Opinion
E064510
01-10-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTELMO TORRES SERENO, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1500546) OPINION APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Antelmo Torres Sereno guilty of one count of having sexual intercourse with a child 10 years of age or younger, and guilty of three counts of lewd and lascivious conduct with a child under 14 years of age. The jury also rendered a true finding that defendant committed sex offenses on more than one victim. The trial court sentenced defendant to an indeterminate term of 55 years to life in state prison. On appeal, defendant makes a facial challenge to the admissibility of child sexual abuse accommodation syndrome (CSAAS) evidence. Defendant asks us to rule CSAAS evidence is "inadmissible in California for all purposes." We reject defendant's facial challenge based on well-settled California precedent and, therefore, we affirm.
I.
FACTS AND PROCEDURAL BACKGROUND
Because defendant makes a facial challenge to admissibility of CSAAS evidence, as opposed to an "as applied" challenge, we need not delve too deeply into the facts. (See In re Sheena K. (2007) 40 Cal.4th 875, 885; Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.)
In a first amended information, the People charged defendant with having sexual intercourse with V.V., a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a), count 1), committing a lewd and lascivious act on V.V., a child under the age of 14 years (Pen. Code, § 288, subd. (a), count 2), and committing lewd and lascivious acts on C.A., a child under the age of 14 years (Pen. Code, § 288, subd. (a), counts 3 & 4). For purposes of counts 2 through 4, the People alleged defendant committed a sex offense against more than one victim. (Pen. Code, § 667.61, subds. (c), (e)(5).)
C.A., who was 21 years old when defendant's trial took place, testified defendant rubbed her nipple when she was about seven years old, and reached under her shirt and training bra and touched her breast when she was in the sixth grade. C.A. testified she did not tell anyone in her family about the abuse because she did not have someone to confide in, and when she later told a middle school counselor that defendant touched her inappropriately the counselor said he could not help because C.A. did not have proof of the abuse and because a long time had passed since the abuse.
V.V., who was entering her freshmen year of high school during the trial, testified defendant pulled her pants and underwear down and inserted his penis into her vagina when she was about six or seven years old. V.V. did not tell her parents what happened because she was scared about how they would react, and she simply tried to forget about the incident.
The prosecution was permitted to introduce expert testimony about CSAAS. The expert testified she knew nothing about the specifics of this case and would not offer an opinion that the victims were or were not sexually abused. The expert testified CSAAS is a pattern of behaviors commonly exhibited by people who were sexually molested as children. She testified CSAAS is very helpful in understanding the behavior of children who are abused by someone they know. Children who are abused by strangers tend to report sexual abuse right away, whereas children who are molested by someone they are close to "have to manage the fact that they love and are attached to the person who's abusing them." CSAAS has five components: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed and unconvincing disclosure, and (5) retraction or recantation. Not all five components are present in every case of child sexual abuse, but the expert testified secrecy and helplessness are present in all cases.
The trial court found the first four components were relevant in light of the victims' testimony, but concluded the component of retraction or recantation was not relevant and restricted testimony about it.
The expert testified children who are abused by someone they know tend to keep the abuse secret for long periods of time. Child sexual abuse almost always occurs in secret with just the victim and perpetrator present. The expert testified a perpetrator need not threaten a child to ensure secrecy. "Just a gentle reminder to keep the abuse secret, please don't tell, don't tell or it will hurt our family, don't tell or I'll get in trouble. Just small reminders like this are enough to . . . ensure that the child keeps the secret of sexual abuse for sometimes up to years."
With respect to helplessness, the expert testified, "children are completely helpless in the face of the adults. So as adults we teach our children to mind, to obey, to do what they're told, to obey us as parents and, of course, other authority figures. Children are also very reliant upon the adults around them for all their food, their clothing, their shelter, and most importantly in my opinion, for all of their emotional needs to be met." Because of this dependence on adults, children rather easily fall prey to sexual abuse and have no way to get out of it. Having no means to escape the situation, children may employ other ways of dealing with the abuse, such as playing possum and pretending to be asleep when their abuser comes to molest them or by going along with the abuse to shield siblings from also being abused. In fact, the expert testified the abuse of a sibling may make the child more comfortable with disclosing their own abuse.
The expert testified children's inclination to not immediately report sexual abuse by someone they know enables continued abuse over a period of time. Because the child has no way out, they tend to accommodate to the abuse by going along with it. Moreover, the child may develop a "blind spot" to the abuse because the abuser provides for the child's emotional needs.
As for delayed or unconvincing disclosure, the expert testified studies showed two-thirds of people who are sexually abused as a child wait many years before disclosing their abuse. Moreover, when children do disclose their abuse, "they tend to do it not all at once." The child may test the waters by disclosing bits and pieces of what happened to see what kind of a response they will get.
Finally, the expert testified retraction or recantation is the least common component of CSAAS, but it does occur. Because disclosure of child sexual abuse tends to turn the child's life upside down, and because a child may still love and have a strong emotional attachment to their abuser who is now in trouble, the child may backpedal their allegation of sexual abuse. "They say it wasn't so bad, they say I don't remember, things like this, because they don't want to see these very negative consequences happen to them, the perpetrator, and their family."
The trial court instructed the jury with a modified CALCRIM No. 1193 that the expert testimony about CSAAS was not evidence of defendant's guilt and could only be considered in determining whether C.A. and V.V.'s "conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony."
The jury found defendant guilty on all counts and rendered true findings that defendant committed a sex offense against more than one victim. The trial court designated count 1 as the principal count, and sentenced defendant to 25 years to life in state prison. The court also sentenced defendant to 15 years to life on count 2, but stayed execution of the sentence pursuant to Penal Code section 654. The court then sentenced defendant on counts 3 and 4 to 15 years to life, both to be served consecutively with the sentence on count 1, for a total indeterminate term of 55 years to life in state prison.
Defendant timely appealed.
II.
DISCUSSION
Defendant does not contend CSAAS evidence was inadmissible based on the facts of his case, that the CSAAS evidence in this case exceeded the limits California courts have placed on the use of such evidence, or that the witness who testified about CSAAS did not qualify as an expert. Nor does defendant contend the trial court failed to properly instruct the jury on the limited use it could make of the CSAAS evidence. Instead, defendant argues CSAAS evidence should be excluded categorically and in every case because it violates a defendant's rights to due process, to present a defense, and to receive a fair trial. Based on well-settled California law, we must reject defendant's claim.
Defendant also contends he was prejudiced by admission of CSAAS evidence, and that his trial attorney rendered ineffective assistance of counsel by not objecting to the evidence being admitted. Because we reject defendant's facial claim that CSAAS evidence in not admissible under any circumstances, and because defendant does not contend the evidence should have been excluded based on the facts of this case, we need not address defendant's claim of prejudice. Likewise, because we conclude CSAAS evidence is admissible generally and defendant does not challenge its admission based on the unique facts of his case, we must reject defendant's claim of ineffective assistance of counsel. (See People v. Bradley (2012) 208 Cal.App.4th 64, 90 ["Failure to raise a meritless objection is not ineffective assistance of counsel."].)
A long line of Court of Appeal decisions have held CSAAS evidence is admissible for the limited purpose of dispelling common misperceptions a jury may have about how children react to sexual abuse. (People v. Mateo (2016) 243 Cal.App.4th 1063, 1069; People v. Perez (2010) 182 Cal.App.4th 231, 245; People v. Sandoval (2008) 164 Cal.App.4th 994, 1001-1002; People v. Wells (2004) 118 Cal.App.4th 179, 188; People v. Yovanov (1999) 69 Cal.App.4th 392, 406-407; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino); People v. Housley (1992) 6 Cal.App.4th 947, 955-956; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383-1384, superseded on another ground as recognized by People v. Levesque (1995) 35 Cal.App.4th 530, 536-537; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450; People v. Stark (1989) 213 Cal.App.3d 107, 116-117; People v. Bowker (1988) 203 Cal.App.3d 385, 393-394; see In re S.C. (2006) 138 Cal.App.4th 396, 418 [CSAAS evidence admissible in juvenile dependency proceeding].)
Our courts have also rejected constitutional arguments similar to the ones defendant makes here. For example, the court in Patino, supra, 26 Cal.App.4th 1737 rejected the argument that admission of CSAAS evidence violated a defendant's right to confront and cross-examine witnesses. (Patino, at pp. 1746-1747.) The court also rejected a due process challenge. "The United States Supreme Court has held the admission of relevant evidence of the battered child syndrome does not violate the due process clause of the Fourteenth Amendment. (Estelle v. McGuire (1991) 502 U.S. 62 . . . .) Battered child syndrome evidence is analogous to CSAAS evidence. (People v. Bowker, supra, 203 Cal.App.3d at pp. 393-394.) For this reason, there can be little doubt the due process dimensions of both types of evidence is similar if not identical. Therefore, introduction of CSAAS testimony does not by itself deny appellant due process." (Patino, at p. 1747.) Finally, the court rejected the defendant's argument that admission of CSAAS evidence violated his right to a fair trial. "Appellant has failed to demonstrate how his fundamental right to a fair trial was violated by the introduction of CSAAS testimony to rehabilitate [the victim's] testimony after a rigorous defense cross-examination calling into question the victim's credibility." (Patino, at p. 1747.)
More importantly, our Supreme Court has approved of CSAAS evidence. In People v. McAlpin (1991) 53 Cal.3d 1289 (McAlpin), the defendant challenged his conviction for lewd and lascivious conduct contending, inter alia, the trial court erred by permitting the prosecutor to introduce expert testimony about the reasons why a parent might not report known child molestation. (Id. at pp. 1298-1299.) In rejecting that argument, the Supreme Court first agreed with the People that a "helpful analogy" to the challenged testimony was expert testimony on common stress reactions of rape victims. (Id. at p. 1300.) "In People v. Bledsoe (1984) 36 Cal.3d 236, 248-251 . . . , we held that such testimony is inadmissible when offered to prove that the complaining witness has in fact been raped. But we recognized, as other courts had held (Delia S. v. Torres (1982) 134 Cal.App.3d 471, 478-480 . . . ), that such testimony is admissible to rehabilitate the complaining witness when the defendant impeaches her credibility by suggesting that her conduct after the incident—e.g., a delay in reporting—is inconsistent with her testimony that she was raped. We reasoned that 'in such a context expert testimony on rape trauma syndrome would play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.' (36 Cal.3d at pp. 247-248.)" (McAlpin, at p. 1300.)
The McAlpin court found CSAAS evidence to be an even closer analogy to the challenged testimony. "An even more direct analogy may be drawn to expert testimony on common stress reactions of children who have been sexually molested ('child sexual abuse accommodation syndrome'), which also may include the child's failure to report, or delay in reporting, the abuse. In a series of decisions the Courts of Appeal have extended to this context both the rule and the exception of People v. Bledsoe, supra, 36 Cal.3d 236: i.e., expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it 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. [Citations.] '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. [¶] The great majority of courts approve such expert rebuttal testimony.' [Citation.]" (McAlpin, at pp. 1300-1301.) The court found the rules applicable to rape trauma syndrome and to CSAAS were equally applicable to testimony about a parent's failure to report child abuse, and concluded the trial court properly admitted the evidence. (McAlpin, at pp. 1301-1302.)
The defendant in People v. Brown (2004) 33 Cal.4th 892 (Brown) challenged his conviction for domestic violence arguing the trial court erred by admitting evidence of battered women's syndrome because there was no evidence he had abused the victim on more than one occasion, as required by Evidence Code section 1107. (Brown, at pp. 895, 904-905.) The Supreme Court discussed McAlpin and other cases which held CSAAS testimony is admissible to explain a child abuse victim's behavior. (Brown, at pp. 905-906.) The court concluded, "[s]imilar reasoning supports admissibility of the expert testimony here. When the trial testimony of an alleged victim of domestic violence is inconsistent with what the victim had earlier told the police, the jurors may well assume that the victim is an untruthful or unreliable witness. [Citations.] And when the victim's trial testimony supports the defendant or minimizes the violence of his actions, the jurors may assume that if there really had been abusive behavior, the victim would not be testifying in the defendant's favor. [Citations.] These are common notions about domestic violence victims akin to those notions about rape and child abuse victims that this court discussed in People v. Bledsoe, supra, 36 Cal.3d 236, and McAlpin, supra, 53 Cal.3d 1289, and that the Court of Appeal discussed in People v. Housley, supra, 6 Cal.App.4th at pages 955-956." (Brown, at pp. 906-907.) Therefore, the court concluded testimony about battered women's syndrome was admissible in that case under Evidence Code section 801 notwithstanding the requirement in Evidence Code section 1107 of more than one act of domestic violence. (Brown, at pp. 895, 905, 907-908.)
The Supreme Court's imprimatur on the admissibility of CSAAS evidence in McAlpin and Brown is absolutely binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["The decisions of this court are binding upon and must be followed by all the state courts of California."].)
As defendant notes in his brief, a handful of sister-state decisions have held CSAAS evidence is categorically inadmissible for any purpose. (See, e.g., Newkirk v. Commonwealth (Ky. 1996) 937 S.W.2d 690, 691-694; State v. Bolin (Tenn. 1996) 922 S.W.2d 870, 872-874; Commonwealth v. Dunkle (Pa. 1992) 602 A.2d 830, 838.) Unlike decisions of the California Supreme Court, decisions from sister-state courts are at most persuasive authority. (People v. Mays (2009) 174 Cal.App.4th 156, 167; People v. Ross (2008) 162 Cal.App.4th 1184, 1190.)
Commonwealth v. Dunkle, supra, 602 A.2d 830—perhaps the leading case for the minority position that CSAAS evidence is never admissible—was abrogated by the enactment of 42 Pennsylvania Consolidated Statutes section 5920(b)(2), which provides that, when certain sexual offenses are charged, a qualified expert "may testify to facts and opinions regarding specific types of victim responses and victim behaviors." (See Commonwealth v. Olivo (Pa. 2015) 127 A.3d 769, 770, fn. 1, 777-781.)
Without providing a comprehensive list, we note that an even greater number of sister-state courts have agreed with our courts that CSAAS evidence is admissible for limited purposes. (See, e.g., State v. Salazar-Mercado (Ariz. 2014) 325 P.3d 996, 1000-1001 [reaffirming limited admissibility of CSAAS evidence]; People v. Spicola (N.Y. 2011) 947 N.E.2d 620, 635 [noting a majority of states, including New York, permit limited use of CSAAS evidence]; State v. Velasquez (Ind. Ct.App. 2011) 944 N.E.2d 34, 43 ["'[e]xpert testimony that an individual's subsequent behavior is consistent or inconsistent with that observed from other victims is a type of evidence which is admissible'"]; W.R.C. v. State (Ala.Crim.App. 2010) 69 So.3d 933, 936-940 [CSAAS evidence admissible; collecting cases]; State v. Schnabel (N.J. 2008) 952 A.2d 452, 462 [CSAAS evidence admissible for limited purpose]; State v. Edelman (S.D. 1999) 593 N.W.2d 419, 422-423 [adopting majority view on limited admissibility of CSAAS evidence]; People v. Peterson (Mich. 1995) 537 N.W.2d 857, 868 [adopting view of California and Wyoming on limited admissibility of CSAAS evidence]; Wimberly v. Gatch (La. 1994) 635 So.2d 206, 215 [CSAAS evidence admissible for limited purpose]; Frenzel v. State (Wyo. 1993) 849 P.2d 741, 749 [adopting view of California and other states on the limited admissibility of CSAAS evidence].) In short, California is firmly within the majority view on the admissibility of CSAAS evidence. (See Flint, Child Sexual Abuse Accommodation Syndrome: Admissibility Requirements (1995) 23 Am. J. Crim. L. 171, 190 ["The majority of courts allows admission of testimony on CSAAS to 'rehabilitate' the credibility of a victim by explaining seemingly contradictory behavior." (Fn. omitted.)].)
Defendant also relies on the decision of the United States Court of Appeals for the Ninth Circuit in Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270 (Franklin), overruled on another ground by Payton v. Woodford (9th Cir. 2003) 346 F.3d 1204, 1217, footnote 18 (en banc). Even on questions of federal law, we are not bound by decisions of the lower federal courts. (People v. Johnson (2015) 61 Cal.4th 734, 782; People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) Moreover, Franklin is distinguishable. The issue in that case was whether the erroneous exclusion of defense evidence in a California child sexual abuse prosecution was of federal constitutional dimension or merely a matter of state constitutional error. (Franklin, at p. 1273.) After concluding the evidentiary error was of federal constitutional magnitude, the Ninth Circuit addressed whether the error "'"had a substantial and injurious effect or influence in determining the jury's verdict,"'" such that a writ of habeas corpus could issue. (Franklin, at p. 1273.) In that context, the Ninth Circuit wrote: "We have examined the record of the case with this standard in mind. The prosecutor's case was not a strong one. In particular, it relied on the police witness's recitation of Roland Summit's theory of the Child Sexual Abuse Accommodation Syndrome. CSAAS has been examined by several courts in the context of criminal prosecutions and found wanting. It has been found, in fact, to be an impermissible way of bolstering the credibility of a child witness. See, e.g., Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (Pa. 1992)." (Franklin, at p. 1273.) Although the Ninth Circuit concluded the exclusion of defense evidence was harmful and, therefore, directed the United States District Court to issue a writ of habeas corpus, the court did not actually hold CSAAS evidence is never admissible. (Franklin, at p. 1273.)
In any event, more recently, the Ninth Circuit concluded CSAAS evidence is admissible for limited purposes. After discussing the decision in Patino, supra, 26 Cal.App.4th 1737, the majority of the Ninth Circuit panel in Brodit v. Cambra (9th Cir. 2003) 350 F.3d 985 (Brodit) wrote the following: "[W]e have held that CSAAS testimony is admissible in federal child-sexual-abuse trials, when the testimony concerns general characteristics of victims and is not used to opine that a specific child is telling the truth. United States v. Bighead, 128 F.3d 1329 (9th Cir. 1997) (per curiam); United States v. Antone, 981 F.2d 1059 (9th Cir. 1992). Although those cases did not address due process claims, both rejected the contention that CSAAS testimony improperly bolsters the credibility of child witnesses and precludes effective challenges to the truthfulness of their testimony—the very arguments that Petitioner advances here. See Bighead, 128 F.3d at 1330-31; Antone, 981 F.2d at 1062." (Brodit, at p. 991; see Nuno v. Davey (N.D. Cal. 2014, No. 11-02446 SBA (PR)) 2014 U.S.Dist. Lexis 98945, *28 ["the Brodit majority approved of the California Court of Appeal's holding in People v. Patino, 26 Cal.App.4th 1737 . . . (1994), that the use of CSAAS evidence in a child abuse case does not necessarily offend a defendant's due process rights"].)
Based on the foregoing, we must reject defendant's categorical challenge to the admissibility of CSAAS evidence in every case.
III.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. HOLLENHORST
J.