Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07900009, M. Bruce Smith, Judge.
Mark Alan Hart, 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, Senior Assistant Attorney General, Catherine Chatman and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
Appellant, Tyler James Suong, was convicted of eight counts of various sex abuse crimes committed against his daughter, Jane Doe I, and his niece, Jane Doe II. Appellant challenges these convictions on the ground that the prosecution’s expert witness was improperly permitted to testify that when children who have been abused disclose the abuse, their report is valid. According to appellant, the expert was effectively vouching for the credibility of the alleged victims in this case. Appellant further contends that the two abstracts of judgment filed in this case should be replaced with a single abstract of judgment.
As discussed below, the disputed testimony does not require reversal of the judgment. However, the trial court will be ordered to replace the two abstracts of judgment with one that lists all counts.
BACKGROUND
When Jane Doe I was in third grade, appellant, her father, began touching her sexually. This happened three or four times during that school year. This sexual conduct recurred when Jane Doe I was in sixth grade.
When Jane Doe I was around 13 years old, appellant forced her to have sexual intercourse with him. This started the summer before Jane Doe I entered ninth grade and occurred more than 20 times. Appellant also forced her to orally copulate him five or six times. Appellant told Jane Doe I that having sex with him was God’s plan and that it was the only way they could be together in heaven. He told her not to tell anyone about God’s plan because no one else would understand. Also, he could go to jail and she would go to hell.
In late October of her ninth grade year, Jane Doe I ran away from home. She returned about a week later but left to stay at her friend Ashley’s house shortly thereafter. Jane Doe I told Ashley what had happened and Ashley in turn told her own mother. Ashley’s mother took Jane Doe I to her school counselor to report the abuse.
Appellant is Jane Doe II’s uncle. On multiple occasions, beginning when she was eight years old and in third grade, appellant touched Jane Doe II sexually. Jane Doe II did not inform law enforcement about any of these incidents until 2007 after receiving information about this case from appellant’s wife.
Appellant testified in his own defense and denied ever having sexual contact with either Jane Doe I or Jane Doe II. Appellant’s sister testified that she was best friends with her niece, Jane Doe II, and lived with Jane Doe II’s family for a time. However, Jane Doe II never said anything to her about being molested by appellant. Appellant’s sister also lived with appellant and Jane Doe I and again, the alleged victim never disclosed sexual abuse by appellant.
Appellant was convicted of the following offenses against Jane Doe I: three counts of lewd and lascivious acts with a child under 14 (Pen. Code, § 288, subd. (a)) in counts 1, 4 and 5; two counts of aggravated sexual abuse of a child (§ 269, subd. (a)(1)) in counts 2 and 3; and two counts of forcible oral copulation of a child (§ 288a, subd. (c)(2)) in counts 6 and 7. Appellant was convicted of having committed a lewd and lascivious act against a child under 14 (§ 288, subd. (a)) in count 8 against Jane Doe II. Appellant was sentenced to 15 years to life on the principal term of count 2, consecutive terms of 15 years to life on counts 3, 6, 7 and 8, and concurrent terms of 15 years to life on counts 1, 4 and 5 for a total of 75 years to life.
All further statutory references are to the Penal Code.
DISCUSSION
1. The disputed expert witness testimony does not require reversal of the judgment.
Dr. Randall Robinson, a clinical psychologist, testified for the prosecution on the Child Sexual Abuse Accommodation Syndrome (CSAAS). The CSAAS describes the behaviors of children who have been sexually abused. Its central purpose is “to explain why a child allows herself or himself to be sexually abused and why he or she does not immediately or ever report the abuse.” CSAAS assumes as its premise that the child has been sexually molested and describes behaviors common to abuse victims, behaviors that are often misinterpreted by adults.
Although inadmissible to prove that abuse occurred, CSAAS testimony is admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to being molested. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) Accordingly, two requirements have been imposed. “First, the expert’s testimony must be narrowly tailored to the purpose for which it is admissible. In other words, the prosecution is obligated to ‘identify the myth or misconception the evidence is designed to rebut’ and the testimony must be limited to exposing the misconception by explaining why the child’s behavior is not inconsistent with his or her having been abused.” (People v. Bothuel (1988) 205 Cal.App.3d 581, 587, overruled on other grounds in People v. Scott (1994) 9 Cal.4th 331, 348.) Thus, if the victim’s credibility is placed in issue due to his or her paradoxical behavior, CSAAS testimony is admissible to help explain that behavior. (People v. Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) For example, “where a child delays a significant period of time before reporting an incident or pattern of abuse, an expert could testify that such delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust.” (People v. Bowker (1988) 203 Cal.App.3d 385, 394.)
Second, the jury must be instructed that the expert’s testimony is not intended and should not be used to determine whether the victim’s molestation claim is true. (People v. Bowker, supra, 203 Cal.App.3d at p. 394.) Rather, “[t]he evidence is admissible solely for the purpose of showing that the victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested.” (Ibid.)
Here, Dr. Robinson’s testimony discussed the five component parts of the CSAAS and how children react to abuse in general. Dr. Robinson had never met either Jane Doe I or Jane Doe II and was unfamiliar with the particulars of the case. For the most part, her testimony complied with the CSAAS evidence guidelines and was consistent with what has been previously held to be admissible.
Appellant objects to one answer given by Dr. Robinson. When asked “In your training and experience, do children who are victimized by sexual abuse always tell the truth in regards to the abuse?” Dr. Robinson answered:
“Children who have been abused sometimes -- most of the time do not disclose the abuse. There’s an indirect lie, I suppose, a lie by omission. When they do disclose the abuse, their report is valid.”
According to appellant, “this testimony amounted to the expert improperly vouching for the credibility of those children alleged to be victims of sexual abuse.”
The line between the impermissible use of expert testimony to prove the child was abused and the permissible use of such testimony to explain an abused child’s paradoxical behavior is by no means a bright one. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383-1384.) Here, the objected to testimony pushes that line. Rather than merely explaining an abused child’s seemingly inconsistent behavior, Dr. Robinson’s testimony implied that an abused child’s report will be valid. Similar testimony in People v. Bothuel, supra, was found to be “troubling.” (205 Cal.App.3d at p. 589, fn. 8.)
Nevertheless, it was clear that Dr. Robinson was not offering an opinion on the credibility of either Jane Doe I or Jane Doe II or on whether they had in fact been abused. Rather, her comment was regarding children who have been abused in general. Dr. Robinson testified that she had not met either of the alleged victims and did not know the particulars of this case.
Moreover, before Dr. Robinson testified, the trial court admonished the jury that Dr. Robinson’s testimony “is not, I repeat, 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 Jane Doe I’s conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony.” Further, the jury was instructed pursuant to CALCRIM No. 1193 as follows:
“You have heard testimony from Dr. Randall Robinson regarding the Child Sexual Abuse Accommodation Syndrome. Dr. Randall Robinson’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 Jane Doe I and Jane Doe II’s conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of their testimony.”
It is presumed that the jury followed this instruction. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83.)
Appellant contends this limiting instruction added to the prejudice because it informed the jurors that they could consider the expert evidence in evaluating the believability of the testimony of the two alleged victims. However, the instruction also states that expert testimony is not evidence that the defendant committed any of the crimes charged against him. When considered as a whole, it is not reasonably likely that the jury would have understood the instruction to permit the expert testimony to be considered to determine whether the sexual abuse occurred.
Under these circumstances, it is highly unlikely that the jury would interpret the disputed testimony as an expert opinion that Jane Doe I and Jane Doe II were credible. Dr. Robinson’s testimony pertained to abused children’s behavior in general, Dr. Robinson had not met either alleged victim and was unfamiliar with the case, and the jury was correctly instructed on the limited use of CSAAS testimony. Accordingly, it is not reasonably probable the jury would have reached a result more favorable to appellant in the absence of this testimony. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Bothuel, supra, 205 Cal.App.3d at p. 589.)
2. There should only be one abstract of judgment.
Two separate abstracts of judgment were prepared, one for an indeterminate commitment and one for a determinate commitment. The indeterminate abstract of judgment lists the terms ordered to run consecutively and the determinate abstract lists the terms ordered to run concurrently. However, all the terms are indeterminate, i.e., 15 years to life. Accordingly, there should be only one abstract of judgment.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment listing all indeterminate counts and to forward a certified copy to the Department of Corrections and Rehabilitation and any other appropriate entities.
WE CONCUR: Hill, J., Kane, J.