Opinion
C083626
06-18-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MICHAEL NEWELL, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F14201)
A jury convicted defendant Anthony Michael Newell of continuous sexual abuse of a child under the age of 14. (Pen. Code, § 288.5, subd. (a).) The trial court sentenced him to 16 years in prison.
Defendant now contends the trial court erred in admitting evidence pertaining to Child Sexual Abuse Accommodation Syndrome (CSAAS) because CSAAS does not apply to the facts of the case, the public no longer holds the presumed misconceptions CSAAS purports to address, CSAAS evidence fails to satisfy established requirements for admissibility, and admission of the CSAAS evidence violated his right to a fair trial.
Finding no merit in defendant's contentions, we will affirm the judgment.
BACKGROUND
The victim was 15 years old at the time of trial and testified to repeated abuse by defendant (her father) starting sometime when she was between the ages of five and seven years old. The victim informed her mother after the first time defendant touched the victim's vagina. Her parents argued about it but ultimately her mother did not believe her.
Three or four times, the abuse involved not only defendant, but also his girlfriend at the time. Some of this testimony was corroborated by the girlfriend, who testified in accordance with a plea agreement. After the first instance of abuse involving the three of them, the girlfriend asked the victim if she wanted to tell anyone. The victim said no and that she did not want defendant getting in trouble.
The victim recalled other times she performed oral sex on defendant at various locations. Defendant also used a vibrator on her. One Easter defendant had vaginal sexual intercourse with her. Another time he briefly engaged in anal intercourse with her.
The last incident was at the house of defendant's subsequent girlfriend. After the victim orally copulated defendant, he pushed her off the bed when he heard the girlfriend's car. The victim did not immediately get dressed, hoping they would be caught.
The victim admitted reporting physical abuse that was not completely true. Her original plan was to tell child protective services about the sexual abuse, but she did not do so. The victim lost her nerve because she loved her dad. Defense counsel questioned the victim extensively about this, highlighting false information within her report.
Defense counsel also questioned the victim about an instance of oral copulation that the victim did not mention in two different interviews, but referenced subsequently. He also asked why she stayed with him or complied with his requests, and she replied, "Because regardless of what my dad put me through, I still loved him. I still love him. There's not anything that could change that." When defense counsel asked the victim why she did not tell at least one investigator about the anal sex, she said she was embarrassed and left some things out.
Defense counsel asked why the victim did not tell her uncle about defendant's abuse sooner than she did. The victim said she feared her uncle would kill defendant.
The People presented the testimony of Dr. Anthony Urquiza as an expert on CSAAS. Dr. Urquiza explained CSAAS is not used to diagnose whether abuse occurred and should not be used to determine whether someone is guilty of a crime. He described the five components of CSAAS: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction. He said not all children display all components.
Dr. Urquiza said many children are sexually abused by someone they know, who may be bigger, stronger, and in a position of authority over the child. The child may like or love their abuser. Thus, the child engages in secrecy for fear that something bad could happen to the abuser. He added that the children often do not take proactive steps to stop the abuse, and it is common to have significant delay in disclosure. Dr. Urquiza explained that the process of disclosure over time may look unconvincing. Initial disclosures may be vague, followed by additional details, especially where the abuse occurred over a period of time. He said retraction of allegations is not inconsistent with abuse.
Defendant testified. He denied touching the victim inappropriately and denied the specific instances of alleged misconduct.
The trial court instructed the jury concerning the CSAAS testimony, directing that the evidence must not be considered as proof that the criminal allegations are true. The trial court instructed that the jury must presume defendant is innocent, and the People have the burden to prove guilt beyond a reasonable doubt. The trial court said the jury could consider the evidence for the limited purpose of whether the alleged victim's reaction was not inconsistent with having been molested.
STANDARD OF REVIEW
The trial court's decision to admit expert testimony concerning child sexual abuse is reviewed for an abuse of discretion and will not be disturbed unless a manifest abuse of discretion is shown. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299.)
DISCUSSION
Defendant contends the trial court erred in admitting the CSAAS evidence because CSAAS does not apply to the facts of this case, the public no longer holds the presumed misconceptions CSAAS purports to address, CSAAS evidence fails to satisfy established requirements for admissibility, and admission of the CSAAS evidence violated his right to a fair trial.
Evidence Code section 801, subdivision (a), permits the introduction of testimony by a qualified expert on a subject sufficiently beyond common experience when the opinion would assist the trier of fact. Although CSAAS testimony may not be used to prove that a child was molested, it is admissible "for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation." (People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino).) The prosecution does not have to identify the specific misconception to be addressed; it is sufficient if the victim's credibility is placed in issue due to paradoxical behavior, such as delay in reporting a molestation or failing to stop abuse. (Id. at pp. 1744-1745.) Inconsistencies in the victim's statements may also support the use of CSAAS evidence. (People v. Perez (2010) 182 Cal.App.4th 231, 245 (Perez).)
Defendant concedes that California law has approved the use of CSAAS evidence. But he claims CSAAS testimony is no longer needed, citing non-binding cases from 1992 and 2001, and referencing episodes of Law and Order SVU. Those citations do not provide current authority that the trial court abused its discretion in this case.
We also reject defendant's assertion that CSAAS does not apply to this particular case. Defense counsel asked the victim about her delay in reporting the abuse, her failure to stop the abuse, and the inconsistencies in her statements. CSAAS testimony is admissible to explain the victim's state of mind relative to those issues. (Patino, supra, 26 Cal.App.4th at p. 1745, 1747; see also Perez, supra, 182 Cal.App.4th at p. 245.)
In addition, defendant's Kelly/Frye challenge lacks merit. (See People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013.) Such a challenge has been rejected by California courts. (People v. Housley (1992) 6 Cal.App.4th 947, 954-956; People v. Bowker (1988) 203 Cal.App.3d 385, 391-394.) The Kelly/Frye test does not prohibit the use of CSAAS evidence when limited in the manner directed by the trial court in this case. (People v. Harlan (1990) 222 Cal.App.3d 439, 448-449.)
Accordingly, the admission of CSAAS evidence did not render defendant's trial fundamentally unfair in violation of due process. (Patino, supra, 26 Cal.App.4th at p. 1747.)
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
DUARTE, J.