Opinion
H050767
10-01-2024
THE PEOPLE, Plaintiff and Respondent, v. DANIEL WAYNE BAY, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. C2101788)
BROMBERG, J.
Daniel Wayne Bay was convicted of one count of committing a lewd or lascivious act on a child and placed on probation for three years. In this appeal, Bay challenges his conviction on the grounds that expert testimony concerning Child Sexual Abuse Accommodation Syndrome (CSAAS) should not have been admitted and that jury instructions concerning CSAAS and uncharged conduct were erroneous. In the alternative, Bay challenges the length of his probation and one of the conditions imposed on it. As explained below, we affirm Bay's conviction, but conclude that both the length of his probation and the challenged condition are improper. We therefore modify the probation order and affirm the judgment as so modified.
I. Background
A. The Underlying Facts
The facts below are drawn from the evidence presented at trial, viewed in the light most favorable to the verdict. (See People v. Banks (2015) 61 Cal.4th 788, 795.)
1. Bay's Relationship with Doe
This case involves two incidents of sexual abuse by Bay against A. Doe. Bay is married to Doe's aunt Lisa. Lisa was Doe's favorite aunt. As a consequence, Doe spent a lot of time with Lisa and Lisa's family, which included Bay and three children.
2. The San Jose Incident
The first incident at issue, which is the subject of the criminal charge against Bay, occurred in 2018 when Doe was 14 years old. Lisa and Bay went with their children on a trip to San Jose, and they asked Doe and her sister to join them and babysit Lisa's and Bay's two young daughters while the adults attended a concert.
After checking into a hotel room, the adults went to the concert, and Doe and her sister eventually went to sleep with their cousins in the room's one bed. When Bay and Lisa came back from the concert, Lisa took a shower, and Bay got into the bed near Doe, who had awoken when Bay and Lisa returned. Bay placed his hand on Doe's butt, moved it between her thighs, and then touched her "private area" over her clothes. Doe tried to move away and to close her legs as tight as she could. But Bay continued touching Doe until Lisa finished her shower and came out of the bathroom.
In the weeks and months after the San Jose trip, Doe did not tell anyone about Bay's actions because she was ashamed and because she did not think that her aunt would believe her.
3. The Las Vegas Incident
In 2019, when Doe was 15, she went to Las Vegas with Bay, Lisa, and Lisa's three children to attend a cheer competition in which one of the daughters was participating. The group stayed for three nights in a hotel, where Doe slept on a fold-out couch with Lisa's son (by another marriage).
On the third night, Doe woke up to the sound of Bay entering the room and saw that Lisa's son was sleeping on the floor. Instead of going to the bed with Lisa and their daughters, Bay came to the sofa bed, took off his shirt and pants, and climbed into the sofa bed with Doe, wearing nothing but boxer shorts. Bay rubbed Doe's back, put his hand beneath her shirt, rubbed her back some more, and then moved his hand to her stomach, where he slowly moved down towards her private area. Doe froze and began to shake. She then pulled her body away from Bay, and he moved his hand onto her arm. When Bay stopped rubbing her arm, Doe assumed he had fallen asleep, so she got out of the sofa bed and slept on the floor.
The next morning, Lisa asked Doe why she was on the floor. Doe replied, "no reason." However, the night that she returned from Las Vegas Doe told her mother and stepfather about what happened on the trip. Some time later, Doe told her grandmother about both the San Jose and Las Vegas incidents.
4. The Confrontation with Doe's Stepfather
A month or two after Doe told her stepfather about the Las Vegas incident, the stepfather confronted Bay about the incident. Bay responded "I'm sorry" and said "I was just rubbing her back." When Bay asked to apologize to Doe, her stepfather refused to allow Bay to speak to her.
B. The Proceedings Below
In July 2022, based on the San Jose incident, the prosecutor charged Bay with one count of committing a lewd or lascivious act on a child of 14 or 15 years in violation of Penal Code section 288, subdivision (c)(1).
Subsequent undesignated statutory references are to the Penal Code.
At trial, the prosecutor presented testimony from Doe concerning the San Jose and Las Vegas incidents. In addition to members of Doe's family and law enforcement officers, the prosecutor also presented testimony from Dr. Anna Washington, who was qualified as an expert on CSAAS. Dr. Washington told the jury that CSAAS is not used to determine whether a child has been sexually abused. Instead, CSAAS explains the experience of children who have been sexually abused and the seemingly counterintuitive ways that children may react to such abuse. Dr. Washington also described various traits or categories of behavior associated with children who have suffered sexual abuse. Most pertinently, Dr. Washington testified that a child may want to remain around a person who abused them, especially if the child had a positive prior relationship with that person. Dr. Washington testified as well that a child who has been sexually abused may not disclose the abuse right away and instead may wait months or even years to do so out of fear that other caregivers will be upset or that the revelation may tear their family apart.
Bay testified in his own defense. He denied that the San Jose incident occurred, and Bay said that he been drinking on the night of Las Vegas incident and did not remember going back to the hotel room and getting into the sofa bed. Bay also presented testimony from his wife Lisa and two character witnesses. After deliberating for 90 minutes or so, the jury found Bay guilty.
On January 13, 2023, the trial court sentenced Bay. The court suspended imposition of sentence and placed Bay on formal probation for three years. It also imposed a number of conditions on probation, including that "[t]he defendant [shall] not date, socialize, or form a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer."
Bay subsequently filed a timely notice of appeal.
II. Discussion
Bay argues that his conviction should be vacated for three reasons: (1) Dr. Washington's CSAAS testimony should not have been admitted, (2) the jury instruction on CSAAS evidence was erroneous, and (3) the instruction on uncharged conduct also was erroneous. Alternatively, Bay argues that he should be resentenced because the length of probation imposed is improper and because the condition concerning socializing is unconstitutionally vague and overbroad. We consider each argument in turn.
A. The CSAAS Evidence
Bay argues that the trial court abused its discretion in admitting Dr. Washington's testimony because testimony concerning CSAAS is unreliable, inherently prejudicial, and no longer relevant. Reviewing the admission of this expert testimony for abuse of discretion (People v. Ramirez (2023) 98 Cal.App.5th 175, 214 (Ramirez)), we conclude that there was no abuse.
California courts have long held expert testimony concerning CSAAS admissible. Three decades ago, Supreme Court endorsed CSAAS evidence. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin).) Noting that" '[t]he great majority of courts approve such expert . . . testimony,'" the Court observed that" '[s]uch 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.'" (Id. at p. 1301.) Consequently, "[w]hile CSAAS evidence is not relevant to prove the alleged sexual abuse occurred, it is well established in California law CSAAS evidence is relevant for the limited purpose of evaluating the credibility of an alleged child victim of sexual abuse." (People v. Lapenias (2021) 67 Cal.App.5th 162, 171 (Lapenias); see also In re S.C. (2006) 138 Cal.App.4th 396, 418; People v. Wells (2004) 118 Cal.App.4th 179, 188; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino).) In particular, CSAAS evidence is admissible "for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." (People v. Bowker (1988) 203 Cal.App.3d 385, 394.)
This precedent squarely supports the admission of Dr. Washington's expert testimony concerning CSAAS. First, Dr. Washington properly described what CSAAS does and does not do. She told the jury that "CSAAS is . . . not a tool to determine whether or not sexual abuse has happened." Instead, Dr. Washington continued, CSAAS helps to "understand the experience of children who have been sexually abused" and in particular the "counterintuitive ways that children might react." Second, Dr. Washington's CSAAS testimony was relevant to this case. Dr. Washington testified that children who have been sexually abused may continue to remain around their abuser, especially where there is a preexisting positive relationship with the abuser.
Dr. Washington also testified that children who have been sexually abused may wait for weeks or months before disclosing that they have been abused and may share some but not all details. This testimony was relevant because Doe went to Las Vegas with Bay and his family despite the earlier incident in San Jose, and she disclosed only the Las Vegas incident to her parents. Consequently, as numerous California decisions considering similar circumstances and testimony have recognized, Dr. Washington's testimony concerning CSAAS was properly admitted. (See People v. Flores (2024) 101 Cal.App.5th 438, 457-458 (Flores); Lapenias, supra, 67 Cal.App.5th at p. 172; Patino, supra, 26 Cal.App.4th at p. 1744; People v. Perez (2010) 182 Cal.App.4th 231, 245.)
Although Bay acknowledges that precedent supports the admission of Dr. Washington's testimony, citing decisions from several other states he argues that the testimony should not have been admitted because CSAAS testimony is unreliable and therefore generally should not be admitted. In People v. McAlpin, supra, 53 Cal.3d 1289, however, our Supreme Court approved the use of CSAAS evidence to dispel commonly held misconceptions about the behavior of child sexual abuse victims (id. at pp. 13001301), and we are bound by that decision. (See Ramirez, supra, 98 Cal.App.5th at p. 216.) Moreover, in asserting in the trial court that CSAAS testimony lacks scientific reliability, the only evidence that Bay cites is a 2008 law review article. As a consequence, Bay has not shown that any recent change in scientific understanding undermines McAlpin's approval of CSAAS testimony and justifies reconsidering the long line of California decisions holding such testimony admissible.
Bay also argues that CSAAS testimony is inherently prejudicial because, as a practical matter, it cannot be limited to dispelling myths surrounding child sexual abuse victims and that juries inevitably will infer from such testimony that children were sexually abused. California courts have considered and repeatedly rejected such arguments. (Flores, supra, 101 Cal.App.5th at pp. 458-459; Lapenias, supra, 67 Cal.App.5th at p. 171; People v. Munch (2020) 52 Cal.App.5th 464, 468 (Munch); People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504 (Gonzales).) Bay fails to offer any persuasive reason to depart from these decisions. Bay's related objection that CSAAS evidence supports whatever a victim does likewise has been considered and rejected. (Ramirez, supra, 98 Cal.App.4th at p. 216.)
Finally, Bay asserts that CSAAS is no longer relevant because it does not reflect current understandings of how children respond to abuse. However, Bay fails to cite anything in the record supporting this assertion or, indeed, even to explain what the current understandings are. Consequently, here as well, we see no reason to depart from prior decisions rejecting Bay's argument. (Flores, supra, 101 Cal.App.5th at p. 456; Patino, supra, 26 Cal.App.4th at pp. 1744-1745.)
We therefore conclude that trial court properly admitted Dr. Washington's CSAAS testimony. In addition, as that testimony was properly admitted and not inherently prejudicial, we reject Bay's argument that admission of the testimony violated due process. (See, e.g., Lapenias, supra, 67 Cal.App.5th at p. 174; Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) Finally, because established precedent supported admission of Dr. Washington's testimony, we reject Bay's assertions of ineffective assistance of counsel. (See, e.g., People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance of counsel by failing to make motions or objections that counsel reasonably determines would be futile."].)
B. The CSAAS Instruction
In addition to arguing that Dr. Washington's CSAAS testimony should not have been admitted, Bay argues that the trial court erroneously instructed the jury concerning that evidence and thereby allowed the jury to use the testimony to find that he sexually abused Doe. We are not persuaded. As Bay recognizes, the trial court instructed the jury on CSAAS evidence pursuant to CALCRIM No. 1193. That instruction "informs jurors that they may use CSAAS evidence to evaluate whether the alleged victim's behavior . . . was actually not inconsistent with the behavior of a child sexual abuse victim," and it "specifically instructs the juror that they must not consider CSAAS testimony as evidence that defendant committed the charged crimes." (Ramirez, supra, 98 Cal.App.5th at p. 219.) Accordingly, California decisions repeatedly have held that CALCRIM No. 1193 accurately instructs juries on using CSAAS evidence. (Ibid; People v. Ortiz (2023) 96 Cal.App.5th 768, 816; Lapenias, supra, 67 Cal.App.5th at pp. 175-176; Munch, supra, 52 Cal.App.5th at p. 474; Gonzales, supra, 16 Cal.App.5th at p. 504.) Bay has failed to supply any persuasive reason to depart from this precedent. We therefore reject Bay's challenge to CALCRIM No. 1193.
Specifically, the trial court instructed the jury: "You have heard testimony from Dr. Anna Washington regarding Child Sexual Abuse Accommodation Syndrome. [¶] Dr. Anna Washington's testimony about Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant committed any of the crimes charged against him or any conduct or crime with which he was not charged. [¶] You may consider this evidence only in deciding whether or not [Doe's] conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony."
C. The Uncharged Conduct Instruction
Bay also argues that the trial court erred in instructing the jury on the Las Vegas incident. In particular, he contends that the court's instruction on uncharged conduct permitted the jury to convict him without proof beyond a reasonable doubt by allowing the jury to use its belief that he committed an uncharged offense to infer guilt on the charged offense. We disagree.
Using CALCRIM No. 1191, the trial court instructed the jury that, if it found by a preponderance of evidence that Bay committed an uncharged sexual offense, it could infer from that offense that "the defendant was disposed or inclined to commit sexual offenses" and "was likely to commit and did commit Count 1, as charged herein." However, the court continued by instructing the jury that evidence of uncharged conduct "is not sufficient by itself to prove that the defendant is guilty" and that "[t]he People must still prove the charge beyond a reasonable doubt."
As this instruction expressly tells the jury that "uncharged offenses . . . are not sufficient to prove by themselves that the defendant is guilty" and "the People must still prove the charged offenses beyond a reasonable doubt," it does not lower the burden of proof. (Gonzales, supra, 16 Cal.App.5th at p. 502.) Indeed, the Supreme Court has upheld instructions that uncharged conduct is not sufficient to prove guilt without the additional statement here that the People must still prove the charge beyond a reasonable doubt. (People v. Lewis (2009) 46 Cal.4th 1255, 1298 ["we conclude there is no reasonable likelihood that the jury interpreted the instructions as a whole to authorize a conviction based upon proof by a preponderance of the evidence that the defendant committed the uncharged offenses"]; People v. Reliford (2003) 29 Cal.4th 1007, 1016 [same].)
D. The Probation Term
Bay contends that his probation term should be reduced to two years because the three-year term imposed on him was unauthorized. The Attorney General concedes this error, and we accept the concession. Effective January 1, 2021, Assembly Bill No. 1950 (2019-2020 Reg. Sess.) amended section 1203.1 to reduce felony probation terms to two years (§ 1203.1, subd. (a)), subject to exceptions inapplicable here (§ 1203.1, subd. (l)). Bay was sentenced on January 1, 2023, after this amendment took effect. Consequently, Bay's probation should have been for no more than two years.
E. The Probation Condition
In one of the conditions placed on probation, the trial court ordered Bay not to "date, socialize or form a romantic relationship with any person who has physical custody of a minor unless approved by a probation officer." Bay argues that the term "socialize" should be stricken from this condition because the term is both vague and overbroad. Here again, the Attorney General concedes error, and we accept the concession.
Trial courts have broad discretion to impose conditions on probation in order to foster a defendant's rehabilitation and to protect the public. (§ 1203.1, subd. (j); People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) However, a probation condition is unconstitutionally vague if it "does not give adequate notice-'fair warning'-of the conduct proscribed." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) In particular, a probation condition" 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) The prohibition against socializing with persons who have custody of minors does not satisfy this requirement. In the context here, the word "socialize" is very broad: It can mean "[t]o take part in social activities." (The American Heritage Dict. (5th ed. 2011), p. 1661, col. 2.) Moreover, "social activities" could mean anything from regularly going to a person's house for dinner to bowling or playing pickleball or simply saying hello at a church service or reception. Especially as it may be impossible to know which people involved in these activities has custody of a child, the prohibition against socializing with any person having physical custody of a minor leaves a person of common intelligence to guess when it would be violated and is therefore unconstitutionally vague. (People v. Hall (2017) 2 Cal.5th 494, 500; see also People v. Leon (2010) 181 Cal.App.4th 943, 952 [striking as vague a probation condition that ordered defendant not to" 'frequent'" certain areas].)
In light of our conclusion that the term "socialize" is impermissibly vague, we need not reach the question whether the condition is overbroad.
III. Disposition
The probation order is modified to reduce the term of probation to two years and to strike the word "socialize" from Probation Condition No. 5. As so modified, the judgment is affirmed.
WE CONCUR: GROVER, ACTING P. J. DANNER, J.