Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of Riverside County, No. SWF015072, Richard John Hanscom, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
Defendant was found guilty of 50 counts of committing a lewd act with a child. (Pen. Code, § 288, subd. (a).) Twenty-five of the counts dealt with victim J.M. and the remaining 25 counts related to J.M.’s cousin, M.M. The jury also found true an allegation that defendant committed an offense against more than one victim. (§ 667.61, subd. (e)(5).) He was sentenced on counts 1 and 26 to consecutive sentences of 15 years to life. On each of the remaining 48 counts, he was sentenced to concurrent terms of 15 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
At the time of trial M.M. was 10 years old and J.M. was 13 years old.
On appeal, defendant contends there was insufficient evidence to support his convictions on counts 22 through 25, the last four counts dealing with victim J.M. He further argues the court erred when it admitted evidence of child sexual abuse accommodation syndrome (CSAAS). We conclude that substantial evidence existed to support the convictions on counts 22 through 25. We further conclude that defendant forfeited any argument as to the admissibility of CSAAS testimony by failing to object to such testimony below. Accordingly, we affirm the judgment.
II. SUMMARY OF FACTS
Leticia P. is the grandmother of M.M. and J.M. J.M.’s mother is Luz L.; M.M.’s mother is Patricia P.
For ease of reference, we will refer to family members by their first names.
Leticia met defendant in 1998 and they began dating in 1999. From August 2004 to May 2005 defendant lived with Leticia in her Hemet home. Patricia and Luz trusted defendant and considered him part of their family. J.M. and M.M. spent holidays and vacations at Leticia’s house and looked upon defendant as their grandfather.
Leticia testified that when J.M. and M.M. spent the night at her house, defendant would offer to bathe them because he said they did not wash their hair well enough. Usually, he would bathe them while they were standing up in the bathtub. After the baths, defendant would apply lotion to the children.
On May 24, 2005, Leticia was walking down the hall and heard J.M. say “ouch” from within the bathroom. She opened the door. J.M. said “ouch” again and Leticia saw defendant move his hand out of the water. He was seated on the tub and one of his hands was under the water; J.M. was on her back inside the water, with her legs completely extended. Leticia could not see exactly where defendant’s hand was. Defendant seemed surprised. Leticia told him to get out of the bathroom; he responded by saying that he was not doing anything wrong. The next day Leticia called her daughters, Patricia and Luz.
After the telephone call from Leticia, Luz had a conversation with J.M. J.M. was nine or ten years old at that time. J.M. first denied that defendant touched her; then she started to cry. Thereafter, J.M. told her that defendant had put his finger inside her a couple of times. She also told Luz that defendant tried to put his penis in her.
Patricia spoke with M.M. after the call from Leticia. M.M. was approximately eight years old at that time. M.M. initially told Patricia that nothing happened. Eventually, she said that defendant rubbed lotion outside her vagina. M.M. denied that defendant put his finger inside her.
In November 2005, Denise Rodriguez-Bowman, a forensic interviewer with Child Protective Services, conducted interviews of M.M. and J.M. She first interviewed M.M. M.M. indicated that nothing happened to her and that no one touched her vagina. She stated that when she was at her grandmother’s house she would take a bath by herself and that nothing happened in the bathroom.
Ms. Rodriguez-Bowman next interviewed J.M. J.M. indicated that something had happened to her. Defendant would wash her and her cousin’s hair and then they would scrub themselves. Defendant touched her on the “top part” of her vagina with his hand. He would rub his hand up and down. He also touched her on her chest. She “guess[ed]” he touched her vagina more than five times. It “happened a lot of time with [M.M.]” present. She saw defendant touch M.M. and do “the same thing” with M.M. It happened a lot of times with M.M. J.M.’s grandmother found out because the last time she was in the bath, defendant put his finger inside her vagina. Defendant told her not to tell anyone.
Immediately following the interview with J.M., the two children were placed together in one room without the interviewer present. The children asked each other what the other had said. J.M. said that she told the truth; M.M. indicated she did not. J.M. told M.M., “[y]ou gotta talk to her.” Thereafter, the interview with M.M. resumed. M.M. indicated that defendant had touched her vagina many times with his hand while she was in the bathtub.
At trial, J.M. testified to the following. She and M.M. spent the night at Leticia’s house almost every weekend. They would take baths in the bathroom off the hallway. Every time they took a bath, defendant was in the bathroom with them. Defendant was there because he wanted to give them a bath. The bathroom door would be closed. Defendant would wash their bodies with a sponge. He would then put the sponge in the water and touch their “private part[s]” with his hand. He would then pick up the sponge and wash other parts of her body. Her private part was the only part of her body that he would wash with his hand; elsewhere, he would use the sponge. He had soap on his hand when he washed her private part. He would do this every time she and M.M. were in the bath. Each time, he would touch her private part two or three times. This occurred on more than 20 occasions.
J.M. further testified that on the evening that Leticia came into the bathroom, she had said “ouch” when defendant put his finger inside her private part. Later that night, defendant told her to tell Leticia that she said “ouch” because he smacked her on her butt.
M.M. testified that she spent a lot of nights with her grandmother in Hemet. Defendant “did a lot of things bad” to her and her cousin. When she and J.M. were taking baths, defendant touched her vagina. He would also rub lotion on her vagina when they were in her room. He did this a “lot of times.” When asked how many times, she said, “Like 20.” He also put lotion on J.M.
Trevor Montgomery, an investigator with the Riverside County Sheriff’s Department, interviewed defendant at the Hemet sheriff’s station in January 2005. Initially, defendant indicated that his only contact with M.M. and J.M. was to assist them in bathing. Defendant explained that J.M. said “ouch” because he had smacked her on the leg for not bathing quickly enough. After the investigator told defendant that defendant’s DNA had been found inside J.M.’s vaginal cavity, defendant said that he had been telling J.M. that “‘[b]oys will try to do this and don’t let them do this,’” when his finger inadvertently penetrated the vaginal area. Investigator Montgomery testified that defendant speculated that he had touched the outer portion of J.M.’s vagina possibly as many as 25 times.
On cross-examination, Investigator Montgomery said that he, not defendant, came up with the number 25. He explained that when he asked defendant if he had touched the girls’ vaginas or breasts as many as 25 times, defendant said, “possibly that many, but probably not” or “maybe not.” Defendant did not actually specify a number.
Defendant admitted to Investigator Montgomery that he had touched the top outer layer of skin on M.M.’s vagina, as well as her breast area. He said that he had done so as many as 25 times, but not more than that. He said the reason he did not digitally penetrate M.M. was that her vagina was not large enough to accommodate his finger and he was afraid that he would hurt her.
After some prompting from the witness, defendant wrote a letter to J.M. in which he wrote: “‘I never meant to do to you what the officer said. You know I love you berry, berry much. You guy [sic] are like my grand kids, my little elves.’” When he was asked why he wrote, “never meant to do to [you] what the officer said” (italics added), instead of writing that he did not mean to do what he did, defendant said “it just hurt too much to write it down.” Later in the interview, defendant indicated that J.M. said “ouch” because the digital penetration caused her pain. At the end of the interview, he admitted to digitally penetrating J.M. without the explanation of what boys will try to do. Defendant indicated he did not know why he did it and did not mean anything by it, but that he was drawn to them and incapable of helping himself.
The People presented evidence of CSAAS through the testimony of Dr. Jody Ward. Dr. Ward explained that CSAAS “is a pattern of behaviors that many children exhibit once they’ve been sexually abused.” One aspect of this syndrome is that children do not immediately report sexual abuse; another is that children may recant or deny the abuse. The expert further explained that children who do disclose abuse may not initially disclose all of the information, but may disclose more as they become more comfortable with the interviewer. Defendant did not object to Dr. Ward’s testimony.
The defense did not call any witnesses.
III. ANALYSIS
A. Substantial Evidence Supports Defendant’s Convictions on Counts 22 Through 25
Counts 1 through 25 dealt with lewd and lascivious acts committed by defendant on J.M. Defendant submits that while there was sufficient evidence relative to the first 21 counts, there was no testimony to support the last four counts. He argues that because J.M. testified that she believed she took “more than 20” baths, there is only sufficient evidence to support 21 baths, hence defendant can be convicted of only 21 counts. He further argues that to the extent there may have been multiple lewd acts that occurred in each bath, there is no evidence that each act was sufficiently distinct to constitute a separate count. We disagree.
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “We do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. [Citation.] We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. [Citations.]” (People v. Upsher (2007) 155 Cal.App.4th 1311, 1322.) Here, there was more than enough evidence to support the conclusion that defendant committed well in excess of 25 lewd acts upon J.M.
A violation of section 288, subdivision (a) “is said to occur when the defendant ‘touches’ a child under the age of 14 with the requisite specific intent. [Citations.] [¶]... A lewd and lascivious act... has been found... where the defendant fondles the victim’s ‘private parts’.... [Citations.]” (People v. Scott (1994) 9 Cal.4th 331, 342-343 (Scott).) Here, the requisite conduct is present. The sole issue is whether there is sufficient evidence to support convictions for 25 counts.
The Scott court held that a defendant could be found guilty of separate counts of violating section 288 when distinct lewd acts occur during a single encounter. In that case, on two occasions when the defendant had sexual intercourse with the victim, he also fondled parts of the victim’s body. (Scott, supra, 9 Cal.4th at p. 338, fn. 2.) He was charged and convicted for the acts of fondling in addition to the acts of sexual intercourse. The court explained that “[e]ach individual act that meets the requirements of section 288 can result in a ‘new and separate’ statutory violation.” (Id. at pp. 346-347.) The court relied extensively on People v. Harrison (1989) 48 Cal.3d 321 (Harrison). In Harrison, the defendant inserted his finger into the victim’s vagina three times; each time, his finger was dislodged by the victim’s efforts to escape. (Id. at pp. 325-326.) The entire attack lasted seven to ten minutes. (Id. at p. 326.) The Harrison court held that the defendant could be convicted of three counts of unlawful genital penetration under section 289. (Harrison, supra, at pp. 327, 334.) The Scott court applied Harrison to section 288 violations and held: “[S]ubstantial evidence supports all of the lewd conduct convictions, including the two fondling counts disputed on appeal. [The victim] testified that during both the first and last incidents charged in the information, defendant fondled an intimate part of her body and also had sexual intercourse with her. Even in the absence of testimony describing the precise sequence of the various acts, the jury could reasonably conclude that a total of four lewd acts and four violations of section 288 had occurred on these occasions.” (Scott, supra, 9 Cal.4th at p. 348.)
The defendant in Harrison was convicted under former section 289, subdivision (a), which provided: “Every person who causes the penetration, however slight, of the genital or anal openings of another person, by any foreign object, substance, instrument, or device when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person for the purpose of sexual arousal, gratification, or abuse, shall be punished by imprisonment in the state prison for three, six, or eight years.” (See Harrison, supra, 48 Cal.3d at p. 328, fn. 7.)
In People v. Jimenez (2002) 99 Cal.App.4th 450, the eight-year-old female victim was a friend of the defendant’s son. One evening, when the victim was spending the night at the defendant’s house, “she was awakened by the feel of defendant rubbing her breasts. Defendant squeezed her thighs and rubbed the area of her vagina, first over and then under her clothes. He stuck his finger inside her vagina. Defendant also rubbed [the victim’s] ‘bottom,’ first over and then under her clothes, and stuck his finger inside her ‘bottom.’” (Id. at p. 452.) From this one incident, the defendant was convicted of six counts of lewd and lascivious conduct. (Id. at p. 453.) The defendant argued that multiple touchings during one incident constitute one offense. In rejecting the defendant’s argument, the Jimenez court stated: “Where a defendant fondles a portion of the victim’s body with the requisite intent, a violation of section 288 has occurred. The offense ends when the defendant ceases to fondle that area. Where a defendant fondles one area of the victim’s body and then moves on to fondle a different area, one offense has ceased and another has begun. There is no requirement that the two be separated by a hiatus, or period of reflection.” (Id. at p. 456.)
While here we are dealing with the same part of the victim’s body as in Scott and Harrison, there is nonetheless evidence of multiple incidents separated by a hiatus. Contrary to defendant’s assertion, there is substantial evidence to support convictions of at least 25 counts of lewd conduct upon J.M. The victim testified that defendant bathed her at least 20 times. When he gave her a bath he would wash her body with a sponge. Her vagina was the only part of her body that he would wash with his hand. Before touching her vagina with his hand, he would put the sponge in the water, and after touching her he would pick up the sponge and wash other parts of her body with the sponge. During any given bath, he would touch her vagina about two or three times.
From this evidence, a reasonable trier of fact could easily conclude that defendant bathed her at least 20 times and that each bath included at least two separate and distinct fondlings of J.M.’s vagina. The jury could reasonably infer from J.M.’s testimony that the touchings were separated in time by the defendant’s acts of picking up the sponge from the water and washing J.M.’s body. Each touching is a separate violation of section 288, subdivision (a). There is thus substantial evidence to support convictions of each of the 25 counts as to J.M.
B. Defendant Has Forfeited His Argument Relative to the Inadmissibility of CSAAS Testimony
Defendant asks us to broadly hold that CSAAS testimony is inadmissible for any purpose. We decline to do so. In People v. McAlpin (1991) 53 Cal.3d 1289, the Supreme Court approved of the decisions of Courts of Appeal that have held that such testimony is admissible for some purposes. (Id. at p. 1300.) McAlpin was followed in People v. Brown (2004) 33 Cal.4th 892, which upheld the use of expert testimony concerning battered women’s syndrome. (Id. at pp. 905-907.) We are bound by the court’s reasoning in these cases. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450; see also People v. Perez (2010) 182 Cal.App.4th 231.) Courts of Appeal have upheld such testimony when used “for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744), or “‘to rehabilitate [the molestation victim’s] credibility when the defendant suggests that the child’s conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation. [Citations.]’” (People v. Sandoval (2008) 164 Cal.App.4th 994, 1001, quoting People v. McAlpin, supra, at pp. 1300-1301; see also People v. Bowker (1988) 203 Cal.App.3d 385, 394.)
Nonetheless, CSAAS expert testimony is no more or no less admissible than other expert testimony. “Like other evidence, [CSAAS] expert testimony must be relevant and competent on a material issue, subject to exclusion, however, if unduly prejudicial. [Citation.]” (People v. Bowker, supra, 203 Cal.App.3d at p. 390; cf. People v. Gomez (1999) 72 Cal.App.4th 405, 415 [“Whether expert testimony regarding battered women’s syndrome is admissible in a particular case initially depends on whether that evidence is relevant,” italics added], disapproved on another point in People v. Brown, supra, 33 Cal.4th at p. 908].) Therefore, the admissibility of CSAAS testimony must generally be evaluated on a case-by-case basis. Here, however, we conclude that defendant has forfeited this argument by failing to object to the testimony at trial. Furthermore, we cannot conclude that an objection would have been futile.
Under the present facts, there is indicia of the evidence’s relevancy, as well as the lack thereof. On the one hand, there was some delayed disclosure, as well as some denial or recanting by the victims, thus making the evidence relevant. On the other hand, the credibility of the victims was arguably never an issue. There was no evidence indicating that defendant did not engage in the conduct. In fact, in defendant’s statement to Investigator Montgomery, he essentially admitted the conduct. The defense’s theory was that defendant was simply giving the victims a bath and his conduct was not intended for the sexual gratification of either himself or the victims; thus there was arguably no relevance to evidence explaining the victim’s “seemingly self-impeaching behavior.”
Given the nature of the underlying evidence, an objection would have afforded the trial court the opportunity to hear the arguments of counsel on the issue and to exercise its discretion as to the relevance of the evidence. Additionally, defendant does not refer us to any place in the record to demonstrate how an objection would have been futile. In the absence of an objection, we conclude, defendant may not, for the first time on appeal, argue the evidence was not admissible. (See People v. Partida (2005) 37 Cal.4th 428, 433-435.)
Even if we assume that the CSAAS evidence was inadmissible, any error in its admission is harmless. A judgment may not be reversed on appeal unless “after an examination of the entire cause, including the evidence,” it appears the error caused a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) A “‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) The Supreme Court has subsequently explained that the term “reasonably probable” as it is used in Watson “does not mean more probable than not. It means only that there appear some substantial chance greater than a mere possibility that the result would have been different in the absence of the error.” (People v. Ross (1967) 67 Cal.2d 64, 84, revd. on other grounds sub nom. Ross v. California (1968) 391 U.S. 470.) At no time during the proceedings below was there any dispute whatsoever that the conduct occurred. Thus, the argument posed by defendant that CSAAS evidence is consistent with both false testimony, as well as true testimony, by the victim is unavailing. The sole issue here was defendant’s intent. The CSAAS evidence had no bearing whatsoever on this issue.
IV. DISPOSITION
The judgment of conviction is affirmed.
We concur: Ramirez P.J., Richli J.