Opinion
NOT TO BE PUBLISHED
Superior Court County No. 1203933 of Santa Barbara George C. Eskin, Judge
Susan Pochter Stone, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Gilbert Enrique Solis appeals the judgment entered after a jury convicted him on three counts of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a)). He was sentenced to a total term of 10 years in state prison. He contends the trial court abused its discretion by (1) allowing an expert to testify that children rarely make false accusations of sexual abuse, and (2) admitting evidence regarding prior acts of sexual abuse involving another victim. We affirm.
All further undesignated statutory references are to the Penal Code.
STATEMENT OF FACTS
N.G. is appellant's niece and was 10 years old at the time of trial. When N.G. was about six years old, appellant and his wife Irene Solis were babysitting her at their residence. N.G. and appellant were sitting on the couch in the family room watching television while Irene was in the kitchen. Appellant and N.G. both stood up, and N.G. hugged appellant. When N.G. turned around, appellant touched her vagina with one hand underneath her clothing and told her what he was doing was "okay." N.G. did not report the incident to her parents at the time because she "didn't know if it was right or wrong."
For ease of reference, we refer to certain family members who share a surname by their first names. We intend no disrespect.
In July of 2004, when N.G. was seven years old, she and her immediate family went camping at El Capitan State Beach with appellant and Irene. N.G. slept in one tent with her parents and brother, while appellant and Irene slept in another. On the second morning of the trip, N.G. woke up before anyone else in her tent and went outside to find appellant sitting alone on a picnic table. As N.G. sat on appellant's lap, he rubbed her vagina on the outside of her sweat pants while thrusting against her.
Later that morning, N.G.'s mother Jill noticed that N.G. was anxious to leave. When Jill told her they would be driving to Solvang to go shopping with appellant and Irene, N.G became upset and said she wanted to continue with their plan to drive to Northern California without appellant and Irene. When they arrived in Solvang, N.G. would not leave Jill's side, which was unusual. Appellant repeatedly asked N.G. what was wrong and also asked, "[a]re you mad at me?" N.G. ignored him. When appellant went into a store, N.G. turned to Jill and said, "Mommy, he touched me. He touched me." Jill asked N.G., "What are you talking about?" N.G. responded, "he touched me down there" as she pointed to her vagina.
Jill was "shocked" by N.G.'s statement and did not know what to do. After they got into their vehicle, Jill told her husband Paul what N.G. had said. Paul asked whether she had understood N.G. correctly. While he did not believe N.G. had made up the incident, at the time he thought she had misinterpreted appellant's actions. Neither parent believed appellant would do such a thing, and the matter was dropped.
After the family returned home, N.G. began wanting to sleep with her parents. In February 2005, Irene invited N.G. over to bake cookies. Although N.G. told her parents she did not want to go, Paul dropped her off at appellant's house. While Paul was gone, N.G. called him twice on his cell phone to ask when he was coming to pick her up. When Paul returned to pick her up, she was anxious to leave.
On Easter Sunday, March 27, 2005, N.G.'s family went to appellant's house for brunch. N.G avoided appellant and indicated she did not want to be there. Later, N.G. was playing with appellant's grandson Nathan in his bedroom when appellant came in. After Nathan left, appellant sat next to N.G. on the bed and touched her vagina on the outside of her dress. N.G. ran out of the bedroom, yet did not report the incident to her parents. N.G. later explained that "the last time I told... my mom, they didn't do nothing, so I thought that they didn't care about it."
Appellant and Irene's sister R.B. and her daughter C.L. did not attend the Easter brunch. Two days later, C.L. mailed a letter to Irene informing her that appellant had sexually molested her when she was a child. The first molestation took place in 1976, when C.L. was five years old. C.L. was alone with appellant at her grandmother's house when he touched her vagina. When R.B. arrived, C.L. appeared frightened and said appellant had touched her. R.B. asked C.L. what she meant, and she pointed to her vagina. R.B. decided to overlook the incident after a discussion with her husband because "[i]t was so hard to believe that somebody we trusted with our child could possibly do something like that." R.B. also thought no one would have believed C.L.
C.L. was 35 years old at the time of trial.
C.L. had no independent recollection of the incident and did not learn of it until she was 17 years old. R.B. told her what had happened after C.L. revealed that she was feeling isolated and depressed and confronted her for failing to do anything about the second incident of abuse.
The second incident took place approximately two years later, when C.L. was seven years old. Appellant and Irene were at C.L.'s family residence to watch a football game when Irene and R.B. left to run an errand. C.L. told her mother she did not want to be left alone with appellant, and began to scream and cry. After R.B. and Irene left, C.L. went roller skating around the neighborhood until it got dark and appellant called for her to come in. Appellant asked C.L. to show him how to change her infant brother's diaper, which made her suspicious because she knew he had a child. C.L. was changing her brother's diaper when appellant came up behind her, placed his hand in her pants, and began fondling her vagina beneath her underwear. As he did so, he continued asking her to explain how she was changing the diaper. C.L. started crying, ran to her bedroom, and laid down on her bed. Appellant came in and started rubbing her shoulders and said, "[e]verything is okay. Nothing happened. You're going to be okay, mija." C.L. waited two years to tell R.B. what had happened. R.B. did not know what to do, so she did nothing.
After Irene read the letter, she threw it at appellant and told him to read it. As soon as appellant finished reading the letter he said, "My life is over now." He later told Irene the letter was "bullshit" and denied having inappropriately touched C.L. Irene called R.B. and said she was sorry for what C.L. had gone through. Irene also said appellant did not remember the incidents taking place.
On April 23, 2005, Jill took N.G. to appellant's residence to spend the night. When N.G. found out where she was going, she said she did not want to go and began to cry. Although N.G. appeared to be afraid, Jill thought she was simply upset because her brother got to spend the night with one of his friends. A few days later, R.B. called Paul and told him that her family did not come to Easter brunch because appellant had molested C.L. as a child. At that point, Paul realized that N.G. was telling the truth about the incident that took place during the camping trip a year earlier. After Paul discussed the matter with Jill, they both apologized to N.G. for not believing her and told her that appellant had done the same thing to her cousin C.L. Paul also spoke with Irene, who confirmed that she had received C.L.'s letter and confronted appellant about it.
After Jill called the Upland Police Department on the advice of N.G.'s pediatrician, Dr. Glen Miya, an officer came to the residence and interviewed Jill, Paul, and N.G. The officer's report was referred to the Santa Barbara County Sheriff's Department. On June 5, 2005, Detective William Henebry interviewed Jill, Paul, C.L., and R.B. N.G. was interviewed alone by therapist Virginia Rohan on June 10. N.G. told Rohan that appellant had "tickled" her "pee pee" on three different occasions over the past two or three years, once under her clothing.
At trial, the jury viewed a videotape recording of the interview and were given copies of a transcript to assist them in following along.
On June 16, 2005, Dr. Miya conducted a sexual assault examination on N.G. N.G. reported that appellant had touched her between the legs three times over the past few years, the first of which was under her clothing. While there was no evidence of trauma to N.G.'s labia or vagina, the doctor did not expect any such findings in light of the allegations.
Dr. Anthony Urquiza testified as a prosecution expert on Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Urquiza is a psychologist and associate professor of pediatrics at the University of California Davis Medical Center. He also acts as director of Mental Health Services for the Medical Center's child abuse treatment program. Dr. Urquiza testified that child victims of sexual abuse who suffer from CSAAS experience five stages of dysfunction: (1) secrecy, which is often the result of shame, embarrassment, disgust, or a threat; (2) helplessness; (3) entrapment and accommodation, which causes the child to disassociate and compartmentalize his or her feelings; (4) delaying or unconvincing disclosure of the abuse; and (5) retracting or recanting the disclosure. The doctor noted that some children do not experience every stage, and some do not suffer from the syndrome at all. He also stated that CSAAS is not a diagnostic tool and cannot be utilized to determine whether a child has been the victim of sexual abuse.
Dr. Urquiza explained that young children often do not understand what is happening to them when they are being sexually abused and are unaware that the conduct is wrongful. Children who are sexually abused frequently do not disclose the abuse until months or years later. Approximately 35 percent of victims do not disclose their abuse until they are over the age of 18. When an adult to whom the child has disclosed the abuse does nothing about it, the child's fear of not being believed is reinforced and he or she is less likely to make further disclosures. Parents often do not want to believe that their child has been abused, and their failure to believe the child may lead to behavioral problems.
According to Dr. Urquiza, 15 to 25 percent of children who have been sexually abused will "at some point take back all or part of the allegations." The doctor also acknowledged that children sometimes make false allegations of abuse, although "the research shows it happens very infrequently or you may even argue rarely." Eight to ten studies that have researched the issue of false reporting indicate that it occurs in less than five percent of all cases. The doctor also referred to a recent Canadian study in which 551 consecutive referrals to child protective services for sexual abuse were reviewed. Only one percent of those referrals were determined to involve false allegations, all of which were made by someone other than the child who was identified as the alleged victim, such as a parent or relative. The doctor also stated it would not be unusual for a child to remember certain details about his or her molestation and yet be unable to recall others.
Five character witnesses testified on appellant's behalf. Marco Robles has known appellant for 40 years and considers him to be his best friend. Appellant frequently babysat Robles's two daughters, V.M. and C.R., when they were children. Appellant was always physically affectionate with the girls, yet never did anything inappropriate with either of them. Robles and C.R. had often seen appellant in the company of N.G. and C.L. over the years and neither of them ever appeared uncomfortable in his presence. Robles and his daughters believed appellant was incapable of touching a child in an inappropriate manner. V.M. has allowed appellant and Irene to babysit her own children, and continued to allow them to do so since learning of the allegations against him. V.M.'s children refer to appellant as the "tickle machine" because he frequently tickles them.
Jenis Avedissian, who has known appellant for about 18 years, testified that he is an affectionate man who loves children. She had never seen him touch a child inappropriately and believed he was incapable of doing so. Appellant and Irene often babysat Avedissian's grandchildren, and continued to do so since Avedissian learned of the allegations against appellant.
Suzanne Duarte and her husband are good friends of appellant and Irene, and have spent a great deal of time together over the 35 years they have known each other. When Duarte had seen N.G. and C.L. in the company of appellant over the years, neither of them appeared to be uncomfortable in his presence. Duarte also testified that appellant is an affectionate man who loves children and is incapable of committing the acts with which he is charged.
DISCUSSION
I.
Expert Testimony
Appellant contends the trial court violated his state and federal rights to due process and a jury trial by allowing Dr. Urquiza to testify regarding the percentage of children who make false allegations of sexual abuse. The People respond that appellant forfeited the claim by failing to object below, that the evidence was properly admitted, and that any error was harmless.
We agree with the People that appellant forfeited his claim by failing to interpose a timely and specific objection to the challenged testimony. While appellant identifies his general objections to Dr. Urquiza's testimony addressing the five stages of CSAAS, he fails to appreciate that the testimony he now challenges had nothing to do with CSAAS. Evidence on the syndrome addresses a child's common reactions to sexual abuse, and is admissible to disabuse a jury of any myths or misconceptions it might have regarding those reactions. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744; People v. Housley (1992) 6 Cal.App.4th 947, 955.) For example, the evidence may be admitted "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. [Citations.]" (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, fn. omitted.) In other words, such evidence presumes that abuse has occurred, although it is inadmissible to prove a particular victim's claims of abuse. (People v. Bowker (1988) 203 Cal.App.3d 385, 392, fn. 8 [CSAAS "assumes the child is a 'legitimate victim' of sexual abuse; its purpose is to explain why such victims exhibit certain types of behavior so as to assist psychology professionals in providing therapy and treatment"]; Housley, supra, at p. 957.)
Dr. Urquiza's testimony regarding false reports was not offered to explain a reaction that might appear inconsistent with abuse that actually occurred, but rather addressed the likelihood that a claim of abuse is true. As appellant acknowledges, the prosecutor made clear that her motion to introduce Dr. Urquiza's testimony "is more than just a motion to admit expert testimony on [CSAAS]. It's a motion to introduce expert testimony, so I don't want the Court or counsel to just believe and neither of you should that I'm just going to confine it to the theory of [CSAAS]." Counsel explained that the doctor's testimony was also being offered to rebut other myths or misconceptions regarding child molestation that are not addressed by CSAAS. Appellant's objections to Dr. Urquiza's testimony were directed solely at his discussion of the five stages of CSAAS, and his constitutional claims were directed solely to the foundational aspects of that testimony. These objections did not address the testimony he now challenges. (See People v. Gilbert (1992) 5 Cal.App.4th 1372, 1386 [expert's testimony that children are more credible than adults in reporting sexual abuse did not fall within scope of rules that apply to CSAAS evidence].) Moreover, the trial court recognized at the hearing on the new trial motion that in failing to object appellant had deprived the court of the opportunity to address his concerns with the evidence. Accordingly, the claim is forfeited. (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)
In any event, appellant fails to establish that any error in allowing the challenged testimony would entitle him to a new trial. Contrary to appellant's claim, Dr. Urquiza did not testify that children never lie about sexual abuse. He expressly acknowledged that children sometimes make false allegations, although he deemed it "a very rare event." While the doctor referred to a recent study in which 551 reports of abuse were found to be true, he also testified that the eight to ten research studies on the issue had “consistently” found that children make false allegations in less than five percent of all cases. The doctor also indicated that he did not interview N.G. or C.L., and emphasized it "would be inappropriate" to offer any opinion whether either of them had been abused by appellant.
The jury was also given specific instructions on the limited admissibility of the testimony. Before the testimony was offered, the jury was instructed it was "admissible solely for the limited purpose of showing that the reactions of [C.L.],... [N.G.], and their parents, as demonstrated from the evidence are not inconsistent with [C.L.] and [N.G.] having been molested. [¶] Dr. Urquiza's testimony is not evidence that the defendant committed any of the crimes charged against him or the uncharged crimes reported by [C.L.]." At the conclusion of the trial, the jury was further instructed pursuant to CALCRIM No. 303 as follows: "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other." The jury was also given CALCRIM No. 1193, which stated that the doctor's testimony "is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only for the limited purpose in deciding whether the conduct of [N.G.] and her parents was not inconsistent with the conduct of someone who has been molested and her parents, and in evaluating the believability of their testimony." The jury was also told, "[y]ou alone must judge the credibility or believability of the witnesses," and that it was to decide whether N.G. "gave truthful and accurate testimony." (CALCRIM Nos. 226, 330.) Finally, the jury was instructed to disregard all of Dr. Urquiza's testimony if it found it "unbelievable, unreasonable, or unsupported by the evidence." We presume the jury understood and followed all of these instructions. (People v. Coffman (2004) 34 Cal.4th 1, 73, 107.)
Even if the jury had considered the challenged testimony for an improper purpose, the error would be harmless. N.G.'s reports of sexual molestation were made without any prior knowledge of the strikingly similar abuse that appellant inflicted on her cousin C.L. almost 30 years earlier. Dr. Urquiza also persuasively explained how N.G. and C.L.'s conduct was not inconsistent with their claims of abuse. In light of this evidence, it is not reasonably probable the jury would have reached a different result absent the alleged error. (Cal. Const., art. VI, § 13; People v. Cahill (1993) 5 Cal.4th 478, 500-501, 509-510; People v. Watson (1956) 46 Cal.2d 818, 836.)
Appellant's citation to Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732 is unavailing. In Snowden, the prosecution's child abuse expert testified that 99.5 percent of child victims tell the truth about allegations of sexual abuse. The expert also testified he had interviewed the complaining child witness, and that he had never encountered a child who had fabricated abuse. (Id. at pp. 738-739.) As we have noted, Dr. Urquiza did not interview N.G. or C.L., nor did he testify that he had never personally encountered a child's false report of abuse. Dr. Urquiza also emphasized to the jury that he was not vouching for N.G.'s credibility, and the instructions the jurors were given plainly prohibited them from considering it for that purpose. Besides, we are not bound to follow the decisions of lower federal courts (People v. Cleveland (2001) 25 Cal.4th 466, 480), and other such courts have recognized that the admission of this type of evidence does not necessarily amount to a federal due process violation. (See McCafferty v. Leapley (8th Cir. 1991) 944 F.2d 445, 453-454 [no due process violation where expert testified that research indicates that less that one percent of children fabricate claims of sexual abuse]; Adesiji v. State of Minnesota (8th Cir. 1988) 854 F.2d 299, 300-301 [expert testimony that children do not fabricate allegations of abuse did not violate due process where, among other things, the expert indicated he did not interview the victim].) No such violation occurred here.
The People cite People v. Gilbert, supra, 5 Cal.App.4th at pages 1385 and 1386, as standing for the proposition that "expert testimony that children are more credible than adults with respect to reporting sexual abuse did not constitute error where expert had not interviewed victim[.]" The case does not so hold. The court merely found that admission of the evidence was not reversible error because the testimony did not address CSAAS and the defendant waived any error by failing to object. (Ibid.)
II.
Evidence of Prior Acts of Sexual Abuse Against C.L.
Appellant asserts that the court abused its discretion in admitting evidence regarding his prior acts of sexual abuse against C.L. pursuant to Evidence Code sections 1101 and 1108. We disagree.
Evidence Code section 1101, subdivision (a), provides that "evidence of a person's character or a trait of his or her character... is inadmissible when offered to prove his or her conduct on a specified occasion." Evidence Code section 1108, subdivision (a), 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." Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"By reason of section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its 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. [Citations.]" (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.) A trial court's exercise of discretion under Evidence Code section 352 "'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
The trial court here did not abuse its discretion in admitting evidence of appellant's uncharged sexual misconduct under Evidence Code section 1108. Contrary to appellant's claim, the uncharged molestations were strikingly similar to the charged crimes. C.L. and N.G. are both appellant's non-biological nieces and were victimized at the same age in a remarkably similar manner. The evidence was therefore admissible to prove appellant had a "pattern of molesting his young female relatives." (People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.) While the acts against C.L. were committed many years earlier, the remoteness of those acts is "balanced out" by the substantial similarities they share with the charged crimes. (See, e.g., People v. Branch (2001) 91 Cal.App.4th 274, 285-286 [defendant's sexual assault on stepdaughter more than 30 years earlier admissible to prove propensity to commit sexual assault on step-granddaughter]; Frazier, supra, at pp. 40-41 [prior sexual offenses admissible to prove crimes committed 15 to 16 years later]; People v. Waples (2000) 79 Cal.App.4th 1389, 1393-1395 [prior offenses committed 15 and 22 years before charged offenses not too remote for admission].) The probative value of the evidence is increased by the fact that the victims knew nothing about each other's molestations at the time of disclosure. The evidence was also relevant to prove appellant's intent, in that it shows N.G. did not misinterpret his actions. (See People v. Ewoldt (1994) 7 Cal.4th 380, 393.)
To the extent appellant complains the jury may have been inclined to punish him for his prior crimes, we presume the jury followed the instructions that plainly directed them to refrain from doing so. (People v. Frazier, supra, 89 Cal.App.4th at pp. 40-42.) We also reject appellant's claims that the evidence, which amounts to approximately 200 of the 1,030 pages that comprise the prosecution's case-in-chief, necessitated an undue consumption of time. (See id. at p. 42 [no undue consumption of time where 27 percent of trial was devoted to evidence of prior offense].) In light of the prior acts' strong similarities to the charged crimes, the independent evidence offered to prove that those acts occurred, the relevance of those acts to prove appellant's intent, and the absence of circumstances weighing against admission, it cannot be said that the court's decision to admit the evidence either resulted in a manifest miscarriage of justice or was arbitrary, capricious, or patently absurd. Accordingly, there was no abuse of discretion. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
The judgment is affirmed.
We concur: YEGAN, Acting P.J. COFFEE, J.