Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF023133. John M. Monterosso, Judge.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Gary W. Schons, Assistant Attorneys General, and James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
A jury found defendant and appellant Donneil Akeem McDowell guilty of three counts of aggravated assault of a child under the age of 14 years and 10 or more years younger than him, based on his commission of sodomy by force under Penal Code section 286 (§ 269, subd. (a)(3), counts 1-3). Defendant pled guilty to two counts of misdemeanor unlawful intercourse with a second victim (§ 261.5, subd. (b)). The trial court sentenced defendant to a total term of 45 years to life in state prison.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant contends the trial court abused its discretion in admitting expert testimony concerning child sexual abuse accommodation syndrome. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005 defendant moved in with his sister and her two daughters, H.E. (the victim) and K.E. (collectively, the girls). They lived in an apartment on Rosalia Street. The victim was five years old at the time. Defendant lived with them for about one year and slept in the living room. When defendant’s sister and the girls moved into another apartment on Fruitvale Avenue, defendant moved also, but he stayed with them only half of the time. He stayed with his girlfriend the rest of the time. Defendant watched the girls alone for short periods of time.
The first time defendant sexually abused the victim was when she was five years old, when they were still living on Rosalia Street. The victim recalled the incident occurred when her mother was at preschool with K.E. Defendant approached the victim in her bedroom while she was doing her homework. Defendant told her to lie on the bed, on her stomach. Defendant pulled down her pants and underwear and put them on the floor. Defendant pulled down his pants and underwear and pushed his penis inside her “butt,” causing her “hole” to hurt. The same thing happened more than once at the apartment on Rosalia Street, but the victim could not recall how many times. The victim did recall that similar sexual encounters took place between her and defendant in her mother’s bedroom and on the couch. The last incident the victim could recall occurred when she was seven years old, in her mother’s bedroom. While the victim’s mother was at the store, defendant took the victim into the bedroom, closed the door, and pulled her pants and underwear down. He pushed his penis inside her “butt hole” for five minutes.
At trial, the victim testified that similar sexual incidents occurred with defendant seven times.
In October 2007, the victim told her 12-year old cousin, L., about the last incident with defendant. When the victim and L. were in the bathroom, the victim told her that defendant “was putting his wiener in her butt hole.” The victim never told anyone about what was happening with defendant before that, because she was scared and defendant told her not to tell anyone. Once the victim told L., then L. told her aunt. The aunt called defendant’s sister, and defendant’s sister went to the aunt’s house to pick up the victim and her sister. The aunt told defendant’s sister that L. had told her defendant had molested the victim. Defendant’s sister then talked with the victim about the allegations, and the victim told her the same thing she had told L.
The victim was interviewed on October 15, 2007, by Sarah Walker, who worked for the Child Protective Services division of the Department of Public Social Services. The victim described to Walker how defendant had sexually abused her. The interview was videotaped, and the tape of the interview was played for the jury.
On October 22, 2007, Dr. Frederic Bruhn, who was the medical director of the child abuse/neglect team of Riverside County Regional Medical Center, examined the victim. The victim’s exam was normal and did not show any physical signs of abuse such as scarring, bruising, or cuts. Dr. Bruhn said the victim described to him that she had pain for “some time after the event,” so he suspected that she had some injury, but by the time he examined her, the symptoms had simply resolved. At trial, Dr. Bruhn testified that children healed extremely rapidly, especially in the rectal area. He also testified that the victim tested positive for chlamydia, a sexually transmitted disease. Dr. Bruhn said the insertion of a penis into the anus was definitely a mechanism for the transfer of chlamydia.
On November 12, 2007, Detective Josiah Douglas interviewed defendant. The interview was audiotaped, and the tape was played for the jury at trial. During the interview, defendant said that on one occasion, while he was on the drug Ecstasy, the victim initiated contact and touched his penis. At first, defendant said the victim touched him “just for a second” and that he did not do anything. He then said she touched him for a few seconds, and he told her to stop. Defendant said the victim subsequently grabbed his hand and put it on her bottom. He then said he “just touched her a couple times.” Defendant finally said that he rubbed his penis on her bottom, but denied touching “the hole.” He said the incident lasted 10 minutes before he caught himself and felt bad. Defendant also admitted that he had had chlamydia in the past. Defendant said he felt bad, so Detective Douglas suggested that he write a letter to the victim. Defendant wrote a letter, which was read to the jury at trial. The letter stated:
“Sorry for what I did. I made a mistake. I didn’t mean for this to happen. I’m very sorry. I hope you and your mom can forgive me. I love you, and I never mean [sic] to hurt you or your mom. I hope you won’t hate me for this. I didn’t mean for this to happen. I hope you could take my mistake, but I sorry for you and your mom. I know your mom hate [sic] me now, but I’m sorry, and I still love you.”
ANALYSIS
I. The Trial Court Properly Admitted Evidence of Child Sexual Assault Accommodation Syndrome
Defendant argues that the court prejudicially erred in admitting expert testimony by Dr. Jody Ward concerning child sexual abuse accommodation syndrome (CSAAS). CSAAS cases involve expert testimony regarding the common responses or reactions of a child molestation victim. (People v. Sandoval (2008) 164 Cal. App.4th 994, 1001.) In the typical criminal case, it is the People’s burden to identify a “myth or misconception the evidence is designed to rebut.” (People v. Bowker (1988) 203 Cal.App.3d385, 394 (Bowker).) Defendant contends that the prosecution failed to “make a meaningful showing that there was some ‘myth’ or misconception to be rebutted.” We find no error.
A. Relevant Background
Before trial, defense counsel argued that the expert testimony of Dr. Jody Ward on CSAAS was not needed and was not relevant, and that it should be excluded under Evidence Code section 352. The prosecutor responded that the testimony was relevant and admissible to explain the actions of child abuse victims, and, in this case, to explain the victim’s significant delay in reporting the abuse and her willingness to return to a place where she was being molested. The court made sure that the prosecutor was not planning on asking Dr. Ward at trial whether, based on her knowledge of the case, the victim in this particular case was molested. The prosecutor assured the court that Dr. Ward had no specific knowledge about the facts of the instant case and had not talked to the victim. The court decided to admit the evidence, noting that it was relevant since there were some behaviors of the victim that would need to be explained to the jury. The parties and the court acknowledged that the jurors would be given a limiting instruction that they were not to use the testimony as evidence that this particular victim was molested, but only for the limited purpose of explaining the typical behaviors of child molestation victims.
At trial, Dr. Ward confirmed that she was not aware of any specific information about the facts of the instant case. She then proceeded to explain the five components of CSAAS. The first one was secrecy, which referred to the fact that most child abuse occurred in secret, and that the victims are told not to tell anyone. The second component was helplessness, meaning that because of the “power differential” between children and adults, where children are dependent on adults to provide for them and are told to obey everything adults say, children fall into sexual abuse. The third component was entrapment or accommodation. She said that most of the time, a sexually abused child does not report the abuse, so the perpetrator may go back “again and again” to abuse the same child. Dr. Ward explained that “the child becomes entrapped in that situation and has to accommodate to it some way.” So the child acquiesces to the sexual abuse to keep the family together, or to keep the status quo. The fourth component was “delayed unconvincing disclosure.” Dr. Ward explained that research shows most people do not report sexual abuse right away, out of shame, guilt, or fear, and that it is very common for a child not to feel comfortable reporting abuse right away. The last component was recantation. She explained that sometimes children recant abuse allegations and say the abuse never occurred just to restore the status quo in their home and life. Dr. Ward emphasized that these components were a way to understand why children may respond the way they do, and that not every victim shows all five components.
The prosecutor asked Dr. Ward about whether a power differential would exist between a 22-year-old uncle and a seven-year-old niece. Dr. Ward said it would, and that if there were a familial relationship, the child would feel more helpless if the child felt that by reporting the abuse, it would upset the family in some way. Dr. Ward further stated that she would not expect the victim in that situation to report sexual abuse right away. In addition, she testified that a child in that situation would acquiesce to the abuse and unwittingly put herself in situations where she would be abused over and over again. Dr. Ward further testified that it is common for an abused child to initially disclose the abuse to another child.
After some questions from defense counsel on cross-examination, the court excused the witness and immediately gave the following instruction to the jury: “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 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 in evaluating the believability of her testimony.”
B. Standard of Review
The decision of a trial court to admit expert testimony should not be disturbed on appeal unless a manifest abuse of discretion is shown. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).) Furthermore, “‘[t]he 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. Instead, the statute declares that even 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.]” (Id. at pp. 1299-1300.)
C. The Court Did Not Abuse Its Discretion in Allowing the Expert Testimony
“[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. [Citations.]” (McAlpin, supra, 53 Cal.3d at p. 1300.) In other words, “[t]he 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.” (Bowker, supra, 203 Cal.App.3dat p. 394.)
Here, the victim’s credibility was directly at issue. She claimed that defendant sexually abused her seven times. However, defendant admitted only one nonpenetrating contact between his penis and the victim’s bottom. Furthermore, as argued by the prosecutor, the CSAAS evidence was necessary to explain the significance of the victim’s delayed reporting. Defendant first started sexually abusing his niece in 2005, but she did not report it to anyone until October 2007. Because of the significant delay in reporting the sexual assaults, and the CSAAS evidence was properly admitted to rebut the misconception that such abuse would more readily be reported. Defendant argues that “a jury does not need to be educated as to why a very young child does not immediately report an act of sodomy by an adult relative” and asserts that “[c]hildren of that age obviously have no context for determining the act is a wrong thing that should be reported.” In sharp contrast to this assertion, Dr. Ward explained that “just by virtue of the fact that [the sexual abuse] occurs in secret, the child knows that there’s something wrong or bad” about the sexual behavior. Dr. Ward further said that it was very common for a child to feel uncomfortable reporting abuse right away, usually because she feels shame, guilt, and fear that she will be blamed for the sexual abuse.
Moreover, the CSAAS evidence was relevant to explain how the victim allowed herself to be alone with defendant after being sexually abused by him so many times. Defendant asserts that “[n]o jury needs to be informed why a seven-year-old continues to live at home even if she is being molested there.” However, Dr. Ward’s testimony was useful in assisting the jury to understand the child’s circumstances and point of view. As Dr. Ward explained, because there was a “power differential” between children and adults, where children are taught to obey everything that adults say, the children fall prey to sexual abuse. Moreover, Dr. Ward explained that a sexually abused child becomes entrapped in a situation where she is repeatedly abused, and she “has to accommodate to it some way.” The child acquiesces to the sexual abuse, in order to keep the family together or keep the status quo.
Defendant contends that the admission of the CSAAS evidence was a violation of his right to due process, because the evidence was “a conclusive version of the truth.” As such, he argues that the test for prejudicial error would be the harmless-beyond-a-reasonable-doubt-standard. However, the mere erroneous exercise of discretion under the ordinary rules of evidence does not implicate the federal Constitution. (People v. Cudjo (1993) 6 Cal.4th 585, 611.) The applicable standard of prejudice is that for state law error as set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Cudjo, supra, at p. 611.) In any event, assuming arguendo the court erred in admitting Dr. Ward’s testimony, the error was harmless under any standard. The evidence of defendant’s guilt was overwhelming. He personally admitted touching the victim’s bottom with his penis. He attempted to minimize his conduct, but his story kept changing during his interview with the police. In contrast, the victim’s reports of sexual abuse to her cousin, mother, and the Child Protective Services worker were very consistent with each other and with her trial testimony. In addition, the victim had chlamydia, a sexually-transmitted disease that defendant once had. Under these circumstances, any error in admitting the CSAAS evidence was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., MILLER J.