Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC955333.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted defendant Hugo Barriga Rosales of sex crimes against his young niece. He raises a number of legal challenges to the admission of evidence against him.
We find no error and will affirm the judgment.
PROCEDURAL BACKGROUND
A jury convicted defendant of one count of sexual penetration of a minor 10 years old or younger (Pen. Code, § 288.7, subd. (b)) and two counts of forcible lewd conduct with a minor under the age of 14 years (id., § 288, subd. (b)(1)). The trial court sentenced defendant to 27 years to life imprisonment.
FACTS
I. Prosecution Case
Defendant, the victim’s uncle, lived in an apartment with the victim. He molested her when she was seven years old.
One episode occurred in the back seat of defendant’s car. Defendant was attempting to touch the victim sexually. He had done this before and she was scared. In an effort to stop him, she curled into a fetal position. Nonetheless, defendant was able to make contact with her external genitalia, either over or under her clothes. He threatened to hit her if she reported the incident to anyone.
On a separate occasion a short time later, defendant committed another molestation in his car. He pulled the victim toward him, removed his shorts, displayed his penis, and inserted two fingers in her vagina. She pushed him away, tried to kick him, and escaped. She did not tell her parents about the molestation because she feared that she was partly responsible for it.
Another incident occurred still later at the house of the victim’s aunt. As the victim was playing with two other children, defendant pulled her into a bathroom, closed the door, clutched her against him, and made contact with her external genitalia, either over or under her clothes. From the outset, she resisted this assault, trying to pull away from him. He told her to keep quiet about it and this admonition scared her; also, she continued to fear that she was partly responsible.
Eventually, a molestation episode led to defendant’s apprehension. The victim woke up in her bed to find her shorts unbuttoned and unzipped. Defendant was lying next to her under the bedclothes. He was touching the area around her external genitalia. At one point, he inserted three fingers in her vagina. Her father entered the bedroom and witnessed the scene, also noticing that defendant was “fondling himself.” The victim’s father already harbored suspicions that defendant was molesting his daughter and reacted quickly. He ran to the bed, removed the blankets, took the victim from the bed, and ordered defendant out. Defendant left and the father called police.
The father’s prior suspicions about defendant rested partly on an incident in which he saw defendant and the victim emerge from a laundry room. Over defendant’s objection, the father testified that “once when I went by the laundry room they—they came out of the room and they didn’t see me but I saw them, and her skirt was wrapped in her underwear.” “I asked him what were they doing inside with the door closed. They say nothing, nothing, but I didn’t like that.” This was one of “many... times” that defendant’s behavior had aroused the father’s suspicions sufficiently that he mentioned his concerns to his wife.
The police arrested defendant and questioned him with his consent. They tricked him by fabricating a deoxyribonucleic acid (DNA) test and then informing him that the result showed he had molested the victim. Defendant fell for the subterfuge and, under psychological pressure from the officers to confess, admitted molesting the victim. He demonstrated for them the manner in which he had fondled the victim’s external genitalia and inserted fingers into her vagina. In addition, the police invited defendant to write a letter of apology to the victim’s mother (defendant’s sister), which he did. The letter was introduced into evidence, made available to the jury as an exhibit, and read aloud during closing argument.
Defendant has little or no knowledge of English and wrote his letter in Spanish. The jury heard and had made available to it an English translation, which was not of optimal quality but sufficed to convey the essence of defendant’s written communication to the victim’s mother. In the form of the letter that the prosecutor read to the jury, defendant attempted to minimize his assaultive conduct. “You know that I would never hurt your children, ” the prosecutor quoted him as having written. His letter, as read by the prosecutor, discussed only the incident he could not easily refute—the one witnessed by the victim’s father—and described it as a fleeting and impromptu, perhaps even accidental, touching of her external genitalia. He was trying to remove a blanket that covered both of them, brushed against her undone pajama fastener, and made contact with her. He wrote that it was he who woke up and discovered the victim alongside him, rather than the reverse as she testified.
To explain the victim’s failure to tell her parents about the molestations and inconsistencies in her accounts of the molestation incidents, Carl Lewis testified about Child Sexual Abuse Accommodation Syndrome (CSAAS). Over defendant’s objection, Lewis explained aspects of CSAAS theory. In essence, he discussed five factors that the syndrome may involve: secrecy, helplessness, entrapment and accommodation, seemingly incongruous forms of disclosure, and retraction. Child sexual abuse victims may reveal incidents in fragments, delay disclosure, and offer inconsistent descriptions. Children are afraid, including having fears about adults’ reaction to the news, and thus hesitate to present complete accounts of sexual abuse forthrightly.
For example, as noted in the following paragraph, the victim denied to a doctor that she had seen defendant’s penis.
II. Defense Case
Defense counsel presented the parties’ stipulation that “when interviewed by Dr. Patrick Clyne at Santa Clara Valley Medical Center about prior incidents of molestation, [the victim] said that her uncle had never taken out his penis and [that she] has never seen his penis.”
DISCUSSION
I. Laundry-Room Incident
Before trial, defense counsel moved for evidence of the laundry room incident (ante, p. 2) to be excluded as unduly prejudicial under Evidence Code section 352 because it could lead the jury to “speculate that my client has been molesting her [the victim] in the past.” Without endorsing defendant’s label that such action by the jury would be speculative, the prosecutor replied that the evidence was probative for exactly the reason defendant proposed, i.e., it was evidence of a prior act of molestation, admissible under Evidence Code section 1108. In addition, it explained the suspicions the victim’s father already harbored about defendant when he discovered her and defendant in a bed together.
The trial court and parties’ discussion contained this colloquy:
“[By the prosecutor:] I believe that’s important in terms of showing the father’s response to the situation and why he acted as he did on the date in question. [¶] Also, Your Honor, under [Evidence Code section] 1108 it comes in as a prior act of the defendant’s that is sexual in nature and involves the sane victim, and I would argue that under those two theories it should be allowed.
“THE COURT: Did you wish to respond or do you submit?
“[Defense counsel]: Your Honor, even as to [Evidence Code section] 1108, the court still has to balance under a[n Evidence Code section] 352 analysis.
“THE COURT: All right. [¶] I’m going to permit the observation by the dad. I’m going to caution everyone in terms of getting to his opinions about what’s been going on for some period of time, and I don’t know how the two of you want to handle that, but at some point in time it needs to be made clear to the jury that the dad’s opinion is not the level of proof; it’s beyond a reasonable doubt to what the charges are, not suspicions. And I think that’s what defense is really aiming at, is we don’t want to generate suspicions into a full-blown findings of beyond a reasonable doubt. [¶] Okay. So, yes, I am going to permit it in.”
Defendant contends that Evidence Code section 1108 is unconstitutional, that the evidence did not qualify for admission under section 1108, and that it should have been precluded as substantially more prejudicial than probative under Evidence Code section 352.
A. Constitutionality of Evidence Code Section 1108
Subdivision (a) of Evidence Code section 1108 provides: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Defendant renews his claim that introducing evidence under this provision is unconstitutional because doing so violates the due process clause of the Fourteenth Amendment to the United States Constitution.
The provision carves out an exception to the rule against admitting character evidence (People v. Wilson (2008) 44 Cal.4th 758, 797) and permitted the jury to hear the testimony despite the risk that the jury might interpret it as evidence of defendant’s propensity to commit sexual crimes against the victim.
Defendant observes that the California Supreme Court has found the provision to be constitutional. He is correct. (People v. Wilson, supra, 44 Cal.4th at pp. 796-797.) He advances his claim to preserve it for review elsewhere. We, of course, are bound by the high court’s pronouncement (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and must reject his claim.
B. Admissibility of the Evidence Under Evidence Code Section 1108
Defendant contends that the victim’s father testified only that defendant and the victim emerged from the laundry room with the victim’s clothing in an unusual state and that this does not constitute “evidence of the defendant’s commission of another sexual offense” under subdivision (a) of Evidence Code section 1108.
The People argue that the parties did not litigate this question and the trial court did not consider it, so that this contention is not properly before us. We do not agree. The prosecution mentioned Evidence Code section 1108, albeit briefly, and defendant mentioned the provision in reply, albeit also briefly. The court’s ruling responded to those mentions even though the court did not mention section 1108.
On the merits, we reject defendant’s claim.
“On appeal, ‘an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence....’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.) “However, no court has discretion to make an order not authorized by governing law.... It has been observed that an abuse of discretion ‘arises if the trial court based its decision on... [citation]... an incorrect legal standard.’ (People v. Knoller (2007) 41 Cal.4th 139, 156 [speaking of the granting of a new trial motion].)” (People v. Brunette (2011) 194 Cal.App.4th 268, 276.)
Evidence Code section 1108 and decisional law delimit the conduct that constitutes a prior sexual offense that may be disclosed to the trier of fact.
“For purposes of Evidence Code section 1108, ‘sexual offense’ includes sexual assault, lewd acts on a minor, unlawful intercourse with a minor, rape by coercion, forcible rape, production of child pornography, and exhibiting pornography to a minor. (Id., subd. (d)(1)(A).)” (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116.) Section 1108 also allows the admission of evidence of an attempt to commit any of the offenses whose admission it authorizes. (Evid. Code, § 1108, subd. (d)(1)(F).)
The trial court did not abuse its discretion in implicitly finding the evidence to be admissible evidence as probative of a “sexual offense” (Evid. Code, § 1108, subd. (a)). It was evidence of attempted or completed forcible lewd conduct with a minor under the age of 14 years. (Pen. Code, § 288, subd. (b)(1).) To repeat, the father testified that his daughter’s “skirt was wrapped in her underwear.” The laundry room door was closed. Defendant, according to the father, explained away these unusual circumstances as amounting to nothing. The trier of fact could find this evidence suggestive of an attempted or completed violation of subdivision (b)(1) of Penal Code section 288. The court’s ruling fell within the bounds of reason.
Moreover, as the People observe, if evidence is admissible on any legal ground a challenge to it on appeal lacks merit even if the trial court and parties considered a different ground or grounds. The People assert that the evidence was admissible to show a plan (Evid. Code, § 1101, subd. (b)) or common scheme (see People v. Davis (2009) 46 Cal.4th 539, 602). We agree.
The trial court and parties did not consider Evidence Code section 1101, but “we review the [trial court’s] ruling, not the court’s reasoning and, if the ruling was correct on any ground, we affirm. ‘ “ ‘No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason. If right upon any theory of law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’ ”’ ’ ” (People v. Geier (2007) 41 Cal.4th 555, 582.)
“To be admissible to show a common scheme or plan, a greater degree of similarity is required than to show intent, and ‘the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ ” People v. Davis, supra, 46 Cal.4th at p. 602.)
In this case, the evidence was admissible under Evidence Code section 1101, subdivision (b), as evidence of defendant’s availing himself of opportunities to molest the victim unobserved. The circumstances of this case are similar enough to a prior decision of this court to warrant applying its holding here. In that case, we explained that “the incidents [of child molestation] share numerous common features. Defendant resided near the victims and was acquainted with their parents. He... had a history of unsupervised access to the victims and played or babysat with them. The victims knew and trusted him. In committing the molestations, he selected locations out of public view....” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1689-1690, disapproved on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) “In our view, these common features reasonably support an inference that each incident was a manifestation of a common design or plan rather than two unrelated spontaneous acts.” (Dancer, supra, at p. 1690.) To be sure, there were other similarities among the incidents in Dancer, but Dancer is sufficiently close to the facts of this case to warrant a conclusion that the People’s observation about subdivision (b) of Evidence Code section 1101 is well taken.
C. Undue Prejudice Claim
Defendant renews his claim that the trial court should have excluded the evidence because it was substantially more prejudicial than probative (Evid. Code, § 352). We do not agree.
We note preliminarily that the trial court did state for the record the manner in which it balanced prejudice against probative value under Evidence Code section 352. It was not required to do so, however. “The court was not required, however, to discuss section 352 before ruling. ‘ “[A] court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing function under Evidence Code section 352.” ’ [Citation.] The record reflects that the trial court followed proper procedure in ruling upon defendant’s objection. In ruling upon the motion in limine to admit evidence of defendant’s prior crimes, the court considered both Evidence Code sections [1108] and 352.” (People v. Foster (2010) 50 Cal.4th 1301, 1336.) The court’s decision was considered and thorough and followed defense counsel’s comment that the court must consider Evidence Code section 352 in ruling on the admissibility of the evidence under Evidence Code section 1108. (Ante, pp. 4-5.)
The trial court did not abuse its “broad discretion” (People v. Wilson, supra, 44 Cal.4th at p. 797; see Evid. Code, § 352) in permitting the jury to hear the evidence. “The evaluation of the potential for prejudice must consider numerous factors, including ‘[the prior sex offense’s] nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.’ [Citation.] Other relevant factors include whether the uncharged acts are more inflammatory than the charged conduct, the possibility the jury might confuse the uncharged acts with the charged acts and seek to punish the defendant for the uncharged acts, and the time required to present the evidence of the uncharged acts.” (People v. Daniels (2009) 176 Cal.App.4th 304, 316-317.)
The trial court could reasonably view the evidence, as described to it before the fact of its introduction (a description that would prove accurate), as having a probative value that was not substantially outweighed by the risk of prejudice (Evid. Code, § 352) by virtue of the similarities between instances of defendant’s conduct, notably his molesting the victim behind closed doors so he could molest her unobserved by third parties. We find no abuse of discretion.
II. CSAAS Testimony
Defendant claims that the admission of CSAAS testimony was erroneous because CSAAS does not meet the requirements for the admission of scientific evidence; the evidence is essentially valueless and hence, he may be understood to argue, irrelevant; and it was improper expert testimony.
As mentioned, Carl Lewis’s CSAAS testimony was heard by the jury over defendant’s objection. Defendant objected that CSAAS is a discredited and unscientific concept not admissible under California standards for the admissibility of scientific evidence. His motion included an argument that juries understand witness credibility as part of human nature and therefore CSAAS is an improper subject of expert testimony (see Evid. Code, § 801, subd. (a)). The motion asserted, “ ‘Where there is no danger of jury confusion, there is simply no need for the expert testimony.’ ” The prosecution had raised the point, albeit obliquely, that CSAAS was a proper subject for expert testimony in its motion in limine to allow Lewis to testify.
Defendant preserved his Evidence Code section 801 claim for review and we need not address his contingent argument that if we conclude he forfeited the claim, it must be the case that he received ineffective assistance of counsel at trial under the Sixth Amendment to the United States Constitution (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694) and article I, section 15 of the California Constitution (People v. Waidla (2000) 22 Cal.4th 690, 718).
The trial court preceded the CSAAS testimony with a cautionary instruction: “The research begins with the assumption that molestation has occurred and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant is not guilty. The People have the burden of proving guilt beyond a reasonable doubt. [¶] You should consider the evidence concerning the theory and its effects only for the limited purpose of showing, if it does, that the alleged victim’s reactions, as demonstrated by the evidence, are not inconsistent with having been molested.”
Defendant maintains that CSAAS evidence is inevitably irrelevant (see Evid. Code, §§ 210, 350) and certainly was in the circumstances of this case, which he characterizes as “a close one”—an assertion with which we do not agree.
Defendant urges that theorizing based on CSAAS amounts to “junk science.” He maintains that it is based on the false “premise that jurors really believe certain myths, such as that all rape victims do not delay in reporting a rape or that child molesters are gay, alcoholic, shabby old men who linger in play yards, luring unsuspecting children with candy or money.”
The trial court’s instruction, which went beyond the standard CSAAS instruction, CALCRIM No. 1193, in a way favorable to defendant, was useful to disabuse the jury of any such notions. Contrary to defendant’s argument, both the instruction and the testimony related the effect of molestation on the victim, not the nature or character of the alleged molester.
CALCRIM No. 1193 instructs: “You have heard testimony... regarding child sexual abuse accommodation syndrome. [¶] [The] testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her). [¶] You may consider this evidence only in deciding whether or not [the alleged victim’s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony.”
“Expert opinion testimony must be ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact....’ (Evid. Code, § 801, subd. (a).) We review the trial court’s ruling in this regard for abuse of discretion.” (People v. Smith (2003) 30 Cal.4th 581, 627.) The court did not abuse its discretion in implicitly ruling that Lewis’s testimony would be, contrary to defendant’s contention, a proper subject for expert testimony. Defendant asserts that “the complainant’s credibility... was suspect.” Although we think that he overstates the point, it was the very question of the victim’s credibility that made the CSAAS testimony pertinent. There was evidence that the victim had a desire not to irritate her parents, an accommodation that the jury might not be familiar with and that hence could benefit from expert testimony. The need to accommodate could account for the victim’s denying to an interviewing doctor that she had seen defendant’s penis.
The testimony placed in a context the jury might not otherwise grasp the prosecution’s theory that the victim’s possibly incongruous actions—e.g., not notifying her parents immediately that defendant was sexually molesting her and minimizing his conduct when interviewed by the doctor—could be explained by defendant’s use of secrecy by molesting her out of others’ sight, e.g., in the car and behind closed doors in residences. The victim’s helplessness could also explain her actions. (The jury had heard testimony and/or could infer that defendant was an adult in a position of trust and bigger and stronger than the victim.)
Defendant acknowledges that the CSAAS testimony admitted in his case “was in accordance with guidelines set forth in applicable California caselaw.” We agree. Moreover, it appears that our Supreme Court affirmed the validity of CSAAS testimony in principle in People v. Brown (2004) 33 Cal.4th 892, 906, in which case we are bound by its reasoning (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455). In any event, we discern no reason to depart from recent precedent, to wit: “CSAAS cases involve expert testimony regarding the responses of a child molestation victim. Expert testimony on the common reactions of a child molestation victim is not admissible to prove the sex crime charged actually occurred. However, CSAAS testimony ‘is admissible to rehabilitate [the molestation victim’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. [Citations.]’ ” (People v. Sandoval (2008) 164 Cal.App.4th 994, 1001.) The same is true when the facts could raise a question about a victim’s credibility in the jurors’ minds, even if the defendant merely leaves it for the jury to wonder about a seemingly incongruous reaction to child sexual abuse rather than expressly trying to cast a doubt on a victim’s credibility. The victim here delayed reporting the abuse and gave inconsistent accounts about what she saw. Testimony regarding the syndrome could help the jury to understand the victim’s comportment in these regards. “ ‘ “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 self-impeaching behavior....” [Citation.]’ ” (Sandoval, supra, at p. 1002.) We reject defendant’s claim.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P. J., Duffy, J.