Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. VCF193713 of Tulare County. Kathryn T. Montejano, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.
This is an appeal from judgment entered after a jury convicted defendant and appellant Frank Espinoza Ramirez of 10 counts of violation of Penal Code section 288, subdivision (a), committing a lewd act on a child. On appeal, defendant contends the pattern jury instruction on child sexual abuse accommodation syndrome (CSAAS) prejudicially instructed the jury it could use an expert's testimony as evidence that the crimes actually occurred. This contention is without merit. We will affirm the judgment.
Facts and Procedural History
Two of defendant's nieces told their mothers that defendant had touched them over and under their clothing when they were preteens. After police investigation, defendant was charged with 10 counts of child molestation (Pen. Code, § 288, subd. (a)) in an information that also included allegations pursuant to Penal Code sections 1203.066, subdivision (a)(8) (substantial sexual conduct) and 667.61, subdivision (b) (multiple victims).
At trial, the victims, V.Z. and K.W., testified concerning the molestations. In addition, one of defendant's adult nieces testified defendant had molested her when she was a preteen. Defendant's stepdaughter testified defendant molested her when she was about 16 years of age. The prosecution presented other witnesses, including Anthony Urquiza, Ph.D. Urquiza is a clinical psychologist and testified as an expert concerning CSAAS. He testified that he did not "know very much about" the specifics of the present case and that his testimony was intended only to "provide information about sexual abuse."
This appeal does not present issues arising from the content of Urquiza's testimony. To summarize that testimony briefly, Urquiza testified there are five recognized preconceptions many people share concerning child sexual abuse and that these preconceptions were generally recognized as not true with respect to many victims of childhood sexual abuse. He identified the following as parts of the syndrome: (1) Secrecy concerning the important and traumatic events, even though there might be a common misperception that children "are going to go run and tell somebody" when something bad happens to them; (2) a feeling of helplessness, even though there might be a common misperception that a victim would run away or otherwise try to protect herself; (3) emotional detachment from the events, resulting in a flat affect when recounting the events, even though there might be a common misperception that these traumatic events would be reflected in display of strong emotions in recounting the events; (4) delayed and unconvincing disclosure, resulting in a gradual and sometimes inconsistent disclosure of the molestations, even though there might be a common misperception that a child would immediately and fully recount the traumatic events; and (5) recantation of allegations after there is pressure applied by other family members (Urquiza did not identify a specific misperception this factor is meant to address). Urquiza testified that CSAAS is not a diagnostic tool, but was designed to help others understand that certain behaviors do not indicate that a child was not abused. On cross-examination, defense counsel delved into the issue of false accusations of abuse. Urquiza subsequently testified that false accusations by the child who claims abuse are very rare. Even the more frequent false accusations by adults on behalf of children occur only in the range of 1 to 5 percent of cases.
The defense presented testimony from other relatives of defendant. They testified the victims had never told them defendant had molested them and that the victims did not seem afraid of or uncomfortable around defendant.
The jury found defendant guilty of all charged counts and found true the additional allegations. The court sentenced defendant to a determinate sentence of eight years in prison, plus two consecutive terms of 15 years to life. Appellant filed a timely notice of appeal.
Discussion
CSAAS testimony is not admissible to prove that the alleged victim has been molested. (People v. Bowker (1988) 203 Cal.App.3d 385, 390-394; see People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) Such testimony from a properly qualified expert is admissible, however, "to rehabilitate [a] 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." (Ibid.) Such conduct, when viewed through the prism of common misconceptions about child sexual abuse victims, might be viewed by the jury as impeaching the witness's credibility. (Id. at p. 1301.)
It is appropriate for the court to instruct the jury concerning the limited purpose for which the evidence is admitted. The jury should be instructed that it must not use the CSAAS evidence to determine whether the victim's molestation claim is true. (See People v. Gilbert (1992) 5 Cal.App.4th 1372, 1384.) The evidence is admissible only to show that the alleged victim's statements and actions, as established by other evidence in the case, are not inconsistent with having been molested. (Ibid.) In the present case, the court instructed the jury using CALCRIM No. 1193, as follows: “You have heard testimony from Dr. Anthony Urquiza regarding child sexual abuse accommodation syndrome. [¶] Dr. Anthony Urquiza’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 V.Z., K.W., Maria [G.], and Virginia [A.]’s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony.”
In the present case, defendant does not contend the expert's testimony was inadmissible, and he acknowledges the reason it is admissible is to permit the jury fully to evaluate the credibility of the alleged victims' testimony, without the impediment of common lay misperceptions about the expected behavior of child molestation victims. Instead, he contends: "The nub of the issue … is the difference between the credibility factors as to a complaining witness supporting a theory of admissibility of evidence versus the court taking the further, and inappropriate, step of affirmatively advising the jury that the jury can use the supposedly generic syndrome evidence to prove up the credibility of a complaining witness in a specific case."
Defendant does not cite any authority for the proposition that it is "inappropriate," much less prejudicial error, for the court to instruct the jury on the permissible purposes for which it may consider evidence. Such a rule would make no sense because, in the case of evidence admitted for a limited purpose, that is the precise function of the instruction. (See Evid. Code, § 355.) In addition, a limiting instruction usually would be beneficial to the party who might be harmed by unrestricted jury consideration of the evidence. In the present case, that party is the defendant, who might be prejudiced if the jury used the CSAAS evidence as proof defendant committed the charged crimes. (See People v. Housely (1992) 6 Cal.App.4th 947, 958-959.)
In various cases, such as People v. Housely, supra, 6 Cal.App.4th at page 959, and People v. Gilbert supra, 5 Cal.App.4th at page 1384, appellate courts have held that juries must be instructed that CSAAS evidence is not to be used as proof a molestation occurred. No case cited by appellant -- nor any we have found -- holds that it is error for the trial court to go a step further and tell the jury the permissible purpose for its consideration of CSAAS evidence. We can see no benefit to either party, or to the cause of justice, in requiring the jury to blindly guess at the purpose of this evidence. The court here did not err in instructing the jury it could use the CSAAS evidence in evaluating the credibility of the witnesses in this case.
Defendant asserts, and respondent agrees, that he is entitled to 17 days of additional presentence credit. The calculation of credit at sentencing, the parties agree, was based on the originally scheduled sentencing date of September 23, 2008; sentencing was continued, however, and defendant actually was sentenced on October 8, 2008. As a result, defendant is entitled to 15 days of additional presentence custody credit and two days of conduct credit pursuant to Penal Code section 2933.1. We will modify the judgment accordingly.
Disposition
The judgment of conviction is affirmed. The judgment of sentence is modified to strike the original award of presentence credits and to award instead a total of 388 days of credit, composed of 338 days of custody credit and 50 days of conduct credit. As modified, the judgment of sentence is affirmed. The trial court shall prepare and distribute to the proper authorities a corrected abstract of judgment.