s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony.” The defense proposed the following to be read instead: “You may consider this evidence only in deciding whether or not Jane Doe’s conduct was not inconsistent with the conduct of someone who has been molested. You may not use this evidence to determine whether Jane Doe’s molestation claims are true. [Citations.]”
3. The Court’s Instructions
During Dr. Urquiza’s CSAAS testimony, the trial court instructed the jury that the testimony was offered for a limited purpose, and the jury could consider it only for a limited purpose. Specifically, the court admonished, the jury could not use the evidence to determine whether someone has or has not been sexually abused, and the purpose of the evidence was “to give you information to assist you in evaluating the credibility of [Doe].” The court emphasized that CSAAS starts with the assumption that a child has been sexually abused and then explains certain behaviors, but it should not be used “the other way” to look for symptoms and then decide, based on those symptoms, whether the child was in fact sexually abused.
Before the jury’s deliberations, the court again instructed on CSAAS evidence. This time, the court instructed the jury pursuant to CALCRIM No. 1193, without the substitute language that had been proposed by the defense, as follows: “You have heard testimony from expert witnesses regarding the ‘child sexual abuse accommodation syndrome.’ [¶] As I told you earlier, this evidence may not be used to determine whether Jane Doe was, in fact, sexually molested. [¶] You may consider this evidence only in deciding whether or not Jane Doe’s conduct was inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony.”
4. Appellant’s Argument
Appellant focuses on the last paragraph of CALCRIM No. 1193: “You may consider this evidence only in deciding whether or not Jane Doe’s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony.” (Italics added.) He contends it was error to reject his proposed modification and to instruct the jury with the words we have italicized in CALCRIM No. 1193, which did not appear in the corresponding model instruction of CALJIC No. 10.64.
Appellant argues that, even if the first (unitalicized) portion of the sentence – that the jury may consider the evidence to decide whether Doe’s “conduct was not inconsistent with the conduct of someone who has been molested” – was permissible, the italicized portion – “and in evaluating the believability of her testimony” – was not. In appellant’s view, the use of the conjunction “and” suggests that “the believability of her testimony” denotes something more than whether her conduct was inconsistent with the conduct of someone who had been molested, and therefore the instruction permitted the jury to consider the evidence for an inappropriate purpose. Specifically, he insists, the instruction allowed the jury to use the evidence not just to determine whether her conduct was consistent with being a victim, but also to determine how believable Doe was and, in effect, whether appellant had committed the crime. In fact, he suggests, the jury could construe the instruction to mean that, if they found Doe’s conduct was consistent with being a victim, then her testimony was (more likely) true. This in turn would have lightened the prosecution’s burden in proving the charges.
Our task is to determine whether there is a reasonable likelihood that the jury understood the instruction in the improper manner appellant asserts. (People v. Richardson (2008) 43 Cal.4th 959, 1028.) In making this determination, we consider the specific language in question, the instruction in its entirety, and the court’s instructions as a whole. (Ibid.)
We find no reasonable likelihood that the jury understood the instruction as appellant suggests. The phrase “evaluating the believability of her testimony” simply refers to the fact that CSAAS evidence may be germane to the credibility of the alleged child victim, in that a proper evaluation of that credibility “may” require consideration of common reactions by such victims. (CALCRIM No. 1193.) This is consistent with established law. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301; Patino, supra, 26 Cal.App.4th at p. 1744.) The use of the word “and” in the instruction does not invite the jury to use CSAAS evidence for some purpose other than this permissible credibility evaluation; the word “and” merely links the idea of consistency between the complaining witness’ conduct and the conduct of a child sexual abuse victim, to the issue of credibility.
Respondent points out that “believability” and “credibility” are synonyms. (See Black’s Law Dict. (8th ed. 2004) p. 396, col. 1; Roget’s Thesaurus II (1988) p. 90.) On this point, appellant does not disagree.
Appellant contends the language of CALCRIM No. 1193 required the jury to assume the truth of the prosecution’s theory that he abused Doe, apparently because the instruction was given even though both the prosecution expert and the defense expert opined that CSAAS evidence was immaterial unless abuse actually occurred. The argument is fallacious, since the court’s reading of CALCRIM No. 1193 specifically stated that the CSAAS evidence “may not be used to determine whether Jane Doe was, in fact, sexually molested.” No reasonable juror would conclude that an instruction precluding them from using evidence to determine if sexual abuse occurred was telling them that, indeed, sexual abuse had occurred.
In his reply brief, appellant contends: “The mechanics of the instruction in context of the rest of the language goes beyond advising the jurors that the conduct should be evaluated in light of the CSAAS evidence to determine if it was inconsistent with a person who was molested, it states that the evidence that Doe’s truthfulness should be evaluated in light of her conduct matching CSAAS factors. That is, the conduct shows she should be believed if her conduct matched CSAAS factors.” [sic] However, the court specifically instructed the jury that it could not use the CSAAS evidence to conclude that, because she demonstrated the symptoms of a person who was sexually abused, she had in fact been sexually abused. By no means could the court’s instruction itself be read to have bolstered Doe’s credibility; it merely permitted the jury to consider the expert testimony about myths and misconceptions as a factor when determining Doe’s credibility.
The trial court made clear that the CSAAS testimony was for the purpose of dispelling common myths surrounding child victims of sexual abuse, and could not be used as proof of Doe’s allegations. Dr. Urquiza testified that, notwithstanding his testimony about CSAAS, he was not giving an opinion about whether anybody had actually been abused or not. The defense expert confirmed that CSAAS evidence could not be used that way. Without question under the particular circumstances of this case, instructing the jury that CSAAS evidence could be used to determine the believability of Doe’s testimony could not have led the jury to use the evidence for an impermissible purpose.
B. Failure to Instruct on Lesser Included Offenses
A trial court must instruct on lesser included offenses when (1) the evidence raises a question whether all the elements of the charged offense have been established and (2) there is evidence of a lesser offense which is “ ‘substantial enough to merit consideration’ by the jury.” (People v. Breverman (1998) 19 Cal.4th 142, 154, 160, 162 (Breverman).) In other words, lesser included instructions must be given where there is evidence from which a reasonable jury could conclude that the lesser offense, but not the greater, was committed. (Ibid.) We review a trial court’s refusal to instruct on lesser included offenses de novo. (People v. Licas (2007) 41 Cal.4th 362, 366 (Licas).)
1. Lesser Included Offenses
Appellant was charged under section 288, subdivision (a) and section 288.5, subdivision (a). Section 288, subdivision (a), makes it unlawful to willfully and lewdly commit any lewd or lascivious act upon a child under the age of 14, with the “intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.”
On appeal, appellant contends that battery, simple assault, and assault under section 220 are lesser included offenses of the charged crimes. Battery, defined in section 242 as “any willful and unlawful use of force or violence upon the person of another,” is indeed a lesser included offense of section 288, subdivision (a). (See People v.Thomas (2007) 146 Cal.App.4th 1278, 1291-1293 [battery is lesser included offense of lewd acts under § 288, subd. (c)(1)] (Thomas); see generally Licas, supra, 41 Cal.4th at p. 366 [lesser offense is included in greater offense if the greater offense includes all the elements of the lesser].) Appellant urges that section 240 assault (“an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another”) is a lesser included offense of section 288 because both require a general intent to touch a victim improperly, and that section 220 assault (assault with intent to commit a violation of section 288) is a lesser included offense as well. Further, appellant argues, section 288.5 includes the elements of section 288, suggesting that the crimes are lesser included offenses of section 288.5 also.
Appellant requested lesser included instructions for violation of section “245” (aggravated assault), section “243” (perhaps referring to section 243, subd. (e)(1)), “sexual battery” (section 243.4), and section 273d (cruel or inhuman corporal punishment or injury resulting in a traumatic condition on a child). He did not request an instruction on simple assault (section 240), simple battery (section 242), or violation of section 220.
2. Evidence That Lesser Offense but Not Greater Offense Was Committed
Appellant argues that his touching of Doe could have been an assault or battery, rather than a lewd act under section 288, subdivision (a), because he could have been found to have committed the acts with anger rather than a lewd intent. We disagree.
There was no evidence from which the jury could have concluded that the lewd act offense did not occur, but a lesser offense did, under the circumstances of this case. The acts that formed the basis of the charges against appellant were his alleged insertion of his finger into Doe’s vagina, insertion of his penis into Doe’s vagina, touching her breasts, touching her while masturbating, and oral copulation. These alleged acts are inherently sexual in nature, and there was no substantial evidence that these particular acts were perpetrated for any other purpose. If the acts happened at all, they necessarily constituted lewd conduct. Accordingly, the trial court was not required to instruct on any lesser included offense. (People v. Elam (2001) 91 Cal.App.4th 298, 308 [no evidentiary support for instruction on simple assault as lesser included offense of assault with intent to commit forcible oral copulation, where there was no evidence permitting the jury to conclude that the defendant had not intended to force the victim to perform oral copulation but did assault her].)
Appellant argues that the “facts and evidence in the present case were replete with the defendant’s acts of assault and battery against all of his family members and would support a lesser offense of simple assault or battery.” There was, indeed, testimony about numerous instances of assault and battery besides the acts allegedly constituting the sexual abuse, but the prosecutor informed the jury in closing argument that the charges against appellant were not based on the acts of physical abuse, and only on the alleged sexual acts. The question is whether the acts purportedly constituting the sexual abuse could have been found to constitute some offense less than lewd conduct, and we conclude they could not.
In any event, any error in failing to instruct on lesser included offenses in this case was harmless. (People v. Rogers (2006) 39 Cal.4th 826, 868; Breverman, supra, 19 Cal.4th at pp. 165.) Based on the record, it is not reasonably probable that the jury would have convicted appellant of a violation of section 220, 240, or 242, rather than a violation of section 288, subdivision (a), even if the instruction on those lesser offenses had been given. From the verdict it is clear the jury believed that appellant touched Doe’s breasts and vagina with his hand and his penis, touched her while masturbating, and orally copulated her, and there is no reason to believe they would have found acts of this nature had occurred, but without a lewd intent. (Thomas, supra, 146 Cal.App.4th at pp. 1293-1294 [finding no prejudice from failing to instruct on lesser included offense of battery in regard to the defendant’s touching of the victim’s buttocks, even though the defendant admitted touching the victim’s buttock to wake him up but denied feeling sexually aroused, and denied touching the victim under his boxer shorts, where there was evidence of the defendant’s other sexual offenses].)
Appellant fails to establish reversible error.
III. DISPOSITION
The judgment is affirmed.
We concur. JONES, P. J., SIMONS, J.