Opinion
E072340
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. MARQUES ANTIONE BROWNE, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI17002619) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant repeatedly molested his girlfriend's daughter, Jane Doe, when she was between the ages of eight and nine. Defendant was convicted of several counts of committing lewd and lascivious acts upon a child under the age of 14, oral copulation of a child 10 years or younger, and making terrorist threats.
Defendant claims on appeal that (1) the trial court improperly admitted expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS) in violation of his Sixth and Fourteenth Amendment rights under the Federal Constitution and in violation of state evidentiary laws; (2) the trial court erred by instructing the jury with CALCRIM No. 1193; and (3) cumulative error warrants reversal of his convictions.
PROCEDURAL BACKGROUND
Defendant was convicted of two counts of committing lewd and lascivious acts upon a child under the age of 14 on September 21, 2017 (Pen. Code, § 288, subd. (a)); oral copulation or sexual penetration with a child 10 years or younger between April 1, 2016, and September 20, 2017 (§ 288.7, subd. (b)); two counts of committing lewd and lascivious acts upon a child under the age of 14 between April 1, 2016, and September 21, 2017 (§ 228, subd. (a)); and one count of making terrorist threats (§ 422, subd. (a)). The trial court sentenced defendant to the determinate term of 12 years eight months, plus the indeterminate term of 15 years to life, to be served in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL BACKGROUND
A. INCIDENT ON SEPTEMBER 21, 2017, AND DISCLOSURE OF OTHER ABUSE
A.D. (Mother) and defendant began dating in 2013, and moved in together in 2016 to an apartment in Victorville, along with Mother's daughter, Doe. During the time that Mother, Doe and defendant lived in the apartment in Victorville, Mother was employed as a nurse and worked the night shift. Defendant watched Doe while Mother was working.
On September 21, 2017, Mother went to work around 10:00 p.m. When she arrived at work, she was told she was not needed and returned home, arriving at approximately 11:45 p.m. She did not tell defendant she was coming home. Mother walked into their bedroom. She observed defendant standing next to their bed naked and he had an erection. Doe was getting up from the bed. Her pants were down to her knees and her buttocks and vagina were exposed. Mother explained that Doe wore a diaper to bed because she had trouble with bed wetting. The diaper was pulled down. Doe pulled up her pants and diaper.
Mother asked defendant what he was doing. She grabbed him by the neck and put a knife to his abdomen. She asked him if he was molesting Doe. Defendant told her he had just been in the bathroom; Mother pointed out that Doe was naked and he had an erection. He still denied anything had happened. Mother got a gun out of defendant's dresser drawer and pointed it at him. She continued to yell at him.
Defendant did not normally walk around the house naked.
Mother asked Doe, "Is this mother fucker touching you?" Doe nodded her head, indicating yes. Mother pointed the gun at defendant again and he took it from her. At that point, San Bernardino County Sheriff's Deputy Anthony Higuera arrived at the apartment.
Doe testified that she was born in May 2008. She was in the fifth grade at the time of trial. When Mother worked at night, Doe stayed with either her grandmother, who lived in Adelanto, or with defendant at the apartment in Victorville.
On September 21, 2017, Mother had gone to work. Doe and defendant were in the bedroom together watching a movie. She recalled that defendant touched her on her vagina with his hand. He took off her pajama pants and diaper. He rubbed her vagina. She could not recall if he put his penis in her mouth that night. She at first was uncertain what happened when her mother came home, but then recalled that Mother had pulled a knife and gun on defendant.
Doe recalled speaking with San Bernardino Sheriff's Deputy Anthony Higuera on the night of September 21. She first could not recall what she told him about defendant touching her private part that night. She then stated that defendant put his hands down her pajamas. She did remember telling Higuera that defendant had previously touched her vagina.
Doe recalled that one time, prior to September 21, Mother was in the shower, and defendant put his hands down her pants while she was laying on the bed watching television. He touched her vagina. She could not recall if his finger went in her vagina even though she told Deputy Higuera it "went in a little." Defendant quickly took his hands out of her pants when Mother got out of the shower. The touching started when she was eight years old.
One time, defendant put his mouth on her private parts. She recalled that he showed her his penis and that something came out of it, which he washed down the sink. He never put his penis in her vagina.
Defendant had put his penis in her mouth on a prior occasion. It hurt because she had a loose tooth. Defendant held her down. Another time she had been in the shower and defendant had rubbed his penis on her vagina. One other time, Mother was in the shower and defendant put her up on the kitchen counter. He pulled his own and her pants down; he rubbed his penis on her vagina. He stopped when Mother got out of the shower.
Doe recalled that she was interviewed regarding the September 21 incident. She remembered telling the interviewer that defendant had been rubbing his penis on her vagina just before Mother came home on September 21. She claimed to have been sleeping and woke up to being naked from the waist down. Defendant was behind her while he rubbed his penis on her vagina. Defendant stopped when he heard Mother come into the apartment. She recalled telling the woman who interviewed her that on that night, he told her he would kill her and her family if anyone found out about them. On the same night, she told the interviewer defendant had put her down on the bed and put his penis in her mouth. She recalled having taken part in an exam where they looked at her vagina.
Doe could not recall any of the dates that defendant touched her. She had not told Mother about any of the touching prior to the day the police came because she was threatened by defendant. She was asleep on September 21 but she denied she was guessing what happened. Doe then stated she was sure that he rubbed his penis on her vagina.
After the incident, defendant sent Mother a letter. In the letter he stated, " 'I'm so sorry about everything. I was not thinking,' " and " 'Tell [Doe] I'm sorry for everything.' " Before that night, Mother had no idea that defendant was molesting Doe.
B. INVESTIGATION
Deputy Higuera arrived at the apartment in Victorville occupied by defendant, Doe and Mother at approximately 12:06 a.m. on September 22, 2017. When he arrived, he could hear two persons arguing. He knocked on the door and Mother answered. Higuera asked Mother if she was okay. She responded that she was okay, but he could tell that she was upset. She let Higuera into the apartment. Defendant told Higuera that he and Mother were just having an argument.
Doe was in a bedroom watching television. Deputy Higuera asked Doe why defendant and Mother had been arguing. She responded that it may have been because defendant had touched her. She pointed to her vaginal area. Doe told Higuera that she could not recall what happened that night because she was sleeping. Higuera asked her about earlier in the night and she responded that she thought defendant had touched her vagina. Doe then told Higuera that defendant had put his hands down her pajama pants. She mentioned that she was wearing a diaper and he put his hands over her diaper. He put his hands there quickly. She could not remember anything else because she was sleeping.
Doe told Deputy Higuera that the last time defendant had touched her was a few days before when Mother was in the shower. She was sitting on the bed when defendant came in and sat down beside her. He put his hands inside her underwear and touched her vagina skin-to-skin. Doe told Higuera defendant's finger went inside of her "[a] little bit." He quickly removed his hands when Mother got out of the shower. Doe told Higuera that defendant had touched her a "few" times. She was either seven or eight years old when defendant first started touching her.
Doe told Deputy Higuera that once defendant had put his mouth on her vagina. She also said he rubbed his penis against her vagina and buttocks in the past. She described an incident where it was clear defendant had ejaculated. She denied that defendant ever put his penis inside of her.
Deputy Higuera spoke with Mother. She initially did not tell Higuera what she saw when she got home because she wanted to shoot defendant. She eventually told him she came home unexpectedly from work and found defendant naked in the bedroom and he had an erection. Doe was in the room pulling her pants up. Mother admitted pulling a knife on defendant. Mother was distraught and crying throughout the interview. Defendant was arrested.
Doe was interviewed at a children's assessment center on October 17, 2017. Doe stated on the night the police came to their house, she had been asleep and defendant came behind her and rubbed his penis on her private part where she went pee. He had "snatched" her clothes off including her pajamas and adult diaper. Defendant pinned her down while he rubbed his penis on the outside of her vagina. She was lying down on her side and he was behind her. Defendant had taken his clothes off. He threatened her not to tell anyone while he was doing this or he would kill Mother and Doe's family. Mother came home and caught him.
Doe told the interviewer defendant started touching her when she was eight years old. When Mother would go to work, he would touch her. She described him throwing her on the bed and the floor on different occasions and putting his penis in her mouth. It hurt to have his penis in her mouth because she had a loose tooth. He moved his penis back and forth. She tried to push him off of her, but he was too heavy. She also disclosed a time when she was in the shower and he entered the shower. He rubbed his penis on her vagina. He told her not tell anyone.
She also disclosed to the interviewer the time that defendant put her up on the kitchen counter while Mother was in the shower; he held onto his penis with his hand and rubbed it on her vagina. She recalled "white stuff coming out of his penis after rubbing her. The abuse started when they moved to the apartment in Victorville.
Defendant was interviewed by San Bernardino County Sheriff's Sergeant Taylor Long at approximately 3:00 a.m. on September 22, 2017. Defendant was born on April 29, 1983. He and Mother had been together for six years and had a good relationship. Sergeant Long told defendant he wanted to talk to him about sexual abuse against Doe. Defendant insisted that it was not true; he would never do that to Doe.
On September 21, Doe went to school and then her grandmother's house. He picked up Doe at around 8:00 p.m. from her grandmother's house and brought her back to the apartment. Doe ate and they decided to watch a movie. Mother left for work around 10:00 p.m. They watched the movie in the room belonging to defendant and Mother. Doe fell asleep in their bed but he woke her up and made her sleep in her own room because she sometimes wet the bed. Defendant went to the bathroom because his stomach was bothering him. He took off his boxer shorts.
When he exited the bathroom into this bedroom, he had his boxer shorts off and he was pulling them back on. He did not know that Doe had come back in his room to sleep while he had been in the bathroom. She was wrapped up in a blanket on the bed. It was at that time that Mother walked in the bedroom. He insisted he had no idea Doe was in his bed when he came out of the bathroom. He denied that he had an erection when he came out of the bathroom.
Sergeant Long then told defendant that they believed he had abused Doe and wanted defendant to tell him why he had done it. Defendant said nothing happened. Sergeant Long told defendant that Doe had provided too many details for it not to be true. Defendant continued to deny that he sexually abused Doe.
Defendant then told Sergeant Long that sometimes Doe was curious and would try to touch his penis. He told her not to touch him. He told her not to tell Mother because Doe would get in trouble. When Mother was not around, Doe tried to act older. Sergeant Long told defendant that he thought that Doe had a big part in the abuse and defendant immediately responded, "Yeah, she does." Defendant insisted that Doe was not an innocent nine-year-old girl.
Defendant maintained that when Mother was not home, Doe would sometimes walk around the house naked. She would come into his room when Mother was gone. He would tell her to leave and she would slap her buttocks or bend over while naked. He did not tell Mother because he thought she would think he was lying. One time he woke up to find Doe rubbing his penis. She exposed her naked body to him numerous times. She had walked in on him several times when he was in the shower. Doe had entered his bedroom when he was lying on the bed watching television and sat on top of him. One time she was naked and other times she just had on her underwear. She would grind on him. He caught her masturbating.
One time he woke up to find she had put his hand on her vagina; she was completely naked. He admitted to getting an erection one time while she sat on him. He immediately pushed her off. He denied ever putting his finger or penis in her vagina.
Defendant insisted the only thing that happened the night of September 21 was Doe tried to press against him while they were on the bed. She was under a blanket and had pulled down her pants. She grabbed his hand and rubbed it on her vagina. He jumped up out of bed and sat in the chair. She went to her bedroom to go to sleep and he went to the bathroom. She came back in the room while he was in the bathroom and he did not know she had come back in the room.
A sexual assault exam was performed on Doe in the early morning of September 22, 2017. Doe did not express that she was in any pain. An oral swab and a swab of her genitals were taken. On the outside of her vagina, there was redness consistent with her having a penis or hand rubbed on the outside of her vagina.
Swabs taken from defendant's penis, scrotum and hands were tested for DNA. The swabs taken from Doe were also tested for DNA. DNA did not necessarily transfer from one person to another just by touching their skin. It was more commonly transferred if there was some type of liquid or blood that was touched.
The DNA test revealed that there was a moderate amount of what could be saliva on Doe's vulva area. It also could have been other bodily fluids, including urine. There were two persons contributing to DNA on defendant's penis and scrotum; it was inconclusive as to whether it was Doe's DNA because it was a trace amount. On defendant's hands, there was DNA from him and another person, and Doe was a likely contributor of the other DNA present. In order for the amount of Doe's DNA to be on defendant's hands, it could have been by mere causal touching but it was more likely touching of bodily fluid, including vaginal fluid. There was a small amount of male DNA found on the vulva swab obtained from Doe. It was not enough to complete further DNA testing to see if it was defendant.
C. CSAAS EVIDENCE
Dr. Jody Ward was a clinical and forensic psychologist. She had testified in court over 300 times for both the prosecution and the defense. She explained that CSAAS was a pattern of behaviors that many children who had been sexually abused exhibited. She explained "Not all children exhibit all of these behaviors, but many do." The five components of CSAAS were secrecy, helplessness, entrapment and accommodation, delayed, unconvincing disclosure, and retraction or recantation.
As for secrecy, Dr. Ward stated that most sexual abuse occurs in secret. Further, children keep the secret of sexual abuse for very long periods of time. A statement by the perpetrator such as, don't tell or the family will break up, was oftentimes enough to keep the victim from reporting the abuse. Some children kept the secret due to the shame of sexual activity. Most children do not report abuse until they are adults.
Helplessness referred to the power differential between the abuser and the child. Children were taught to obey adults and also relied on adults for all of their needs, including shelter and food. Entrapment and accommodation referred to the failure to report and the continuing abuse. A child would be accommodating to further abuse by their abuser in order to keep the family together. Despite the sexual abuse, the child may appreciate the rest of the relationship.
Delayed and unconvincing disclosure was also part of CSAAS. A majority of children delayed reporting abuse until they were adults. Even when such disclosure was made, a victim did not tend to disclose everything all at once the very first time they report the abuse. The final component was recantation. Once a child disclosed the abuse, their lives were turned upside down. A child may recant because of wanting to get the family back together or feeling bad for their abuser.
Dr. Ward knew none of the specific facts about Doe and defendant. Dr. Ward was asked by the prosecutor, "If we had a situation hypothetically where a child was living with the sexual abuser and the child's mother for 18 months and the perpetrator was sexually abusing that child on and off throughout that time, would you expect that child to immediately disclose to mom what's happening the first time she's sexually abused" She responded, "No. Not based on the research and what we know about sexual abuse victims in general. I would expect a delay in reporting." The prosecutor asked, "Would it be at all surprising if it goes on for a full 18 months and she never tells mom until mom finds out from some other way?" Dr. Ward, responded that "Based on the research, no." The prosecutor asked, "But if there was a threat, hypothetically speaking if a perpetrator did threaten the child with either death to herself or family, what affect would that have on the child's willingness to disclose?" Dr. Ward responded, "Well, I believe that it would make that child much less willing to disclose if they believe that their life would be in danger. Absolutely."
Finally, she was asked, "So, hypothetically, let's say we had a child who comes into contact with a uniformed police officer, and the police officers asks the child, What's going on? And the child first says, Well, I think he might have touched me, and says, I don't remember, I was asleep, and then says, I think it happened, kind of goes back and forth like that, is that what you mean by the unconvincing and conflicted disclosure?" Dr. Ward responded, "It certainly could be, yes."
On cross-examination, Dr. Ward admitted she was not rendering an opinion as to whether sexual abuse had occurred between Doe and defendant. CSAAS was not a diagnostic tool. CSAAS could not be used as a predictor of certain conduct.
D. DEFENSE
Defendant's father and two sisters testified that defendant was a good father to both his two biological children and Doe. He had not been observed acting inappropriately with Doe. Defendant was an honest person.
DISCUSSION
A. EXPERT TESTIMONY ON CSAAS
Defendant makes several claims regarding the admission of CSAAS expert testimony in this case. First, he claims the evidence was irrelevant to assess Doe's credibility because potential jurors during voir dire did not express a concern about delayed reporting by Doe so there was no myth or misconception about delayed reporting. Further, the evidence was more prejudicial than probative. He further claims that (1) the trial court allowed the CSAAS testimony to exceed an explanation of the narrowly limited purpose of such testimony; (2) inadmissible profile evidence was permitted; (3) Dr. Ward was allowed to testify using the terms "rare" and "very rare" which was impermissible statistical evidence; (4) CSAAS evidence is quasi-scientific evidence that has not gained general acceptance in the field of psychology; (5) admission of the evidence violated his Fourteenth Amendment rights to due process; and (6) it is time for this court to reconsider the admission of CSAAS evidence. Defendant claims, even if the CSAAS evidence was properly admitted, the admission of the evidence was prejudicial, requiring reversal of his convictions.
1. ADDITIONAL FACTUAL BACKGROUND
In their trial brief, the People sought to introduce testimony of Dr. Ward on "psychological factors—such as fear, shame and embarrassment—that prompt sexually abused children to not disclose the abuse to a responsible adult, and factors that can lead victims to not fully disclose all the abuse when initially questioned by authorities."
Defendant brought a motion to exclude or limit expert testimony on CSAAS. First, defendant insisted the CSAAS was inadmissible scientific evidence under the Kelly/Frye rule. Next, it was inadmissible pursuant to Evidence Code section 352. Further, general testimony on CSAAS should be excluded as an unfair trial was likely to occur in violation of his state and federal Constitutional rights to due process. Finally, if the CSAAS testimony was admitted, it should be limited. No profile testimony or statistical probability testimony should be admitted.
People v. Kelly (1976) 17 Cal.3d 24 and Frye v. U.S. (DC Cir. 1923) 293 F. 1013. --------
The trial court addressed the evidence prior to the trial. The trial court had presided over other trials in which Dr. Ward had testified and was aware of the type of testimony she usually provided. Defense counsel objected to her testifying specifically about statistics or profile evidence. The trial court agreed that such evidence was not admissible.
The prosecutor offered that in the instant case, Doe had not reported the abuse to her mother or anyone else until the night her mother found defendant and Doe together. The prosecutor did not intend to ask Dr. Ward specifically as to whether Doe had CSAAS but would ask hypothetical questions about CSAAS. Further, the prosecutor argued that CALCRIM No. 1193 made it clear that the CSAAS testimony was not evidence that the molestation occurred. Defense counsel acknowledged, should the trial court admit the CSAAS evidence, that it would request CALCRIM No. 1193 be given to the jury.
The trial court ruled there should be no statistical evidence and no profiling of defendant as a sex offender. The trial court allowed Dr. Ward's testimony. If defense counsel brought the trial court a case in which is was found that no hypotheticals could be used, the trial court would revisit the issue. No further argument was made to the trial court.
The jury was instructed with CALCRIM No. 1193 as follows: "You have heard testimony from Dr. Jody Ward, Ph.D. regarding [CSAAS]. Dr. Ward's testimony is about [CSAAS]. It is not evidence that the defendant committed any of the crimes charged against [Doe]. [¶] 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."
2. CSAAS EVIDENCE WAS RELEVANT
"The trial court has broad discretion in determining the relevance of evidence." (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) "Opinion testimony by an expert witness is admissible if it is . . . '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' " supra (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).) "Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. 'Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." ' " (People v. Riggs (2008) 44 Cal.4th 248, 290.) A trial court's decision to admit or exclude expert CSAAS testimony is reviewed for abuse of discretion. (McAlpin, at p. 1299.)
The California Supreme Court has acknowledged that CSAAS evidence is admissible. (People v. Brown (2004) 33 Cal.4th 892, 906; McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) However, CSAAS is "not admissible to prove the complaining witness has in fact been sexually abused," but is admissible "to disabuse jurors of commonly held misconceptions of child sexual abuse and the abused child's seemingly self-impeaching behavior." (People v. Gonzales (2017) 16 Cal.App.5th 494, 503 (Gonzales).) It "is admissible to rehabilitate [a complaining] 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." (McAlpin, at p. 1300.)
Here, CSAAS evidence was relevant to dispel any myth or misconception about Doe failing to report the abuse immediately, and the fact that she had trouble disclosing all of the abuse at one time, e.g. unconvincing disclosure. It was clearly admissible in this case to rehabilitate Doe's testimony based on her failing to disclose the abuse until defendant was caught in the act. Additionally, Doe's credibility was clearly an issue at trial in light of defendant's accusations during his police interview that she was the aggressor and highly sexualized.
Defendant insists that the CSAAS evidence was not admissible to dispel any myth or misconception about delayed reporting, relying on responses by potential jurors during voir dire. He points to evidence that only one potential juror expressed concern when the prosecutor asked a question about the "immediate reporting myth." Defendant essentially asks us to look into the minds of the jurors to determine if the CSAAS evidence was properly admitted. Defendant has provided no authority for the claim that this court can look into the minds of the jurors to determine if evidence was properly admitted and we decline to do so.
We also reject that such evidence was more prejudicial than probative under Evidence Code section 352. As noted, the admission of this type of evidence has been continuously approved by the California Supreme Court. (People v. Brown, supra, 33 Cal.4th at p. 906; McAlpin, supra, 53 Cal.3d at p. 1300.) Moreover, Dr. Ward testified that she was not aware of the facts of the case and was not expressing any opinion as to whether Doe suffered from CSAAS or that defendant was in fact a child molester.
Further, the jury was instructed with CALCRIM No. 1193 that it could not consider the evidence to determine defendant's guilt. Specifically, it instructed that this evidence was not evidence of defendant's guilt. The trial court properly admitted the CSAAS evidence in this case as it was more probative than prejudicial.
3. ADDITIONAL CLAIMS THAT THE CSAAS EVIDENCE WAS IMPROPERLY ADMITTED
We briefly address defendant's other claims that the CSAAS evidence was not properly admitted in this case. First, the trial court did not allow the prosecutor to lead Dr. Ward on a "testimonial excursion," exceeding the proper use of CSAAS evidence as claimed by defendant.
In order to be admissible, expert testimony on CSAAS "must be narrowly tailored to the purpose for which it is admissible, i.e., the prosecution is obligated to 'identify the myth or misconception the evidence is designed to rebut' and the testimony must be limited to exposing the misconception by explaining why the child's behavior is not inconsistent with his or her having been abused." (People v. Stark (1989) 213 Cal.App.3d 107, 116.)
Defendant relies on People v. Bowker (1988) 203 Cal.App.3d 385 (Bowker), to support his claim that Dr. Ward exceeded the proper use of CSAAS evidence. In Bowker, the appellate court noted that the expert "testimony accounted for nearly 70 pages of reporter's transcript and was replete with comments designed to elicit sympathy for child abuse victims and solicitations that children should be believed." (Id. at p. 394.) Here, the testimony by Dr. Ward was significantly shorter than that in Bowker, and at no time did she testify that the jury should believe Doe or have sympathy for her. Dr. Ward's testimony was targeted on the factors of secrecy and delayed reporting, only briefly mentioning the other factors. Further, she testified she knew nothing about the details of the case and was in no way testifying that the abuse had occurred.
Further, the hypotheticals were narrowly tailored to address the two factors present in this case: secrecy and delayed, inconsistent reporting. Although the facts were similar to the facts of the instant case, Dr. Ward clearly was not responding that Doe had in fact been molested.
It is improper for an expert to apply CSAAS to the facts of the case and conclude a particular child was molested. (Bowker, supra, 203 Cal.App.3d at p. 393.) It is error to admit a CSAAS expert's response to hypothetical questions that track the facts of the case so that the jury is advised that the victim "fits the mold [of a child abuse victim] perfectly." (People v. Jeff (1988) 204 Cal.App.3d 309, 338.) An expert must not discuss the witness in the case. (People v. Roscoe (1985) 168 Cal.App.3d 1093, 1100.)
Dr. Ward was asked hypotheticals with facts that mirrored this case. As for the first two hypotheticals, which presented facts that a child had not told her mother about the abuse, Dr. Ward responded that based on the research of victims "generally," a victim would delay reporting abuse to a parent. This hypothetical elicited a response from Dr. Ward as to victims generally, and in no way could be construed to mean that Doe herself suffered from CSAAS. Dr Ward also stated in response to the third hypothetical—regarding threats made to a victim—she responded that it would make a "child" less likely to disclose the abuse. This did not imply to the jury that Doe suffered abuse or that the threat occurred.
The fourth hypothetical presents a closer case as it does pose a very particular question as to the victim being confronted by a police officer and providing inconsistent reports of the abuse. However, it again did not elicit testimony from Dr. Ward that Doe herself suffered from CSAAS, or that the victim in the hypothetical fit the profile of an abuse victim.
Even if the hypotheticals were improper, the jurors were specifically instructed that they could not consider the CSAAS evidence as evidence of the defendant's guilt. Further, Dr. Ward testified that she was expressing no opinion as to whether Doe was being abused. Based on the instructions given in this case, even if the hypotheticals in this case were similar to the facts, the jury was specifically admonished not to consider the CSAAS evidence in finding defendant's guilt. Finally, as discussed post, even without the CSAAS evidence, the results of the case would remain the same.
Further, Dr. Ward's testimony, including the hypotheticals, did not involve improper profiling of defendant as a child molester. Profile evidence is testimony about certain characteristics typical of a person engaged in a specific illegal activity and is generally inadmissible to prove guilt. (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) In Robbie, an expert was presented with hypotheticals that matched the comments made by the defendant to the victim and the expert testified these comments were consistent with a certain type of rapist. (Id. at pp. 1081-1082.)
Dr. Ward did not testify as to the characteristics of defendant as a child molester. Rather, all of her testimony, including the hypotheticals, was limited to Doe's delayed reporting and unconvincing disclosure. Additionally, Dr. Ward testified that she had no knowledge of the facts of the case, and that CSAAS evidence could not be used as a diagnostic tool. Further, the jury was instructed not to consider CSAAS as evidence that appellant committed the charged crime. The CSAAS evidence admitted was not improper profile evidence like that admitted in Robbie.
Defendant, relying upon People v. Julian (2019) 34 Cal.App.5th 878 (Julian) and People v. Wilson (2019) 33 Cal.App.5th 559 (Wilson), contends that Dr. Ward improperly provided statistical evidence by describing behaviors that were "very rare" or "more rare" in child abuse victims. Here, Dr. Ward was asked about the first factor of CSAAS, secrecy. She testified that "all sexual abuse occurs in secret with only the perpetrator and the victim of the abuse there at the time the abuse occurs. It's very rare that there's someone there that actually witnesses the abuse." (Italics added.) She further testified in regard to the last component of CSAAS, delayed reported and unconvincing disclosure, that "in more rare situations, the child may completely recant or completely take back all of the allegations of sexual abuse." (Italics added.)
This testimony is different than the prejudicial testimony in Wilson and Julian. In Julian, the expert provided testimony that false allegations of sexual abuse do not happen very often and provided statistics as to the percentage of cases (between one and eight percent) in which a child had lied. (Julian, supra, 34 Cal.App.5th at pp. 885-886.) In Wilson, the expert testified that false allegations occur " 'very infrequently or rarely' " and that "between 94 and 99 percent" of children who reported sexual abuse were telling the truth. (Wilson, supra, 33 Cal.App.5th at p. 568.)
The testimony here by Dr. Ward referred to the factors of CSAAS and that it was rare for a child to completely recant accusations, and it was rare that sexual abuse was reported immediately or was committed in front of other persons. This testimony was proper and did not rise to the level of boosting Doe's or any other witnesses' credibility by providing statistics as to the veracity of these types of witnesses. Defendant's attempts to analogize this case to Julian, supra, 34 Cal.App.5th 878 and Wilson, supra, 33 Cal.App.5th 559, are not supported by Dr. Ward's testimony.
We also reject defendant's claim that the CSAAS evidence admitted here violated the Kelly/Frye rule. " 'Under Kelly, the proponent of evidence derived from a new scientific technique must establish that (1) the reliability of the new technique has gained general acceptance in the relevant scientific community, (2) the expert testifying to that effect is qualified to give an opinion on the subject, and (3) the correct scientific procedures were used.' " (People v. Jones (2013) 57 Cal.4th 899, 936.)
When CSAAS evidence is offered to rehabilitate a victim's credibility when he or she has delayed reporting or recanted, the Kelly/Frye reliability standard does not apply because the testimony does not concern a new scientific method of proving that molestation has occurred. (People v. Wells (2004) 118 Cal.App.4th 179, 188-190; but see Bowker, supra, 203 Cal.App.3d at pp. 389-395 [CSAAS evidence not admissible as direct evidence of the defendant's guilt as it does not comport to Kelly/Frye for this purpose].) Here, the evidence was admitted for the sole purpose of rehabilitating Doe's credibility. The jury was specifically instructed it was relevant for no other purpose. We reject defendant's claim that it was inadmissible under the Kelly/Frye rule.
Finally, relying on several out-of-state cases, defendant asks this court to reconsider the admissibility of CSAAS evidence in all cases. The Supreme Court's decisions on the admissibility of CSAAS evidence to rebut general misconceptions about the behavior of child sexual abuse victims, McAlpin, supra, 53 Cal.3d 1289, and People v. Brown, supra, 33 Cal.4th 892, are absolutely binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["The decisions of this court are binding upon and must be followed by all the state courts of California"].)
4. FEDERAL CONSTITUTIONAL CLAIM
Defendant further claims that expert testimony on CSAAS violated his due process rights under the Fourteenth Amendment. The United States Supreme Court has held that the admission of relevant "battered child syndrome" evidence does not violate the due process clause of the Fourteenth Amendment (Estelle v. McGuire (1991) 502 U.S. 62, 69-70 ["The evidence of battered child syndrome was relevant to show intent, and nothing in the Due Process Clause of the Fourteenth Amendment requires the State to refrain from introducing relevant evidence"]), and battered child syndrome evidence is analogous to CSAAS evidence (People v. Patino (1994) 26 Cal.App.4th 1737, 1747). "Battered child syndrome evidence is analogous to CSAAS evidence. [Citation.] For this reason, there can be little doubt the due process dimensions of both types of evidence is similar if not identical. Therefore, introduction of CSAAS testimony does not by itself deny [a defendant] due process." (Id. at p. 1747.) Defendant essentially asks this court to find that Patino was wrongly decided. We decline to do so and find the admission of CSAAS testimony did not violate defendant's federal constitutional due process rights.
5. PREJUDICE
Defendant contends the admission of CSAAS evidence in this case was prejudicial and his convictions must be reversed because the admission of the evidence was not harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. He insists that the convictions largely depended upon the credibility of Mother and Doe. Their testimony was not credible and the jury convicted him based on Dr. Ward's expert testimony bolstering Doe's credibility.
We have already rejected that the admission of Dr. Ward's testimony violated defendant's federal constitutional rights. As such, the erroneous admission of CSAAS testimony is reviewed under the state law error test of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Prieto (2003) 30 Cal.4th 226, 247; Wilson, supra, 33 Cal.App.5th at pp. 571-572.) We conclude that it is not reasonably probable that the jury would have a reached a more favorable result to defendant had the testimony of Dr. Ward been excluded.
First, as stated, the jury was specifically instructed that it could not use the CSAAS evidence as evidence to find defendant guilty. We presume the jurors followed the instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Here, overwhelming evidence supported defendant's guilt without the use of the CSAAS evidence. Despite defendant's claims that Mother was not credible, her testimony was compelling. Mother came home from work unexpectedly and found defendant naked with an erection, and Doe with her pants and diaper pulled down. Mother was so upset by what she saw, she pulled a knife on defendant and then a gun. When she spoke with Deputy Higuera, she was upset and crying. In fact, she was so upset by what she saw, she initially did not tell Higuera because she wanted him to leave so she could shoot defendant. The jury could reasonably conclude that something had happened between Doe and defendant that night that was inappropriate based on Mother's reaction and testimony.
Moreover, although Doe was not consistent in the details, her testimony itself supported the acts that were committed by defendant against her. She recounted similar acts committed by defendant to Deputy Higuera, the child assessment interviewer, and she testified in court to the same acts. The jurors observed Doe testify and could assess her credibility on their own, even without Dr. Ward's testimony that delayed reporting was common in child abuse cases. They could reasonably conclude that despite Doe having trouble remembering the specific details of each encounter, she testified as to acts sufficient to support the sexual offenses and the criminal threat offense in this case.
Additionally, the DNA evidence supported that some type of touching occurred on September 21. Defendant had his and Doe's DNA on his hands; Doe was the major and defendant was the minor contributor of DNA on defendant's left hand. This supported that he had touched her vagina rather than just an innocent touching of her arm or other body part.
Finally, the jury could reasonably rely on defendant's outrageous statements made during his interview that Doe was the aggressor, and his describing of various encounters between them, to bolster Doe's credibility that defendant had acted inappropriately with her. Based on the evidence and the instructions given in this case, "we see no reasonable probability defendant would have achieved a more favorable result in the absence of the challenged testimony." (Wilson, supra, 33 Cal.App.5th at p. 572.)
B. CALCRIM NO 1193
Defendant contends the trial court compounded the error in admitting the CSAAS testimony by instructing the jury with CALCRIM No. 1193 because it effectively instructed the jury that the CSAAS testimony was evidence of his guilt.
We note that defendant did not object to CALCRIM No. 1193. Anticipating that this court would conclude that he has forfeited this claim due to defense counsel's failure to object to CALCRIM No. 1193 (defense counsel actually requested such instruction) he claims on appeal that he received ineffective assistance of counsel. We need not address the issue of ineffective assistance of counsel or forfeiture as we dispose of the claim on the merits.
Again, the jury was instructed pursuant to CALCRIM No. 1193 that Dr. Ward's testimony was "not evidence that the defendant committed any of the crimes charged against [Doe]," and the jury was told that it "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." (Boldface added.) Defendant insists that since the jurors were told that they may consider Dr. Ward's testimony in evaluating Doe's credibility, it is "almost certain" the jurors utilized the CSAAS testimony as truth of the charges against defendant. He claims that despite the use of the word "only" in the instruction it did not foreclose the jury from using the CSAAS evidence as evidence of the truth of the molestation claim.
We review instructional error claims de novo. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.) As noted above, CSAAS evidence should not be admitted to prove that the complaining witness was in fact sexually abused. It is properly admitted to rehabilitate the credibility of the victim. (McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) CALCRIM No. 1193 properly instructs on this concept. We presume the jurors followed the given instructions. (People v. Sanchez, supra, 26 Cal.4th at p. 852.)
A similar challenge to CALCRIM No. 1193 was brought in Gonzales, supra, 16 Cal.App.5th 494. In Gonzales, the defendant claimed that "the misleading language of CALCRIM No. 1193 allowed the CSAAS testimony to be used as proof that [the victim] was molested," because it was "impossible to use the CSAAS testimony to evaluate the believability of [the victim]'s testimony without using it as proof that [the defendant] committed the charged crimes." (Id. at p. 503.) The Gonzales court disagreed, finding that "the instruction must be understood in the context of [the expert's] testimony. [The expert] testified that CSAAS is not a tool to help diagnose whether a child has actually been abused. She said that if it is not known whether a child has been abused, CSAAS is not helpful in determining whether a child has, in fact, been abused. The purpose of CSAAS is to understand a child's reactions when they have been abused." (Id. at pp. 503-504.) It found that "[a] reasonable juror would understand CALCRIM No. 1193 to mean that the jury can use [the expert]'s testimony to conclude that [the victim]'s behavior does not mean she lied when she said she was abused. The jury also would understand it cannot use [the expert]'s testimony to conclude [the victim] was, in fact, molested. The CSAAS evidence simply neutralizes the victim's apparently self-impeaching behavior. Thus, under CALCRIM No. 1193, a juror who believes [the expert]'s testimony will find both that [the victim]'s apparently self-impeaching behavior does not affect her believability one way or the other, and that the CSAAS evidence does not show she had been molested. There is no conflict in the instruction. [¶] . . . [¶] . . . CALCRIM No. 1193 was proper and did not violate due process." (Id. at p. 504.)
We follow the reasoning in Gonzales, supra, and reject defendant's claim it was wrongly decided. Moreover, as noted in detail ante, the evidence that defendant molested Doe was overwhelming without consideration of the CSAAS evidence. As such, there was no prejudicial instructional error.
C. CUMULATIVE ERROR
Defendant contends that considered together, the evidentiary and instructional errors denied him a fair trial. Under the cumulative error doctrine, the cumulative effect of several trial errors may be prejudicial even if they would not be prejudicial when considered individually. (See People v. Sanchez (1995) 12 Cal.4th 1, 60, overruled in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421.) Here, we have found that no trial errors occurred, and as such the cumulative error doctrine does not apply. Moreover, we found any conceivable errors to be harmless, and a result, collectively they were not prejudicial. (See People v Lua (2017) 10 Cal.App.5th 1004, 1019.) Defendant has failed to show cumulative errors warrant reversal.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. RAPHAEL
J.