Opinion
G055889
06-15-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL GALAN, Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Quisteen S. Shum, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12CF3565) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed with directions. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
After his first trial ended in a mistrial because the jury was unable to agree on a verdict, the jury in his second trial convicted defendant Jose Manuel Galan of attempted lewd act on a child under the age of 14 years (Pen. Code, §§ 664, subd. (a), 288, subd. (a); count 2); two counts of committing a lewd act on a child under the age of 14 years (§ 288, subd. (a); counts 3 & 4); misdemeanor simple battery (§ 242; lesser included to count 5); attempted sexual penetration of a child 10 years old or younger (§§ 664, subd. (a), 288.7, subd. (b); lesser included to count 6); exhibiting pornography to a minor (§ 288.2, subd. (a); count 7); and oral copulation of a child 10 years old or younger (§ 288.7, subd. (b); count 8). At sentencing, the court imposed an indeterminate term of 15 years to life on count 8. The court also imposed a determinate term totaling 14 years 8 months, comprised of the upper term of nine years on count 6; a consecutive one-year term (one-third the three-year midterm) on count 2; consecutive two-year terms (one-third the midterm of six years) on counts 3 and 4; and a consecutive eight-month term (one-third the two-year midterm) on count 7. The misdemeanor sentence on count 5 was stayed.
All further statutory references are to the Penal Code unless otherwise stated.
The jury found defendant not guilty of exhibiting pornography to a minor (§ 288.2, subd. (a); count 1) and inducing a minor to perform prohibited acts (§ 311.4, subd. (c); count 9). As to counts 5 and 6, defendant was found not guilty of the charges of oral copulation or sexual penetration with a child 10 years old or younger (§ 288.7, subd. (b)) but convicted of lesser included offenses.
On appeal, in two separate arguments, defendant contends the court erroneously admitted expert testimony on child sexual abuse accommodation syndrome (CSAAS) and that these errors warrant the reversal of his convictions. First, defendant asserts the court should have ruled the expert's testimony on CSAAS was irrelevant and inadmissible "[b]ecause the prosecutor failed to show that CSAAS testimony contradicted any common misconceptions about child behavior in response to abuse." He contends the admission of this evidence violated his right to due process and a fair trial. Second, he contends the expert's testimony on CSAAS should have been excluded because "CSAAS is not generally accepted as reliable by the scientific community" and therefore "does not meet the Kelly-Frye test for admissibility of scientific evidence." We reject both contentions and conclude the court properly admitted the testimony on CSAAS.
People v. Kelly (1976) 17 Cal.3d 24, 30; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013, 1014, abrogated by statute as explained in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 587.
In People v. Leahy (1994) 8 Cal.4th 587, our Supreme Court explained that the "Kelly/Frye formulation" is "now more accurately" called the "Kelly formulation." (Leahy, at p. 591.) Accordingly, we will refer to it as such or the Kelly rule.
Defendant also raises a claim of instructional error as the instruction given for the offense of exhibiting pornography to a minor (§ 288.2, subd. (a)) was based on a version of the statute enacted after his offense. We conclude any error by the court was harmless. Last, we agree with the parties that the sentencing minute order must be corrected to accurately reflect the judgment by striking a $75 administrative fee related to the collection of a local DNA sample.
FACTS
For several months, defendant rented a room in the house where Jane Doe lived with her mother. Even after he moved out, defendant remained a close friend of the family and visited nearly every day.
When Jane was seven or eight years old, defendant began telling her that he loved her and called her "my love." He also made remarks about them having children together. He would blow Jane kisses, and using a code he developed, he would communicate that he loved her by blinking his eyes a certain number of times. Defendant told Jane he could buy her many things if she fell in love with him. When Jane was eight years old, defendant hugged her a couple of times in a way that made her feel uncomfortable. One time in the supermarket, defendant hugged her so tight that it hurt.
Defendant had an iPod Touch that he let Jane use. He also gave her an iPod Touch for her ninth or tenth birthday. They would communicate through the notes application on defendant's iPod by writing notes to each other in Spanish. At trial, Jane identified several partial notes recovered from defendant's iPod as messages she wrote to defendant and one note from defendant to her, telling her that he loved her.
Jane also used defendant's iPod to record videos of herself dancing naked. Four videos of Jane, shot sequentially, were found on defendant's iPod. Jane initially reported in her Child Abuse Service Team (CAST) interview that defendant threatened to harm her if she did not make the videos, but at trial, she testified defendant bribed her with cookies and food to get her to take naked pictures and videos.
Some of Jane's family members noticed concerning behavior by defendant toward Jane. Jane's cousin C.C. saw Jane sitting on defendant's lap and defendant kiss her on the cheek. Jane's nephew A.V., who was three years older than her, once found defendant and Jane alone in the garage. When he came into the garage, they appeared "super nervous." The incident was so odd that A.V. told his mother, Jane's sister, about it.
Beginning when Jane was in the third grade and continuing through the fifth grade, there were multiple incidents during which defendant touched or tried to touch Jane in a sexual manner. Jane did not tell her mother about these incidents when they occurred because defendant threatened to harm her and her family if she told anyone and she was scared.
In her closing argument, the prosecutor identified which incident was the factual basis for each charge.
When Jane was in the fourth grade, defendant tried to kiss her. (Count 2.) In a separate incident, Jane was sitting on the couch in the living room while her mother took a shower. Defendant covered Jane's mouth with one hand and tried to touch her "downstairs area" over her clothes with his other hand. (Count 4.) He was interrupted and fell backwards when Jane's mother came out of the bathroom.
One day Jane was raking leaves in the backyard when defendant offered to help. Jane went inside the house while defendant continued raking. Once he finished, he told her to come back outside. She went out to see if defendant had swept behind a mattress that a tenant had left against a wall. Defendant grabbed her, put his hand over her mouth, and tried to touch her breast. (Count 3.) Jane kicked him and ran back into the house where her mother was. Jane's mother asked why she was running, but Jane did not tell her mother what had happened.
Another incident occurred while Jane was in the fourth grade. Jane was standing by the dining room table watching television while defendant washed the dishes. Defendant walked up behind Jane and put his hand down the front of her pants. The first time his hand was on the outside of her underwear. (Count 5.) The second time, defendant put his hand inside her underwear and touched her vaginal area causing her pain and bleeding. (Count 6.)
Using his iPod, defendant showed Jane an adult video with a naked lady lying on a bed. (Count 7.) Jane, her cousin C.C., and her nephew A.V., found pornography in the search history of the iPod. They did not open the Web sites but looked at the titles, which included child pornography. They also found pornography on Jane's laptop when they were playing a game on the laptop, and hit the back button several times. Defendant had been using the laptop just before them.
The last incident occurred when Jane was 10 years old and watching cartoons on the television in the garage. Tired and thinking she was alone in the garage, Jane began stretching by arching her back up and off the couch. Defendant appeared suddenly, pulled down her shorts and underwear, and licked her vaginal area. (Count 8.) Jane kicked defendant, pulled up her shorts, and went inside the house. Jane's mother sent her to her room because her mother had friends over from work. Jane's mother did not see defendant arrive that day but saw him after Jane came in from the garage.
A few days later, Jane disclosed to her mother that defendant had been molesting her. Her disclosure came as her mother was talking to her about her falling grades at school and her impertinent behavior at school and home. Jane had been getting into trouble repeatedly because she would "sass" her mother and her mother's efforts at punishing her by taking away her laptop and iPod had been ineffective.
Jane's mother did not immediately call the police because she wanted to watch defendant and see what he was doing. She called the police about a month later, after seeing suspicious behavior by defendant. When Jane first spoke to the police, she only told them about a few incidents. She then wrote a list of all the things she could remember defendant had done and gave it to the interviewer during her CAST interview. The recording of her CAST interview was played for the jury.
Defendant's Testimony
Defendant testified in his own defense and denied all of Jane's accusations. When defendant told Jane's mother to punish Jane for misbehaving, Jane got mad and yelled at him.
Defendant's iPod previously belonged to his friend David Rodriguez. Defendant would let Jane, C.C., and A.V. use his iPod, as well as Rodriguez. Rodriguez had pornography on the iPod but defendant did not show it to Jane. Nor did he show Jane pornography on her laptop. Jane showed him pornography on her laptop and on his iPod, while acting "happy and sexy" and telling him that she wanted him to marry her mother so they could have a son. Defendant told Jane's mother to check Jane's laptop but did not tell her why.
Jane showed defendant how to use the notes application on his iPod. Defendant only used the application to make notes related to his work and did not use it to pass notes with Jane. One day when defendant was visiting, he left his iPod on the charger while he stepped outside. Shortly after he came back inside, Jane came out of the bathroom with his iPod and showed him three or four videos she had filmed on his iPod of herself naked. Defendant took the iPod from Jane and tried to erase the videos but was unable to because it was locked.
DISCUSSION
ADMISSIBILITY OF CSAAS EVIDENCE
Defendant contends the court prejudicially erred by admitting expert testimony on CSAAS because it was "not relevant to prove any common misconceptions in this case." He asserts the admission of this irrelevant evidence rendered his trial unfair, thus violating his right to due process. Next, he contends the CSAAS testimony should have been excluded because "CSAAS is not generally accepted as reliable by the scientific community as correctly describing the behavior of sexually abused children . . . ." We reject both contentions.
Prior to trial, the prosecution moved for the admission of expert testimony on CSAAS and "'grooming.'" The prosecution argued testimony regarding CSAAS was needed to address common misconceptions about how a child might react to abuse and was relevant here because Jane delayed in her disclosure of the abuse and continued to spend time with defendant after the abuse began. Defendant objected to the evidence on the ground it would not assist the jury and would violate his right to due process. The court deferred its ruling until after Jane testified and then after her testimony, ruled the evidence was admissible and "relevant based on the reporting history . . . ."
Dr. Ward, a clinical and forensic psychologist, testified that CSAAS was developed by a doctor in 1983 based on his treatment of sexual abuse victims and describes a pattern of behaviors exhibited by sexually abused children. CSAAS was developed as a therapeutic tool to help treat sexually abused children. Dr. Ward explained CSAAS is not a diagnostic tool and cannot be used to diagnose whether or not sexual abuse has occurred. While it is helpful in understanding a child's behavior in response to sexual abuse by a family member or friend, it is not possible to look at a child's behavior and determine whether or not sexual abuse occurred.
Dr. Ward explained children molested by a family member or close family friend respond differently than children molested by a stranger as children abused by someone they know do not tend to report the abuse right away, and when they do report the abuse, they may not be believed. Dr. Ward described the five categories of CSAAS: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, unconvincing disclosure; and (5) retraction or recantation. Secrecy and helplessness are present in all cases in which a child is molested by a family member or family friend because the abuse occurs in secret and children are helpless given the power differential between children and adults. Whether the other categories are present—entrapment and accommodation, delayed disclosure, and retraction or recantation—depends on the situation. Entrapment and accommodation concern a child's inability to get out of the abusive situation; the result is that the child becomes entrapped and has to learn to accommodate the abuse. A child may acquiesce or go along with the sexual abuse because the child believes he or she has to put up with this negative aspect of the relationship with the abuser to receive the positive benefits of the relationship. Children are able to compartmentalize the abuse and put on a happy face to appear as if nothing bad is happening.
Delayed and unconvincing disclosure is the most widely researched aspect of CSAAS. It explains a child may provide a tentative or hesitant disclosure to see how it is received. Whether the child reveals more depends on the person's reaction. If the listener is receptive, the child becomes more comfortable and reveals more details. Retraction and recantation occur less often. After a disclosure, a child's life may be turned upside down, and internal and external pressures may cause the child to recant the allegations or claim not to remember.
Children feel a lot of shame about being sexually abused and will claim that they were forced or threatened because they cannot explain why they did not report it initially. After failing to report the first incident, a child may feel guilty for being involved and may justify the failure to report by saying he or she was threatened. Most children actively try to forget the abuse as a way to cope, which may interfere with their ability to recall details later.
Before testifying, Dr. Ward had not reviewed any materials concerning the case and did not know the charges, the victim's name, age, or gender.
The CSAAS evidence was relevant and admissible.
Defendant contends the CSAAS testimony was irrelevant and should have been excluded because the prosecutor failed to show that it contradicted "any common misconceptions about child behavior in response to abuse." We conclude the court did not abuse its "wide discretion" in finding the CSAAS testimony relevant and admissible. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1303 ["'the trial court is vested with wide discretion in determining relevance' under the Evidence Code"].)
Expert testimony on CSAAS "is not admissible to prove that the complaining witness has in fact been sexually abused." (People v. McAlpin, supra, 53 Cal.3d at p. 1300.) But "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." (Ibid.) "'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.'" (Id. at p. 1301 [discussing CSAAS testimony when addressing the admissibility of expert testimony on the behavior of parents of sexually abused children].) In a number of cases, expert testimony on CSAAS has been upheld as admissible when offered for the limited purpose of rehabilitating a child victim's credibility, dispelling common misconceptions regarding the behavior of abuse victims, and/or showing the child's conduct was not inconsistent with sexual abuse. (People v. Perez (2010) 182 Cal.App.4th 231, 245; In re S.C. (2006) 138 Cal.App.4th 396, 418; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745; People v. Housley (1992) 6 Cal.App.4th 947, 955-956; People v. Gray (1986) 187 Cal.App.3d 213, 217-220.)
While CSAAS "evidence must be tailored to address the specific myth or misconception suggested by the evidence" (People v. Wells (2004) 118 Cal.App.4th 179, 188), the prosecution is not required "to expressly state on the record the evidence which is inconsistent with the finding of molestation." (People v. Patino, supra, 26 Cal.App.4th at p. 1744.) "It is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation." (Id. at pp. 1744-1745.) CSAAS testimony may be admitted in the prosecution's case-in-chief when the victim's testimony raises an "obvious question . . . in the minds of the jurors," such as "why the molestation was not immediately reported if it had really occurred" or "why [the victim] went back to [the defendant's] home a second time after the first molestation." (Id. at p. 1745.) Thus, CSAAS evidence "is pertinent and admissible if an issue has been raised as to the victim's credibility." (Ibid.)
Here, the court did not abuse its discretion by admitting Dr. Ward's expert testimony regarding CSAAS. The court correctly waited until after Jane's testimony to determine if the CSAAS evidence was relevant to the issue of Jane's credibility. The court then made a reasoned judgment that its relevance was based on the defense's questioning of Jane, specifically her delayed reporting. During cross-examination, the defense repeatedly highlighted Jane's failure to tell her mother about defendant's misconduct that spanned over two school years. The defense also attacked Jane's credibility by questioning her as to why she continued to be alone with defendant after the abuse began. The defense used this evidence to argue that Jane's claims of sexual abuse were fabricated. Through cross-examination and argument, the defense asserted that Jane's delayed disclosure and her behavior around defendant after the alleged abuse began were inconsistent with her claims of sexual abuse.
Jane's behavior of not immediately reporting the abuse to her mother and not avoiding defendant after the abuse began would have raised questions in the jurors' minds as to the veracity of her claims of abuse. Dr. Ward's expert testimony concerning CSAAS was relevant to dispel misconceptions the jurors might have held as to how child sex abuse victims behave as it countered misconceptions that a child subjected to sexual abuse by a close family friend would consistently avoid the abuser and immediately report the abuse. As the issues of delayed disclosure and accommodation were prominent in the defense's cross-examination of Jane, expert testimony concerning CSAAS had the potential to rehabilitate Jane's credibility.
Contrary to defendant's assertion, Dr. Ward's testimony on CSAAS did not undercut the jury's "critical function" of evaluating Jane's credibility. It remained solely within the jury's province to consider issues of witness credibility (CALCRIM No. 226) and evaluate Jane's and defendant's conflicting testimony (CALCRIM No. 302) in determining whether defendant committed the charged offenses. Dr. Ward did not opine as to whether Jane was credible. In her testimony, Dr. Ward explained she was not expressing an opinion as to whether defendant was guilty or innocent and was not diagnosing anyone. She clearly explained that CSAAS could not be used to determine whether or not a child is telling the truth. The jurors would not have viewed Dr. Ward's testimony as supplanting their job of determining whether Jane was credible regarding the various allegations of abuse. Dr. Ward's testimony discussed the circumstances in which a child sexual abuse victim's reactions may not be inconsistent with abuse but left the question of whether Jane was abused for the jury to decide.
Defendant asserts the testimony should have been excluded as irrelevant because it is now "common knowledge that children do not report [abuse] immediately." We disagree that delayed reporting by a child sexual abuse victim is a matter of "common knowledge." Nevertheless, "'the admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission." (People v. McAlpin, supra, 53 Cal.3d at p. 1299.) Expert testimony is admissible "'whenever it would "assist" the jury.'" (Id. at p. 1300.) Here, Dr. Ward's expert testimony on CSAAS was admissible as it aided the jury in assessing Jane's credibility. (Evid. Code, § 801, subd. (a).)
Moreover, the court instructed with CALCRIM No. 1193, admonishing the jury concerning its consideration of the CSAAS testimony. (See People v. Patino, supra, 26 Cal.App.4th at p. 1745 [court "handled the matter carefully and correctly" by giving similar admonishment immediately after CSAAS testimony].) It instructed the jurors that the "testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him" and that they "may consider this evidence only in deciding whether or not [Jane Doe]'s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony." The jury is presumed to have followed this instruction. (People v. Avila (2006) 38 Cal.4th 491, 574.)
Defendant contends otherwise, asserting the jury would not have been able to perform the "level of mental gymnastics" required to consider the CSAAS testimony "to refute behavior as inconsistent with sexual abuse without simultaneously considering it as circumstantial evidence that sexual abuse actually occurred." In support of this assertion, defendant cites portions of the prosecutor's closing and rebuttal arguments where she compared Jane's behavior to Dr. Ward's testimony on CSAAS. Defendant contends the prosecutor had difficulty in her closing argument in limiting the use of the CSAAS evidence to its permissible purpose and argues if the prosecutor was unable to do so then it would have been impossible for the jurors to follow the limiting instruction. We disagree. In her closing argument, the prosecutor began her discussion of the CSAAS evidence by properly telling the jurors the limited purpose of this evidence, even repeating the words of CALCRIM No. 1193. The prosecutor used the CSAAS evidence to address issues with Jane's credibility—her delayed and limited initial disclosure, her inability to recall details of the abuse, and appearing comfortable with defendant after the abuse began. At the end of her closing argument, the prosecutor urged the jurors to consider Dr. Ward's testimony on CSAAS only for its intended purpose. Moreover, to the extent the prosecutor's comments on the use of Dr. Ward's CSAAS testimony were inconsistent with CALCRIM No. 1193, the jury was instructed to follow the court's instruction. (CALCRIM No. 200.) We conclude the court did not abuse its discretion by admitting the expert testimony on CSAAS.
Having concluded the court made a reasoned judgment that the CSAAS expert testimony was relevant and admissible, we find no violation of defendant's constitutional right to due process. (See People v. Patino, supra, 26 Cal.App.4th at p. 1747 ["introduction of CSAAS testimony does not by itself deny appellant due process"]; see Estelle v. McGuire (1991) 502 U.S. 62, 70 [admission of relevant evidence of battered child syndrome did not violate the defendant's due process rights].)
Defendant forfeited his contention that the expert testimony on CSAAS should have been excluded under Kelly.
Defendant next asserts the CSAAS expert testimony should have been excluded because it does not meet the Kelly formulation for admissibility of scientific evidence. Under Kelly, "evidence obtained through a new scientific technique may be admitted only after its reliability has been established under a three-pronged test. The first prong requires proof that the technique is generally accepted as reliable in the relevant scientific community." (People v. Bolden (2002) 29 Cal.4th 515, 544.) Focusing on this first prong, defendant contends the CSAAS evidence should have been excluded "because it has not gained general acceptance in the scientific community."
Defendant, however, failed to present this argument in the trial court. Below, defendant neither objected on the ground that the CSAAS evidence was inadmissible under Kelly nor did he request a hearing on the issue. Nevertheless, defendant contends the issue is preserved for review and is a "purely legal" question subject to our independent review. We disagree. Whether a scientific theory is generally accepted in the scientific community is a mixed question of law and fact and an appellate court reviews "'"the trial court's determination with deference to any and all supportable findings of 'historical' fact or credibility, and then decide[s] as a matter of law, based on those assumptions, whether there has been general acceptance."'" (People v. Stevey (2012) 209 Cal.App.4th 1400, 1410.) Here, there are no factual findings before us to consider and determine whether CSAAS is generally accepted in the scientific community because the issue was not raised below.
Defendant acknowledges a number of California Court of Appeal decisions have upheld the admissibility of CSAAS testimony, as he cites People v. Bowker (1988) 203 Cal.App.3d 385, People v. Housley, supra, 6 Cal.App.4th 947, and People v. Wells, supra, 118 Cal.App.4th 179. But he contends these cases were wrongly decided and advocates for a change in the law. Citing three professional publications, defendant asserts the "scientific validity" of CSAAS evidence "is subject to ongoing considerable debate amongst psychology publications." We have no reason to doubt defendant, but to the extent there is a "considerable debate" concerning the "scientific validity" of CSAAS evidence, the matter needed to be raised in the trial court where evidence of this debate could be presented.
Defendant also cites cases in other states that have excluded CSAAS testimony. He relies heavily on State v. J.L.G., supra, 190 A.3d 442, a case in which the New Jersey Supreme Court considered the admissibility of CSAAS testimony. There, the New Jersey Supreme Court had "remanded to the trial court for a hearing 'to determine whether CSAAS evidence meets the reliability standard of [the New Jersey Rules of Evidence] 702, in light of recent scientific evidence.'" (Id. at p. 449.) During the remand hearing, four experts testified and submitted reports and "multiple published scientific articles" were introduced among dozens of exhibits. (Ibid.) The New Jersey Supreme Court relied "heavily on the record developed at the hearing" to conclude that there is "continued scientific support for only" the delayed disclosure aspect of CSAAS. (Id. at p. 446.) The court held expert testimony concerning CSAAS was admissible only as to delayed disclosure behaviors and only if the evidence was "beyond the understanding of the average juror." (Ibid.)
Defendant cites State v. J.L.G. (N.J. 2018) 234 N.J. 265 ; Sanderson v. Commonwealth (KY 2009) 291 S.W.3d 610, 613; Com. v. Dunkle (Penn. 1992) 529 PA 168, 173-177 [602 A.2d 830, 832-834]; State v. Ballard (Tenn. 1993) 855 S.W.2d 557, 561-562; and State v. Maule (Wash.App. 1983) 35 Wash.App. 287, 295-296 [667 P.2d 96, 100].
There is a stark difference between the situation in State v. J.L.G., supra, 190 A.3d 442 and defendant's case. Here, we simply have no record to consider to determine whether CSAAS is generally accepted in the scientific community. Because the issue was not raised in the trial court, there was no hearing on the matter and the court made no factual findings for us to review. By failing to raise the issue below, defendant has forfeited his appellate claim. (Evid. Code, § 353, subd. (a); People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.)
Regardless, we conclude the Kelly rule does not apply to Dr. Ward's expert testimony on CSAAS. "'Court of Appeal decisions have held that Kelly-Frye . . . precludes an expert from testifying based on the child sexual abuse accommodation syndrome (CSAAS) that a particular victim's report of alleged abuse is credible because the victim manifests certain defined characteristics which are generally exhibited by abused children.'" (People v. Wells, supra, 118 Cal.App.4th at p. 188.) But where the CSAAS evidence is admitted to rehabilitate a victim's credibility through a discussion of victim behavior as a class and does not diagnosis or discuss the victim in that case, cases have held CSAAS is not subject to the requirements of the Kelly rule. (People v. Gray, supra, 187 Cal.App.3d at pp. 217-220; People v. Harlan (1990) 222 Cal.App.3d 439, 448-449.) In defendant's case, Dr. Ward's expert testimony on CSAAS did not constitute a new scientific method of proof which purported to provide any "definitive truth" regarding whether Jane had been molested (People v. Stoll (1989) 49 Cal.3d 1136, 1156) and therefore was not subject to the Kelly rule. (See People v. Jones (2013) 57 Cal.4th 899, 953 ["'absent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly'"].) Accordingly, the court properly admitted the testimony on CSAAS.
INSTRUCTIONAL ERROR ON COUNT 7
Defendant contends his conviction on count 7 for exhibiting pornography to a minor (§ 288.2, subd. (a)) must be reversed because the court's instruction was based on the current version of the statute, which was enacted after his offense. He asserts this error violated the ex post facto clauses of the state and federal constitutions and his right to due process because the new version of section 288.2 and its corresponding jury instruction cover "a broader range of behaviors than the version in effect at the time of the alleged crime." We conclude any error by the court in failing to instruct the jury with the former version of CALCRIM No. 1140, which was based on former section 288.2, subdivision (a), was harmless.
Whether the instruction given the jury correctly stated the law at the time of defendant's offense is assessed under a de novo standard of review. (People v. Posey (2004) 32 Cal.4th 193, 218 ["de novo standard of review is applicable in assessing whether instructions correctly state the law"].)
At the time of defendant's offense, section 288.2, subdivision (a)(1) read: "Every person who, with knowledge that a person is a minor, . . . knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, . . . any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment . . . ." (Stats. 2012, ch. 43, § 16 [effective June 27, 2012 to Dec. 31, 2013].) Section 288.2 was repealed and reenacted as amended, effective January 1, 2014. (Stats. 2013, ch. 777, §§ 1-2.) Among other changes, the current version omits the phrase "seducing a minor" and defendant's argument focuses on this change to the intent element. Now, rather than providing that the offense be committed "with the intent to or for the purpose of seducing a minor" (former § 288.2, subd. (a)(1)), the current version of the statute states the offense must be committed "with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touch an intimate body part of the other." (§ 288.2, subd. (a)(1)).
In count 7, defendant was charged with exhibiting pornography to a minor on or about and between August 7, 2012 and December 10, 2012.
The current version of section 288.2, subdivision (a) reads: "(1) Every person who knows, should have known, or believes that another person is a minor, and who knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including by physical delivery, telephone, electronic communication, or in person, any harmful matter that depicts a minor or minors engaging in sexual conduct, to the other person with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the minor, and with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touch an intimate body part of the other, is guilty of a misdemeanor, punishable by imprisonment in a county jail not exceeding one year, or is guilty of a felony, punishable by imprisonment . . . . [¶] (2) If the matter used by the person is harmful matter but does not include a depiction or depictions of a minor or minors engaged in sexual conduct, the offense is punishable by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison for 16 months, or two or three years. [¶] (3) For purposes of this subdivision, the offense described in paragraph (2) shall include all of the elements described in paragraph (1), except as to the element modified in paragraph (2)." The current version also states "an intimate body part includes the sexual organ, anus, groin, or buttocks of any person, or the breasts of a female." (§ 288.2, subd. (d).)
Defendant contends that the current statutory language "covers more conduct than the version of the statute in effect at the time of [his] alleged crime." In support, he relies on People v. Hsu (2000) 82 Cal.App.4th 976 (Hsu) and People v. Jensen (2003) 114 Cal.App.4th 224 (Jensen), both of which discussed the requirement in former section 288.2, subdivision (a)(1), that the defendant intend to seduce a minor. Among the issues considered in Hsu was the defendant's contention that the term "'seducing'" in former section 288.2 was impermissibly vague. (Hsu, at p. 992.) The appellate court noted that "'seduce'" is defined as "'to lead astray'" or "'persuading into partnership in sexual intercourse.'" (Ibid.) The court concluded that in the context of section 288.2, "with its references to gratifying lust, passion, and sexual desire, people of ordinary intelligence [citation] would readily understand 'seducing' as used here to mean the latter . . . ." (Hsu, at p. 992.)
In Jensen, "the intent or for the purpose of seducing a minor" element in former section 288.2 was examined, this time in the context of determining whether the intent to entice a male minor to masturbate himself satisfied the element. (Jensen, supra, 114 Cal.App.4th at pp. 236-241.) Jensen agreed with Hsu that "the word 'seducing'" as used in former section 288.2 was intended to have the "meaning of 'carry[ing] out the physical seduction of: entic[ing] to sexual intercourse.' [Citation.] And, in this context, 'sexual intercourse' clearly refers to 'intercourse involving genital contact between individuals' . . . ." (Jensen, at p. 239.) "Thus, the 'seducing' intent element of the offense requires that the perpetrator intend to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor." (Id. at pp. 239-240.) The Jensen court concluded "[i]ntending to entice a male minor to masturbate himself does not satisfy this 'seducing' intent element . . . ." (Id. at p. 240.)
At the time of defendant's offense in 2012, CALCRIM No. 1140, the pattern instruction on the elements of section 288.2, subdivision (a), required the prosecution to prove, among other elements, that "[w]hen the defendant acted, (he/she) intended to seduce the minor . . . ." (Former CALCRIM No. 1140 (2013).) Adopting language from Jensen, former CALCRIM No. 1140, supra, explained that "[t]o seduce a minor means to entice the minor to engage in a sexual act involving physical contact between the seducer and the minor."
Here, however, the jury was instructed with the revised version of CALCRIM No. 1140, based on the current version of section 288.2, subdivision (a). As to the intent element, the jury was instructed: "When the defendant acted, he intended to engage in sexual intercourse, sodomy, [or] oral copulation with the other person or to have either person touch an intimate body part of the other person."
When discussing the proposed jury instructions, neither the court nor the parties recognized that CALCRIM No. 1140 had been revised based on changes in the statute occurring after defendant's offense.
Defendant contends "'seducing' refers to sexual intercourse through genital contact," and therefore "the former version of section 288.2, subdivision (a) describes an intent more narrow than the intent set forth in the current version of the statute and reflected in the jury instructions in this case." Defendant's argument that "seducing" refers only to sexual intercourse is undermined by Jensen, supra, 114 Cal.App.4th 224 and former CALCRIM No. 1140, supra, as they provided "'the seducing' intent element" (Jensen, at pp. 239-240), is satisfied if the perpetrator intends "to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor." (Id. at p. 240; CALCRIM No. 1140, supra.) Thus, under former section 288.2, subdivision (a), a defendant could be convicted of violating the statute if the prosecution proved the defendant intended to entice the minor to engage in any various sexual acts involving physical contact between the minor and the perpetrator; the offense was not limited to only proof of intent to entice the minor to engage in sexual intercourse. (See People v. Nakai (2010) 183 Cal.App.4th 499, 510 [evidence indicated the defendant intended to entice the victim to engage in either sexual intercourse or oral copulation].) Comparing the former and current versions of section 288.2, it seems the current version is simply more descriptive as it identifies the sexual acts that were encompassed within the term "seducing" in the former version. The current version of the statute requires a defendant intend to engage in "sexual intercourse, sodomy, or oral copulation with the other person" or intend for either him or the minor to "touch an intimate body part of the other" (§ 288.2, subd. (a)(1)), all of which qualify as "sexual act[s] involving physical contact between the perpetrator and the minor" under the former version. (Jensen, at p. 240; see id. at p. 239.)
More troubling, however, is defendant's second point that "the concept of seduction" of the minor was completely omitted from the current version of section 288.2 and the instruction given the jury. Former section 288.2, subdivision (a), required the defendant exhibit the pornography to the minor "with the intent or for the purpose of seducing [the] minor." As defendant notes, the instruction given the jury only required the prosecution prove defendant "intended to engage in sexual intercourse, sodomy, [or] oral copulation . . . ." (CALCRIM No. 1140) not that the defendant intended to entice or persuade the minor to participate in these sexual acts. Defendant argues this omission makes the intent element of the former statute "substantively different from the intent" element in the instruction given the jury. The Attorney General does not directly address this issue but argues "all illegal intents under the current statute would have been prohibited under the former version of the statute." Arguably, the intent to entice or persuade a minor to engage in sexual acts with physical contact under former section 288.2, subdivision (a), is the same as the intent to engage in the listed sexual acts in the current statute. Under both versions of the statute, the defendant is punished for exhibiting pornography to a minor with the intention of engaging in sexual acts involving physical contact with a willing minor. We note "[t]he purpose of section 288.2 is to prohibit using obscene material, . . . 'to groom young victims for acts of molestation.'" (People v. Powell (2011) 194 Cal.App.4th 1268, 1287.) Ultimately, we need not decide if the variations between the current and former statute and jury instructions were material because even assuming the instruction given to the jury improperly described an element of the offense, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; Jensen, supra, 114 Cal.App.4th at p. 241.)
The evidence established defendant was grooming Jane with the intention of enticing her to engage in sexual intercourse and other sexual acts with him and showing her pornography was part of that process. His conduct began by telling Jane that he loved her and could buy her things if she fell in love with him. His behavior then progressed to attempting to kiss Jane, touching her intimate parts, and culminated in him orally copulating her in the garage. In her CAST interview, Jane stated that defendant showed her a pornographic video and told her that one day he would do that to her, then sticking out his tongue. Defendant also made comments to Jane about them having children together, indicating his intent to entice her to engage in sexual intercourse with him. Considering all of defendant's actions, it is clear that defendant intended to seduce Jane when he showed her the pornography on his iPod. Indeed, there was no evidence defendant harbored a different intent when he showed her the pornography. Thus, the record demonstrates beyond a reasonable doubt that the error did not contribute to the verdict on count 7. (People v. Gonzalez (2012) 54 Cal.4th 643, 663.)
CLERICAL ERROR
At sentencing, the court ordered "defendant to provide a DNA sample pursuant to [sections] 296 and 296.1" and did not impose any fee in connection with this collection of the DNA sample. The minute order for defendant's sentencing, however, states that defendant was ordered to provide a "local DNA sample" to the Orange County District Attorney and pay a $75 administrative fee to the Orange County District Attorney's Office. We agree with the parties that the minute order for defendant's sentencing must be corrected because it does not accurately reflect the court's oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We direct the court to strike this portion of its minute order so that it accurately reflects the court's oral pronouncement of judgment.
DISPOSITION
The trial court is directed to correct the minute order of January 12, 2018, by striking the provision that defendant pay a $75 administrative fee to the Orange County District Attorney's Office in connection with the collection of a local DNA sample. In all other respects, the judgment is affirmed.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.