Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF003399, Judith C. Clark, Judge.
Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
RAMIREZ P.J.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Scott C. Taylor, Garrett Beaumont and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant of six counts of committing lewd and lascivious acts on a minor (Pen. Code, § 288, subd. (a)) and found that he committed multiple violations of section 288, subdivision (a) in this case. (§ 667.61, subd. (e)(5).) He was sentenced to prison for 6 consecutive terms of 15 years to life. He appeals claiming CSAAS evidence was improperly admitted, his cross examination and argument was improperly limited, prosecutorial misconduct occurred and the jury was misinstructed. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
Defendant molested his two stepdaughters (hereinafter, older daughter and younger daughter) and his younger son in three different homes in which they lived. Other facts will be disclosed as they are relevant to the issues discussed.
Issues and Discussion
1. Admission of CSAAS Evidence
Before the expert on Child Sexual Abuse Accommodation Syndrome (CSAAS) testified, the trial court gave the jury the following instructions, “The following evidence is being admitted for a limited purpose, and you may consider that evidence only for that purpose and for no other. [¶] You are about to hear testimony from [an expert] regarding Child Sexual Abuse Accomodation Syndrome. This witness’ testimony about Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant committed any of the crimes charged against him, nor whether the alleged victims or a victim in this case has or has [sic] been molested. [¶] You may consider this evidence only in deciding whether or not the alleged victims in this case or any of their conduct was not inconsistent with the conduct of someone who has been molested and evaluating the believability of his or her testimony.”
This instruction was repeated before jury deliberations began.
The expert then testified that CSAAS was developed by a psychiatrist who observed, amongst the patients he treated, that child victims who had been molested by strangers reacted differently than those who had been molested by someone with whom they had a relationship. The syndrome describes five behaviors a child who has been molested by a non-stranger might exhibit, due to the complexities of the relationship between the two. She said the syndrome was not a diagnostic tool—that it was not used by therapists to determine whether a child had been molested and that therapists using it assumed that the child had been molested. Rather, she described it as a “common language for [therapists] . . . . It’s a way of helping [them] understand the kinds of statements that children may make [who] hav[e] been molested by somebody that they know” “It’s a way of understanding how children report their experience.” She explained that the early professional literature on child molestation described some behaviors that were not found in victims of molestation by non-strangers. The complicated relationship between victims and non-strangers, many of whom the victims had feelings for and/or were dependent upon, rendered some victims unable to behave in a way one would expect. She described the five aspects of the syndrome, i.e., secrecy (the victim keeps the molestation secret either because of express direction by the non-stranger or because of pressure felt by the victim due to his or her relationship with the non-stranger), helplessness (the victim realizing that nothing can be done about the molestation), entrapment and accommodation (the victim rationalizes the molestation or pretends that it isn’t happening because the victim needs to survive in an atmosphere over which he or she has no control), partial disclosure (when the victim does talk, he or she may do so a little at a time, to “test the waters,” or may never fully disclose) and recantation (when adversity results from reporting, the victim attempts to restore the status quo ante by claiming the molestation never happened). She testified that it was not uncommon for such victims to delay disclosure or partially disclose. She also testified that, depending on the quality of the relationship between the victim and the non-stranger, the former may continue to do well in school and not show other negative symptoms. She said that very young victims may not be able to recall events due to their age and older victims who have been molested numerous times may not be able to remember accurately how many times certain acts occurred.
She added that the author of the syndrome did not determine how many of the children exhibiting some of these behaviors turned out to actually have been abused. She also said that the National Institute of Mental Health suggested that probably more than 50% of molested children never disclose to anyone.
Early during cross-examination of the expert, the trial court again instructed the jury as follows, “ . . . I want to caution you again that testimony with regards to this particular syndrome is not evidence as to whether a particular act of molest has occurred or whether an individual child or children have been the victims of molest. [¶] This is testimony regarding a general concept designed to assist the jury in evaluating whether the conduct of alleged victims is consistent with the conduct of someone who has been molested, and to assist in evaluating the believability of that alleged victim’s credibility only. [¶] This testimony is not designed to render the ultimate opinion of whether or not a [sic] particular victims -- in a particular case have, in fact, been victims, or whether anyone is, in fact, guilty of any crime. All right? This is generic in its nature and not addressed to the particular facts of any particular case.”
Defendant here contends that the trial court abused its discretion in admitting the expert’s testimony. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1299.) He acknowledges that California law permits the admission of CSAAS evidence to disprove a specific commonly held myth or misconception about how a child reacts to molestation, such as delayed reporting or other “self-impeaching” behaviors. However, he contends that the evidence should not have been admitted as to delayed reporting because there was none. The record belies this.
The older daughter testified that she told her mother about the abuse defendant perpetrated on her two days after it occurred. This is a delay. Her mother testified that the delay was much more substantial. The younger daughter testified that molestations occurred at the Los Angeles County home. However, she did not tell her mother while they lived there. The younger son testified that defendant molested him numerous times in the Los Angeles County home but the first adults he told about what defendant was doing to him were his mother and his aunt and he did not tell them or his stepmother until he lived in Riverside County.
The older daughter testified that she was about eight when defendant molested her. The mother testified that when the older daughter was 10, the mother asked her why she was crying and the child said that defendant had asked her to do something and she indicated whether she had complied with defendant’s request. The mother also testified that she was present when, at the Los Angeles County home, a naked defendant asked the older daughter to massage his butt and anus and two days later the older daughter cried and said she was not comfortable doing that. Of course, since the mother witnessed this act, there would be no issue related to disclosure by the older daughter. It should also be noted that the mother testified that when she moved from the Los Angeles County home in which the older daughter testified the molestation occurred, she did not believe defendant had inappropriately touched her older daughter, suggesting that the latter did not report a molestation to her while they lived there. According to the mother, it was not until the family moved to Riverside County that both daughters complained to her about defendant touching them and the older daughter first reported that while in the Los Angeles County home, defendant had asked her to massage his “private parts.” The mother also testified that her older daughter told her for the first time while they were living in Riverside County that defendant had made her massage him and touch his penis at the Los Angeles County home. Thus, there was a delay between the act the older daughter testified occurred in the Los Angeles County home and her report to her mother, while they were living in Riverside County, of such an act.
The younger daughter testified that defendant twice had her massage his penis to ejaculation and once orally copulated him, but when she reported to her mother, she did not tell her about massaging defendant’s penis or orally copulating him. Despite the victims’ testimony that they reported some or all of defendant’s acts to the mother, the latter testified that after the older daughter complained to her about defendant, she asked all the children if they had been molested and all denied it. Thus, the younger daughter engaged in partial disclosure and, according to the mother’s testimony, all the victim’s failed to disclose and/or recanted.
As already stated, the expert testified that CSAAS presumes molestation occurred. When she made this statement during direct examination, defense counsel did not object. The second time she was asked about it was during cross examination, when defense counsel asked her, “[CSAAS] assumes that the child has been molested, correct?” Defendant here asserts that the expert also testified “that in her practice she presumes the allegations of sexual molestation are true. (RT 883)” In fact, her testimony on that subject at page 883 of the Reporters Transcript is as follows,
“Q. [THE PROSECUTOR]: So, in terms of your practice field, when treating children, when you use Child Sexual Abuse Accommodation Syndrome, is there a certain assumption that is made when you use that?
“A. [I]n the treatment arena, yes. The assumption is that a molest had occurred.”
She immediately added, “But . . . that’s very different than outlining what kinds of experiences or reports a child might make. That doesn’t necessarily mean in the evaluation process that they were molested.” [Italics added.]
Again, defense counsel did not object. However, defendant now asserts that by the foregoing evidence, some of which his trial attorney elicited, the expert “gave her opinion as to the ultimate issue of guilt by telling the jury the children were telling the truth, the abuse occurred, and [defendant] was guilty as charged.” Not only is defendant completely incorrect in his interpretation of the statements the expert made, but he waived the issue by failing to object to it, or, actually, inviting it, below.
Next, defendant contends that the expert improperly tailored her testimony to the facts of this case. The prosecutor disclosed to the court, while the admissibility of the expert’s testimony was being debated, that she had been given reports concerning these crimes. The trial court, insisting that the expert’s testimony be generic and general, cautioned the prosecutor against quoting an article written by the developer of CSAAS which was too close in its facts to the facts in this case and asking any question that would “elicit an opinion regarding this particular case or to imply an opinion with regards to this particular case . . . .” including any hypothetical questions The trial court left it to the prosecutor to instruct the expert not to “ta[i]lor her testimony to the facts that she knows of this case” and it warned the prosecutor that if she did, it would cut her off. The court repeated its warnings the following day, just before the expert took the stand. We have summarized her testimony above. Contrary to defendant’s current claim, she did not even make an illusion to any of the facts involved in this case. The fact that her generic testimony that one aspect of CSAAS was delayed reporting happened to coincide with the evidence that each of the victims delayed in reporting does not mean that a prohibited tailoring occurred. Without such coincidence, her testimony would have been completely irrelevant. Contrary to defendant’s claim, the expert’s statements about the victim’s ability to recall did not dovetail with the younger son’s testimony.
As stated above, the expert testified in part, in answer to the question whether the shocking nature of the abuse is related to the delay in disclosure, that it is not uncommon for victims of numerous acts to not be able to recall accurately how many times certain things occurred. The younger son testified that more than 20 molestations had occurred at the Los Angeles County home, but admitted that during the prior trial, he had reported that only a couple had. However, he also testified that this was a lie. He testified to different numbers of occurrences in Riverside County. He also testified that he lied to others or withheld information when he underreported the number of incidents. However, he never testified that he could not remember how many times certain things happened.
In his moving papers, defendant asserted that numerous appellate decisions held that Kelly/Frye “precludes an expert from testifying, based upon CSAAS, that a . . . victim’s report of alleged abuse is credible because the victim manifests certain characteristics which are generally exhibited by abused children.” Although at the hearing on the admission of the expert’s testimony, defense counsel did not mention Kelly/Frye, he did assert that CSAAS was designed as a therapeutic, not a diagnostic, tool, that no empirical studies support it and the behavior it notes in molest victims have not been compared to the same in non-molest victims, all matters which he later pursued during cross-examination of the expert. Defendant here asserts that CSAAS does not pass the Kelly/Frye test because it is impossible to make a generalization about the effects of sexual abuse on children and it does not discriminate between children who have been sexually abused and those traumatized by other means. These matters were not asserted below as reasons for excluding the expert’s testimony and are therefore waived. To the extent they are arguably adjuncts of the attack defendant made on the admissibility of the expert’s testimony below, that attack was premised on using CSAAS as a predictor of abuse, which was not why the evidence was admitted, was not the context of the expert’s testimony and was not what the jury could have used the evidence for under the instructions it was given.
People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013.
Defendant concedes, as he must, that California appellate decisions presently condone the use of CSAAS to prove why children delay reporting, but, he asserts, there was no need for it because the younger son testified that he did not tell the police because defendant told him not to and he was afraid. However, reporting to the police was not the only issue where this victim was concerned, and the second son was not the only victim. As stated before, all three victims delayed reporting to people that would be expected to have been the first to hear about defendant’s acts. Moreover, even if an abuser tells a victim not to talk and the victim fears the abuser, most lay people would still wonder why a child would not tell a parent, sibling, or favorite teacher, especially considering all the information now widely available to children about the importance of reporting abuse.
Despite his acknowledgment that California decisional law permits the use of CSAAS evidence to disprove myths about child abuse victims, defendant asserts that the “science” involving the syndrome has so advanced since these decisions were made as to render them no longer persuasive. The limitations on the syndrome were clearly presented to the jury. The expert’s testimony was short in duration and narrow in focus, precisely as the trial court had prescribed. No legal precedent holds that admission of this evidence was erroneous.
Finally, defendant contends that the evidence should have been excluded under Evidence Code section 352. However, we cannot agree that the trial court abused its discretion in admitting this very limited evidence for its very limited purpose. It explained things that would have baffled most, if not all, of the jurors.
2. Limitation on Cross-Examination and Argument Re CSAAS
At the beginning of cross-examination of the CSAAS expert, defense counsel solicited from her that CSAAS “came to light” during the McMartin Preschool case. The expert stated that she did not recall if the developer of CSAAS was a prosecution expert at that trial and she was not familiar with his testimony in the case. Defense counsel asked the expert if there were, in that case, “nearly 369 children that had been identified as being molested out of 400 children that were interviewed.” The trial court sustained the prosecutor’s relevancy objection to it. Defense counsel made no offer of proof.
Defendant now contends that the trial court erred in sustaining the prosecutor’s objection. He here asserts that below he “established [that the expert] was familiar with the McMartin Preschool case which had relied on CSAAS.” Defendant assumes too much. While the expert testified that she was familiar with the case, she stated she was not familiar with the CSAAS developer’s testimony during it and she could not even recall if he was a prosecution witness. Additionally, the defense presented nothing below demonstrating that the McMartin case “had relied on CSAAS.” Moreover, there was no showing for what purpose the McMartin case utilized CSAAS, if it did. If it was for the prohibited purpose of trying to prove that certain asserted victims had been sexually abused, and not for the purpose CSAAS was used in this trial, testimony concerning it would have been completely irrelevant. Contrary to defendant’s current assertion, this exchange did not foreclose “[t]he defense . . . from discrediting CSAAS.” Defense counsel went on, from this exchange, to do a pretty good job of pointing out the limitations of and problems with CSAAS.
It also produced nothing demonstrating, as he asserts in his reply brief, that in the McMartin case, “it was ultimately revealed [that the asserted victims] had lied about the abuse.”
If CSAAS had been relied upon to show that the McMartin victims had been abused and it was ultimately revealed that they had not been, then that would have impeached the ability of CSAAS as an indicator of abuse. That, however, would still be irrelevant to this case, as CSAAS was not so used.
During argument to the jury, defense counsel said, “ . . . Dr. Roland Summit is the individual who [developed CSAAS] . . . . Dr. Summit who was the prosecution’s so [-called] expert witness at the McMartin Preschool trials the year after he [developed it]. The trial started in 1984 and ended in 1989 . . . .” At this point, defense counsel got interrupted by an objection by the prosecutor which the trial court sustained. Although defendant here claims the trial court erred by sustaining the prosecutor’s objection, it did not. There was no evidence at trial that the developer of CSAAS was a prosecution expert in the McMartin Preschool case (the CSAAS expert testified she did not recall if he was) and no other evidence about the earlier case had been presented to the jury which could have formed the basis for anything defense counsel said or was about to say. Thus, her argument was not supported by the evidence and was improper. As before, if the defense had made an offer of proof that the CSAAS developer’s testimony in the McMartin case was limited, and therefore, proper, as was the CSAAS evidence here, and use of it produced numerous “false negatives,” he might have a more persuasive argument. However, he made no such showing. He attempted to insinuate that since the developer of CSAAS was a witness in the McMartin case and the case supposedly resulted in false accusations of sex abuse, CSAAS was discredited. This was improper.
3. Prosecutorial Misconduct
Before trial began, the trial court ruled that evidence of acts other than those charged in the amended information about which the younger daughter and younger son testified at the prior trial were admissible under Evidence Code section 1101, subdivision (b) and section 1108.
Evidence Code section 1101, subdivision (b) states, “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.”
Defendant here claims the prosecutor committed misconduct when he violated the trial court’s ruling by soliciting from the boys’ mother that she began a romantic relationship with defendant that resulted in the birth of her older son when she was between 14 and 15 years old. Defendant, however, failed to object to the question and, therefore, waived his claim of misconduct. (People v. Earp (1999) 20 Cal.4th 826, 858.) The mere assertion, without further explanation, in defendant’s reply brief, that an objection would have been futile is insufficient. Moreover because the mother was over 14 when she first began a physical relationship with defendant and the only sexual crime that had been defined for the jury was committing a lewd and lascivious act on a child under the age of 14, the jury had no basis upon which to conclude that what defendant did with his sons’ mother was an “offense[,]” as provided in the instruction for Evidence Code section 1101, subdivision (b) or a lewd and lascivious act on a child under the age of 14, as provided in the instruction for Evidence Code section 1108.
Defendant’s contention that he objected to this testimony before trial began, citing the Reporter’s Transcript, pages 177 through 184 is belied by the record. During pretrial discussions, the subject of defendant’s physical relationship with his sons’ mother never came up. Defendant also cites the Reporter’s Transcript, pages 666 and 679, however, on those pages, trial counsel objected to the testimony of his sons’ mother that he went to jail during their relationship and that her youngest son visited his older brothers at defendant’s house, which caused her to question her older boys about activities there.
The trial court denied the prosecutor’s request that the instructions on Evidence Code sections 1101, subdivision (b) and 1108 be modified to include unlawful intercourse with a minor, based on his intimate relationship with his sons’ mother. The court commented that this evidence was not admissible under either section, but was general background evidence which was relevant to who had custody of the sons and at what time and who was financially able to provide for the sons.
Defendant asserts that the prosecutor committed misconduct during argument when he called the jury’s attention to the fact that the sons’ mother was very young when the defendant became physically involved with her, suggesting that it showed that he was attracted sexually to young people. As before, defendant’s failure to object to this comment waives the matter. Moreover, the prosecutor was not implying that defendant had committed an offense by having a physical relationship with his sons’ mother. He did comment that defendant’s choice of a mate who was not only young but was five years younger than he was showed that he enjoyed dominating and controlling his environment, a fact which explained his ability to silence the victims and the girls’ mother.
Defendant asserts “The repeated reference to [the sons’ mother] as [defendant’s] ‘first 288’ was undeniably and irrefutably injurious to [defendant’s] case.” However, defendant does not provide a single citation to the record in his brief to support his statement that actually contains such language.
It appears that a portion of the prosecutor’s argument, just before he made the comments about the boy’s mother, is missing. At page 1370, the prosecutor talks about the girls’ mother. He then begins talking about the younger daughter and how her testimony need not be corroborated if the jury believed her. In the next paragraph, he begins talking about “her,” but the “her” is not the daughter, but the boy’s mother. These comments are not prefaced by a reference to the boys’ mother’s name. Either the prosecutor’s argument was truly this bizarre, or something was omitted from the transcript.
However, at another point during argument, the prosecutor committed misconduct by referring to defendant’s sexual relationship with his son’s mother as some of “the other uncharged acts.” Again, defendant did not object and the reference was brief. It is not reasonably probable that absent this brief reference, defendant would have enjoyed a better outcome. (People v. Crew (2003) 31 Cal.4th 822, 839.)
The prosecutor did not argue expressly that this was propensity evidence or that it proved interest, or that the alleged offenses were not the result of mistake or accident or that defendant had a plan or scheme to commit the alleged offenses.
Defendant contends that the prosecutor committed misconduct when he violated the trial court’s ruling by soliciting testimony from the younger son that defendant had molested him more times that he had testified to at the prior trial. However, it was defense counsel who solicited the testimony that there were more than 20 incidents of molestation at the Los Angeles County house, rather than the two the younger son identified at the prior trial. The younger son also testified that molestations occurred at the first Riverside County house about 40 times, but this was again in response to a question by defense counsel, not the prosecutor. The prosecutor solicited testimony that while at the second Riverside County house, defendant orally copulated the second son “a lot”, which acts the latter had not testified to during the first trial, but, again, it was defense counsel, and not the prosecutor, who solicited the testimony that this occurred more than 20 times. Defendant cannot attribute to the prosecutor prejudicial material elicited by his own trial attorney.
He testified, also during cross examination, that he had lied at the prior trial about the number of occasions.
In his reply brief, defendant glosses over the fact that most of the additional molestations testified to by the younger son were solicited by his trial attorney thusly, “In [the People’s] view, . . . the inconsistencies were elicited by defense counsel thus absolving the [prosecutor] of any responsibility. [Citation.] [The People are] mistaken.”
During argument, the prosecutor asserted that defendant had lied to the jury about what he meant by the words he spoke during a pretext phone call between him and the younger daughter, during which he apologized to her for mistakes he had “done” to her and her siblings. The prosecutor added, “He’s got huge reasons to lie . . . [He has ‘b]ias, interest and motive’ [to lie]. Let’s not forget, . . . he’s got three other minors a long way away from reaching majority. Three little girls.” Defense counsel interrupted with an objection, which the trial court overruled. Defendant here asserts that the prosecutor statements constituted misconduct because the prosecutor was, in effect, calling upon the jury to protect his three younger daughters from him. We disagree with his interpretation. He was asking the jurors to consider that defendant had, in his three younger daughters, a substantial reason to lie about the crimes and escape being sent to prison. It was very clear during trial that defendant was the primary provider for his family. In fact, his wife’s first reaction to the prospect of him being arrested for the molestation of her daughters and stepson was to ask how the family’s bills were going to get paid. The prosecutor’s comments were not an invitation for the jury to convict him in order to keep him away from his three younger daughters. If that had been the case, the prosecutor would not have pointed out that the girls were “a long way away from reaching majority.”
The suggestion of appellate counsel for the defendant that the trial court’s interpretation of the prosecutor’s remarks, which was identical to ours, was influenced by the close relationship between it and the prosecutor is completely inappropriate.
4. Jury Instructions on Battery
Defendant contends that the trial court erred by failing, sua sponte, to instruct the jury on battery as a lesser included offense to the charged commission of lewd and lascivious acts on minors. People v. Santos (1990) 222 Cal.App.3d 723 noted, without discussion or analysis, that battery was not a lesser included offense of section 288, subdivision (a). Much more recently, People v. Thomas (2007) 146 Cal.App.4th 1278 held the opposite. It rejected the People’s argument that battery was not a lesser included offense of section 288, subdivision (a) because battery required the victim to be touched, while section 288, subdivision (a) did not require the defendant touch the victim. The Thomas court pointed out that section 288, subdivision (a) may be committed when the defendant has the child lewdly touch him/herself and the same should be true for battery. (Id. at p. 1293.) Thus, both crimes may be committed, and a battery is a lesser included offense of section 288, subdivision (a) when the defendant has the child touch him/herself. Had the acts here comprised defendant prevailing upon the victims to touch themselves, battery would be a lesser included offense under Thomas. However, the acts here were defendant having the victims touch him. Such acts did not constitute batteries, because, as Thomas recognized, “ . . . battery . . . requires ‘a “touching” of the victim.’ (citations)” (ibid) whether it be actual or constructive. There was no such touching here.
Moreover, the facts of this particular case require our rejection of defendant’s position. Defendant conceded that he asked his children to massage his back, sometimes including his buttocks, but this was not illegal because he did not do it for a sexual purpose. He allowed that if anything illegal did occur in this case, having his children massage him, which they found offensive, constituted an assault, for which the jury had been given instructions. Because the jury found defendant guilty of committing lewd and lascivious acts, and not assaults, we are convinced that had it been given the further option of convicting him of battery, no different outcome would have occurred.
Ultimately, however, defendant urged the jury to acquit him.
Disposition
The judgment is affirmed.
We concur: KING, MILLER J.
Additionally, the older daughter testified that she did not tell her younger sister or her brothers until a short time before March 27, 2003, about defendant molesting her, making her delay in reporting to them 6 years.
Evidence Code section 1108, states, in pertinent part, “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”