Opinion
E070868
09-06-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ALLEN MARTINEZ, Defendant and Appellant.
Richard L. Fitzer, under appointment of the Court of Appeal, for Defendant and Appellant Joseph A. Martinez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Lynne G. McGinnis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1500872) OPINION APPEAL from the Superior Court of Riverside County. Mark A Mandio, Judge. Affirmed. Richard L. Fitzer, under appointment of the Court of Appeal, for Defendant and Appellant Joseph A. Martinez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Lynne G. McGinnis and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Joseph Allen Martinez, was convicted by a jury of one count of committing a lewd or lascivious act with a child under 14 years of age (Pen. Code, § 288, subd. (a)) and was sentenced to six years in state prison. On appeal, defendant argues that (1) the trial court abused its discretion in denying his motion for a mistrial following testimony by the victim's mother constituting improper character evidence and (2) the trial court erred when it permitted expert testimony of "child sexual abuse accommodation syndrome" (CSAAS) because such evidence does not meet the test of admissibility under People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014 (Frye). We find no merit in defendant's arguments and affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
On May 5, 2016, the People filed an information charging defendant with one count of committing a lewd act on a child under 14 years old. (Pen. Code, § 288, subd. (a).) The offense allegedly occurred in 2004 and involved S.A., the five-year-old daughter of defendant's girlfriend at the time. The incident was investigated by child protective services in 2004, but the investigation proved inconclusive due to inconsistencies in S.A.'s initial report to her mother and S.A.'s subsequent statements to child protective services. In 2015, when S.A. was 16 years old, she reported the 2004 incident to a social worker, prompting a new investigation and resulting charges against defendant.
Prior to trial, defendant moved in limine to exclude expert testimony on the subject of CSAAS. The trial court denied the request, but held that any such testimony should be specifically limited to a general explanation of what CSAAS is and its characteristic behaviors.
At trial, S.A. was cross-examined regarding her prior inconsistent statements related to the alleged incident. In response, the prosecution was permitted to introduce expert testimony of CSAAS. The expert testified that she knew nothing about the specific facts of the case and would not offer an opinion about the truth of the allegations in the case. Instead, the expert offered the opinion that CSAAS is a pattern of behaviors commonly exhibited by children who have been sexually abused. The expert further explained that the common behaviors include secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction or recantation.
During his case-in-chief, defendant offered the expert testimony of his own clinical forensic psychologist. Defendant's expert testified that he had conducted at least three interviews with defendant and offered the opinion that defendant did not have any developmental history suggesting propensity to commit sexual offenses and did not experience any emotional or psychological pressures that might have caused him to act out in a sexual way.
In rebuttal, the prosecution called S.A.'s mother to testify regarding changes in her sexual relationship with defendant prior to the alleged incident. During the course of this testimony, S.A.'s mother mentioned specific instances in which she believed defendant had lied to her. The trial court sustained objections to the follow-up questions directed to these comments and eventually defendant requested a sidebar. During the sidebar, defendant argued that the testimony constituted improper character evidence and moved for a mistrial. The court denied defendant's request and instead admonished the jury as follows: "[S.A.'s mother] testified to certain incidents in which she believed [defendant] lied to her. You are to disregard this specific testimony as I've stricken it from the record."
The jury found defendant guilty of the charged offense and the trial court subsequently sentenced defendant to six years in state prison.
III. DISCUSSION
A. Denial of the Request for Mistrial Was Not an Abuse of Discretion
Defendant first contends that the trial court abused its discretion in denying his request for a mistrial. Specifically, defendant argues that the statements made by S.A.'s mother identifying specific instances in which she believed defendant had lied to her constituted improper character evidence that was incurably prejudicial. We disagree.
"'Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured.'" (People v. McNally (2015) 236 Cal.App.4th 1419, 1428-1429.) Thus, "[a] trial court should grant a motion for mistral 'only when "'a party's chances of receiving a fair trial have been irreparably damaged'"' [citation], that is, if it is 'apprised of prejudice that it judges incurable by admonition or instruction' [citation]." (People v. Avila (2006) 38 Cal.4th 491, 573.)
"'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.'" (People v. Avila, supra, 38 Cal.4th at p. 573.) "'[T]he trial judge, present on the scene, is obviously the best judge of whether any error was so prejudicial to one of the parties as to warrant scrapping proceedings up to that point.'" (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1248.) As such, the trial court's decision is reviewed for abuse of discretion, which "'"measures whether, given the established evidence, the act of the lower tribunal falls within the permissible range of options set by the legal criteria."'" (Ibid.)
Here, the challenged testimony from S.A.'s mother is contained in a single response to a single question. The trial court sustained objections to each of the prosecution's follow-up questions on these issues and, after a lengthy sidebar, admonished the jury to not consider the testimony. We find no fault in the trial court's actions in this regard. The trial court is in the best position to determine the impact of any improper testimony by S.A.'s mother and determine the extent of any steps necessary to address potential resulting prejudice. Judicial admonishment is a recognized curative measure available to the trial court in this type of situation. In our view, given the brevity of the witness comments at issue, the trial court's immediate sustaining of objections to follow-up questions and the trial court's ultimate decision to strike the comments, defendant's chance of receiving a fair trial was not irreparably damaged. Thus, the decision to admonish the jury instead of declare a mistrial fell within the range of permissible options available to the trial court and we find no abuse of discretion. B. CSAAS Testimony Was Properly Admitted
Defendant contends that the trial court abused its discretion when it permitted expert testimony of CSAAS. We find no merit in this argument.
1. Applicable Legal Principles
"CSAAS cases involve expert testimony regarding the responses of a child molestation victim." (People v. Sandoval (2008) 164 Cal.App.4th 994, 1001.) It is not admissible to prove that the defendant in fact engaged in the crime charged. (Ibid.) "However, CSAAS testimony 'is admissible 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.'" (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. 1002.)
"A trial court's determination as to whether an expert should be allowed to opine about a particular subject is reviewed on appeal for abuse of discretion." (People v. Sandoval, supra, 164 Cal.App.4th at p. 1001; see also People v. Brown (2016) 245 Cal.App.4th 140, 157.)
2. Expert Opinion Testimony Is Not Subject to Kelly
As a threshold matter, defendant's argument that expert testimony on CSAAS should have been excluded because it fails to meet the standard of admissibility set forth in Kelly is without merit.
"Under the Kelly/Frye . . . inquiry applicable in California courts, 'when faced with a novel method of [scientific] proof, [we] have required a preliminary showing of general acceptance of the new technique in the relevant scientific community' before the scientific evidence may be admitted at trial." (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 831.) However, "'[i]t is important to distinguish in this regard between expert testimony and scientific evidence. When a witness gives his personal opinion on the stand—even if he qualifies as an expert—the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge that all human beings are fallible. . . .' [¶] 'Absent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly . . . .'" (People v. Jones (2013) 57 Cal.4th 899, 953.)
As a result, the California Supreme Court and Courts of Appeal have repeatedly recognized that expert opinion testimony from a psychologist or a psychiatrist is not subject to Kelly. (People v. Stoll (1989) 49 Cal.3d 1136, 1157 [psychologist opinion on deviance or abnormality]; People v. Jones, supra, 57 Cal.4th at p. 953 [psychologist opinion on intent and motive for sexual homicides]; People v. Therrian (2003) 113 Cal.App.4th 609, 615-616 [psychologist and psychiatrist testimony on sexually violent tendencies]; Wilson v. Phillips (1999) 73 Cal.App.4th 250, 254-255 [psychologist testimony on repressed memory]; People v. Ward (1999) 71 Cal.App.4th 368, 373-374 [psychologist testimony on sexually violent predators].)
Thus, defendant's argument that expert testimony regarding CSAAS fails to meet the standards of admissibility set forth in Kelly is misplaced. The testimony here did not involve a new scientific test or method of proof designed to prove any underlying fact with any degree of certainty, but instead involved opinion testimony which the jury could choose to accept or entirely ignore. A determination that CSAAS is "generally accepted in the relevant scientific community" is not a prerequisite for admissibility of this type of expert opinion testimony. Defendant's citations to out-of-state authority holding otherwise is unpersuasive. As already set forth above, well-established California precedent holds that the opinion testimony of a psychologist is not subject to Kelly and we decline to depart from this extensive line of California authorities.
3. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of CSAAS
While not subject to Kelly, expert opinion testimony regarding CSAAS is subject to limitation. California courts have widely recognized that CSAAS evidence is admissible only for the limited purpose of rehabilitating a molestation victim's credibility when the accused suggests that the victim's behavior following the incident is inconsistent with the victim's allegations against the accused. (People v. Julian (2019) 34 Cal.App.5th 878, 886; People v. Gonzales (2017) 16 Cal.App.5th 494, 503; People v. Mateo (2016) 243 Cal.App.4th 1063, 1069; People v. Sandoval, supra, 164 Cal.App.4th at pp. 1001-1002; People v. Wells (2004) 118 Cal.App.4th 179, 188.)
Here, in a pretrial ruling, the trial court specifically limited any expert testimony on CSAAS to a general explanation of CSAAS and its characteristic behaviors. The prosecution introduced the testimony of its forensic psychologist on the issue of CSAAS only after S.A. was cross-examined regarding her initial allegations against defendant, her subsequent inconsistent statements, and her potential motivations for waiting to reassert her allegations against defendant. The psychologist offered the opinion that CSAAS is a pattern of behaviors commonly exhibited by children who have been sexually abused and described the characteristics of that pattern. She further made clear that she did not know the parties to the case, knew nothing about the specific facts of the case, and would not offer an opinion about the truth of the allegations in the case. Thus, the trial court's limitation on the scope of CSAAS testimony and the actual presentation of CSAAS testimony here were consistent with the limited use of CSAAS evidence permitted by existing California case law. Defendant has not directed us to anything in the record to suggest that the evidence was used for a purpose other than rehabilitation of S.A.'s testimony after it was challenged. We find no abuse of discretion in the trial court's decision to permit such evidence to be presented to the jury.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.
Kelly is the seminal California Supreme Court authority which adopted the principles set forth in Frye regarding the admissibility of new scientific evidence. While the cases are often mentioned together, we will refer to the rule simply as the Kelly rule.