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referring to Joshua's testimony and cross-examination
Summary of this case from Gearhart v. GasteloOpinion
H041051
01-09-2017
THE PEOPLE, Plaintiff and Respondent, v. KEVIN ALBERT GEARHART, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1246006)
Defendant Kevin Albert Gearhart was convicted by jury trial of one count of continuous sexual abuse of a child (Pen. Code, § 288.5) and seven counts of lewd acts on a child under 14 (§ 288, subd. (a)). The jury also found true multiple victim allegations (§§ 1203.066, subd. (a)(7), 667.61, subds. (b) & (e)) as to five of the lewd act counts. Defendant was sentenced to 75 years to life consecutive to a determinate term of 20 years in state prison.
Subsequent statutory references are to the Penal Code unless otherwise specified.
On appeal, he contends that the trial court prejudicially erred in (1) admitting expert testimony about child sexual abuse accommodation syndrome (CSAAS) and (2) instructing the jury with CALCRIM No. 1193 on the limited purpose of the CSAAS testimony. He also asks this court to review sealed school records that a judge refused to disclose to the defense to determine whether they contain any discoverable material. We reject his contentions, find no error in the judge's refusal to disclose materials in the sealed records, and affirm the judgment.
I. Factual Background
Joshua and Aidan were both born in 2000 and were best friends. Aidan frequently spent the weekend at Joshua's home. Defendant was close friends with Joshua's parents. He had known Joshua's father since they were in middle school. Defendant lived with Joshua's family from 2005 to 2010 and again beginning in 2012. Defendant spent a lot of time with Joshua, and Joshua called him "Uncle Kevin." Even when defendant was not living with Joshua's family, he spent time with Joshua. Defendant took Joshua out to "do fun things" and on "[r]oad trips." Defendant did not like it when Joshua would spend time with other males.
When Joshua was five or six years old, defendant put his hand under Joshua's pants and rubbed Joshua's "butt" while they were watching a movie in defendant's room. Joshua told his mother that defendant had "touched his butt." Joshua's mother asked defendant about this, and defendant just "shrugged his shoulders." Defendant said he was just pushing Joshua along.
Subsequently, defendant began pulling down Joshua's pants and underwear and touching Joshua's penis. He did this more than 10 times. Sometimes he would squeeze Joshua's penis. Defendant also continued to touch Joshua's "butt." These touchings occurred in defendant's bedroom, in the living room of Joshua's home, at defendant's apartment, and in defendant's truck. Twice defendant displayed his penis to Joshua. Defendant showed Joshua photographs of naked people, including photos of defendant's girlfriend. The events in Joshua's home occurred when Joshua's parents were not home. Joshua told defendant to "stop" and said he "didn't like it," but defendant would not stop. Defendant told Joshua " 'if you tell, I'll go away.' " He also told Joshua that he would "go away for a long time." Defendant said: "I'll keep your secrets if you keep mine." By "secrets," Joshua understood defendant to be referring to the sexual contact between the two of them. Joshua did not tell because he did not want defendant to go away.
Joshua's family and defendant's family made yearly visits to Pinecrest to go camping. In August 2012, Joshua and Aidan rode with defendant in defendant's truck on a trip to Pinecrest. The three of them were "playing truth or dare" during the trip to Pinecrest. Defendant dared the boys to "moon[]" other drivers, and they did so. The boys jokingly dared him to masturbate, "not thinking he would." Defendant took out his penis and masturbated while he was driving the truck. Defendant then dared Joshua "to suck Aidan's penis" for 10 seconds. Joshua did not want to do this, but defendant "kept calling me a 'pussy' " so Joshua complied. Defendant also dared Aidan to suck Joshua's penis. Defendant called Aidan a "pussy," and Aidan felt that he too had to comply. Defendant watched the boys as each of them sucked the other's penis. Defendant told the boys that he would "go to jail for a long time" if they said anything about this conduct. Aidan did not tell anyone because he thought defendant was "a cool person and I didn't want him to go to jail."
During the trip to Pinecrest, defendant told Joshua and Aidan "that he was bisexual and he did the same thing with [other boys] like sucked each other's penises and that stuff." Defendant identified the other "boys" as "Sean, Tim and Justin." Justin was a friend of defendant who had lived with Joshua's family beginning in 2008 for a couple of years. Defendant showed Aidan and Joshua a video on his phone of a man and a woman having sex. On a subsequent occasion, defendant told Aidan that "if he had to, he would suck me and Joshua's penises."
In November 2012, defendant told Joshua that there was a present in the closet in defendant's bedroom. He said that if Joshua opened the closet, " 'I will suck your penis.' " Joshua did not believe him, and he opened the closet door. Defendant "chased me onto his bed and grabbed my pants." Joshua responded by dialing 911 on his phone, which caused defendant to "back off."
Joshua's mother repeatedly asked him " '[i]s anyone doing anything to you,' " but Joshua always said no. He feared telling her because it would cause defendant to leave. At some point in 2012, Joshua began refusing to "get in the car with" defendant. In December 2012, Joshua's mother asked him to let defendant drive him to school, and Joshua looked at her with "fear in his eyes" and said " 'no.' " His mother then pressed him to tell her what was " 'going on.' " Joshua began crying and told her that defendant had been touching him sexually. He also told her that Aidan was "involved." Joshua's parents contacted the police and Aidan's parents. Joshua told his father that defendant had been touching him for a long time. Aidan told his mother that defendant had been molesting him.
Defendant was immediately arrested and interviewed by the police. He volunteered that he thought "probably the reason why I'm here" was because Joshua had told his parents about "playing Truth or Dare" and that "I exposed myself." Defendant admitted masturbating in front of Joshua and Aidan in the truck. He also admitted daring them to "moon" a passing car. Defendant at first claimed that Joshua and Aidan had sucked each other's penis on their own dares. When he was asked if there was anything else Joshua might have reported, defendant said that it was possible that Joshua thought that defendant touching Joshua's genitals while "wrestling" had not been inadvertent. He also suggested that he might have "went too low" while giving Joshua a backrub. Defendant recalled an incident when Joshua had told him he " 'went too far,' " but he claimed it had been unintentional. He conceded that his hand might have gone down Joshua's pants. Defendant insisted that he would never molest anyone because he had been sexually molested by a man when he was 16 years old.
A video-recording of the interview was played for the jury.
Defendant told the police about an incident involving a present when Joshua's pants were pulled down, and defendant put his hands in Joshua's "private area." He also admitted that he had shown Joshua porn on his phone. Defendant ultimately admitted that he might have touched Joshua's penis "unintentionally" as many as 20 times while they were "roughhousing." He also conceded that he might have put his hand down Joshua's pants to retrieve something Joshua had stuffed down his pants and grabbed Joshua's penis "a good six or seven times" "if not more." Eventually, defendant admitted that he had dared Joshua and Aidan to suck each other's penis during the Pinecrest trip. However, he denied that he had gotten "any sexual gratification" from seeing them do so.
Defendant admitted telling Joshua and Aidan that he had had sexual relationships, including "sucking penises," with Jason, Justin, and Sean when he was younger. He told the police that Jason was 10 years old at the time. He admitted that he and Jason had attempted anal intercourse. Defendant admitted that Justin was "11 or 12" and defendant was "17 or 18" when defendant sucked Justin's penis. When Justin was older, they had anal sex. Sean was a adult and "was a one time thing." Defendant described himself as bisexual.
The police searched defendant's bedroom and found a photo of a young boy with his pants down and a photo of a nude teenage boy. Each photo displayed the subject's penis. One of these photos was of Justin. They also found multiple photos of Joshua in his underwear and of Joshua lying on a bed with his hand down his pants.
II. Trial
Jason testified for the prosecution at trial. Defendant had touched, rubbed, masturbated, and sucked on Jason's penis on multiple occasions beginning when Jason was eight or nine years old and continuing for three or four years. Defendant was four years older than Jason. Twice defendant had asked Jason to penetrate him anally. Jason tried twice and was successful one time. They also kissed each other. Defendant told Jason not to tell anyone.
Justin also testified for the prosecution at trial. He was eight years old when he met defendant, and defendant was about seven years older. He also knew Jason, Sean, Joshua, Aidan, and Joshua's parents. Justin lived with Joshua's parents for about a year and a half beginning when he was 21 years old. When Justin was about 10 years old, he began spending a lot of time with defendant. Defendant would take Justin on trips. Justin was 12 or 13 years old when he and defendant became sexually intimate. They touched each other's penis about seven times and kissed a couple of times. A couple of years later, they had anal intercourse a couple of times. There were also a couple of instances where they orally copulated each other. Defendant told Justin that these activities "needed to be [kept] between us two." These sexual activities stopped when Justin was 15 or 16 years old.
Miriam Wolf testified for the prosecution as an expert on CSAAS. Wolf explained that she was a licensed social worker with extensive experience interviewing child sexual abuse victims. At the beginning of her testimony, Wolf acknowledged that she was in no position to render any opinion about whether a particular child had been sexually abused. Wolf knew nothing about the facts of this case. She was familiar with CSAAS, which was based on the work of Dr. Roland Summit. CSAAS was not a "diagnostic tool." Instead, it sought to "describe common patterns of behavior and to explain those patterns of behavior because some times children do things that are quite counterintuitive to what adults may expect."
Wolf's substantive testimony on direct was quite brief. Her cross-examination was similarly brief.
Summit described five "categories of behavior": "secrecy, helplessness, entrapment and accommodation, delayed conflicted and unconvincing disclosure, and . . . retraction." Secrecy described a child sexual abuse victim's perception that the molestation must be kept secret. Helplessness described the child-victim's lack of power. Entrapment and accommodation referred to the child-victim's attempt to cope with the abuse. Delayed, conflicted, and unconvincing disclosure was a category acknowledging that a child-victim will often delay reporting sexual abuse, be conflicted about disclosing it, and make disclosures "incrementally." Retraction described a child-victim's possible response to the adverse consequences of a disclosure.
Sean testified at trial for the defense. Sean had been a close friend of defendant for 12 years and was close to defendant's family. He testified that Joshua's father had told Sean that he and his wife had talked to Joshua "for hours" before Joshua spoke to the police. Sean testified that on the day of defendant's arrest defendant had admitted to Sean that he had "pulled his pants down in front of Joshua and one of Joshua's friends" but insisted that this was all that happened. Sean's son, a 14-year-old boy, testified for the defense. He had known defendant his entire life, and defendant had "babysat" him. He testified that defendant had never touched him in an inappropriate way.
Annette Ermshar, a psychotherapist and forensic psychologist, testified for the defense as an expert on CSAAS. Ermshar emphasized that CSAAS was based on Summit's "clinical observations" of children who had been sexually abused. She testified that CSAAS was "a confirmatory bias model" because it assumed that the child had been abused and looked for evidence to support that assumption. In contrast, the "forensic psychology model" began from a neutral standpoint and weighed all of the evidence to determine what had occurred. Ermshar explained that the five categories of behaviors identified by CSAAS were not relevant to a determination of whether the child had been abused because those behaviors could occur in children who had not been abused. She asserted that, unlike at the time of Summit's observations, now "most people would know" about the behaviors that CSAAS identifies. On cross-examination, Ermshar reluctantly conceded that the behaviors identified by CSAAS were not inconsistent with a child having been sexually abused.
The prosecutor mentioned the CSAAS evidence during his argument to the jury. "You've also heard testimony about [CSAAS]. And both experts, both Ms. Wolf and Ms. Ermshar acknowledge it's not a syndrome but it's certainly helpful in evaluating some of the myths and misconceptions. And contrary to what Ms. Ermshar just said on the stand, I don't think everybody appreciates all the myths and misconceptions that abound in society about what children would do. It's not obvious to everyone." Defense counsel objected to this argument, and the court struck the last portion. The prosecutor then continued: "We know from the testimony in this case what the value is. You heard from Miriam Wolf who was very objective, who acknowledged some of the shortcomings with [CSAAS] testimony. [¶] She also shared with you the extreme value it has still, even today and it sheds often light in helping us understand why children may act the way they do, why they may delay disclosure; why they may maintain secrecy, why they may feel helplessness."
Defendant's trial counsel's argument to the jury repeatedly relied on Ermshar's testimony about the "concept of a confirmatory bias model" as opposed to "the forensic model." He argued that all of those to whom Joshua and Aidan had disclosed the molestations, including their parents and the police, had utilized the confirmatory bias model. "[W]hat I'm suggesting to you is that the reason, the logic the forensic approach to this case has led to you as fact finders to approach this case with, was this confirmatory bias model used? Was the forensic model used?" Defense counsel also argued that Joshua was "subject to suggestibility" because he was a child. He claimed that there was a "double standard" because the children had been interviewed in "a nice environment" while defendant had been interviewed in "the interrogation room" while "chained to a desk . . . ."
III. Discussion
A. Admission of CSAAS Evidence
Defendant claims that the trial court prejudicially erred in admitting expert testimony about CSAAS.
1. Background
The prosecution made an in limine motion seeking admission of CSAAS evidence. It maintained that the evidence was relevant to "disabuse the jurors of myths and misconceptions surrounding the reactions of children to acts of sexual abuse." It would "be limited to a discussion of victims as a class" and "will not extend to a discussion or diagnosis of the victims themselves or whether they were indeed victims of sexual abuse in this case." The prosecution asserted that the CSAAS evidence would be relevant as to four of the five categories of behavior.
The defense also filed an in limine motion concerning CSAAS evidence. It acknowledged that CSAAS evidence was admissible to "dispel myths about victims as a class." The defense asked that the prosecution be required to "specify the alleged myth" and that the evidence "be narrowly limited to only those items found by the court to actually be myths." The defense also requested a limiting instruction on the CSAAS evidence.
At the hearing on the in limine motions, the defense made a pro forma request for exclusion of CSAAS evidence. "Obviously in a perfect world for me there would be no CSAAS and obviously there is 1193 CALCRIM that allows for it and uses, I think that may use the exact 'dispelling myths.' " "[I]n a perfect world I'd like to keep that out. Now, there is a CALCRIM and everything else that controls what happens so I hope that expresses that I was just making a record and I understand what the ruling may be." "[I]t didn't pass Kelly . . . and we think it's junk science . . . ." "[T]hose myths are really not myths. They don't need to be emphasized with an expert in this case." "[W]e would ask it be excluded entirely from this trial . . . ."
The court overruled the defense objection and granted the prosecution's request for admission of CSAAS evidence.
During his cross-examination of Joshua, defendant's trial counsel attempted to highlight inconsistencies between Joshua's trial testimony and his prior statements. In addition, the defense adduced testimony from the officer who had interviewed Joshua in an attempt to show inconsistencies between Joshua's testimony and his earlier statements. Defendant's trial counsel also elicited Joshua's testimony that he had continued to spend time with defendant after defendant began molesting him.
Defendant's trial counsel also elicited Joshua's testimony that he was mad at defendant for removing stickers from Joshua's bedroom wall.
2. Analysis
Defendant asserts that "CSAAS evidence should be held inadmissible in California for all purposes." Defendant cites cases from other states that bar CSAAS evidence as irrelevant and unduly prejudicial, but he acknowledges that California courts have long rejected this argument and permitted the admission of CSAAS evidence.
"The governing rules are well settled. First, the decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.' [Citations.] Second, '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; if that were the test, little expert opinion testimony would ever be heard. . . . [E]ven if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when " ' "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness" ' [citation]." (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300 (McAlpin).)
" '[CSAAS] 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.' " (McAlpin, supra, 53 Cal.3d at p. 1301.) There are, of course, limitations on the use of CSAAS evidence. "First, the CSAAS evidence must be addressed to a specific 'myth' or 'misconception' suggested by the evidence. [Citation.] Second, 'if requested the jury must be admonished "that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true. . . . The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." ' " (People v. Housley (1992) 6 Cal.App.4th 947, 955.)
Since CSAAS testimony is plainly admissible in California, we need not address defendant's reliance on out-of-state authority.
In this case, the trial court could have reasonably concluded in its discretion that expert testimony about CSAAS testimony would be helpful to assist the jury by disabusing the jurors of commonly held misconceptions about child sexual abuse victims. Expert testimony is admissible if it will add to the jury's knowledge about a subject. As a result of her many years of experience in this field, Wolf had considerably more knowledge than jurors had about the behavior of alleged child sexual abuse victims. Thus, Wolf's testimony on this subject would assist the jurors in understanding such behavior. The evidence raised issues concerning four of the five categories of behaviors addressed by the CSAAS testimony. Joshua testified that he had kept defendant's abuse of him secret for years. His unsuccessful attempts to stop the abuse demonstrated his helplessness. Joshua acknowledged that he had accommodated the abuse by complying with defendant. The evidence established that Joshua's disclosures of the abuse were long delayed and that he did not immediately reveal the full extent of the abuse. Wolf's testimony gave the jury important background information about how child sexual abuse victims may react to the abuse so that the jury could understand " 'the emotional antecedents of abused children's seemingly self-impeaching behavior.' " (McAlpin, supra, 53 Cal.3d at p. 1301.) We reject defendant's claim that the trial court abused its discretion in admitting the expert testimony on CSAAS.
Although retraction was not a relevant category in this case, the testimony about retraction was brief and nonprejudicial. --------
Defendant claims that CSAAS testimony should have been excluded because it "may be misunderstood or misapplied" and "cannot possibly be limited to the description of myths surrounding abuse." He maintains that jurors are likely to "misconstrue" this evidence "as corroboration of the victim's claims." The trial court gave the limiting instruction requested by the defense, and this instruction precluded the jurors from using the CSAAS testimony as evidence that Joshua and Aidan had been molested. Since "[j]urors are presumed to understand and follow the court's instructions" (People v. Holt (1997) 15 Cal.4th 619, 662), we reject defendant's claim that the jurors were likely to use the CSAAS evidence for improper purposes.
Defendant also contends that the trial court should have excluded the CSAAS evidence under People v. Kelly (1976) 17 Cal.3d 24 (Kelly).
"In People v. Kelly (1976) 17 Cal.3d 24 (Kelly), [the California Supreme Court] held that evidence obtained through a new scientific technique may be admitted only after its reliability has been established under a three-pronged test." (People v. Bolden (2002) 29 Cal.4th 515, 544.) "Kelly/Frye only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law." (People v. Stoll (1989) 49 Cal.3d 1136, 1156 (Stoll).) Kelly applies only where "the unproven 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. The most obvious examples are machines or procedures which analyze physical data. Lay minds might easily, but erroneously, assume that such procedures are objective and infallible." (Stoll, at p. 1156.) "[A]bsent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly/Frye." (Stoll, at p. 1157.)
CSAAS testimony is not new to science or the law. California courts have long held that Kelly does not apply to the admission of CSAAS testimony. (People v. Harlan (1990) 222 Cal.App.3d 439, 448.) CSAAS testimony does not purport to provide any "definitive truth" but merely attempts to allay misconceptions that laypersons may harbor about the conduct of molestation victims. This type of expert testimony lacks any "special feature" that might "blindside[]" the jury, and therefore is not subject to Kelly. The trial court did not err in overruling defendant's Kelly objection to the admission of the CSAAS evidence.
B. CALCRIM No. 1193
Defendant contends that the trial court prejudicially erred in giving CALCRIM No. 1193 because the final eight words of the instruction tell the jury that it can consider CSAAS evidence in evaluating the "believability" of the child-victims.
Defendant requested that the court give CALCRIM No. 1193, and the court did so, both before and after the expert witnesses testified. Defendant did not object to the version of CALCRIM No. 1193 that the court gave or ask for any modification of it.
The court instructed the jury: "You heard testimony from two court designated expert witnesses, Miriam Wolf and Annette Ermshar regarding child sexual abuse accommodation syndrome. Their testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this . . . testimony of these two expert witnesses only in deciding whether or not Joshua Doe and or Aidan Doe's conduct was not inconsistent with the conduct of someone whose [sic] been molested, and in evaluating the believability of their testimony."
Defendant now claims that the final eight words of the instruction permitted the jury "to consider this expert testimony as supportive of the truth of the allegations made against the defendant." He asserts that "the instruction was telling the jury they [sic] could use CSAAS to prove the victim was molested because he is credible."
Defendant's claim that CALCRIM No. 1193 permitted the jury to "use CSAAS to prove the victim was molested" is belied by the language of the instruction. CALCRIM No. 1193 told the jury that the CSAAS evidence "is not evidence that the defendant committed any of the crimes charged against him." (Italics added.) It also told the jury that the "only" "limited purpose" for which it could use the CSAAS evidence was "in deciding whether or not Joshua Doe and/or Aidan Doe's conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony." No reasonable juror could have concluded from this language that he or she could properly use the CSAAS evidence as a basis for determining whether the molestations occurred. While it is true that evaluating an alleged molestation victim's "believability" may ultimately assist the jury in determining whether to credit the victim's testimony that the molestations occurred, the same may be said of any evidence that is admitted solely on the issue of a witness's credibility. As CSAAS evidence may properly be used to determine whether a child-victim's conduct was inconsistent with that of a person who has been molested, it could properly be used to evaluate a child-victim's credibility. The trial court did not err in giving CALCRIM No. 1193 because the instruction properly advised the jury of the limited purpose to which it could put CSAAS evidence.
C. Sealed Records
School records of Aidan and Joshua were reviewed by a judge in camera. The judge ordered that none of the records were to be disclosed to the defense. Defendant asks that we review those records. We have reviewed the sealed records. They contain no relevant information that merited their disclosure to the defense. The judge did not err in declining to disclose any of these records.
IV. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.