Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC170222A.
REARDON, ACTING P.J.
In August 2010, the Marin County District Attorney issued a 20-count information against appellant Jose Alfredo Quiñonez. Counts 1 through 5 alleged oral copulation or sexual penetration with a foreign object of a child 10 years old or younger (Pen. Code, § 288.7, subd. (b)), the victim being identified as S.F. Counts 6 through 9 asserted lewd acts upon a child under the age of 14 (§ 288, subd. (a)), with alleged victims S.F. and M.F. Counts 10 through 14 and 18 charged offenses committed against alleged victim D.G., as follows: count 10, sexual intercourse or sodomy of a child under age 10 (§ 288.7, subd. (a)); counts 11 and 12, violation of section 288.7, subdivision (b); counts 13, 14 and 18, violation of section 288, subdivision (a). Counts 15 and 17 alleged possession of child pornography (§ 311.11, subd. (a).) And finally counts 16 and 19 asserted violations of section 288, subdivision (a), and count 20 an attempt to commit that crime, all as to alleged victim A.G. Additional allegations charged that the case involved multiple victims within the meaning of section 667.61.
All further statutory references are to the Penal Code.
At the close of the People’s case, the court dismissed counts 4 and 5 on the prosecutor’s motion. Later, the court dismissed count 20 due to insufficient evidence. At the close of trial, the jury returned guilty verdicts on all remaining counts except counts 10, 16 and 19, for which it found appellant not guilty. Thereafter the court dismissed count 17 on the prosecutor’s motion.
Appellant received a total indeterminate prison term of 90 years to life, consecutive to a three-year determinate term. On appeal he asserts multiple instructional errors. We affirm.
I. FACTUAL BACKGROUND
In 2010, appellant lived on Vista Del Mar in San Rafael with his girlfriend, Dalia Urbina, daycare provider Maria Bordas, and six other persons. Bordas cared for several children in the home, including sisters D.G. (born in Oct. 2004) and A.G. (born in Feb. 2000). Adel. G. is the mother of D.G. and A.G.
A. Victims S.F. and M.F.
Urbina was a nanny for the twins S.F. and M.F. (born in June 2004). She worked a couple of days a week at the home of Mr. and Mrs. F. in Novato. Appellant, whom they called by his nickname “Costeño, ” did home construction projects for them. In April 2010, Mr. F. began working from home.
Urbina spoke some English but preferred Spanish. Mrs. F. spoke some Spanish. She and Urbina communicated mainly in Spanish. Appellant’s primary language was Spanish but he spoke some English. Mrs. F. communicated with Costeño mostly in English as did Mr. F., who did not speak Spanish.
On May 15, 2010, Mr. and Mrs. F. were home with the twins. Appellant came over mid-morning to do some work. S.F. asked her mother to help her in the bathroom and asked that the door be closed because she did not want Costeño to see her. Mrs. F. testified that S.F. disclosed that appellant had molested her; M.F. was not present during the conversation. Mrs. F. went downstairs to talk to M.F.; S.F. was not present. M.F. also indicated appellant had molested her.
Mr. F. told appellant to leave; he and his wife contacted the police. A police officer came to the residence that day and spoke with the parents, but deferred speaking with the girls and instead turned the case over to detectives. The next week the girls were interviewed separately at the Jeannette Prandi Children’s Center (Prandi Center) in San Rafael. Police Officer Melissa Hinkle conducted the interviews. She had been trained as a child forensic interviewer to follow a nonintrusive protocol developed by Thomas Lyon, which emphasizes rules “[s]uch as telling the truth. If you don’t understand a question, I will state it a different way. If you don’t know the answer to something, just say you don’t know.” The protocol also emphasizes avoiding suggestion; interviewers are not to ask leading questions. Officer Hinkle followed the guidelines.
After the interview, the police set up a pretext telephone call to appellant. Officer Hinkle used the ruse of telling appellant that a visit to the doctor revealed physical signs of molestation. During the call Mrs. F. told appellant that the girls claimed he touched them. Appellant said he accidentally hit S.F. with a compressor hose and told her to rub herself; she must have misunderstood. Mr. F. said both girls told them that he touched them, that it happened several times and it was not the hose. Appellant continued to insist it was the hose. Mr. F. said there was proof and the girls were afraid of him. Appellant said he was “[s]orry this happened.... [H]aving big problem. I don’t know. In my head, it’s not good.” Appellant indicated maybe he needed a doctor.
Appellant insisted he never touched M.F., and the event with S.F. was an accident. Mr. F. indicated S.F. said he put his finger in her vagina. Appellant denied it and claimed he never touched inside the clothes, only the pants. Appellant said he “regret[s] it.” He denied doing anything to other girls and denied that there were children at his house.
At one point appellant said there were two times, but he never touched inside. He said he would talk to Urbina. He wanted to “disappear from life because... of that problem. Because I feel very—very sick.”
After the phone call, the police arrested appellant outside his home on Vista Del Mar and seized his cell phone. Appellant said, in Spanish, that he had a problem and needed help. There were photos on his phone of D.G. and A.G.
S.F. testified that she was in court because appellant did something wrong. He touched her “butt” in front, more than once, with his hand. She was wearing clothes. He touched her under her pants and tights, using his fingers. This happened more than five times. Urbina was at the house, but appellant never did anything in front of her. S.F. said she saw appellant do “the same thing” to her sister, more than five times. Mrs. F. testified that S.F. had panic attacks and problems eating after she disclosed the molestation. S.F. had trouble swallowing, lost weight, and was very clingy.
M.F. said she was in court because appellant touched her “private parts.” He touched her with his finger in her vagina, under her underwear. He moved his fingers through her private part, in front. His finger went inside. This happened more than twice. She saw appellant do the same thing to S.F.
B. Photos
Novato police detective Kory Jones examined appellant’s cell phone with a forensic extraction device, extracting 26 images. One was a photo of appellant taken on April 30, 2010 at 6:44 p.m. The background indicates it was taken at the Vista Del Mar residence. The image right next to that photo, taken the same day at 6:15 p.m., contained the “image of exposed genitalia of a prepubescent female.” Another picture taken on April 22, 2010, showed an “adult male hand exposing the genitalia of a prepubescent female.”
Several photographs from appellant’s cell phone were admitted into evidence at trial. One, taken April 22, 2010, showed the midsection, genitalia and leg of a young child, with a hand pulling down the front pants and the girl’s vaginal area exposed. Two other pictures taken the same date were of D.G.’s face and another, taken April 30, 2010, was of the girl sitting on the couch. Yet another photo, also shot April 30, 2010, was of a small child’s vaginal area; the top of unbuttoned pants could be seen and a portion of the underwear.
C. Victims D.G. and A.G.
The police contacted Adel. G. toward the end of May 2010. The officer told her that the police had arrested someone at the residence where her daughters were being cared for and there was a picture of her daughter on his cell phone. Ms. G. took her daughters to the Prandi Center, explaining that D.G. told her that appellant had touched her. The girls were interviewed three times at the Prandi Center.
D.G. testified that appellant put his finger inside her “peanuts” more than once, he put his mouth on her peanuts once, put his wiener inside her peanuts once and took pictures of where he touched her with his cell phone. D.G. identified pictures which appellant took of her with his cell phone.
A.G. said she did not like appellant because he did bad things to kids and was a danger. He grabbed her once on her “boobies” when he helped her out of a tree. Another time he tried to touch her “at the bottom part, ” the “palomita.”
D. Physical Examinations
Dr. Rachel Gilgoff, a pediatrician at Children’s Hospital and Research Center in Oakland with a specialty in child abuse, performed non-acute examinations of D.G., S.F. and M.F. All physical findings were unremarkable. The absence of findings did not mean that abuse did not occur; over 90 percent of cases result in unremarkable or normal exams.
Dr. Gilgoff stated that D.G. asked her to wear a mask during the examination because she did not want the doctor to smell her. Ms. G. went with D.G. to the examination. D.G. was nervous and said appellant had smelled her and put his mouth and tongue on her private parts. She did not want the doctor to do the same thing and asked the doctor to put on a mask to cover her nose.
E. Defense Case
1. Taped Interviews
The defense played the tapes of D.G.’s and A.G.’s first interviews at the Prandi Center. The girls did not reveal any molestation in those interviews.
2. Character Witnesses
Appellant presented five character witnesses.
Urbina lived with appellant for five years; he did not have the character to molest children. She never left the F. children alone with him and never saw him interact with the twins or the children at her residence. Urbina said she took some photos on appellant’s phone.
Bordas did not leave the children she cared for unattended and never left appellant alone with them. Her daughter, Michelle H., sometimes helped Bordas watch the children and confirmed that appellant was never alone with them. Bordas and Michelle H. were present when appellant helped A.G. out of the tree. Michelle H. said nothing seemed unusual. Sometimes the children played with appellant’s cell phone, and D.G. pretended to—or actually took—pictures of herself.
Bordas believed appellant was honest and truthful, and was not the type of person who would abuse children. As well, Michelle H. did not think appellant was the type of person who would molest children or would ever lie.
Silvia Yopihua shared the house with appellant and others. She never saw appellant interact with the children or saw anything unusual when he was around them. Quiñonez did not have the character to sexually abuse children; he was honest and hard working.
Beatriz Rodas knew appellant for several years; he lived at her sister’s house. Appellant was a good, honest, hard working person. He was not the type of person who would molest children.
All five women said they would not change their opinion about appellant’s character if they knew pornographic pictures of children were on appellant’s cell phone, or if he said he had problems in his head when confronted with the molestations.
3. Appellant’s Testimony
Appellant was born in rural Guatemala where he finished the sixth grade at age 13. He came to the United Sates in 2000. He worked as a carpenter for a construction company. He knew the F. family for about seven years and did work for them and other members of their family. When appellant worked at the F. home, either Mr. or Mrs. F. was present and he was never alone with the children. There was one exception in April 2010 when he was at the F. home and Dalia was there, but Mrs. F. returned and he was not alone with the girls on that occasion. He never touched the twins inappropriately.
Nor was appellant ever alone with D.G. or A.G. When he got home from work, he left his keys and cell phone on the kitchen table. Sometimes children, including D.G., played with his cell phone. He did not take photos of D.G. or A.G. He could not explain the photos on his cell phone and did not know who took them. If he had known the photos were on his phone, he had 15 to 20 minutes after the pretext call to delete them. He used the camera feature to take shots of work he had done.
Appellant helped A.G. out of the tree because she asked for help. He did not touch her breasts or have any sexual reason for helping her out of the tree.
On May 15, 2010, while working at the F. residence, he accidentally grazed S.F. with the compressor hose that was connected to the nail gun he was using. He told her in Spanish to rub herself, but she did not understand so he demonstrated by touching her on the leg. He did not touch her vagina, did not put his hand under her pants or underwear, and had no sexual reason for touching her.
Appellant received a phone call from Mr. and Mrs. F on May 18, 2010, while working at a job site near his home. He thought they were accusing him of terrible things related to the accident. He was confused. They were speaking in English and Spanish. He was shocked at the accusations of touching the children and felt like his head was going to explode. He asked Mr. F. for help because he did not know how to respond in English. He was confused when they said he touched S.F. twice. He admitted touching, but not inappropriately. He did not want to lose their friendship, “and they demanded from me and demanded from me, and it just came to my mind to tell them, but I never touched the girls inappropriately.”
4. Expert Witness
Clinical psychologist Leslie Packer testified that a large part of her practice involved “evaluation or assessment where there’s a question about what has happened to a child” when “there is an issue of possible abuse.” She was familiar with the protocols used in interviewing children, including Lyon’s 10-step method. The National Institute of Child Health and Human Development (NICHD) protocol has 12 steps, is a little more rigorous and did not permit as much conversation between the interviewer and the child or forced choice questions.
Dr. Packer explained how interviews become contaminated by asking questions that call for a yes or no answer or contain information that could feed into the child’s suggestibility. Contamination can result in the child being led to say something that did not happen. The use of leading questions can result in suggestibility. An interviewer can have a confirmatory bias, coming into the interview “with an agenda believing that a certain thing has happened to a child, ” such that the attitude and biased are conveyed “in the form that the questions take.” Interviewers have an obligation to be neutral, and not believe there is only one possible explanation for a child’s statements.
Dr. Packer indicated there were different theories for why a child may not disclose molestation at first, and later makes some type of disclosure. For example, the child sexual abuse accommodation syndrome (CSAAS) theory was developed to explain why incest and child sexual abuse victims were so reluctant to disclose abuse even in the face of supporting medical evidence. These victims often initially are in denial, then haltingly start to talk about what happened, and ultimately take back the accusation because they have been threatened and are afraid. Dr. Packer said this theory was “very much in dispute.”
Dr. Packer did not interview any of the alleged victims in this case, and had no information as to whether they were suggestible or easily led.
F. Rebuttal
Dr. Michael Grogan, the director of the Prandi Center, was deemed an expert in interviewing children. He trains interviewers, using the NICHD model. Lyon’s 10-step program, a condensed summary of the NICHD model, is currently used at the Prandi Center.
The NICHD model focuses on eliciting narratives from children in order to generate as much unsolicited information as possible, rather than asking questions.
Dr. Grogan testified that the CSAAS describes a syndrome with five elements or parts. Secrecy is the first element, understanding that child sexual abuse is three times more likely to occur within the context of a relationship with a family member or close friend of the family, rather than with a stranger. The child is potentially told not to tell anyone because someone could get hurt or in trouble if there was disclosure. Children typically feel responsible for the abuse occurring. The second stage is helplessness, followed by the pattern of entrapment and accommodation. The victim accommodates to the experience in order to survive. The fourth stage is disclosure that is delayed, conflicted, and unconvincing because the experience is overwhelming for children; they may not have the language to describe it; and may feel a lot of shame and embarrassment. Disclosure is a process, occurring in stages, not an event. Finally, there can be retraction.
II. DISCUSSION
A. No Error in Delivering CALCRIM No. 1190
Appellant contends the trial court prejudicially erred by instructing the jury pursuant to CALCRIM No. 1190 that “[c]onviction of a sexual assault crime may be based on the testimony of a complaining witness alone.” The court also instructed the jury pursuant to CALCRIM No. 301: “The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.”
Defense counsel had requested that the court modify CALCRIM No. 301 to state that the defendant’s uncorroborated testimony is enough to prove a fact, in light of CALCRIM No. 1190 which states the alleged victim’s testimony is enough. The court declined to modify the instruction. Now appellant complains that “[b]y propping up the testimony of a complaining witness in a sex offense case with extra support, ” CALCRIM No. 1190 improperly lightened the prosecution’s burden of proof in contravention of his due process rights.
Appellant acknowledges that 20 years ago, in People v. Gammage (1992) 2 Cal.4th 693 (Gammage), our Supreme Court rejected a similar charge. Supplying some historical context, the Gammage court explained that prior to 1975, juries in sexual assault cases were instructed that sexual assault accusations were “ ‘ “easily made and, once made, difficult to defend against” ’ ” and, therefore, the jury must “ ‘ “examine the testimony of the female person named in the information with caution.” ’ [Citations.]” (Id. at p. 695.) That instruction was disapproved in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 877, 883, and in its place the state’s high court mandated that in criminal cases in which no corroborating evidence is required, the jury be instructed in language similar to CALCRIM No. 301. (People v. Rincon-Pineda, supra, at pp. 884-885.)
Nonetheless, appellant contends that Gammage is no longer valid because its premise, that jurors must be informed that a rape victim’s testimony need not be corroborated, is outdated. Jurors in 2011, he asserts, can now be expected to know that the notion that sexual assault charges are easily made and thus impose on the prosecution a burden to supply corroboration, has long-since been discredited.
There was no instructional error. First, it is not disputed, and appellant does not argue to the contrary, that both CALCRIM Nos. 1190 and 301 are correct statements of current law. (See Gammage, supra, 2 Cal.4th at p. 700.) Second, appellant’s opinion about the state of mind of modern jurors on the issue of corroboration in sexual assault cases is just that—his opinion, which is not supported by any data. Third, the Gammage decision was not premised on concern that jurors might still harbor an outdated belief about proof. The court explained that each of the two instructions has a different focus, although they overlap to a certain extent. What currently is CALJIC No. 301 tells the jury how to evaluate a fact, or at least a fact which the prosecution must establish, that is proved solely by a single witness. It is delivered in the context of other instructions about the jury’s fact-finding process. On the other hand, what is now CALCRIM No. 1190 “declares a substantive rule of law, that the testimony of the complaining witness need not be corroborated. It is given with other instructions on the legal elements of the charged crimes.” (Gammage, supra, 2 Cal.4th at pp. 700-701.)
The court went on to explicitly reject the argument that giving both instructions created a preferential credibility standard for a sexual assault complaining witness. “The one instruction merely suggests careful review when a fact depends on the testimony of one witness. The other tells the jury there is no legal corroboration requirement. Neither eviscerates or modifies the other.... As we observed early in this century, ‘There was no singling out of the testimony of the prosecuting witness with a view of giving it undue prominence before the jury.’ [Citation.] Nor do the instructions ‘dilute[] the “beyond a reasonable doubt” standard.’ [Citation.] The instructions in combination are no less correct, and no less fair to both sides, than either is individually.” (Gammage, supra, 2 Cal.4th at p. 701.)
We agree with Gammage and are bound by its conclusions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. No Error in Delivering CALCRIM No. 1193
The trial court instructed the jury pursuant to CALCRIM No. 1193, as follows: “You have heard testimony from Michael Grogan regarding [CSAAS]. Dr. Grogan’s testimony about [CSAAS] 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 [S.F.’s, M.F.’s, D.G.’s and A.G.’s] conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of their testimonies.” Appellant objects to that portion of the instruction which tells the jury it can consider CSAAS evidence in evaluating the believability of the complaining witnesses. He claims this language “affirmatively invites the jury to apply the expert’s testimony case-specifically to evaluate the believably [sic] of certain named witnesses who testify at trial.” Thus it enhances the credibility of witnesses and assists the prosecution in proving that the charges against him were true.
CSAAS expert testimony is designed to explain a complaining witness’s state of mind. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) Such testimony is admissible to rehabilitate a complaining witness’s credibility when the defendant suggests that the conduct of the child after the incident, such as a delay in reporting, is inconsistent with his or her testimony claiming abuse. Thus it is pertinent to disabuse jurors of common misconceptions about child sexual abuse “ ‘and to explain the emotional antecedents of abused children’s seemingly self-impeaching behavior.’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301.)
However, CSAAS testimony is never admissible to prove that a molestation actually occurred, and courts have a duty to render a sua sponte instruction limiting the use of CSAAS evidence to the ends that “(1) such evidence is admissible solely for the purpose of showing the victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested; and (2) the expert’s testimony is not intended and should not be used to determine whether the victim’s molestation claim is true.” (People v. Housley (1992) 6 Cal.App.4th 947, 959.)
The inclusion of the challenged language is legally correct. “Believability” is one of the purposes for which CSAAS testimony may be admitted. Such testimony is permitted to rehabilitate a complaining witness’s credibility (People v. McAlpin, supra, 53 Cal.3d at p. 1300) and when an issue is raised as to his or her credibility (People v. Patino, supra, 26 Cal.App.4th at p. 1745). Under these circumstances, CSAAS testimony is allowed to show why the alleged victim acted as he or she did and to explain the victim’s state of mind. This acceptable purpose contrasts with the unacceptable purpose of admitting such evidence to neutralize inconsistencies in an alleged victim’s testimony. (Id. at p. 1746.)
Appellant is adamant that the challenged portion of the instruction invited the jury to find the complaining witnesses more believable based on the CSAAS testimony. When reviewing a purportedly erroneous instruction, we ask whether there is a reasonable likelihood that the jury understood the instruction in the improper manner appellant suggests. In making this inquiry, we consider the language in question in the context of the overall charge. (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
There is no reasonable likelihood that the jury understood the instruction as appellant asserts. The language permitting jurors to use CSAAS testimony to evaluate the believability of the complaining witnesses refers simply to the fact that evaluation of the credibility of the alleged victims may require consideration of common reactions of such victims. This is proper. Further, the court twice admonished the jury that CSAAS testimony is not evidence that appellant committed any of the charged crimes: immediately before Dr. Grogan testified regarding the CSAAS, and at the end of trial. And of course the court delivered accurate instructions relating to reasonable doubt and the presumption of innocence. The charges as a whole, including CALCRIM No. 1193, were sound.
C. No Error in Delivering CALCRIM No. 226
Both sides requested CALCRIM No. 226. The court instructed the jury in the language of that instruction, including the following portion: “If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says, or if you think the witness lied about some things but told the truth about others, you may simply accept the part that you think is true and ignore the rest.”
Appellant contends that the language “you should consider not believing anything that witness says” “creates a permissive inference, although it is more pernicious than CALJIC No. 2.21.2 because rather than using the relatively more neutral ‘may’ this instruction tells jurors they ‘should’ disbelieve everything a witness coming within the scope of the instruction has said.” (Bold-face type omitted.) He urges that the jury’s credibility-determining function “is necessarily impaired by instructions which distort [that] function in a case in which the defense depends substantially on the testimony of the defendant.”
This instruction provides: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.”
Appellant is well aware that the arguments he now makes were rejected in People v. Warner (2008) 166 Cal.App.4th 653 (Warner). There, the defendant argued that the words “ ‘should’ ” and “ ‘ignore’ ” in the above quoted portion of the instruction invited the jury, even more strongly than does CALJIC No. 2.21.2, to reject all of his testimony. (Warner, supra, at pp. 657-658.) The court disagreed: “[O]ur comparison of CALCRIM No. 226 and CALJIC No. 2.21.2 persuades us that both are facially neutral instructions that apply to all witnesses who testify at trial and that focus no more on the defendant’s testimony than on that of any other witness. [Citation.] CALCRIM No. 226 states that the jury ‘should consider not believing’—not that the jury should not believe—anything in the testimony of a witness who lied about something significant. [Citation.] The authorization in CALJIC No. 2.21.2 that the jury ‘may reject the whole testimony of a witness who willfully has testified falsely as to a material point’ is analogous. [Citation.] So is the part of CALCRIM No. 226 informing the jury that ‘if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.’ [Citation.]” (Warner, supra, at p. 658, italics omitted.)
We agree with the Warner court that CALCRIM No. 226 language is facially neutral. It properly informs the jurors how to evaluate the testimony of any witness they believe deliberately lied.
D. No Cumulative Prejudice
Appellant also asserts that the cumulative impact of the purported instructional errors was prejudicial. As we have found no error, this assertion fails.
III. DISPOSITION
We affirm the judgment.
We concur: Rivera, J., Baskin, J.
Judge of the Contra Costa Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.