Opinion
C088743
08-31-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALLEN HARRISON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF18-00563)
Defendant Robert Allen Harrison challenges his convictions for sexual abuse of his daughter. He contends the admission of expert evidence regarding child sexual abuse accommodation syndrome (CSAAS) violated his right to due process and rendered the trial fundamentally unfair. He also argues the trial court erred in instructing the jury regarding the permissible uses for CSAAS evidence. In addition, relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant argues the trial court erred in imposing certain fines and fees without holding a hearing to determine his ability to pay them. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Given defendant's contentions, we provide only a brief recitation of the facts. During the October 2018 trial, the victim testified that, starting at the age of seven, she masturbated defendant's penis at least five times. When the victim was 15 years old, she told her mother about the abuse. The mother believed her, despite defendant's later protestations that the victim was lying. The mother took the victim to the police to make a report. Three defense witnesses testified they did not believe the victim's story of abuse.
A. Testimony of Dr. Blake Carmichael
Dr. Blake Carmichael, a psychologist, testified for the prosecution as an expert in the area of child sexual abuse. Dr. Carmichael explained that CSAAS was originally described in the 1980's and could help dispel myths and educate people about what to expect from children who have been sexually abused, particularly within the context of a close relationship. The concepts in CSAAS "help[ ] people understand why kids do or don't do things while they're being abused and as they're telling about it." In Dr. Carmichael's opinion, although there have been some critics, CSAAS has been "borne out in the academic world," as well as his own professional experience.
Dr. Carmichael testified that the original author of CSAAS wished he had not called it a syndrome, because it erroneously implied that CSAAS was a diagnosis. The term also "had some legal implications." Instead, the author wished he had called it a "pattern," because "there is no such thing as a diagnosis of child sexual abuse."
Dr. Carmichael testified that CSAAS has five components: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed and unconvincing disclosure, and (5) recanting. Still, CSAAS is neither intended nor used to determine whether someone has been abused.
Secrecy describes the tendency for the perpetrator to rely on the fact that the abuse occurs in secret. Children often have many reasons to keep abuse secret when it happens in the context of a relationship with the perpetrator. For example, the perpetrator might threaten to hurt someone if the victim tells. Alternatively, the victim may fear telling because he or she is scared something bad would happen to the perpetrator, or that he or she would lose the relationship with the perpetrator. It is not unusual for the victim to love the perpetrator, despite the abuse; the victim may fear telling because of the emotional closeness he or she has with the perpetrator, even if he or she is physically separated from the perpetrator. In addition, children may not be aware that the perpetrator's conduct is inappropriate. As a result, "most kids" do not fight, kick, or scream to ward off the predator. In addition, some victims do not feel shame about the abuse at the time.
Helplessness describes the power dynamic between the victim and the perpetrator. Often, the perpetrator is "bigger, stronger, older, [and] more sophisticated," and can be responsible for the victim. A child can feel helpless in this situation, fearing that he or she might not be believed, that nothing would be done, or that he or she would be blamed for any negative consequences. A younger child is often more vulnerable to abuse, given their reliance on adults for care.
Entrapment and accommodation describe how "kids cope with the reality of being abused and trying to decide to tell about it or not." A victim might try to take active steps to avoid abuse, such as wearing an extra pair of pajamas or avoiding the room where the abuse happens, but these are often ineffective. A victim might also dissociate, or "pull[ ] back" on her situational awareness to distance herself. As a result, a victim may remember core aspects of abuse but forget core details.
Delayed and unconvincing disclosure refers to the fact that most victims do not tell right away. Between 40 to 70 percent of victims do not disclose abuse until at least one year later, and two-thirds of victims do not disclose until after they turn 18. A victim's failure to disclose immediately can make subsequent disclosure more challenging. Even when they do tell, victims often do not give consistent details. They might omit facts or not describe something clearly because of fear, shame, or guilt, especially if the abuse happened multiple times over multiple weeks or years. Dr. Carmichael opined it was not "realistic" to expect victims to talk about each incident of abuse in the same way, especially when it comes to time, sequence, and relativity. Disclosure for child victims can be a "process" of incrementally telling the full story, rather than telling everything all at once. Victims may also appear detached or unaffected when describing abuse. In addition, victims may be successful in other areas of their life, such as school or sports.
Finally, retraction or recanting describes that 18 to 22 percent of child victims will recant valid claims of sexual abuse (i.e., where the abuse is validated by medical findings, perpetrator confessions, or social services findings). It is more typical with young victims, especially when the perpetrator is a close family relation.
Dr. Carmichael stated he was testifying to educate people about sexually abused children, and not to determine if the victim had been sexually abused. Such a determination was "the purview of the jury." In addition, he had no connection with the victim in this case. No one had provided him information about the victim (such as police reports), and he practiced in a different geographical location, so it was very unlikely that he knew the victim. Dr. Carmichael also testified there was "no checklist" that could tell you if someone had been abused. Defense counsel did not object to Dr. Carmichael's testimony, but he did cross-examine Dr. Carmichael.
B. Testimony of Dr. Paul Wuehler
Dr. Paul Wuehler, a forensic psychologist, testified as a defense expert regarding CSAAS. Like Dr. Carmichael, Dr. Wuehler testified that CSAAS is not a diagnostic tool and cannot be used to determine if sexual abuse occurred. Dr. Wuehler also testified that the only consensus in the scientific community regarding the elements of CSAAS was that delayed and unconvincing disclosure was "universally seen" by psychologists treating child victims of sexual abuse. Dr. Wuehler testified that he had read a review of scientific articles that were critical of CSAAS, but not the actual articles.
C. Jury instructions, jury verdict, and sentencing
The People asked the trial court to instruct the jury with CALCRIM No. 1193, relating to CSAAS testimony; defendant objected. Defendant argued CSAAS was "not a syndrome." Citing State v. J.L.G. (N.J. 2018) 234 N.J. 265 (J.L.G.), defendant further argued that CSAAS was unreliable and did not meet the threshold for admissibility of scientific evidence. The trial court overruled defendant's objection and gave CALCRIM No. 1193.
In October 2018, a jury found defendant guilty of continuous sexual abuse of a child who was under 14 years of age at the time of the offense. (Pen. Code, § 288.5, subd. (a).) The jury found defendant engaged in substantial sexual conduct with the victim when she was under 14. (§ 1203.006, subd. (a)(8).)
Undesignated statutory references are to the Penal Code. --------
In January 2019, the trial court sentenced defendant to 12 years in state prison. The court also imposed a $3,600 restitution fine (§ 1202.4, subd. (b)) and a corresponding $3,600 parole revocation restitution fine, suspended unless parole is revoked (§ 1202.45). The court also imposed a $1,200 sex offender fine (§§ 290.3, 1464, 1465.7; Gov. Code, §§ 70372, subd. (a), 76000, 76000.5, 76104.6, 76104.7), a $40 court operations assessment (§ 1465.8) and a $30 court facilities assessment (Gov. Code, § 70373). It further imposed $5,220 and $1,802.57 in direct victim restitution (or $7,022.57 total). (§ 1202.4, subd. (f).)
DISCUSSION
I
Despite ample California case law to the contrary, Defendant contends CSAAS has been "debunked," making Dr. Carmichael's testimony unreliable and inadmissible. According to defendant, the admission of the evidence violated his rights to due process and rendered his trial fundamentally unfair. In support of his argument, defendant cites J.L.G. and King v. Commonwealth (Ky. 2015) 472 S.W.3d 523 (King). In J.L.G., the New Jersey Supreme Court decided to no longer permit CSAAS expert testimony, deeming it insufficiently reliable from a scientific standpoint, except for the aspect of delayed disclosure. (J.L.G., supra, 234 N.J. at p. 272 .) The J.L.G. court relied on testimony from four separate experts and numerous scientific studies regarding CSAAS. (Ibid.) Similarly, in King, the Kentucky Supreme Court concluded that the trial court erroneously admitted evidence regarding CSAAS, reasoning that the People had failed to prove the theory's validity at the trial court. (King, supra, at pp. 526-527, 530.)
The People respond that defendant forfeited this issue on appeal because he failed to object in the trial court. (See Evid. Code, § 353, subd. (a); People v. Dykes (2009) 46 Cal.4th 731, 756 [in general, "trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal"].) Defendant argues he preserved the issue by objecting to CALCRIM No. 1193 and arguing that the admission of the evidence was error under J.L.G. Defendant further contends any objection would have been futile, given that California courts have found CSAAS evidence to be admissible. Regardless, defendant's contentions are without merit.
In 1991, our Supreme Court rejected defendant's position in People v. McAlpin (1991) 53 Cal.3d 1289. The court held that CSAAS evidence "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." (Id. at p. 1300.) " '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.) Such evidence "is not admissible to prove that the complaining witness has in fact been sexually abused." (Id. at p. 1300.) The expert is also not allowed to opine on whether a witness is telling the truth. (People v. Munch (2020) 52 Cal.App.5th 464.)
We decline defendant's invitation to deviate from McAlpin and its progeny. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [appellate courts must follow California Supreme Court decisions].) Moreover, as courts have recently explained, "the vast majority of jurisdictions . . . have rendered decisions that are consistent with McAlpin." (People v. Munch, supra, 52 Cal.App.5th at p. 472; see also King, supra, 472 S.W.3d at pp. 534-535 (dis. opn. of Abramson, J.) [41 states recognize the admissibility of CSAAS expert testimony for some purpose, and Kentucky is one of only six states that have rejected any type of CSAAS testimony].)
Here, the CSAAS evidence was not being used as scientific proof that the victim had been abused. To the contrary, Dr. Carmichael testified clearly that such a determination was within "the purview of the jury." Moreover, defendant had the opportunity to challenge the validity of Dr. Carmichael's testimony during cross-examination and through the testimony of his own expert, Dr. Wuehler. In sum, we find no error.
II
The jury was instructed with CALCRIM No. 1193 as follows: "You have heard testimony from Dr. Carmichael and Dr. Wuehler regarding [CSAAS]. The doctors' testimony about [CSAAS] is not evidence that the Defendant committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not [the victim's] conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony." (Italics added.)
Defendant argues the italicized portion of the instruction goes beyond the permissible uses for CSAAS evidence under the McAlpin line of cases. According to defendant, a reasonable juror would understand the instruction to mean that the expert testimony "could be used to bolster [the victim's] testimony for reasons other than the fact that her testimony was not inconsistent with the conduct of someone who has been molested." Defendant contends this would impermissibly allow the jury to use the CSAAS evidence to prove the abuse occurred and that defendant was guilty. We disagree.
We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) In so doing, we consider the instructions as a whole to determine whether there is a " 'reasonable likelihood that the jury construed or applied the challenged instruction[s] in an objectionable fashion.' " (People v. Osband (1996) 13 Cal.4th 622, 679.) We assume the jurors are "capable of understanding and correlating all jury instructions which are given." (People v. Romo (1975) 47 Cal.App.3d 976, 990, disapproved on other grounds in People v. Bolton (1979) 23 Cal.3d 208, 213-214.)
In People v. Gonzales (2017) 16 Cal.App.5th 494 (Gonzales), the court rejected the argument that CALCRIM No. 1193 is inconsistent and improperly allows CSAAS testimony to be used as proof that the victim was sexually abused. (Id. at pp. 503-504.) The defendant argued it is impossible to use the CSAAS testimony to evaluate the believability of the victim's testimony without also using it as proof that the defendant committed the charged crimes. (Id. at p. 503.)
The Gonzales court disagreed, noting that the instruction was given in the context of the expert's testimony that CSAAS is a tool to understand a child's reactions when he has been abused and is not to be used to determine whether abuse has occurred. (Gonzales, supra, 16 Cal.App.5th at pp. 503-504.) The court held that a "reasonable juror would understand CALCRIM No. 1193 to mean that the jury can use [the CSAAS] testimony to conclude that [the victim's] behavior does not mean she lied when she said she was abused. The jury also would understand it cannot use [the expert's] testimony to conclude [the victim] was, in fact, molested. The CSAAS evidence simply neutralizes the victim's apparently self-impeaching behavior." (Id. at p. 504.)
We agree with Gonzales. The instruction correctly informs jurors that they may use CSAAS evidence for the limited purpose of deciding whether the victim's conduct was consistent with having been abused, but not to determine whether the alleged abuse occurred. Such an interpretation is bolstered by testimony from Dr. Carmichael and Dr. Wuehler that CSAAS is not a tool to determine whether abuse occurred. As Gonzales explained, "under CALCRIM No. 1193, a juror who believes [the expert's] testimony will find both that [the victim's] apparently self-impeaching behavior does not affect her believability one way or the other, and that the CSAAS evidence does not show she had been molested. There is no conflict in the instruction." (Gonzales, supra, 16 Cal.App.5th at p. 504.) Under the circumstances, we find no error.
III
Finally, relying on People v. Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that due process requires we remand the matter for a hearing on his ability to pay the fines and fees imposed. Defendant did not object to the fines and fees during the January 14, 2019 sentencing hearing, which occurred six days after Dueñas was decided on January 8, 2019. Although defendant asserts in conclusory terms that his trial counsel was ineffective in failing to object, he has not even attempted to meet his burden to establish ineffective assistance of counsel. (See People v. Mai (2013) 57 Cal.4th 986, 1009.) We therefore conclude that defendant has forfeited the issue on appeal.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: ROBIE, Acting P. J. RENNER, J.