Opinion
E042347
9-3-2008
THE PEOPLE, Plaintiff and Respondent, v. LONNIE E. NUGENT, Defendant and Appellant.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
A jury convicted defendant Lonnie E. Nugent of one count of committing a lewd act upon his stepgranddaughter Jane Doe (Jane or victim). (Pen. Code, § 288.) The trial court sentenced defendant to 365 days in county jail and placed him on five years of formal probation.
On appeal, defendant contends that (1) the trial court erroneously admitted expert testimony on the Child Sexual Abuse Accommodation Syndrome (CSAAS); (2) giving CALCRIM No. 1193 permitted the jury to return a guilty verdict without finding every fact necessary to sustain the charge beyond a reasonable doubt; (3) admitting Janes hearsay statements to the social worker violated his right of confrontation; (4) defense counsel rendered ineffective assistance; and (5) cumulative prejudice accrued as a result of all the errors. We reject defendants contentions and affirm the judgment.
STATEMENT OF FACTS
A. Prosecutions Case
Nine-year-old Jane testified at trial that she had lived in a home with defendant, her "Grandpa Lonnie," where she shared a room with her mother and stepfather. When she was six or seven years old, she told her mother that defendant touched her on the part of her body where she goes to the bathroom and "yellow" comes out, calling that part of her body her "private." At trial, however, Jane testified that defendant did not touch her in her "private."
On cross-examination, Jane testified that she remembered telling mother the reason she said defendant touched her was because her aunt pressured her to say that, but she did not know why. Jane restated that defendant did not touch her "privates."
On redirect, Jane reiterated that she had talked to her aunt about defendant touching her "private."
Janes mother was called as a witness by the prosecution. Mother testified that in 2003 and 2004 she spoke with Jane several times about the molestation. Jane had come forward and said she had been molested by defendant, and demonstrated the touching with a circular rubbing gesture. Mother stated she asked Jane several times if it were true. Jane said it was true and that she did not want to talk about it. Mother testified that she did not believe Jane.
Several months after they moved to a new apartment, mother asked Jane if she was lying about the molestation. Jane responded, "`No, Mommy, its true." Mother told Jane that if she were lying, she would get defendant into trouble for something he did not do.
Mother met with defense investigator Art Vasquez at her home to discuss the molestation. After having her memory refreshed with Vasquezs report, mother testified that she asked Jane to show her how defendant touched her. Mother remembered possibly telling Vasquez that Jane made some hand gestures.
Mother testified that each time she asked Jane, who was age six at that time, if her stepgrandfather touched her, Jane said yes. Mother would use a stern tone of voice when she spoke with Jane, but did not scream at her. Mother also employed a stern tone of voice when she told Jane not to lie about defendant and that defendant had not done "it." Mother told Jane that she did not believe defendant had molested her.
Mother testified that around December 2003 she and Jane were driving to a store to return Christmas gifts that Jane had received from her biological father. As they drove, mother asked Jane in a regular tone of voice if the molestation occurred. At that point, Jane said it did not happen. When mother asked Jane why she lied, Jane responded that she did not know why.
During cross-examination, mother testified that defendants routine was that he would come home from work, eat dinner, sit in a chair and watch television, and then retire to bed. Defendant would interact with Jane when she returned home from school. Jane would run over to defendant, say "`Hi, Grandpa," and would sometimes ask if she could watch television with him. Defendant would respond, "`Yes." The two of them were never alone—there was always someone present when defendant and Jane were together.
Mother stated that the reason she did not believe Janes molestation claim was because Janes biological fathers family did not care for the fact that Jane had a new father, grandmother, and aunt. Another reason she did not believe Janes molestation claim was that while Jane lived at the Nugent home, and even before, Jane would often scratch herself in the groin area and would "not stop digging at herself." On the prosecutions redirect, mother testified Jane never disclosed how Janes aunt coached her as to what she should say.
Janes aunt testified that Jane told her defendant had touched her. Jane disclosed the molestation while she and Jane played a game called "Canoose-Canoose." The game involved a fantasy world peopled with imaginary friends with whom you could share your secrets. As part of role-playing, one person would ask to speak to a made-up character, and the other person would act like the character.
Janes aunt played the game with Jane, who was five or six at the time. Janes aunt pretended to be someone else and Jane believed she was talking to a character and not her aunt. Jane said, "`Oh, well, my Grandpa Lonnie touched me," and "`Dont tell my [aunt]." Janes aunt asked her where on her body defendant touched her. Jane responded either on her "pee pee" or "pot pot." According to Janes aunt, "pot pot" is the Tagalog word for vagina.
Janes aunt believed that Jane said "Dont tell my [aunt]" because she felt like it was her (Janes) fault. Jane realized she was actually speaking to her aunt, and ran into the garage. Janes aunt told Jane, "`It is not your fault. It is not any of your problems. Dont be scared to be telling anybody what happened."
Next, Janes aunt told either her sister or her mother (Janes grandmother) that Jane revealed the molestation to her. Paternal grandmother then called the police. Janes aunt denied ever pressuring Jane into saying that she was molested.
Janes biological father testified that Jane was six years old when she came forward and reported that defendant had molested her. He testified that Jane said her stomach hurt and complained of vaginal pain. Jane told him that when her mother and stepfather had to go to work, "she would get taken care of by the family." Jane disclosed that defendant would carry her and slip his finger into her private area, touching her skin to skin.
Vasquez testified as a prosecution witness. Vasquez stated he was previously employed as a licensed private investigator hired by defense counsel to work on this case. Vasquez said he first interviewed mother and then Jane at their home in November 2004. Jane divulged to Vasquez that while she watched television, defendant had touched her between her legs on her private part, which she called "number 1" and the back, which she called "number 2." Jane also told Vasquez that defendant had only touched her once on top of her clothes while she sat on a chair watching television with him. Defendant told her that he could get in trouble if she reported it to anyone.
On cross-examination, Vasquez said Jane told him defendant touched her in the front and not in the back.
Detective Richard Sheldon, an investigator for the Riverside County Sheriffs Department assigned to sex crimes against children, testified that he conducted a follow-up investigation regarding the claims against defendant. Ten days after the initial report, Detective Sheldon set up an RCAT interview with Jane.
RCAT is an acronym for Riverside Child Assessment Team, the purpose of which is to interview child victims.
A videotape of Janes interview with the RCAT social worker was played in court and a transcript was provided to the jurors. Detective Sheldon testified that the transcript was a fairly accurate representation of the tape.
In the videotape, Jane told social worker Vera Diaz that defendant "was touching me." The first thing Jane remembered was that defendant was "touching [her] in the front and the back." Jane explained that meant defendant touched her in the "pee pee" (the number one) and the buttocks (the number two). When Diaz asked Jane, "Tell me how that happened to the number one?" Jane answered that "He . . . was touching [her] on the inside."
Diaz asked Jane: "When you said that the hand was on the, on the pee pee, you said it went inside the pee pee. How did it get inside the pee pee?
"Jane: What do you mean?
"Diaz: Okay. Did you tell me he put it inside the pee pee?
"Jane: Yeah, like inside."
Jane described the defendant sitting in one of those chairs that have "an open up for your feet." Defendant would sit in the chair first and then she would sit on it. Jane said defendant touched her with his hand and his hand went "like this." Jane said she knew defendant did that because she felt it. She said defendants hand touched her both on top of her clothes and on her skin underneath her clothes.
We have reviewed the videotape of the RCAT interview. In making the hand gesture, Jane raised her hand and appeared to have rubbed her thumb and index finger together.
Jane also told Diaz that defendant touched her more than one time on the "number two" and more than one time on the "number one." Defendant used his hand to touch her "number two" on the inside and outside, on her skin and clothes. She explained that defendant touched her on the round part and not "where the poo poo [go]es out." Jane said that defendant touched her with one finger. Defendant told Jane not to tell anybody "[s]o we can do it some more and I didnt wanna [sic] to do it more so I telled [sic] somebody."
In the videotape, Jane again made the same hand gesture.
Diaz asked Jane, "did Grandpa ever [have] you . . . do anything to him?" Jane said when they were in "the kick up chair" defendant "got [her] hand and he put it on his pee pee, and I put it back."
As part of his investigation, Detective Sheldon observed an interview with defendant that was videotaped. That videotape was played for the jury.
In the videotaped interview, defendant said that he had never been alone with Jane and denied molesting her. Defendant said Jane was not a liar but that she liked to make up stories. The interviewer inquired of defendant:
"Interviewer: OK, but I am saying when I ask you, do you remember this ever happening?
"[Defendant]: No, no I do not remember it ever happening.
"Interviewer: You think it happened?
"[Defendant]: I dont think it did, but it could have.
"Interviewer: How could it have happened?
"[Defendant]: She could have, she could have took [sic] my hand and and, but I dont understand why she would.
"Interviewer: Do you remember that happening?
"[Defendant]: No I do not.
"Interviewer: Why would you even think that that might happen?
"[Defendant]: I dont know. Because of all these years of children around me and everything they crawl all over you.
"Interviewer: Right. Well you would remember if a child took your hand and
"[Defendant]: Yeah, Id think so but, there is no way of knowing.
"Interviewer: Well, why would you even think that that—I mean youre saying
"[Defendant]: Well
"Interviewer: Youre saying . . . that a child would themselves take your hand and do something like that?
"[Defendant]: No. Im just saying she might have crawled around on me and rolled over my hand getting out of the chair or something. I dont know. And then she thought maybe that I was touching her when she. [Because] you can roll out of the chair onto the floor. But I do not remember . . . ."
The prosecution next called Dr. Veronica Thomas, a psychologist in private practice who specialized in clinical and forensic psychology, as an expert in CSAAS. Dr. Thomas testified that CSAAS is a treatment tool used by mental health workers in therapy sessions with children who have been sexually assaulted by someone they know. Dr. Thomas described five elements exhibited in CSAAS: Secrecy, helplessness, entrapment and accommodation, disclosure, and recanting. Dr. Thomas explained that CSAAS is not an investigative tool and was never meant to be a diagnostic technique employed to determine whether molestation actually occurred. Rather, the CSAAS protocol allows a therapist to assume the child has been molested. CSAAS represents a constellation of ways that a sexually abused child may react as a result of their molestation experience, because sexually abused children have a complex set of emotional problems. For example, children may not recall events, say things they had never disclosed before, or may be reluctant to talk.
Dr. Thomas testified she never reviewed any medical exams, read any police reports, or watched any videotaped interview produced in this case and had no opinion regarding the case.
The prosecutor posed a hypothetical set of facts to the expert. Dr. Thomas was asked to assume that both a mother and a grandfather are caretakers of a child and the child comes forward and discloses that her grandfather molested her. The child repeatedly says the molestation occurred. When the child is questioned by her mother about the molestation, the child eventually says the molestation did not happen. Dr. Thomas was asked whether a mothers behavior of repeatedly questioning and disbelieving the child would cause the child to retract her molestation claim, and if that scenario fit within CSAAS. Dr. Thomass opinion was that the hypothetical facts fit the syndrome because if the child got the message that what she was telling was not an acceptable thing to say, it was likely that the child would recant or retract the molestation claim.
Dr. Thomas explained that CSAAS is referred to as an accommodation syndrome because it involves an ongoing series of molestation that goes on over a period of time and that it is typical for a child not to disclose the molestation while it is going on. When the molester is a family member, the child is in some dependency relationship with the molester and others who are important to the both of them. The child needs to maintain a sense of normalcy or saneness within their environment, and it is a big responsibility for a child to disclose ongoing sexual abuse and know other people are going to be impacted. Dr. Thomas further elaborated that when the child reports the molestation, there may be an upheaval in the family: The police have come, other children may have been removed from the home, and financial issues may become worse because the disclosed molester went to jail. The child may feel an enormous responsibility for making the disclosure that affects everybody that the child loves in the family, causing the child to recant.
The last witness the prosecution called was Dr. Sandra Murray, a pediatrician who was the medical director of the RCAT. Dr. Murray examined Jane on October 20, 2003. Prior to the examination, Dr. Murray received a history that Janes stepgrandfather touched Jane in her vaginal and anal area and there was associated pain and bleeding.
Dr. Murray made two findings as a result of the exam: Jane had a skin condition called lichen sclerosis and had some defects in her hymen.
Lichen sclerosis is a skin disorder that causes pigment changes around the labia, the perineum, and the anus, making the skin very pliable so that it is easily damaged with little hematomas and lacerations in the skin. Janes skin condition was moderate in its severity: There were several areas of bruising of the inner labia and vestibules. The cause of lichen sclerosis is unknown, but it is believed that it is related to estrogen because it spontaneously resolves when the child enters puberty. The fact that Jane had lichen sclerosis was not indicative of her having been molested.
Dr. Murrays second finding was that Jane had a very narrow hymen, with hardly any hymen left. Janes narrowed hymen strongly indicated to Dr. Murray that there was a penetrating trauma that caused the hymen to tear and that the tear had healed. Dr. Murray also said it was possible that Jane may have entered the very early stages of puberty at six years old; however, that was a rare occurrence.
Dr. Murray believed that sexual abuse was likely. Janes injuries were highly suspicious because Dr. Murray was familiar with injuries seen in children who had been abused.
B. The Defenses Case.
1. Defendants testimony.
Defendant testified that Jane was his stepgranddaughter. During 2002 and 2003 defendants son (Janes stepfather), mother, and Jane lived at his residence. When defendant would come home from work, he would "go to the bathroom, take a bath, . . . sit in [a] chair and wait for supper." He would then go into the living room, sit in a chair, and go to sleep. Defendant said it was common for him to fall asleep within five minutes of sitting down. Because he snored, the other people in the room would make him get up and go to bed.
Defendant would watch television from his recliner. Jane would sometimes ask her mother for permission to sit by him—she would sit on the side. Jane began to sit with him because he could not hear the words of the program and Jane would repeat them to him. Jane sat in the chair on his left side and not on the arm of the chair. Jane never sat on his lap. Defendant testified that the first time Jane sat in his chair with him, he had invited her into the chair because he could not hear her narrating the program. Afterwards, Jane would ask her mothers permission and she would sit in his chair for short periods of time.
Defendant denied touching Janes vaginal area or her buttocks at any time. When defense counsel asked him why he said "`I dont remember" in his videotaped interview, defendant testified that he was "trying to put the story together to find out in [his] own mind what she was doing or what she was saying," and that he "couldnt get it together." He could not understand why Jane would have any reason to be telling stories about him. When defendant said in the interview, "I dont remember. It could have happened when I was asleep. She might have put her hand on me or put my hand there." What he meant to say was that he was trying to figure out what was going on. He was "trying to use the experience to come up with some explanation as to why she might tell this story."
Defendant had also observed Jane scratching herself hard inside her panties. He said that he and everyone in the house noticed it because her mother kept correcting her and repeatedly told her "to quit digging in her vagina . . . ."
2. Testimony of Sharon Nugent.
Defendants wife, Sharon Nugent, testified that defendants routine was to sit in a recliner in the living room, watch television, and fall asleep. From 2002 to 2003, the home was "pretty congested" with people coming and going from their home, which was only 1,150 square feet in size. In general, defendant would not interact with children while sitting in his chair watching television. He would not interact with Jane much, but she would sometimes ask to sit with defendant and repeat to him the words of the movie they were watching.
Sharon had observed that while defendant sat in his chair, his hand would be hanging over the side. When Jane lived at the residence, defendant was never alone with her. She described Jane as a very precocious little girl with a vivid imagination who made up stories and had previously gotten into trouble for lying. She believed Jane might embellish a story to get attention.
3. Testimony of Janes Stepfather.
Janes stepfather testified that he was unemployed for a time and was mostly at home in 2002 and 2003. He recalled that his father was never alone with Jane, and that he (Janes stepfather) was "pretty much" always present when defendant was there. Janes stepfather had never seen his father carry any child. He testified he first noticed that Jane frequently scratched her groin area before she and her mother moved into the Nugent house.
4. Testimony of Alicia Nugent.
Defendants daughter, Alicia, testified that she lived with defendant and Sharon in 2002 and 2003. She testified that defendant worked many hours, would come home, sit in his recliner, turn on the television, wait for dinner, eat, and then finish watching television or go to bed. She saw Jane sit with him on the arm of the chair a couple of times. Alicia stated mother and Janes stepfather would keep a close watch on Jane; Jane was never alone in the house with defendant. Alicia babysat Jane a couple of times when mother and Janes stepfather were not home. Alicia testified Jane had a habit of digging deep into the tissue of her vagina.
DISCUSSION
A. Expert Testimony on CSAAS Was Properly Admitted.
Defense counsel made a motion in limine to exclude the prosecutions CSAAS expert witness on relevancy and Evidence Code section 352 grounds. In responding to the motion, the prosecutor argued that the experts testimony was relevant because the defense was going to attack the victims credibility, hence, it was necessary to explain matters that went beyond the purview of the common knowledge of the jurors by dispelling myths of how molestation victims would react.
All further statutory references will be to the Evidence Code unless otherwise indicated.
The trial court conducted a section 352 weighing and ruled that the probative value of the expert testimony outweighed its prejudice. It found that the examination of the witness would not involve an undue consumption of time, would not confuse the jury, and was not cumulative evidence. The evidence was being offered to assess the victims credibility (the central issue of the case), and it would facilitate the jurys inquiry into the truth. The court indicated its ruling was tentative and it would revisit the issue after the victim testified.
Defendant contends that it was prejudicial error to admit the experts testimony on CSAAS, in that the experts opinion invited the jury to conclude that Jane was telling the truth because she exhibited symptoms that fit the pattern of a molested child, and created a profile of the abuse which defendant conveniently fit. Defendant maintains that Dr. Thomass testimony was irrelevant because she suggested that Jane exhibited the profile of a sexually abused child and invited the jury to conclude defendant was her molester. He claims that Dr. Thomass testimony was inadmissible to show Jane exhibited symptoms of a sexually molested child. Since neither defendant nor Janes mother attacked Janes credibility by testifying that Jane lied, the CSAAS evidence was irrelevant to prove any disputed fact arising from Janes testimony.
We review the courts decision to admit expert testimony and its determination under section 352 for an abuse of discretion. (People v. Carter (2005) 36 Cal.4th 1114, 1147 (Carter).)
1. CSAAS evidence is admissible.
Case precedent supports the admission of CSAAS evidence. For over 20 years, California courts have allowed expert testimony regarding CSAAS for a limited purpose. (See People v. Bowker (1988) 203 Cal.App.3d 385, 391 (Bowker), citing In re Sara M. (1987) 194 Cal.App.3d 585; Seeing v. Dept. of Social Services (1987) 194 Cal.App.3d 298, 310-311, 313; People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099 (Roscoe).) To the extent our Supreme Court has recognized that CSAAS evidence may be relevant, useful, and admissible in a given case, our role as an intermediate appellate court does not allow us to rule otherwise. (People v. McAlpin (1991) 53 Cal.3d 1289, 1301-1302 (McAlpin); People v. Brown (2004) 33 Cal.4th 892, 905-906 (Brown); see Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
2. The CSAAS evidence was relevant to assess the victims credibility.
Defendant contends the experts testimony was aimed at showing that Jane exhibited the symptoms of a sexually molested child and hence was irrelevant. At several points in his brief, defendant maintains that the victims credibility was not an issue at trial. For instance, he states his testimony and mothers testimony, "was not an attack of Janes credibility per se, but rather questioned which version of her statements was true" and that he "did not testify [] Jane lied at trial, but rather that if the touching happened, it was accidental, innocent, and misinterpreted by Jane." At other points in his brief, defendant states that the victims credibility was an issue at trial.
As the People note, the admissibility of the CSAAS experts testimony was discussed against the backdrop of the prosecutions pretrial in limine request to admit the videotape of Janes RCAT interview. Defense counsel objected to the videotape on hearsay and section 1360 grounds. Defense counsel argued that the only statements in the tape that were admissible were the victims prior consistent and inconsistent statements under the hearsay exception, and her statements that she was molested. All of Janes other statements were excludable under the hearsay rule in that the statements did not meet the foundational requirements of section 1360. Defense counsel also objected that the whole of the RCAT videotape was irrelevant to judge the victims credibility and was excludable under section 352.
Section 1360—Statements describing child abuse or neglect made by child under age of 12: "(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply: [¶] (1) The statement is not otherwise admissible by statute or court rule. [¶] (2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. [¶] (3) The child either: [¶] (A) Testifies at the proceedings. [¶] (B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child. [¶] (b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement. [¶] (c) For purposes of this section, `child abuse means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and `child neglect means any of the acts described in Section 11165.2 of the Penal Code."
In light of defendants arguments, it is clear that the victims credibility was an important issue, if not the central issue, at trial. Defendants argument that he neither attacked Janes credibility nor testified that she lied, but only "questioned the truth of her varying versions" and her "misinterpret[ion of] his actions" is a distinction without a difference.
In determining a witnesss credibility, any matter that has a tendency in reason to prove or disprove the truthfulness of the witnesss testimony may be considered. (§ 780.)
CSAAS expert testimony is not admissible to prove that a child victims report of abuse is credible because the child manifests certain defined characteristics which are generally exhibited by abused children. (Bowker, supra, 203 Cal.App.3d at p. 391, citing In re Sara M., supra, 194 Cal.App.3d 585; Seeing v. Dept. of Social Services, supra, 194 Cal.App.3d at pp. 310-311, 313; Roscoe, supra, 168 Cal.App.3d at p. 1099.) However, CSAAS evidence is admissible to rebut a defendants attack on a childs credibility, rehabilitate a victims credibility, to disabuse jurors of specific myths or misconceptions suggested by the evidence, and to explain the emotional antecedents of a childs self-impeaching behavior. (Bowker, at pp. 393-394; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383; Brown, supra, 33 Cal.4th at p. 906; Roscoe, at p. 1100.) For example when a child significantly delays reporting, or recants her story in whole or in part, an expert could testify on the basis of her experience and past research that "`such behavior is not an uncommon response for an abused child. . . . [Citation.]" (Brown, at pp. 905-906; Bowker, at p. 394; People v. Housley (1992) 6 Cal.App.4th 947, 955-956.)
Superseded on other grounds in People v. Levesque (1995) 35 Cal.App.4th 530.
The CSAAS expert testimony was properly admitted to explain Janes initial reports and subsequent recantations of the molestation. Dr. Thomass testimony explained that Janes recanting fit the CSAAS scenario. CSAAS represents ways that a sexually abused child may react, such as retracting a molestation claim if the child receives a message it is unacceptable to disclose it. When the child knows that others in her family are being impacted by the upheaval caused within the family by the disclosure, it could cause the child to recant. Jane consistently reported that defendant had molested her to her aunt, Diaz, her biological father, and her mother, until mother told her that defendant had not molested her. At that point, and throughout the court proceedings thereafter, Jane either did not recall or outright denied being touched sexually by defendant. The testimony was thus pertinent and admissible, as the issue of the victims credibility had been raised by the defense. (People v. Patino (1994) 26 Cal.App.4th 1737, 1745 (Patino).)
3. The CSAAS expert testimony was not used to conclude the victim had been sexually assaulted.
Defendant complains that the CSAAS evidence was inadmissible to prove that Jane exhibited symptoms of a sexually molested child. He contends that the experts testimony added credibility to Janes statements that defendant touched her, and explained Janes different statements and her recantation. He also argues that Dr. Thomass testimony portrayed Jane as a sexually abused child based upon her statements and her mothers skepticism, and nullified his denials that he touched her sexually.
We find that the CSAAS evidence was properly limited to the syndromes characteristics. Dr. Thomas testified that she did not review any reports and did not interview the victim. As defendant notes, Dr. Thomas did not testify that Jane was molested. Dr. Thomass description of how Janes inconsistent statements could be accounted for by the syndrome does not, ipso facto, mean that Dr. Thomas testified Jane in fact was a sexually abused child. In testifying about the five elements of CSAAS, Dr. Thomas did not run afoul of Kelly-Frye strictures that preclude a CSAAS expert from testifying that a child molestation actually occurred. (Bowker, supra, 203 Cal.App.3d at p. 393; People v. Bledsoe (1984) 36 Cal.3d 236, 245.) Dr. Thomass testimony was limited to explaining the emotional antecedents of Janes seemingly self-impeaching behavior and the myths and misconceptions jurors might hold about how a child reacts to a molestation. (McAlpin, supra, 53 Cal.3d at p. 1301.)
People v. Kelly (1976) 17 Cal.3d 24 and Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013.
It is natural for a jury to wonder whether the molestation really occurred, if Jane and her mother are now testifying that defendant never touched Janes body, when Jane had previously told Diaz, Vasquez, her biological father, her aunt, and her mother, that defendant had touched her. To eliminate absurd results and rehabilitate the witnesss credibility, the prosecution is permitted to introduce limited credibility evidence to clarify misconceptions suggested by the evidence. (Patino, supra, 26 Cal.App.4th at p. 1745; McAlpin, supra, 53 Cal.3d at p. 1300.) As the Supreme Court stated in McAlpin: "Most jurors, fortunately, have been spared the experience of being the parent of a sexually molested child. Lacking that experience, jurors can rely only on their intuition or on relevant evidence introduced at trial." (McAlpin, at p. 1302.)
4. The trial court did not abuse its discretion in finding the CSAAS evidence more probative than prejudicial.
Defendant argues that even if the CSAAS evidence was relevant, it was more prejudicial than probative, and the trial court should have excluded it. He alleges that even if there was a legitimate use for the CSAAS testimony to rehabilitate the victims credibility, the prosecution failed to target the experts testimony for that narrow purpose. He contends the CSAAS evidence was not limited to a relevant purpose because the defense "made no claim that post-incident conduct diminished Janes credibility." Rather, the defense was that (1) defendant never touched Jane; (2) if any touchings did occur they were "accidental, innocent, and misinterpreted"; and (3) the reason Jane said defendant touched her was because her aunt pressured her. He maintains the CSAAS evidence went far beyond the relevant purpose of why Jane recanted and the experts opinion that Jane was molested because she fit the profile.
We conclude the experts testimony was highly probative to explain Janes inconsistent statements. The prejudicial impact, if any, was mitigated by the court properly limiting the evidence to explain how sexually abused children, in general, react, and not that defendant had molested Jane because she exhibited some CSAAS traits.
A trial court has discretion to exclude evidence when its probative value is outweighed by concerns of undue prejudice, confusion, or consumption of time. We review a trial courts ruling under section 352 for abuse of discretion. (People v. Tafoya (2007) 42 Cal.4th 147, 174.) A courts ruling will be sustained unless it falls outside the bounds of reason. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) Any error in admitting evidence after an abuse of discretion analysis is performed is reviewed under the Watson harmless error standard. (Carter, supra, 36 Cal.4th at pp. 1170-1171.)
People v. Watson (1956) 46 Cal.2d 818, 836.
The CSAAS evidence was probative to explain Janes behavior as it was a useful tool to explain to jurors a complaining witnesss state of mind (Patino, supra, 26 Cal.App.4th at p. 1744), and not to determine the truth or accuracy of a particular event. (Bowker, supra, 203 Cal.App.3d at p. 391.)
Defendant asserts that the CSAAS evidence prejudiced him in several ways: (1) it established a scientific framework to pigeonhole Janes behaviors and not identify myths, (2) invited the jury to prejudge him on extraneous factors, and (3) the testimony bore little relevance to the disputed facts of consequence.
The "prejudice" referred to in section 352 is described as evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. (Carter, supra, 36 Cal.4th at p. 1168.) Contrary to defendants belief, the evidence did not evoke an emotional bias against him. Defendant argued that Jane had imagined and made up a false molestation report. The CSAAS evidence was probative to explain why Jane had recanted; recantation is one of the five types of behaviors child sexual assault victims experience when they are acquainted with their molester.
We find that the trial court did not abuse its discretion in admitting CSAAS expert testimony.
5. It is not reasonably probable the result would have been different had the CSAAS evidence been excluded.
Defendant contends that a different result would have been obtained if the court had excluded Dr. Thomass testimony. Defendant maintains that without the CSAAS testimony, the prosecutions case against him was weak—there was no physical evidence to corroborate the crime, there were no witnesses, Janes stories were inconsistent, and any touching by defendant was innocent, accidental, and misinterpreted. He also states another reasonable explanation could account for the medical finding: The lichen sclerosis skin condition Jane suffered from which caused her to scratch and dig at her vagina, and resulted in trauma to her hymen. We disagree.
It is not reasonably probable that the result would have been different had Dr. Thomass testimony been excluded. The jury had asked the court for a readback of Dr. Murrays testimony regarding the physical exam and the symptoms of lichen sclerosis. This clearly indicates that the jurors were focused on Dr. Murrays medical findings.
The jurys review of Dr. Murrays testimony demonstrates their focus on her uncontroverted medical findings, and her opinion was that it was more likely than not that Jane had been sexually molested based upon the hymeneal defects she found and the history garnered by Child Protective Services. As the jurys readback request focused on Dr. Murrays testimony, and not Dr. Thomass CSAAS testimony, it appears the jurors were more interested in the medical evidence.
In his interview, defendant stated that he did not remember a sexual touch ever occurring, but said it could have. Despite his trial testimony to the contrary, defendants interview statements were not a categorical denial that he touched Jane, but rather were conditional statements that maybe Jane believed it happened because she rolled over his hand in getting out of the chair, or that maybe Jane took his hand, and that he thinks hed remember if a child took his hand but there is no way of knowing.
Based on the uncontroverted medical finding of penetrating trauma to Janes hymen, in conjunction with defendants admissions that it could have happened, we conclude it is not reasonably probable that the jury would have found defendant not guilty had Dr. Thomass CSAAS testimony been excluded.
6. Due process claim.
Defendant contends the admission of CSAAS evidence violated his federal constitutional right to due process. Defendant forfeited this claim by failing to raise it in the trial court. (People v. Geier (2007) 41 Cal.4th 555, 609.)
Even if the claim had not been forfeited, it is without merit. "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendants trial fundamentally unfair." (People v. Falsetta (1999) 21 Cal.4th 903, 913.) The use of CSAAS evidence at trial does not render the trial fundamentally unfair. (Patino, supra, 26 Cal.App.4th at p. 1747.) As we have determined the CSAAS evidence admitted was relevant to the issues presented and, as it was properly limited, did not render defendants trial fundamentally unfair.
B. Admitting Janes Hearsay Statements to the Social Worker Did Not Violate Crawford.
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Defense counsel objected to the social workers RCAT interview of Jane on several grounds: Janes interview went beyond statements describing child abuse; there was a lack of foundation to sufficiently establish the reliability of the statements; Janes statements were irrelevant and prejudicial; and did not meet the prior inconsistent statement hearsay exception. Counsel stated that Jane had not been subject to cross-examination at the time of the RCAT interview. However, defense counsel did not specifically object to the RCAT interview on Crawford grounds.
At the conclusion of Janes testimony, defense counsel conceded the RCAT interview qualified as a prior inconsistent statement under section 1235. The trial court admitted the RCAT videotape as a prior inconsistent statement under the section 1235 hearsay exception.
Citing Crawford, supra, 541 U.S. 36, defendant contends that his right to confrontation was violated because (1) the statements Jane made during her RCAT interview were testimonial in nature, and (2) although Jane appeared at trial, she was not available or subject to cross-examination.
1. Janes statements to the RCAT interviewer were testimonial.
In Crawford, the United States Supreme Court held that the confrontation clause renders testimonial out-of-court statements offered against a criminal defendant inadmissible unless the witness is unavailable at trial and the defendant has a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at pp. 53-54, 59.) For confrontation clause purposes, the crucial determination is whether the out-of-court statement is testimonial or nontestimonial. (People v. Geier, supra, 41 Cal.4th at pp. 598.)
A "witness" "bear[s] testimony," which is "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." (Crawford, supra, 541 U.S. at p. 51.) An accuser who makes a formal statement to government officers, "bears testimony," but a person making a casual remark to an acquaintance does not "bear testimony." (Ibid.) Thus, the confrontation clauses primary objective is interrogation by law enforcement. (Davis v. Washington (2006) 547 U.S. 813, 823, 826.)
"Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis v. Washington, supra, 547 U.S. at p. 822, fn. omitted.)
We agree with defendant that Janes statements to the social worker were testimonial.
Detective Sheldon, a member of law enforcement, had set up a forensic interview with Jane to investigate the case against defendant. The primary purpose of Janes interview was to establish facts regarding any acts of molestation that would be used in a criminal prosecution against defendant. The interview was conducted by a trained social worker, whose goal it was to elicit a truthful recollection from the child of past events that were criminal in nature. The interview rooms were located either at a law enforcement venue (the district attorneys office) or at a hospital. In this case, a special medical exam was set up with a forensic pediatrician the same day of the RCAT. Janes interview was videotaped and played to the jury.
From the totality of the circumstances, it is clear that the impetus in setting up, conducting, recording, and playing the forensic interview between the social worker and Jane to the jury was to use Janes interview to prove defendant molested Jane. We find statements made by Jane during the RCAT interview were testimonial in nature and subject to Crawfords confrontation clause strictures.
This scenario is similar to that in People v. Sisavath (2004) 118 Cal.App.4th 1396. The prosecution sought to admit a videotape of a victim with a trained interviewer at a county multidisciplinary interview center where child abuse victims were interviewed. (Id. at p. 1400.) The court found that the victims videotaped statements were "testimonial" within the meaning of Crawford because they were "`"made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." [Citation.]" (People v. Sisavath, at pp. 1402-1403, fn. omitted.)
As we conclude that Janes statements were testimonial, the confrontation clause requires that they be excluded unless Jane was "available" to testify.
2. Janes testimony that she "did not remember" did not make her unavailable to testify.
Defendant points out areas in the record where Jane testified he did not touch her and the only people she told otherwise were her mother and her aunt. He claims that Jane did not feign amnesia. Janes negative responses to follow-up questions of whether she remembered ever talking to anyone else or if she remembered talking to a "lady who had a lot of colored pens" (Diaz), do not equate with a failure to remember whether defendant touched her or failing to recall making statements to Diaz. Instead, he asserts that Janes in-court statements are a continuation of her testimony that she did not tell anyone except her mother and her aunt.
Prior to Crawford, United States Supreme Court cases such as United States v. Owens (1988) 484 U.S. 554 (Owens) and California v. Green (1970) 399 U.S. 149 (Green) held that witnesses who experienced memory loss were considered available for cross-examination for confrontation clause purposes. Defendant contends that those cases cannot be applied here after Crawford.
Under Crawford, an extrajudicial testimonial statement does not violate the confrontation clause if the declarant is available and subject to cross-examination at trial. (Crawford, supra, 541 U.S. at p. 50.) Defendant insists that Jane did not forget whether she made the statements. Rather, Jane testified she did not talk to the social worker. He contends this made it impossible for defense counsel to cross-examine Jane about her RCAT statements. He argues that just because Jane testified at trial, it does not automatically satisfy Crawfords prerequisites that Jane be available and subject to cross-examination before the RCAT can be admitted. We disagree.
In the 10 pages of reporters transcript highlighted by defendant, Jane testified to several things. Jane said that defendant did not touch her in her private. Jane also stated that she told her mother that defendant touched her. She testified the reason she told her mother defendant touched her was because her aunt pressured her do it. Jane also testified that she did not tell anyone else. She said she did not talk to other attorneys or other people about defendant and did not talk to her aunt.
We agree with defendant that Jane was clear in her recollection that defendant did not touch her. However, in parts of her testimony, Jane did not remember meeting with other people, or if she remembered meeting the person, she did not recall what she said to that individual. Janes statement that she did not go into a room with a lady with small chairs and a table is her perception of facts. The RCAT videotape was a record of her meeting with Diaz. The videotape was admissible evidence under section 780, subdivision (i). The existence or nonexistence of any fact that has a tendency in reason to prove or disprove Janes testimony is admissible. The RCAT videotape of her conversation with Diaz had a tendency to disprove the nonexistence of a fact: Jane claimed that her "nana" did not take her to an office with small chairs and a table, and she did not meet with a lady with colored pens. Thus, the videotape was properly admitted to help the jury assess Janes credibility that she did remember meeting with someone to discuss the molestation.
Jane also testified that she did not remember making statements to Diaz, Vasquez, and Blaine (an employee from the prosecutors office) about defendant touching her privates. The crux of defendants claim is that Janes "real or feigned memory loss" does not make her available for cross-examination, thus does not meet the Sixth Amendments requirement for cross-examination as prescribed in Crawford. We find that the RCAT videotape of Janes prior inconsistent statements wherein she stated defendant touched her "pee pee" and her buttocks are admissible under Green, Owens, and Crawford.
In Crawford, the United States Supreme Court found that the framers "would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination." (Crawford, supra, 541 U.S. at pp. 53-54.) The court stated the purpose behind the confrontation clause is to ensure reliability of evidence, however, it "is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." (Id. at p. 61, italics added.)
The court in Crawford made it plain that if a witness appears at trial and is cross-examined, the confrontation clause allows the witnesss prior testimonial statements to be used. In footnote No. 9 of its opinion, the court specifically cited Green, supra, 399 U.S. 149, reiterating that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." (Crawford, supra, 541 U.S. at p. 59, fn. 9.)
Defendants claim that Owens and Green are not applicable in this case is mistaken. Crawfords reliance on Green makes it clear that Green and its progeny are still viable after Crawford.
The People cite the holding of People v. Perez (2000) 82 Cal.App.4th 760, 766, to support its position that a witnesss testimony that she "did not remember" did not deny defendant his right to cross-examination. We do not address Perez as it was decided before Crawford.
In Green, the court held that a witnesss prior inconsistent testimonial statements made during a preliminary hearing were admissible at trial. The witnesss trial testimony—that he could not remember the actual events of the incident—was impeached with his preliminary hearing testimony wherein he testified defendant was his marijuana supplier. (Green, supra, 399 U.S. at pp. 151-152.) The United States Supreme Court concluded that "the Confrontation Clause [was] not violated by admitting declarants out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination." (Id. at p. 158.)
In Owens, the Unites States Supreme Court agreed with Justice Harlans concurrence in Green that "a witness[s] inability to `recall either the underlying events that are the subject of an extra-judicial statement or previous testimony or recollect the circumstances under which the statement was given, does not have Sixth Amendment consequence." (Owens, supra, 484 U.S. at pp. 558-559, citing Green, supra, 399 at p. 188 (conc. opn. of Harlan, J.).) The court held that a witnesss prior out-of-court identification was admissible when the identifying witness was unable to explain the basis of his identification because of memory loss. (Owens, at p. 559.) It held that a defendant is not denied the opportunity to cross-examine a witness if the witness is unable to recollect. (Ibid.) "It is sufficient that the defendant has the opportunity to bring out such matters as the witnesss bias, his lack of care and attentiveness, his poor eyesight, and even . . . the very fact that he has a bad memory." (Ibid.) "`[T]he Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."" (Ibid.) Thus, when a "hearsay declarant is present at trial and subject to unrestricted cross-examination . . . the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness[s] demeanor satisfy the constitutional requirements." (Id. at p. 560.)
Here, Jane testified at trial and was available for cross-examination concerning the out-of-court statements she made to Diaz and recorded on the RCAT videotape. Thus, under Crawford, there is no Sixth Amendment bar against the admission of Janes prior inconsistent testimonial statements.
Jane testified that she did not remember talking with Diaz or Vasquez, nor did she remember what she said to Blaine at the prosecutors office. Janes inability to recollect her statements or conversations with others, whether real or feigned, did not deprive defendant of his ability to cross-examine. Jane appeared at trial and her lack of recall was subjected to direct and cross-examination. The jury was provided with the opportunity to observe her demeanor and assess her credibility, which the jury could use as a tool to determine whether Janes prior testimonial statements were credible. The Sixth Amendment only guarantees to defendant the right to use the crucible cross-examination to test Janes credibility under fire. It does not guarantee any particular desired result.
C. The Trial Court Properly Gave CALCRIM No. 1193.
The trial court instructed the jury with CALCRIM No. 1193, "Testimony on Child Sexual Abuse Accommodation Syndrome" as follows:
"You have heard testimony from Dr. Veronica Thomas regarding child sexual abuse accommodation syndrome. [¶] Dr. Thomas[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 [Janes] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony."
Defendant complains that CALCRIM No. 1193 unconstitutionally lessened the prosecutions burden to prove each element because it allowed the jury to presume a lewd touching occurred, thus shifting the burden to the defense to prove that Janes body was not touched. He states the instruction does this by "creat[ing] a mandatory presumption that, if the jury finds that Janes reactions are consistent with the CSAAS theory—and [Dr.] Thomas told the jury the circumstances were consistent—then the jury should conclude that a molestation did in fact occur."
Defendant asserts the language of the instruction, which allows the jury to consider CSAAS evidence to decide whether or not Janes conduct was not inconsistent with that of a molested child, eliminates alternative possibilities for the jury to consider, such as that Jane was lying, CSAAS does not apply, and Thomass testimony was not conclusive that Jane was molested. He also claims that CALCRIM No. 1193 wrongfully encourages jurors to use the victims reactions as a predictor that she was molested. He states, "[j]urors cannot be expected to ignore the tool handed them by [Dr.] Thomas, who enables them to probe syndrome-included behavior as predictors of guilt."
The People argue that defendant invited the error because defense counsel specifically requested that CALCRIM No. 1193 be read to the jury. Defendant disputes this, claiming "that the record does not unequivocally support the contention that [defendant] requested the instruction."
Although defendant did not ask for CALCRIM No. 1193 in his request for jury instructions, defense counsel nevertheless stated, "I think I am asking for that too." We find this to be a sufficient request for the instruction. If defense counsel had not wanted the instruction, at any point during the courts discussion of the instructions he could have withdrawn his request or objected to the instruction. He did neither.
Even if the error had not been invited, we conclude that CALCRIM No. 1193 correctly recites the applicable law. "`CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation. [Citations.] [Citation.]" (People v. Wells (2004) 118 Cal.App.4th 179, 188, citing McAlpin, supra, 53 Cal.3d at pp.1300-1301; Bowker, supra, 203 Cal.App.3d at p. 391; Patino, supra, 26 Cal.App.4th at p. 1744.) CALCRIM No. 1193 also correctly provides that CSAAS evidence may be used to assess the victims believability. An expert may testify that a certain characteristic or particular behavior, such as delayed reporting or recantation, is not inconsistent with a child having been molested. (Bowker, at p. 393.) Furthermore, the instruction follows Bowkers requirement that the jury be directed not to treat CSAAS evidence as proof that the molestation actually occurred. (Ibid; Patino, at p. 1744.)
Contrary to defendants claims, the instruction was designed to vitiate his fear of a "parade of horribles" that he believed CALCRIM No. 1193 would unleash. The instruction does not allow the jury to presume a touching occurred, and does not shift the burden to require the defense prove a touching did not occur. CALCRIM No. 1193 specifically informs the jury that CSAAS testimony is not evidence that the defendant committed a crime. CSAAS testimony was designed to explain the state of mind of a victim/complaining witness. (Patino, supra, 26 Cal.App.4th at pp. 1744, 1746.)
Defendants claim that CALCRIM No. 1193 "set[s] up an unspoken syllogism" is without merit. CALCRIM No. 1193 clearly states that CSAAS expert testimony is a way of or a tool for assessing the victims state of mind and not an unconstitutional direction to the jury that they should find defendant committed a lewd act. The fact that Jane recanted does not compel the conclusion that defendant molested her. CALCRIM No. 1193 does not suggest jurors engage in a mandatory presumption: That if the victim recanted, then defendant molested her.
Jurors are generally considered to be equipped to judge witness credibility without the need for expert testimony. (People v. Wells, supra, 118 Cal.App.4th at p. 189.) It is the job of the jurors in deliberations to weigh the credibility of the victim and defendant, in light of the totality of the evidence, including CSAAS evidence that explained the victims state of mind behind her recantation. The jurors were also instructed with CALCRIM Nos. 220 (reasonable doubt); 252 (union of act and intent); 301 (single witness testimony); 1110 (elements of crime—lewd or lascivious act on a child under the age of 14); 3500 (unanimity required); and 3501 (unanimity required; generic testimony presented). We presume the jurors heeded the courts instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.)
D. Defense Counsel Did Not Render Ineffective Assistance.
Defendant claims that his counsel rendered ineffective assistance because he failed "to make specific and timely objections to the admissibility of CSAAS evidence for want of relevance or undue prejudice under section 352; the courts instruction with CALCRIM No. 1193; or the admissibility of the RCAT evidence in violation of the Confrontation Clause . . . ."
In view of our conclusions that there were no errors in the trial courts decisions, we need not address defendants related claims of ineffective assistance of counsel in failing to object to the CALCRIM No. 1193 instruction or defendants arguments as to the inadmissibility of the RCAT videotape or of the CSAAS evidence. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101, fn. 33.)
E. Cumulative Error.
Defendant asserts that reversal is required due to cumulative errors which deprived him of a fair trial. Finding no potential errors to accrue, we therefore reject defendants argument that cumulative error deprived him of a fair trial or warrants reversal of the verdict in whole or in part. Defendants are entitled to a fair trial, not a perfect one. (People v. Houston (2005) 130 Cal.App.4th 279, 320.)
DISPOSITION
The judgment is affirmed.
We concur:
McKINSTER, Acting P. J.
KING, J.