Opinion
G055751
10-10-2019
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LAWRENCE JOHNSON, Defendant and Appellant.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda E. Casillas, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF0681) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed. Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Johnny Lawrence Johnson was orally copulated by his 11-year-old niece while they were on the Haunted Mansion ride at Disneyland. Jane Doe initially told police there had been no prior sex abuse by Johnson. In a later Child Abuse Service Team (CAST) interview, Jane disclosed that Johnson had been committing sexual acts against her for several years. The following day, Jane recanted.
The prosecution charged Johnson with four counts of child molestation and two counts of sexual intercourse with a child. The trial court admitted expert testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS): a typical pattern of behaviors by child sexual abuse victims, including delayed disclosure and recantation. The court instructed the jury on the limited use of CSAAS evidence: to consider the alleged victim's credibility, not the defendant's guilt. (CALCRIM No. 1193.) The jury found Johnson guilty of the charged crimes. The court imposed a lengthy prison term.
The acronym is sometimes pronounced as "Cee Sass."
On appeal, Johnson challenges the trial court's admission of the CSAAS testimony, the pattern CSAAS jury instruction (CALCRIM No. 1193), and the court's refusal to instruct the jury with his proposed alternative pinpoint instruction.
We find no errors and affirm the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
On March 12, 2015, at about 6:15 p.m., Disneyland employees were monitoring the darkened Haunted Mansion ride through infrared cameras. Johnson was riding alone in a car with his 11-year-old niece Jane, who was bobbing her head up and down while leaning over Johnson's crotch area. An employee made an intercom announcement that the ride was "'being monitored.'" Jane sat up, exposing Johnson's penis; he zipped up his pants. At the exit, Disneyland employees detained Johnson and Jane. Johnson said to Jane, "'Hey, you don't have to say anything. It's cool.'"
Johnson told police at the Disneyland security office, "I . . . took my penis out and put it in her mouth, and that's it." Johnson said that he did not initiate the oral sex. Johnson denied any other sexual acts had occurred with Jane prior to "this one little incident." Jane told police that she orally copulated Johnson on the ride, it was voluntary, and no other prior sex acts with Johnson had ever occurred.
The CAST Interview and Forensic Examination
The following day, a CAST social worker interviewed Jane, who initially said that Johnson had touched her vagina when she was eight or nine years old, and on other more recent occasions. Jane also said that Johnson had previously taken her hand and placed it on his penis. Jane denied that anything else had happened.
After Jane confirmed that she orally copulated Johnson at Disneyland, the social worker told Jane "I feel like I'm missing something. Like I feel like there's something that you're just not saying to me." Jane then said there were other prior incidents of oral copulation. Jane also said that Johnson's penis went into her vagina about four times; the first time occurred during the summer between her fourth and fifth grade, and once more recently. The next day, Jane told a Los Angeles social worker that there had been no other sexual acts prior to the incident at Disneyland.
A registered nurse examined Jane at the CAST facility. The nurse found tearing in the perineum area. The nurse made "nonspecific" findings that the tearing could have been caused by a hygiene issue, or by a penis thrusting into Jane's vagina. The tearing was somewhere between a few hours to a few days old.
Court Proceedings
The prosecution filed an information charging Johnson with four counts of committing a lewd or lascivious act against a child under the age of 14, and two counts of sexual intercourse or sodomy with a child 10 years of age or younger. Count one was alleged to have occurred on March 12, 2015 (the Disneyland offense), the remaining counts were alleged to have occurred on approximate dates. The information further alleged substantial sexual contact with a child.
At trial during voir dire, some prospective jurors expressed familiarity with child sexual abuse and the reactions of child victims. During the trial, Jane testified that she did not want Johnson to get into trouble and that she loved him. Jane said that she had also been sexually abused by her mother's boyfriend since she was eight years old; Jane had not revealed that sexual abuse until recently. Jane's older sister testified that she had also been abused her mother's boyfriend.
Dr. Jody Ward testified there are five components of CSAAS: secrecy; helplessness; entrapment and accommodation; delayed disclosure; and retraction or recantation. Ward said: "Secrecy refers to the fact that all sexual abuse occurs in secret, with only the perpetrator and the child there at the time of the abuse." Ward testified: "Helplessness refers to the power differential that's inherent between children and adults." Ward testified that "entrapment and accommodation" refer to children enduring sexual abuse in order to protect their siblings, or because they love, and are loyal to their abusers. Ward said that once children disclose sexual abuse, their lives are turned upside down, so they often recant in order to soften the consequences of the disclosure.
Dr. Ward testified that not all components of CSAAS are necessarily present. Ward said CSAAS does not detect child sexual abuse, rather it "is a pattern of behaviors that many children exhibit who have been sexually abused. Not all children exhibit all of these behaviors, but many do. And it helps us as therapists or lay people . . . to understand why children do what they do in response to sexual abuse that occurs within an ongoing relationship."
The jury found Johnson guilty of the charged crimes and found true the related allegations. The trial court imposed a prison term of 31 years to life.
II
DISCUSSION
Johnson challenges the trial court's admission of the CSAAS testimony, the Judicial Council's pattern CSAAS jury instruction (CALCRIM No. 1193), and the court's refusal to give his proposed alternative pinpoint instruction. A. The Admission of the CSAAS Evidence
Johnson claims the trial court erred by admitting Dr. Ward's testimony regarding CSAAS. We disagree.
We review a trial court's decision to admit evidence for an abuse of discretion. (People v. Brooks (2017) 3 Cal.5th 1, 43.) Under this standard, we can only find error when the court has acted in an arbitrary or capricious manner, or its decision exceeds the bounds of reason. (People v. Beames (2007) 40 Cal.4th 907, 920-921.)
1. General Legal Principles
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) "Except as otherwise provided . . . , all relevant evidence is admissible." (§ 351.) "'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness . . . , having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.)
Further undesignated statutory references are to the Evidence Code.
A trial court may admit CSAAS evidence to disabuse jurors of commonly held misconceptions about child sexual abuse. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301.) While CSAAS evidence is not relevant to prove the abuse occurred, it is well established that CSAAS evidence is relevant for the limited purpose of evaluating the credibility of alleged child victims. (People v. Mateo (2016) 243 Cal.App.4th 1063, 1069; People v. Perez (2010) 182 Cal.App.4th 231, 245; People v. Sandoval (2008) 164 Cal.App.4th 994, 1001-1002; People v. Wells (2004) 118 Cal.App.4th 179, 188; People v. Yovanov (1999) 69 Cal.App.4th 392, 406-407; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745; People v. Housley (1992) 6 Cal.App.4th 947, 955-956; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450; People v. Stark (1989) 213 Cal.App.3d 107, 116-117; People v. Bowker (1988) 203 Cal.App.3d 385, 393-394.)
2. Relevant Proceedings
Prior to trial, the prosecution filed a motion seeking to admit the SAAS evidence. Johnson filed a motion seeking to exclude the CSAAS evidence.
The prosecution argued "the victim was molested by a family member, someone who was an authority figure, and had recurring access to her. The victim did not immediately disclose the abuse to law enforcement or other authority figures. In addition, she at first refused to admit any sexual abuse occurred and recanted some of the events during an interview with a Los Angeles social worker. The late disclosure of these events as well as the recantation might be misinterpreted by a jury and viewed as discrediting to the witness."
Johnson argued the "so-called" CSAAS evidence "is a mere construct used by some treatment practitioners to decide to treat a child who may have been abused, regardless of whether the suspicions of abuse are true or not. It does not support the truth of the abuse suspicions assumed true, and it does not add any value to a trial."
After hearing oral argument from both parties, the trial court found that the prosecution sought to introduce the CSAAS evidence to show "that the complaining witness' recantations . . . or accusations against the defendant are consistent with being victimized by him and acting to protect a man close to her mom, in this case her . . . uncle." The court ruled that the CSAAS evidence was "more probative than prejudicial. [¶] . . . [¶] . . . I think it can come in."
3. Analysis
On the day Johnson was orally copulated by his 11-year-old niece, Jane claimed that the sexual contact was "voluntary," and that no prior incidents had occurred. In the CAST interview the next day, Jane again minimized Johnson's conduct and initially denied that any prior incidents had occurred. Eventually, Jane told the CAST social worker about Johnson's prior sexual abuse of her for several years, but the following day she recanted. Given that the CSAAS evidence was proffered by the prosecution to explain the common reactions of child sexual abuse victims, and Jane's reactions were consistent with the proffered CSAAS evidence, we agree with the trial court that the CSAAS evidence was relevant and probative. Thus, the court's evidentiary ruling was within the bounds of reason and was not an abuse of its discretion.
Johnson argues: "The misconceptions that CSAAS are designed to refute are no longer present, more than 30 years after the advent of CSAAS. Moreover, in this case, there was no evidence that any of the prospective jurors held the misconceptions that . . . previously prevailed in our society. Thus, the expert testimony on CSAAS was irrelevant and inadmissible." We disagree.
Johnson's argument rests on a factual assertion (misconceptions about child sexual abuse are no longer present) that was not established prior to the trial court's evidentiary ruling. (See § 400 [a "'preliminary fact' means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence].)
Further, while some prospective jurors in this case may have been aware of some aspects of CSAAS, it is not clear from the record that all of the empaneled jurors were aware of the entire spectrum of CSAAS evidence (e.g., secrecy, helplessness, entrapment, accommodation, and recantation). Moreover, even if we were to assume that all of the empaneled jurors were fully aware of all five components of CSAAS, then Dr. Ward's CSAAS testimony was merely cumulative and not arguably prejudicial. (See People v. Watson (1956) 46 Cal.2d 818, 836 [defendant must show a reasonable probability of a more favorable outcome in the absence of the error].)
Johnson also argues that expert CSAAS testimony is inadmissible because it is unreliable under the Kelly/Frye rule. He is mistaken.
People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly); Frye v. United States (D.C.Cir. 1923) 293 F. 1013, 1014 (Frye).
The Kelly/Frye rule concerns the admissibility of evidence based on a new scientific method; the rule requires a showing that the method is generally accepted in the relevant scientific community. (People v. Shirley (1982) 31 Cal.3d 18, 34.) The Kelly/Frye rule applies only to expert testimony "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.) The Kelly/Frye rule applies only if "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." (Ibid.)
Here, the theory of CSAAS is not new. (See People v. Bowker, supra, 203 Cal.App.3d at p. 389, fn. 3 [CSAAS dates back to at least to 1983].) Further, CSAAS testimony does not purport to provide a definitive truth; rather, the expert testimony attempts to disabuse jurors of misconceptions they might hold about the conduct of children who have been sexually abused. In short, expert CSAAS testimony is not "'"scientific evidence"'" subject to the Kelly/Frye rule. (People v. Harlan, supra, 222 Cal.App.3d at pp. 448-449 ["The Kelly/Frye rule does not apply to [CSAAS] evidence"].)
Johnson also argues that the probative value of the CSAAS evidence was "substantially outweighed [by] the prejudicial impact." We disagree.
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352, italics added.)
Evidence is not "prejudicial" merely because it may be harmful to a criminal defendant's case. (People v. Megown (2018) 28 Cal.App.5th 157, 164.) Indeed, essentially every item of relevant evidence introduced by the prosecution is likely to be harmful to the defendant's case. Evidence only creates "undue prejudice" if the evidence tends to evoke an emotional bias by the jurors against the defendant, and the evidence has little effect on the issues relevant in the particular case. (Ibid.) "The weighing process under section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314-1315.)
Here, the prosecution charged Johnson with committing nonconsensual intercourse (rape) against his 11-year-old niece. It was also alleged that Johnson brazenly committed another serious sex crime against Jane while at the iconic "Happiest Place on Earth." From our vantage point, the emotional impact of the relatively benign CSAAS testimony was likely to have paled in comparison to the charged conduct. But even if this court viewed the CSAAS evidence differently, when analyzing for an abuse of discretion, we cannot substitute our discretion for that of the trial court. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) The court in this case made a reasoned judgment that the proffered CSAAS evidence was more probative than prejudicial. (See § 352.) The court plainly did not approach its ruling in an arbitrary or capricious manner. Thus, we find no abuse of its discretion.
Finally, Johnson argues that the trial court's admission of the CSAAS evidence violated his right to due process. He is mistaken.
A court's compliance with the rules of evidence ordinarily do not infringe on a defendant's right to a fair trial. (People v. Hall (1986) 41 Cal.3d 826, 834-835.) Here, we have found no evidentiary errors regarding the admission of the CSAAS expert testimony. We also find no due process violations. Johnson's legal citations on this point are not persuasive. (See, e.g., People v. Patino, supra, 26 Cal.App.4th at pp. 1744-1745 [a trial court's admission of CSAAS evidence did not violate due process].) B. The CSAAS Jury Instruction
Johnson claims the trial court erred by instructing the jury with the Judicial Council's official CSAAS jury instruction (CALCRIM No. 1193), and by refusing his proposed alternative pinpoint instruction. We disagree.
"The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California." (Cal. Rules of Court, rule 2.1050(a).) --------
We review instructional error claims under a de novo standard of review. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.) "The proper test for judging the adequacy of instructions is to decide whether the trial court 'fully and fairly instructed on the applicable law . . . .'" (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) Pinpoint instructions "relate particular facts to a legal issue in the case or 'pinpoint' the crux of a defendant's case." (People v. Saille (1991) 54 Cal.3d 1103, 1119.) "[A] trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing." (People v. Moon (2005) 37 Cal.4th 1, 30, italics added.)
"[E]xpert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; 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." (People v. McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) The pattern jury instruction on the limited use of CSAAS evidence, CALCRIM No. 1193, does not: (a) improperly allow an alleged minor victim of sexual abuse to corroborate her own testimony; (b) violate due process; or (c) misapply the burden of proof. (People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504.)
Here, the court used CALCRIM No. 1193, slightly modifying the Judicial Council's pattern instruction to conform to the actual CSAAS testimony: "You have heard testimony from Dr. Jody Ward regarding child sexual abuse accommodation syndrome. [¶] Dr. Ward's testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the charged crimes against him. [¶] You 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 court refused to instruct with Johnson's proposed pinpoint instruction, which would have told the jury, in relevant part, that the CSAAS evidence "is not evidence that the defendant committed any of the crimes charged against him."
Consistent with People v. Gonzales, supra, 16 Cal.App.5th at pages 503-504, we hold that CALCRIM No. 1193 fairly instructs a jury on the proper use—and the proper limitations on the use—of CSAAS evidence. Johnson's proposed alternative instruction was slightly different, but it was essentially duplicative of CALCRIM No. 1193; therefore, the court did not commit error when it refused to give Johnson's alternative pinpoint instruction. (See People v. Moon, supra, 37 Cal.4th at p. 30.)
Johnson argues that CALCRIM No. 1193 "does not affirmatively state that the evidence may not be 'used to determine whether the victim's molestation claim is true.'" We disagree. CALCRIM No. 1193 informed the jury that CSAAS evidence "is not evidence that the defendant committed any of the crimes charged against him." Johnson's purported distinction between CALCRIM No. 1193 and his proposed alternative pinpoint instruction, appears to us to be a "distinction without a difference."
In conclusion, we find no errors based on this record.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.