Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC063618
Jones, P.J.
Michael Leon Montoya appeals from a judgment entered after a jury convicted him on one count of rape by force, (Pen. Code, § 261, subd. (a)(2)) one count of committing a lewd act on a 14-year-old child by a person at least 10 years older than the victim, (§ 288, subd. (c)(1)) and two counts of committing a lewd act on a child under the age of 14. (§ 288, subd. (a).) He contends his conviction must be reversed because (1) the trial court erred when it denied his request to sever one of the counts, and (2) the court erred when it admitted certain evidence. We reject appellant’s arguments and affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant married M. When they married, M. already had a daughter named T.
In 1996, appellant was experiencing financial problems. He and his sons moved into M.’s parents’ home. M.’s sister P., who was 13 years old at the time, also lived in the home.
Shortly after appellant moved into the family home, he began sneaking in to P.’s bedroom at night and molesting her. The first time, P. was sleeping when she woke up suddenly. Appellant was touching her legs and thighs. The second time occurred a few months later. When P. woke up, appellant was putting his finger inside her vagina. She grabbed his hand and demanded to know what he was doing. Appellant said he was looking for his youngest son’s pacifier. The third time, appellant entered P.’s bedroom, removed the strap of her nightgown, and touched her stomach.
P. did not tell anyone about the molestations for many years. She was afraid she might destroy her family if she revealed what appellant had done. That changed in 2003 when P. learned that appellant had also molested T.
Appellant molested T. approximately 20 times starting when she was eight or nine years old. Sometimes during the day and sometimes at night, he would put his hand down her pants and touch her private parts. On one occasion, appellant forced T. to engage in intercourse.
In 2002, T. told the authorities that appellant was molesting her. She later recanted because she did not want her step-brothers to lose their father.
Even though T. had recanted, appellant and M. separated in 2002. M. took T. and moved into her mother’s house.
One day in early July 2006, T. was home alone when appellant and his sons arrived. He claimed he was there to pick up a car. T. was watching television and appellant sat next to her and started to touch her legs. T. tried to move away, but appellant persisted. Hoping to defuse the situation, T. called out to her step-brothers. One of them came into the room and appellant stopped.
T. went into another room to watch television. Appellant followed her and lay down beside her. He got on top of T., removed her pants, and forced her to engage in intercourse. Appellant stopped when T.’s grandmother came home from work unexpectedly. When appellant heard the front door open, he jumped up and told T. to get dressed.
Later that day, T. told a relative and a friend what appellant had done. The relative said that T. looked and sounded frightened, and she “was crying” when she described how appellant “went all the way with her.” T. also said appellant had raped her once before when she was little.
A forensic nurse who specializes in sexual abuse examined T. on August 1, 2006. She observed vaginal injuries that were consistent with T. having been forced to engage in intercourse during a period of time one month before, over the weekend of July 4, 2006.
Based on these facts, an information was filed charging appellant with the four counts we have set forth above. The first three were alleged to have been committed against T. The fourth count was alleged to have been committed against P. As is relevant here, the information also alleged as an enhancement that appellant committed crimes against more than one victim within the meaning of section 667.61, subdivisions (c) and (e)(5).
The case proceeded to trial where the prosecutor presented the evidence we have set forth above. Appellant testified in his own defense. He denied acting inappropriately with P. or T., and he attributed the latter’s allegations to T.’s distress when she learned that he was not her real father.
The jurors considering this evidence convicted appellant on all counts and found the multiple victim allegation to be true. Subsequently the court sentenced appellant to 15 years to life in prison.
I. DISCUSSION
Prior to trial, appellant asked the court to sever count 4 alleging a lewd act against P., from counts 1 through 3, that alleged crimes committed against T. The trial court conducted a hearing on appellant’s motion and denied it. Appellant now contends the trial court erred when it denied his motion to sever.
As is relevant here, section 954 states: “An accusatory pleading may charge... two or more different offenses of the same class of crimes or offenses, under separate counts... provided, that the court in which a case is triable, in the interest of justice and for good cause shown, may, in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately....”
Our Supreme Court has said that the “prosecution is entitled to join offenses under the circumstances specified in section 954. The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” (People v. Bean (1988) 46 Cal.3d 919, 938.)
A defendant who alleges on appeal that the trial court erred when ruling on a severance motion must overcome a substantial barrier. A trial court’s denial of a motion for severance of charged offenses amounts to a prejudicial abuse of discretion only if the trial court’s ruling falls outside the bounds of reason. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) In making that assessment, a reviewing court must consider “‘(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.’” (Id. at pp. 1220-1221, quoting People v. Mendoza (2000) 24 Cal.4th 130, 161.)
Here, appellant concedes the crimes alleged against T. and P. were of the same class and that they were properly joined under section 954. Therefore, the issue becomes whether the trial court abused its discretion when it denied appellant’s request to sever. Applying the four factors our Supreme Court has identified, we conclude the answer is no.
The evidence showing that appellant committed sexual offenses against P. would be admissible in a trial charging sexual offenses against T., and vice versa. (Evid. Code, § 1108.) The evidence was cross-admissible.
While the charges regarding T. were more serious than the charges regarding P., the difference was simply a matter of degree. In both instances appellant abused a position of trust to commit sexual offenses against young girls in their own homes. In both instances, appellant continued his illegal conduct over an extended period of time. The crimes committed against T. were not so different from those committed against P. that they were likely to have inflamed the jurors.
The strength of the evidence supporting the crimes concerning T. was somewhat stronger than the evidence supporting the crime concerning P. As to the former, the charges were supported by physical evidence (the nurse’s examination) and by a contemporaneous complaint (to T.’s relative and friend). But again, the difference was simply a matter of degree. “[I]t always is possible to point to individual aspects of one case and argue that one is stronger than the other.” (People v. Soper (2009) 45 Cal.4th 759, 781.) In both instances, the crimes were supported primarily by the testimony of the victim who described appellant’s misdeeds. The quality of the evidence between the crimes was not so different that severance was mandated.
Finally, a capital crime was not at issue here.
Weighing the four factors our Supreme Court has identified, we conclude appellant has not met his considerable burden of proving the trial court abused its discretion when it denied his motion to sever. (People v. Soper, supra, 45 Cal.4that p. 783.)
B. Admission of Evidence
Over the defense’s Evidence Code section 352 objection, the prosecution presented testimony from Miriam Wolf, an expert on what is known as Child Sexual Abuse Accommodation Syndrome (CSAAS).
Wolf stated that CSAAS is not a diagnosis, but a “framework for looking at children’s behavior....” The syndrome is characterized by five types of behavior. The first is secrecy. Sexually abused children are likely to keep the abuse quiet for a long period of time. The second is helplessness. Because an abuser frequently is older and more powerful than the victim, the victim will not know how to respond. The third is “entrapment accommodation.” Children don’t always feel they can tell someone about the abuse, and when they don’t tell, they feel trapped. The fourth is delayed, hesitant, and unconvincing disclosure. The abuse may be disclosed piecemeal and over a long period of time. The fifth characteristic is it is not uncommon for victims of abuse to retract or recant allegations they have made.
Not all victims of abuse display all five characteristics and some victims might not display any at all.
Wolf explained that CSAAS was developed to counter several “myths” about sexual abuse. The first is that a victim will report a molestation immediately after it occurs. The second is that a victim will avoid the molester. The third is that a child who does report a crime will report it fully.
Wolf acknowledged there is no way to know with certainty whether a child is telling the truth about a molestation. She also acknowledged she had never spoken to T. or P.
Appellant now contends the trial court erred when it allowed Wolf to testify about CSAAS.
The opinion testimony of an expert witness is admissible if it is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.... ” (Evid. Code, § 801, subd. (a).) “‘[T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission.... [E]ven 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.]’” (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.) On appeal we will reverse the trial court’s ruling admitting expert testimony only where the court abused its discretion. (Id. at p. 1299.)
Many cases have ruled that expert testimony concerning CSAAS is proper. (See, e.g., 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.) Expert testimony regarding CSAAS is admissible to show that a “victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested.” (People v. Bowker (1988) 203 Cal.App.3d 385, 394.) CSAAS evidence may not be used to determine whether a child’s molestation claim is true. (Id. at p. 393.) Because the line between impermissible use of expert testimony to prove a child was abused, and permissible use of such testimony to explain an abused child’s seemingly irrational behavior is not a bright one, “the better practice is to limit the expert’s testimony to observations concerning the behavior of abused children as a class and to avoid testimony which recites either the facts of the case at trial or obviously similar facts.” (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1384.)
CSAAS evidence should be tailored to counter the specific myth or misconception suggested by the evidence. (People v. Bowker, supra, 203 Cal.App.3d at pp. 393-394.) “In the typical criminal case... it is the People’s burden to identify the myth or misconception the evidence is designed to rebut.” (Id. at p. 394.) However, the People need not expressly state which evidence is inconsistent with a finding of abuse. (People v. Patino, supra, 26 Cal.App.4th at p. 1744.) “It is sufficient if the victim’s credibility is placed in issue due to the paradoxical behavior....” (Ibid.)
Here, both P. and T. behaved in ways that the jurors might have found to be counterintuitive. First and importantly, neither reported the molestations until long after they had occurred. Furthermore, T. reported the molestations in 2002, but she then recanted. The trial court could reasonably conclude that testimony from Wolf regarding CSAAS would help the jurors interpret this seemingly paradoxical behavior. We conclude the court did not abuse its discretion when it admitted the testimony in question.
None of the arguments appellant advances convince us the trial court erred. First appellant contends the trial court should not have admitted the CSAAS testimony because he never expressly argued at trial that T.’s or P.’s testimony should be disbelieved because they delayed reporting the molestations. However, CSAAS testimony is not limited to responding to defense counsel’s attacks. “If it were a requirement of admissibility for the defense to identify and focus on the [victim’s] paradoxical behavior, the defense would simply wait until closing argument before accentuating the jurors’ misconceptions regarding the behavior. To eliminate the potential for such results, the prosecution should be permitted to introduce properly limited credibility evidence if the issue of a specific misconception is suggested by the evidence.” (People v. Patino, supra, 26 Cal.App.4th at p. 1745.)
Next, appellant argues the court erred when it allowed Wolf to describe all five aspects of the CSAAS syndrome. According to appellant, doing so violated the rule that CSAAS testimony should be targeted to the specific misconception regarding child abuse that is at issue in the case. We find no place in the record where appellant objected on this ground in the court below. The issue is waived. (Evid. Code, § 353.) Furthermore, any possible error on this ground clearly was harmless. While Wolf described the five characteristics of CSAAS, she did so briefly and only in the most general of terms. We conclude it is not reasonably probable appellant was harmed by the testimony he has identified. (Cf. People v. Housley (1992) 6 Cal.App.4th 947, 959.)
Next, appellant contends Wolf’s testimony ran afoul of the rule that proscribes testimony which recites the facts of the case at trial or obviously similar facts. (See, e.g., People v. Gilbert, supra, 5 Cal.App.4th at p. 1384.) He relies on portions of Wolf’s testimony where she stated for example that the “child is less powerful than the abuser” is “frequently somebody who is older” that “children are generally abused by somebody they know and trust” and that “older children are likely to hold on to the secret longer.” While the particular facts appellant cites do mirror the facts of the case, other aspects of Wolf’s testimony do not. For example, Wolf said CSAAS occurs in all types of relationships, not just father/daughter ones. Wolf said the perpetrator sometimes is an older child, not an adult. Wolf also testified it is not uncommon for an abuser to tell his victim repeatedly she should not go to other trusted adults for help. There is no evidence of such behavior here. Indeed, when Wolf’s testimony is read as a whole, it is apparent, she is testifying about the syndrome generally, not about the facts of the particular case. We see no error on this ground.
Finally, appellant argues even if the CSAAS testimony was admissible, it was more prejudicial than probative and it should have been excluded under Evidence Code section 352. We simply disagree. The evidence was highly probative because it helped the jurors to understand that children who are molested sometimes act in ways that are counterintuitive. The evidence was not unduly prejudicial because it was not geared toward the facts of this case specifically, but was provided as a general explanation of how children who are abused sometimes act. We conclude the trial court did not abuse its discretion when it ruled the evidence was admissible under Evidence Code section 352. (Cf. People v. Burgener (2003) 29 Cal.4th 833, 870.)
III. DISPOSITION
The judgment is affirmed.
We concur: Needham, J., Bruiniers, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.