Opinion
A167323
06-25-2024
THE PEOPLE, Plaintiff and Respondent, v. ULYSSES PASTONES, Defendant and Appellant.
NOT TO BE PUBLISHED
(Solano County Super. Ct. No. VCR234941)
MEMORANDUM OPINION
STEWART, P.J.
Defendant and appellant Ulysses Pastones appeals from convictions of sexual offenses committed against two young daughters of his then-girlfriend. He contends principally that his convictions must be reversed due to the trial court's erroneous admission of expert testimony on Child Sexual Abuse
Accommodation Syndrome (CSAAS). We affirm.
We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.) We do not recite the factual and procedural background because our opinion is unpublished and the parties know, or should know, "the facts of the case and its procedural history." (People v. Garcia (2002) 97 Cal.App.4th 847, 851 [unpublished opinion merely reviewing correctness of trial court's decision "does not merit extensive factual or legal statement"].)
BACKGROUND
Jane Doe 1 and Jane Doe 2 are sisters, two years apart, and their father died when they were young. In 2013, when Jane Doe 1 was eight years old and Jane Doe 2 was six years old, their mother began dating defendant and the family moved from their home in Livermore, California to live with him in Vallejo, California. Another daughter was born the following year, I., who is defendant's child and the girls' half-sister. They all lived together in two different houses in Vallejo before moving together to Arizona in February 2017.
It is undisputed that in July 2019, the two girls, then ages 14 and 12, independently disclosed to their mother that defendant had sexually molested them when they were younger. The revelations were precipitated by Jane Doe 2's anger over password restrictions defendant placed on her cell phone to prevent her from accessing the social media platform SnapChat.
A second amended information filed on October 31, 2022, charged defendant with seven felonies. Six offenses against Jane Doe 1 were charged: five counts of committing a lewd act on a child under age 14 (Pen. Code, § 288, subd. (a)) (counts 1, 2, 3, 5 and 6); and one count of aggravated sexual assault of a child, oral copulation (id., § 269, subd. (a)(4)) (count 4). A single offense against her sister, Jane Doe 2, was charged, committing a lewd act on a child under age 14 (id., § 288, subd. (a)) (count 7). In connection with the lewd act counts, enhancements under Penal Code section 667.61 and special allegations under Penal Code section 1203.66 were alleged. (Pen. Code, § 667.61, subds. (e)(4) [multiple victims], (j)(2) [victim under age 14]; id., § 1203.066, subd. (a)(8) [substantial sexual conduct].) The information also alleged aggravating sentencing factors.
The case proceeded to a five-day trial. The parties accurately summarize the trial testimony in their appellate briefs with which we presume their familiarity.
The prosecution presented the testimony of both complaining witnesses; their mother; and Dr. Anthony Urquiza, who was qualified as an expert in CSAAS and whose testimony we will discuss as relevant below. In general substance, Jane Doe 1 testified to repeated acts of molestation while they were living in California, recurring on nearly a daily basis for nearly two years, beginning when she was in fourth grade around age nine or ten, and ending when she was in sixth grade. Defendant only stopped after she finally tried to resist him, during the first (and only) time he forced her to orally copulate him (she bit down on his penis which made him curse at her). Her younger sister, Jane Doe 2, testified defendant began molesting her in Arizona when she was around nine years old and in fourth grade, and it ended when she was ten or eleven years old and in fifth grade, when he molested her a final time during a visit to his mother in California while her half-sister I. was asleep beside them in bed. Their mother had suspected nothing and, upon learning of her daughters' accusations, immediately kicked defendant out of their home and the next day called police.
The defense presented the testimony of defendant's mother, who saw nothing amiss during defendant's visit to California with Jane Doe 2 and I., and lived with the family in Arizona after the abuse ended (but before it came to light) and heard nothing amiss from her downstairs bedroom; the defendant's brother who vouched for his general good character; a former girlfriend who did the same; and another clinical psychologist qualified as an expert in CSAAS, Dr. William O'Donohue, who criticized CSAAS as "junk science."
The jury deliberated for three hours, asked no questions, and found defendant guilty on all counts and the enhancement allegations true. He was sentenced on February 17, 2023, to an aggregate prison term of 90 years to life.
This timely appeal followed.
DISCUSSION
I.
CSAAS Evidence
We recently summarized the permissible use of CSAAS evidence in People v. Clotfelter (2021) 65 Cal.App.5th 30 (Clotfelter)." 'Expert testimony on "the common reactions of child molestation victims," known as CSAAS theory evidence, "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." [Citation.]" 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly selfimpeaching behavior.'" [Citation.]' (People v. Julian (2019) 34 Cal.App.5th 878, 885 (Julian).)
"However, CSAAS evidence' "is not admissible to prove that the complaining witness has in fact been sexually abused." [Citation.]' (Julian, supra, 34 Cal.App.5th at p. 885.) Similarly, an expert providing CSAAS testimony may not give' "general" testimony describing the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused.' (People v. Bowker (1988) 203 Cal.App.3d 385, 393.) Stated another way, the jury cannot be led to engage in the leap from: (1) many victims of sexual abuse do not disclose the abuse because they hold the abuser in high esteem; (2) the witness failed to disclose the sexual abuse; (3) the witness exhibits the same behavior as a class of actual victims of sexual abuse; therefore, (4) the witness was in fact sexually abused." (Clotfelter, 65 Cal.App.5th at p. 64.)
In a pretrial motion, defendant objected categorically to the introduction of any CSAAS testimony under Kelly-Frye and, alternatively, under Evidence Code section 352. In the alternative, defendant sought to limit the scope of any CSAAS evidence by precluding the People from introducing any "statistical" evidence about the credibility of alleged victims of child sex abuse or evidence concerning the common "profile" of a sex abuse victim. The trial court overruled defendant's categorical objection to the admission of CSAAS testimony but precluded the People from offering CSAAS evidence "for case-specific issues" or to prove "the statistical likelihood that something is true or not."
At trial, Dr. Urquiza testified generally about CSAAS: its origins, its components and its purpose as a therapeutic tool. He explained that it originated as a concept intended to educate therapists who treat child victims of sexual abuse about how children respond to sexual abuse and to dispel misconceptions about child sexual abuse. He testified repeatedly that CSAAS is not a tool to determine whether abuse has in fact happened. He was unfamiliar with the facts of this case, offered no opinions about the credibility of either victim and answered no case-specific hypotheticals.
On appeal, defendant challenges only a portion of Dr. Urquiza's testimony. Defendant concedes that his general testimony about child sex abuse victims' delayed and unconvincing disclosure of abuse and the manner in which they accommodate, or "cope" with abuse, was properly admitted, because it rebutted the defense's attack on the victims' credibility based on inconsistencies in their accounts. Although he asserts "the rest" of Dr. Urquiza's testimony should have been excluded he identifies and discusses only three aspects:
The inconsistencies were largely trivial. The appellate briefing does not even discuss them. And defense counsel called the jury's attention to very few examples in closing argument. One was that Jane Doe 1 hadn't disclosed to the interviewer she had been digitally penetrated, nor that she had been subjected to "full intercourse . . . in the living room on the couch."
(i) Dr. Urquiza's testimony that most children who are sexually abused are abused by someone they know and with whom they have an ongoing relationship;
(ii) Dr. Urquiza's testimony that "in a substantial minority of cases" children retract accusations of sexual abuse; and
(iii) his testimony explaining the concept of secrecy, in particular that "most kids keep quiet" about the abuse while it is ongoing.
Defendant argues this evidence "effectively created a profile of an abused victim rather than rebutting any attack on witness credibility," and thus was erroneously admitted under state law. Also, citing Julian, supra, 34 Cal.App.5th 878, he contends its admission violated his constitutional rights to a fair trial.
"[T]he decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.'" (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).) Defendant has shown none.
There is a significant question as to whether these issues have been forfeited by defendant's failure to interpose contemporaneous objections at the time the challenged testimony was received. It is unnecessary to address forfeiture, however, because we nonetheless would exercise our discretion to review the issues on their merits.
To begin, Dr. Urquiza's challenged testimony did not exceed the permissible limits for CSAAS testimony under state law. The "known abuser" testimony did not "profile" defendant as a child sex abuser for the jury, nor profile either complaining witness as a victim. "The category of people 'who have an existing relationship with the victim' is a category so broad and nebulous that it cannot be construed as a 'profile' that would lead a jury to convict just because defendant falls within it." (People v. Sedano (2023) 88 Cal.App.5th 474, 482 [upholding admission of expert testimony about prevalence of pre-existing relationships between abuser and victims].) The California Supreme Court in "[People v.] McAlpin[, supra, 53 Cal.3d 1289] itself held permissible CSAAS testimony that was proposed to cover, among other things, studies reporting "that in most cases the child molester is not in fact a stranger to his victim." (Ibid.)
Nor did Dr. Urquiza's testimony that "most kids keep quiet" profile defendant as a perpetrator of sexual violence or the complaining witnesses as victims. Such testimony was closely and logically related to his testimony about delayed disclosure which defendant concedes was properly admitted. It was not an abuse of discretion to allow Dr. Urquiza's testimony about secrecy. (See People v. Lapenias (2021) 67 Cal.App.5th 162, 169, 172 [where defense focused mainly on victim's inconsistencies, admission of generalized CSAAS testimony, including secrecy, "was well within the bounds of reason"; "the CSAAS testimony may have informed some jurors that Doe's apparent accommodation, helplessness, secrecy, and delayed disclosures were typical reactions among children who have been sexually abused"].)
Dr. Urquiza's extremely brief testimony that child victims occasionally retract their accusations (and why) also created no inference that either child had been in fact been abused. That is because neither complaining witness recanted her accusations. Thus, there was no danger the jury could leap to an inference that the girls exhibited the same behavior as that class of victims and therefore must themselves have been sexually abused. (Clotfelter, supra, 65 Cal.App.5th at p. 64.) Apart from providing general background information, the retraction testimony arguably had little probative value because, as the People concede, the testimony did not rehabilitate the complaining witness's credibility. But the issue on appeal is not whether it should have been excluded under Evidence Code section 352 as more prejudicial than probative. It is whether the testimony transgressed the limits of expert CSAAS testimony under California law, and we conclude it did not.
Finally, our conclusion there was no abuse of discretion under state law in admitting any of the challenged evidence is bolstered by the entire context of Dr. Urquiza's testimony. Importantly, the prosecutor did not attempt to use Dr. Urquiza's testimony for any prohibited purpose: he did not argue that the complaining witnesses had any characteristics typical of child sex abuse victims, nor invite the jury to apply the CSAAS testimony to infer abuse had in fact occurred. (Cf. Clotfelter, supra, 65 Cal.App.5th at pp. 6364.) In addition, Dr. Urquiza testified repeatedly-on direct examination, on cross-examination and on re-direct examination-that CSAAS is not a tool to determine whether or not a child has been sexually abused. Indeed, on cross-examination he testified the original proponent of the CSAAS framework wrote an article criticizing its use for that purpose in the courtroom. Hence, in this case there is no question "the CSAAS evidence was not being used as scientific proof that a child had, in fact, been abused." (People v. Munch (2020) 52 Cal.App.5th 464, 473 [upholding its admission].)
At oral argument, counsel for defendant urged us to adopt a rule that CSAAS testimony may not be admitted unless and until a child witness is cross-examined on the subject to which the CSAAS evidence pertains (delay, secrecy, recantation, etc.). He contended McAlpin supports such a rule. We disagree and decline to adopt such a limiting rule.
To be sure, in McAlpin the court stated CSAAS testimony 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." (McAlpin, supra, 53 Cal.3d at p. 1300.) But the court neither stated nor held such evidence is admissible only after cross-examination of the child witness to attack her credibility based on such conduct. On the contrary, our high court recognized the purpose of CSAAS testimony is broader and includes" 'disabus[ing] jurors of commonly held misconceptions about child sexual abuse'" and" 'explaining] the emotional antecedents of abused children's seemingly self-impeaching behavior.'" (Id. at p. 1301.) Ultimately, the question is whether the testimony will" 'assist the trier of fact' (Evid. Code, § 801, subd. (a)) by giving . . . jurors information they need[] to objectively evaluate the People's evidence." (See id. at p. 1303.)
Defendant also has shown no constitutional violation. The challenged testimony bears no resemblance to the statistical probability evidence held improper in Julian. At issue there was expert testimony quantifying the percentage of false allegations of sexual abuse by children. (See Julian, supra, 34 Cal.App.5th at p. 883; id. at p. 885 [" 'about as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases' "], italics omitted.) Such evidence deprived the defendant of a fair trial in violation of due process because it "invited jurors to presume [defendant] was guilty based on statistical probabilities, and not decide the evidence properly introduced in the case." (Id. at p. 886.) In this case, Dr. Urquiza offered no testimony quantifying the incidence of false reports; nor in any other way, directly or indirectly, did he vouch for the credibility of either child witness and thereby supplant the jury's role. Rather, Dr. Urquiza's testimony merely attempted to dispel common misconceptions-including that abusers are usually strangers to the victim and that victims usually come forward right away- and thereby "help[ed] the jury objectively 'evaluat[e] the credibility of an alleged child victim of sexual abuse.'" (People v. Sedano, supra, 88 Cal.App.5th at p. 481 [distinguishing Julian].) "This is precisely what CSAAS testimony is meant to do." (Ibid.)
Finally, assuming there was error, there was no prejudice. Even under the stringent constitutional standard of Chapman v. California (1976) 386 U.S. 18, any error in allowing the challenged testimony was harmless beyond a reasonable doubt. (See People v. Ramirez (2023) 98 Cal.App.5th 175, 217 (Ramirez) [concluding same concerning admission of CSAAS evidence].)
Before Dr. Urquiza testified, and also after the close of evidence, the jury was instructed on the limited purpose for which the testimony was admitted, including that it was not admitted to prove whether abuse in fact occurred. (See Ramirez, supra, 98 Cal.App.5th at p. 217 [noting limiting instructions].) Dr. Urquiza repeatedly made that point himself during his testimony. (See ibid. [noting same].) The defense presented its own expert witness to challenge the validity of Dr. Urquiza's testimony. And nothing in closing argument focused the jury's attention on any aspect of the challenged testimony, much less for the purpose of profiling either complaining witness as a typical abuse victim. (See ibid. [noting that prosecutor "did not discuss Dr. Urquiza's testimony in her closing argument"].) On the contrary, defense counsel told the jury that both experts "agree CSAAS is not meant as a diagnostic tool." And he concluded that portion of his argument by stressing the dubious foundation for CSAAS and the limited purpose for which the testimony was admitted:
In closing argument, the prosecutor did not mention, or even allude to, any of the challenged testimony, and indeed barely mentioned any CSAAS evidence-just once very briefly, and as an aside ("And the CSAAS testimony, it's not used as a diagnostic. We mentioned that multiple times. But the context of primacy and recency were discussed"). The closing argument focused entirely on the details of the abuse, the girls' credibility, the ways in which their testimony was corroborated and the absence of any conceivable motive for them or their mother to fabricate the accusations. The defense closing argument attacked Dr. Urquiza's testimony. And in rebuttal, the prosecutor mentioned Dr. Urquiza briefly and only in the context of responding to the defense's attack on the validity of CSASS; in so doing, he did not refer to any of the challenged testimony nor tie any of the CSAAS testimony to any facts of the case, much less rely on the CSAAS evidence to vouch for the girls' credibility.
"Between these two doctors it's not even close when it comes to credibility. Dr. O'Donohue told us that CSAAS is junk science, just shouldn't be believed. It presupposes that all events described actually happened. It's not based on science. It's not based on empirical evidence. It's the clinical opinion. Additionally, we heard from Dr. O' Donohue that CSAAS has been prohibited in other jurisdictions, including New Jersey.
"Again, the purpose of that is to evaluate whether the conduct of the complaining witnesses was not inconsistent with the conduct of someone who has been molested in evaluating the believability of their testimony. But as we heard, I would caution from even using that, from even considering CSAAS at all, again, from the well-founded and firmly-rooted opinions and information that Dr. O'Donohue gave us."
And finally, contrary to defendant's argument, this was not a close case. Both complaining witnesses gave specific, detailed accounts of their abuse. In addition, neither girl had ever discussed any details of their experiences with each other, including by the time of trial, and yet their accounts were strikingly similar, both as to the conduct involved and the time and place where it occurred; thus, as the prosecutor argued in summation, their accounts were mutually corroborating. (See Ramirez, supra, 98 Cal.App.5th at p. 217 [noting "testimony that demonstrated common themes about defendant's pattern of abuse, with each detailing similar types of abuse that defendant committed upon them during similar time frames at the same location"].)
There also was a good deal of circumstantial evidence. Defendant insisted on removing the lock to Jane Doe 2's bedroom door. The sisters' accounts were partly corroborated by their mother, who testified there were times she would wake up in the morning and defendant was not in bed and said he was "waking up [Jane Doe 2]." (See Ramirez, supra, 98 Cal.App.5th at p. 217 [noting corroborating evidence].) In addition, the sisters had never really liked each other or gotten along, and yet when they finally revealed that defendant had abused them they emotionally broke down, held hands and cried together.
By contrast, the defense theory that the girls had fabricated the abuse-out of anger over the move to Arizona two and a half years before the revelation (Jane Doe 1) and because of punishment over a cell phone (Jane Doe 2)-was extremely weak. As the prosecutor told the jury in summation, "[t]hey had nothing to gain in 2019 when they first came forward with these allegations and they certainly have nothing to gain now [at the time of trial]" by persisting in their accusations.
As noted, the jury asked no questions and deliberated for only three hours before returning its verdict of guilt on all charges.
Accordingly, "even if the trial court improperly admitted Dr. Urquiza's testimony, and even if the admission amounted to a violation of defendant's due process rights, we find beyond a reasonable doubt that any error was harmless, and thus reversal is not warranted." (Ramirez, supra, 98 Cal.App.5th at p. 217.)
II.
Juror Unanimity
Defendant also contends that his state and federal constitutional rights to due process and a unanimous jury verdict were violated by the special unanimity instruction given (CALCRIM No. 3501), which allowed the jury to convict him not only if it unanimously agreed that he committed specific criminal acts but also if it unanimously agreed he committed all the acts alleged during the charged periods and at least the number of offenses charged. He acknowledges the instruction was proper under People v. Jones (1990) 51 Cal.3d 294 and that we are bound by Jones (see id. at pp. 321-322; People v. Fernandez (2013) 216 Cal.App.4th 540, 556-557), and raises the issue solely to preserve it for consideration by the California Supreme Court. We note his objection and reject his claim of error.
DISPOSITION
The judgment is affirmed.
We concur. MILLER, J., DESAUTELS, J.