Opinion
A144802
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO DIAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR296165)
Humberto Dias was convicted by a jury of oral copulation with a child under 10. He contends the court committed prejudicial error when it (1) admitted expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS), and (2) declined to modify CALCRIM No. 330, the standard instruction on evaluating the testimony of child witnesses. Neither contention is persuasive, so we affirm the judgment.
BACKGROUND
The Victim's Testimony
Dias's first trial ended in a mistrial when the jury was unable to agree on a verdict. The following evidence is from Dias's retrial. We will discuss only the evidence and proceedings relevant to the admissibility of the CSAAS evidence and the alleged instructional error—the two discrete issues raised in this appeal.
The victim was nine years old when she testified. In 2011, when she was seven years old, Dias was married to her mother. The couple later divorced, but Dias continued to spend time with the victim at Mother's home.
The victim described an occasion when she was watching television while Dias was in Mother's bedroom. The victim got tired, so she changed into her pajamas, went into the bedroom and got under the covers. Dias was under the blanket. The prosecutor asked the victim if anything unusual happened when she got into the bed. The victim said she needed a break.
After a brief recess the prosecutor again asked the victim what happened when she was in the bed with Dias. The victim said that Dias looked at her. Asked what happened next, she repeatedly said she could not remember except that Dias got out of bed after a couple of minutes and went to the bathroom. The court recessed the trial for the day and Mother was admonished not to discuss the case with the victim.
When proceedings resumed the defense counsel disclosed that the victim and Mother had spoken with the victim advocate after the prior day's testimony. The victim told the advocate that she was scared to see Dias, and asked, " 'Are you going to let him out?' " The advocate responded that the victim " 'needed to answer the questions truthfully and that we are trying to make sure she never has to see him again.' " Mother said that Dias " 'will get out and come to their house' " if the victim did not tell the truth. Defense counsel moved for mistrial on the ground that the victim had been coached or at least subjected to her mother's undue influence. The court observed that the statements raised such a concern but denied the motion and commented that Dias could question the victim about them.
When questioning resumed the victim continued to respond, "I forgot," when asked what happened next. The prosecutor asked if Dias touched her while she was on the bed. The victim said no. The prosecutor asked about the victim's conversation with the victim advocate the previous day. The victim said she forgot. The court called another recess.
After the recess the prosecutor resumed questioning the victim about what happened on the bed. This time the victim said she remembered. She testified that Dias pulled down his boxer shorts and her pajamas and underwear. Facing her, he held his "bird" or "private" with his hands, rubbed cream from a green bottle with an apple on the label onto his penis, and "put his private in [hers]." Dias moved his penis slowly back and forth and put his tongue in the victim's mouth. The victim felt pain in her genitals and saw "white stuff come out of Dias's penis onto their legs and the bed. Dias wiped it up with a tissue or paper towel.
After Dias left the house, the victim told Mother what he had done. Mother told her to write it down, but she said they had to keep it a secret. The victim wrote what happened on a piece of paper, but she left her note behind when the family moved to a new house.
On cross-examination, the victim acknowledged that her mother, therapist Pamela Cooke, the prosecutor and two victim advocates had talked to her about what she was supposed to say in court.
The Victim's Pretrial Statements
Pamela Cooke counseled the victim's younger brother Daniel in 2012. On July 24, 2012, when the victim was seven, Mother, panicked and tearful, told Cooke that the victim had just disclosed that Dias molested her. Cooke spoke with the victim, who told her about an incident when Dias told her to take a shower, pushed his tongue into her mouth "and then he pushed his pee-pee into her mouth and stuff came out." The victim said this had happened six or seven times but Cook questioned the statement's reliability because the victim had become distracted and upset. The victim also said Dias would sometimes take down his underwear and "push his pee-pee into her face." Cooke reported this to Children's Protective Services.
Cooke met with the victim again on September 11, 2012. The victim told her " '[i]t hurt a whole lot when [Dias] pushed his pee-pee against her pee-pee.' " The victim spoke about being worried Dias would come to the door.
A social worker interviewed the victim at home on July 31, 2012. The victim pointed to a room where she said her stepfather had done something to her that she did not like. The victim recounted that she had become tired while watching television, so she went into the bedroom and lay down. Dias came in, lifted her up, put his penis in her mouth and asked her to move her tongue around. The social worker asked the victim if any sexual acts had occurred before July 24, 2012. The victim answered, "I forgot."
A forensic interview of the victim was conducted on August 7, 2012. A recording of the interview was played at trial and a transcript was distributed to the jury. Appellate counsel for both parties acknowledge correctly that the transcript of the interview contains numerous inconsistencies and non-sequiturs by the victim.
The victim told the interviewer that Dias had picked her and her brother up from their babysitter's. The victim watched television until she became tired and went into the bedroom. Dias came into the room wearing only his underwear, grabbed her by the waist, pushed her head down and put his "peep" in her mouth. After that, the victim told the interviewer, she pulled her pants down; she did not know why. Dias put his "peep" inside the victim's "peep" and moved it faster and faster until he stopped and "[t]he white stuff came out."
The victim said Dias put his "peep" in her "peep" "millions of times," starting when she was in first grade. She said "the white stuff" only came out in her mouth just once. Dias also put his tongue in her mouth. Dias put his "peep" in her mouth "[a] lot" of times, and put slimy and sticky "green stuff, like it's a apple" on his "peep."
The interviewer asked whether the victim ever told anyone about the molestation. She responded, "I forgot to say it because I didn't remember [¶] . . . [¶] but now I told it to my mom." She also said, "I keep it a secret on my paper." It is a "tiny little paper [¶] . . . [¶] and it has happy faces." She said her mother gave it to her, and that her mother "was happy when she gave it to me."
Expert Testimony
Dr. Urquiza
Psychologist Anthony Urquiza testified for the prosecution as an expert on CSAAS. He acknowledged he had no knowledge of the facts of this case.
CSAAS was initially identified by Dr. Roland Summit in a peer reviewed article written for the purpose of dispelling therapists' common misperceptions about sexually abused children. According to Dr. Urquiza, victims of child sexual abuse typically demonstrate five common characteristics: secrecy; helplessness; entrapment and accommodation; delayed and unconvincing disclosure; and retraction or recantation. Entrapment and accommodation relates to the fact that child sexual abuse usually occurs within the context of an ongoing relationship. Children in such abusive relationships are unable to protect themselves from the abuser. To accommodate or cope with their feelings of shame, trauma, disgust and humiliation, they may dissociate, or "distanc[e] them[selves] from what's going on." In other words, the victim tries to suppress the experience to "shut it down and not feel it anymore." This process "essentially detaches [such children] from their emotions. It's not like they don't have them; it's that they don't feel them at the moment, and so they look like they are emotionless, and that's why they come to therapy."
As to delayed and unconvincing disclosure, Dr. Urquiza testified that an enormous amount of research shows that a sexually abused child will commonly delay disclosing the abuse, sometimes for months or years. Children are generally afraid to tell someone about the abuse, and their reports may seem unconvincing for several reasons. They may present the information in a piecemeal fashion, e.g., " 'My Uncle Bob touched me in a bad way,' and then it's followed by another statement that has more information if they feel like it's okay for them to talk about it, and as they continue to feel safe and okay to make that disclosure, more and more information about the abuse comes out. [¶] And if you look at it as there is a first disclosure and a second and third and fourth and they have different stories, it may look unconvincing. Hence, the term unconvincing disclosure. What [Dr. Summit] is really talking about is a process kids go through in being able to disclose being abused. [¶] In some instances they may make mistakes, errors in disclosure because of their age and inability to retain specific information, and they are not focusing on things like what time it is or how long something lasted."
Dr. Coleman
Psychiatrist Lee Coleman testified for the defense as an expert in (1) memory suggestibility and potential influence on memory by suggestive interviewing techniques in the investigation of child sexual abuse cases; (2) medical exams in sexual abuse cases; and (3) the accommodation syndrome.
Dr. Coleman described some of the general characteristics of human memory. Memory can be influenced by a person's biases and prejudices, other people, and subsequent events. Children are more susceptible to such influences than adults and young children are generally the most susceptible. According to Dr. Coleman, the way adults interact with a suspected child abuse victim may unwittingly promote the formation of false, even if genuinely believed, memories of the underlying incidents. If a person questioning the child has a preconceived belief about what happened, he or she may influence the child's memory by repeating questions and positively or negatively reinforcing the child's responses "so that . . . the child can begin to learn what it is the adult thinks, what it is that will please them or they confirm what it is they think" and "what you think might have happened can quickly become what you are convinced did happen because that is what the people you are talking to seem to reward you for talking about." Dr. Coleman had reviewed the recording of the victim's forensic interview and opined that the interviewer employed questioning techniques that, in his experience, affect children's memories.
Dr. Coleman spoke critically of CSAAS. He said the theory is not based on scientific data and is not helpful in determining whether or not an alleged incident of abuse occurred. Dr. Coleman criticized Dr. Summit, the original proponent of CSAAS, for (1) focusing only on situations where adults reject the child's report of abuse and support the accused instead; and (2) wrongly asserting that children never make false allegations of abuse. Dr. Coleman disagreed with Dr. Urquiza's view that only a very small minority of mental health and legal professionals are critical of the concept of CSAAS. He also opined that the allegation that Dias penetrated the victim's vagina with his penis was inconsistent with the lack of any reported pain, bleeding, bruising or tenderness.
Verdict
Defense counsel argued that the victim's accusations against Dias were the product of Mother's coaching and suggestive interviews by mental health and law enforcement personnel. Moreover, he argued, the victim's allegations were inconsistent with the physical evidence and testimony of multiple witnesses who spoke to Dias's good character and love for his children.
The jury acquitted Dias of sexual intercourse with a child under 10 and found him guilty of oral copulation with a child under 10. Dias was sentenced to a term of 15 years to life in prison. His appeal is timely.
DISCUSSION
I. Expert Testimony
Dias argues the trial court should have excluded Dr. Urquiza's testimony about CSAAS under the Kelly-Frye test "because CSAAS has not gained general acceptance as reliable in the scientific community." He also asserts the testimony should have been excluded under Evidence Code section 352 and that its admission violated his due process right to a fair trial. Established law is to the contrary.
People v. Kelly (1976) 17 Cal.3d 24 (Kelly); Frye v. United States (D.C. Cir 1923) 296 F. 1013.)
Unless otherwise noted, further statutory citations are to the Evidence Code.
Under the Kelly-Frye test, when expert testimony based on a new scientific technique is offered the proponent must establish the reliability of the method by showing the procedure has been generally accepted in the relevant scientific community. (People v. Harlan (1990) 222 Cal.App.3d 439, 448 (Harlan).) "The Kelly standard provides a framework within which courts can analyze the reliability of expert testimony based on new or novel scientific methods or techniques. As we have acknowledged, there is no clear definition of science under this test. [Citation.] Accordingly, the application of that term is guided by resort to the 'narrow "common sense" purpose' behind the rule: 'to protect the jury from techniques which . . . convey a " 'misleading aura of certainty.' " ' [Citation.] The danger of a false aura of certainty is acute where the 'technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury,' such that a lay jury might treat the procedure as 'objective and infallible.' [Citation.] The analysis is designed to address 'scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate.' [Citation. [¶] In contrast, when an expert's methods are based on everyday processes of observation and analysis, we trust jurors to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them.' " (People v. Lucas (2014) 60 Cal.4th 153, 223-224 (footnote omitted), disapproved on another point in People v. Romero (2015) 62 Cal.4th 1, 53 fn. 19.)
Over the past 30 years numerous California courts of appeal have held that expert testimony about CSAAS is not subject to the requirements of Kelly-Frye when offered, not as proof that a molestation occurred, but to rehabilitate a child's credibility when the defense suggests that his or her conduct after the incident is inconsistent with having been abused. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 & fn. 4 (McAlpin) [citing collected cases]; People v. Gray (1986) 187 Cal.App.3d 213, 219-220 (Gray); Harlan, supra, 222 Cal.3d at pp. 448-449; People v. Wells (2004) 118 Cal.App.4th 179.) Thus, as we observed in Wells, supra,118 Cal.App.4th at p. 188, CSAAS testimony is admissible "for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation" and "must be tailored to address the specific myth or misconception suggested by the evidence."
Gray, supra, 187 Cal.App.3d 213, is instructive. The child victim admitted at trial that she had not revealed all of the details of some molestations when she disclosed two incidents to her father and stepmother. (Id. at pp. 216-218.) An expert on CSAAS testified that it is not unusual for sexually abused children to make delayed or inconsistent reports about the molestation. (Id. at p. 218.) The court of appeal held the CSAAS testimony was not subject to Kelly-Frye. Drawing and developing on the Supreme Court's discussion of "rape trauma syndrome" evidence in People v. Bledsoe (1984) 36 Cal.3d 236, the court observed that the CSAAS evidence was not introduced to prove the child had been molested, but as " 'bona fide rebuttal, such as testimony based on general literature or experience as to the reluctance of molest victims, as a class, to talk to investigators' [citation] or to discuss the intimate details of the incidents." (Gray, supra, at p. 219.)
Gray emphasizes that there is a material difference between "expert testimony" and "scientific evidence" for purposes of Kelly-Frye: " 'When a witness gives his personal opinion on the stand—even if he qualifies as an expert—the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge that all human beings are fallible. But the opposite may be true when the evidence is produced by a machine: like many laypersons, jurors tend to ascribe an inordinately high degree of certainty to proof derived from an apparently "scientific" mechanism, instrument, or procedure. Yet the aura of infallibility that often surrounds such evidence may well conceal the fact that it remains experimental and tentative.' " (Gray, supra, 187 Cal.App.3d at p. 219-220, quoting People v. McDonald (1984) 37 Cal.3d 351, 372 (McDonald) [holding Kelly-Frye does not apply to expert testimony on eyewitness identification], overruled on another point in People v. Mendoza (2000) 23 Cal.4th 896, 914.)
The CSAAS evidence, Gray observes, was more akin to expert testimony informing the jury of certain factors that may affect an eyewitness identification—which is not subject to the Kelly-Frye test—than to " 'scientific evidence . . . derived from an apparently "scientific" mechanism, instrument, or procedure." (Gray, supra, 187 Cal.App.3d at pp. 219-220.) Moreover, "[w]e have never applied the Kelly-Frye rule to expert medical testimony, even when the witness is a psychiatrist and the subject matter is as esoteric as the reconstitution of a past state of mind or the prediction of future dangerousness, or even the diagnosis of an unusual form of mental illness not listed in the diagnostic manual of the American Psychiatric Association.' " (Id. at p. 220.) Applying the Supreme Court's reasoning in McDonald, supra, 37 Cal.3d 351, to the CSAAS testimony before it, the court held that general testimony about traits and characteristics of child molestation victims as a class does not fall into the category of scientific evidence for purposes of Kelly-Frye when introduced for the limited purpose of rebutting a suggestion that a child's behavior is inconsistent with abuse. (187 Cal.App.3d at p. 220.)
Since Gray, California courts have consistently authorized the admission of CSAAS evidence to disabuse a jury of possible misconceptions about a child's reaction to and reporting of sexual abuse. (See, e.g., Harlan, supra, 222 Cal.App.3d at pp. 448-450; Wells, supra, 118 Cal.App.4th 179, 188-190; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745; People v. Housley (1992) 6 Cal.App.4th 947; People v. Sanchez (1989) 208 Cal.App.3d 721, 734-735; cf. People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099-1100; People v. Bowker (1988) 203 Cal.App.3d 385, 391-394.)
The Supreme Court has also signaled its agreement with the cases allowing expert testimony to describe common reactions to sexual abuse. In McAlpin, supra, 53 Cal.3d 1289, the Court held a police officer could properly testify that it is not unusual for parents to refrain from reporting a known molestation of their child. (Id. at pp. 1300-1301.) The Court noted its recognition in Bledsoe, supra, 36 Cal.3d 236, that expert testimony on rape trauma syndrome, although inadmissible to prove the complaining witness had been raped, is admissible to rehabilitate the witness when the defense impeaches her by suggesting her post-incident conduct was inconsistent with having been raped. " '" [I]n such a context expert testimony on rape trauma syndrome would play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths." (Id. at p. 247-248.)
In the Court's view, expert testimony on CSAAS provides "[a]n even more direct analogy." (McAlpin, supra, 53 Cal.3d at p. 1300.) "In a series of decisions the Courts of Appeal have extended to this context both the rule and the exception of People v. Bledsoe, supra, 36 Cal.3d 236: i.e., expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. [Citations.]' " (McAlpin, supra, 53 Cal.3d at pp. 1300-1301, citing, inter alia, Gray, supra, 187 Cal.App.3d at pp. 217-220; Roscoe, supra, 168 Cal.App.3d at pp. 1097-1100; Harlan, supra, 222 Cal.App.3d at pp. 449-450.) Although the case before it concerned the failure of the parent, rather than the child, to report abuse, the Court held the rule developed in the context of CSAAS was equally applicable. (McAlpin, supra, 53 Cal.3d at p. 1301.) More recently, the Court cited McAlpin (and Housley, supra, 6 Cal.App. at pp. 955-956) with approval in People v. Brown (2004) 33 Cal.4th 892, 905-906 in extending the same principles to expert testimony about the common behaviors of domestic violence victims.
Dias asserts the Court's endorsement of CSAAS evidence in McAlpin and Brown is technically dictum because neither case squarely presented the admissibility of such evidence under the Kelly-Frye test. (See Stockton Theatres, Inc. v. Palermo (1956) 47 Cal.2d 469, 474 ["The discussion or determination of a point not necessary to the disposition of a question that is decisive of the appeal is generally regarded as obiter dictum"].) But not all dictum is created equal. "When the Supreme Court has conducted a thorough analysis of the issues or reflects compelling logic, its dictum should be followed. [Citation.]" (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169 (Hubbard); see Howard Jarvis Taxpayers Assn. v. City of Fresno (2005) 127 Cal.App.4th 914, 925 ["Even if the court's conclusions technically constitute dicta, we will not reject dicta of the Supreme Court without a compelling reason"]; People v. Wade (1996) 48 Cal.App.4th 460, 467 ["Dicta of our Supreme Court are highly persuasive"]; Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 297 [the dictum of the Supreme Court "while not controlling authority, carries persuasive weight and should be followed where it demonstrates a thorough analysis of the issue or reflects compelling logic"].)
We cannot say the Supreme Court's analysis of CSAAS evidence in McAlpin and Brown was " '. . . inadvertent, ill-considered or a matter lightly to be disregarded.' [Citation]." (Hubbard, supra, 66 Cal.App.4th at p. 1169.) Moreover, the rule first articulated in Gray has been consistently followed for over 30 years. (See Aas v. Superior Court (2000) 24 Cal.4th 627, 640; People v. Bales (1974) 38 Cal.App.3d 354, 357.) In these circumstances, "[w]hether the Supreme Court's obvious awareness of the consequences of its statement elevates the dictum to a holding or whether it is a dictum that we must follow, does not make much difference. We follow." (People v. Trice (1977) 75 Cal.App.3d 984, 986-987; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.) Accordingly, we decline to depart from settled law in favor of a handful of out-of-state authorities, a dissenting opinion in a Ninth Circuit case and several professional articles that criticize the validity of CSAAS evidence.
Dias's request that we take judicial notice of an additional article not presented to the trial court is denied as unnecessary to resolution of the issues on appeal.
Dias alternatively asserts the court abused its discretion when it declined to exclude the CSAAS testimony under section 352. We disagree. The court expressly limited the CSAAS evidence to "those areas that are relevant to dispel potential misperceptions on the part of jurors." Before Dr. Urquiza testified, the court clarified that the three specific areas raised by the prior testimony were "failure to promptly report, withholding of information, and inconsistent statements. [¶] I think all of those have now been explored any number of different ways, because we have different dates and times that the allegations are purported[] to have occurred. We have different versions of the circumstances. We have, at least by inference, issues related to withholding of information, and obviously we have any number of inconsistencies that have been presented. [¶] So those are three of the five historic areas that the Child Abuse Accommodation Syndrome expert testifies to."
Dias did not object to the court's identification of these areas as relevant in light of the prior testimony, and he does not so argue on appeal. His argument, instead, is that CSAAS lacks any probative value because it is "junk science." The view that CSAAS must be qualified as scientific evidence has been rejected, explicitly and implicitly, in Gray and the many cases that follow it. (Gray, supra, 187 Cal.App.3d at pp. 218-219; see, e.g., People v. Perez (2010) 182 Cal.App.4th 231, 243-244.) Dias's assertion that the evidence was unduly prejudicial also fails to persuade. "[T]he test for prejudice under Evidence Code section 352 is not whether the evidence in question undermines the defense or helps demonstrate guilt, but is whether the evidence inflames the jurors' emotions, motivating them to use the information, not to evaluate logically the point upon which it is relevant, but to reward or punish the defense because of the jurors' emotional reaction." (People v. Valdez (2012) 55 Cal.4th 82, 145; Vorse v. Sarasy (1997) 57 Cal.App.4th 998, 1008-1009.) Dr. Urquiza testified generally about how children likely respond to sexual abuse. He did not discuss the victim or relate his testimony about CSAAS to her behavior; to the contrary, he testified that he knew nothing about the underlying facts in the case. His general testimony could hardly have exacerbated the emotional impact of the victim's direct testimony and videotaped forensic interview. Moreover, Dias cross-examined Dr. Urquiza extensively about the validity and limitations of CSAAS and was allowed to rebut Dr. Urquiza's testimony through Dr. Coleman, whom the court observed "is very capable of completely undercutting Dr. Urquiza and Dr. Summit's theories." For these reasons, the court's admission of Dr. Urquiza's expert testimony was neither an abuse of discretion under section 352 nor fundamentally unfair.
I. CALCRIM No. 330
Dias argues the trial court erred when it refused to modify CALCRIM No. 330, the pattern instruction on the evaluation of child testimony. Not so.
Background
Dias asked the court to give the jury a modified version of CALCRIM No. 330, as follows. His proposed modifications are italicized:
"You have heard testimony from a child who is age 10 or younger. As with any other witness, you must decide whether the child gave truthful and accurate testimony.
"In evaluating the child's testimony, you should consider all of the factors surrounding that testimony, including the child's age while testifying and at the time of the alleged event; and evidence regarding possible influences on the child's testimony from outside sources; and level of cognitive development.
"When you evaluate the child's cognitive development, consider the child's ability to perceive, understand, remember, and communicate.
"While a child and an adult witness may behave differently, that difference does not mean that one is any more or less believable than the other. You should not discount or distrust the testimony of a witness just because he or she is a child. Likewise, you should not uncritically accept the testimony of a child simply because he or she is a child. You should apply all those factors relating to the general believability of witnesses in which I have already instructed you while taking into account the child's age and any evidence relating to this child's cognitive abilities."
The court rejected the proposed modifications on the ground that the relevant principles were all addressed in CALCRIM No. 226, the standard instruction on evaluating witness testimony. The court noted that the jury had been preinstructed with CALCRIM 226, and agreed to repeat that instruction "so the jurors are mindful of the factors to evaluate the witnesses as they assess your arguments and then ultimately begin their deliberations." The court also reminded Dias's attorney that she was free to argue to the jury all of the concepts in her requested pinpoint instruction.
In the final jury instructions, the jury was given the standard version of CALCRIM No. 330. The court also reinstructed the jurors with CALCRIM No. 226, as follows:
"[Y]ou alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have.
"You may believe all, part or none of any witness's testimony. Consider the testimony of each witness and decide how much you believe.
"In evaluating a witness's testimony, you [may] consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.
"Among the factors you [may] consider are:
"How well could the witness, see, hear or otherwise perceive the things about which the witness testified?
"How well is the witness able to remember and describe what happened?
"What was the witness's behavior while testifying?
"Did the witness understand the questions and answer them directly?
"Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case or a personal interest in how the case is decided?
"What was the witness's attitude about the case or about testifying?
"Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?
"How reasonable is the testimony when you consider all the other evidence in the case?
"Did other evidence prove or disprove any fact about which the witness testified?
"Did the witness admit to being untruthful?
"What is the witness's character for truthfulness?
"Has the witness engaged in other conduct that reflects on his or her believability?
"Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.
"If you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on this subject.
"If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or if you think the witness lied about some things but told the truth about others, you may simply accept the part that you think is true and ignore the rest."
Analysis
"A criminal defendant is entitled, on request, to an instruction 'pinpointing' the theory of his defense. [Citations.]" (People v. Wharton (1991) 53 Cal.3d 522, 570 (Wharton).) On the other hand, the trial court is only required to instruct the jury with legally correct statements of law that are not confusing, duplicative or argumentative. (See People v. Berryman (1993) 6 Cal.4th 1048, 1079, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Mincey (1992) 2 Cal.4th 408, 437.) However, "[I]nstructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation], and the effect of certain facts on identified theories 'is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.' " (Wharton, supra, at p. 570.) Thus, pinpoint instructions are permitted when they describe " ' "the theory of the defense" ' " but not if they "highlight ' "specific evidence as such." ' [Citations.]" (People v. Earp (1999) 20 Cal.4th 826, 886.) "
An erroneous refusal to give a properly requested pinpoint instruction is reviewed under the Watson standard of harmless error. (People v. Watson (1956) 46 Cal.2d 818, 836; see Wharton, supra, 53 Cal.3d at p. 571 & fn. 10 [failure to give pinpoint instruction does not constitute federal constitutional error if instructions given to jury permitted it to consider defense theory].) Accordingly, the error requires reversal only if it is reasonably probable that a result more favorable to the defendant would otherwise have been reached. (People v. Watson, supra, 46 Cal.2d at p. 836.) We are also mindful that the failure to give an instruction on even an essential issue " 'may be cured if the essential material is covered by other correct instructions properly given.' " (People v. Jo (2017) 15 Cal.App.5th 1128, 1173-1174.)
Here, the court was not required to modify the pattern instruction. Dias's first request was that the jurors be instructed to consider the victim's age at trial and "at the time of the alleged event." But the given instruction told the jury to consider the victim's age, and we see no reason to believe the jurors would understand that language to mean her age at trial or at the time of the offense, but not both. In any event, there is no possibility the outcome would have been different had the court included the proposed language in the instruction because the jury undoubtedly would have considered the victim's age at both times. The jury observed the victim's trial testimony and watched the videotaped interview recorded when she was seven, some two years earlier. The prosecutor stressed in closing that the victim, then nine, was testifying about an incident that happened when she was seven. Defense counsel pointedly ascribed the victim's affect in the video to her age at that time: "Of course that is a seven-year old. She doesn't understand the magnitude of anything in terms of vindictiveness." Addressing discrepancies between the victim's taped interview and her trial testimony, defense counsel urged the jury not to discount the differences just because she was only seven at the time of the incident: "even a nine-year old shouldn't have forgotten such a traumatic event." In short, the jurors would plainly have considered the victim's age at both points in time whether or not they were specifically instructed to do so.
Dias also asserts the court erred when it declined to instruct the jurors to consider "evidence regarding possible influences on the child's testimony from outside sources." (Italics omitted.) Again, we disagree. That proposed language was argumentative to the extent it attempted to relate particular facts to the defense theory that Mother and other adults influenced the victim to fabricate her accusations. (People v. Wharton, supra, 53 Cal.3d at p. 570.) "[T]he effect of certain facts on identified theories 'is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.' " (Ibid.) The proposed language was also duplicative of CALCRIM No. 226, which instructs the jury to consider whether the witness's testimony was "influenced by a factor such as . . . a personal relationship with someone involved in the case or a personal interest in how the case is decided."
Dias's proposed additions to the third paragraph of CALCRIM No. 330 suffer the same defect. The defense asked the court to instruct the jury not to "uncritically accept the testimony of a child simply because he or she is a child. You should apply all those factors relating to the general believability of witnesses in which I have already instructed you while taking into account the child's age and any evidence relating to this child's cognitive abilities." But CALCRIM Nos. 226 and 330, taken together, cautioned the jurors against assuming that any witness is trustworthy or untrustworthy, and told them to consider all possible factors relevant to the general believability of witnesses, including the child's age and cognitive development. An additional instruction cautioning the jury that testimony should not be uncritically believed simply because the witness was a child would have been superfluous. The court properly rejected Dias's proposed modifications.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, P.J.
We concur:
/s/_________
Presiding Justice of the Court of Appeal, First Appellate District, Division Four, sitting by assignment pursuant to article VI, section 6 of the California Constitution. --------
/s/_________
Jenkins, J.