Opinion
F082335
01-17-2023
THE PEOPLE, Plaintiff and Respondent, v. FAUSTO ARTURO COTACORRALES, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F20900445. Gary D. Hoff, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, P. J.
INTRODUCTION
Between September 2010 and October 2015, defendant Frausto Arturo CotaCorrales sexually abused his girlfriend's young daughter multiple times, and it was discovered only after the daughter became pregnant. A jury convicted defendant of a lewd act and a forcible lewd act upon a child under 14 years of age, aggravated sexual assault of a child by forcible sexual penetration and rape, and rape of a minor 14 years of age or older. The trial court sentenced defendant to a total term of 74 years to life in prison.
On appeal, defendant raises several objections to the trial court's admission of expert testimony on child sexual abuse accommodation syndrome (CSAAS): (1) defendant's right to due process was violated when the CSAAS expert testified to matters exceeding his qualifications; (2) the expert testified to facts that constituted profiling; (3) the expert testified regarding neurological studies without foundation; and (4) the trial court erred in failing to assess CSAAS testimony pursuant to the Kelly-Frye test. Defendant also argues that (5) the trial court failed to conduct an Evidence Code section 352 balancing analysis before instructing the jury with CALCRIM No. 1191(b) and permitted the jury to use charged crimes as evidence of defendant's propensity to commit the other charged crimes, and (6) the use of prior sexual misconduct to prove propensity pursuant to Evidence Code section 1108 violates due process. The People argue that defendant forfeited several specific objections to the expert testimony by failing to object below and that we should reject defendant's arguments on the merits. Finding no error, we reject defendant's arguments and affirm the judgment.
(People v. Kelly (1976) 17 Cal.3d 24 (Kelly), abrogated by statute on another point as explained in People v. Wilkinson (2004) 33 Cal.4th 821, 845-848; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013 (Frye), superseded by the adoption of the Fed. Rules of Evid. as stated in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 587.)
PROCEDURAL BACKGROUND
The District Attorney of Fresno County filed a second amended information on November 18, 2020, charging defendant with a lewd act upon a child (Pen. Code, § 288, subd. (a); count 1), aggravated sexual assault of a child by forcible sexual penetration (§§ 269, subd. (a)(5), 289, subd. (a); count 2), forcible lewd act upon a child (§ 288, subd. (b)(1); count 3), aggravated sexual assault of a child by rape (§ 269, subd. (a)(1), (2); count 4), and forcible rape (§ 261, subd. (a)(2); counts 5, 6). As to count 5, the second amended information alleged that defendant inflicted great bodily injury on the victim, a circumstance pursuant to section 667.61, subdivision (d)(6) of the alternate sentencing scheme of the "One Strike" law (§ 667.61). As to count 6, the second amended information alleged that the victim was a minor 14 years of age or older.Defendant pleaded not guilty to the charges and denied all allegations.
All further statutory references are to the Penal Code unless otherwise indicated.
Section 264, subdivision (c)(2) provides for enhanced a punishment based upon the age of the victim.
Trial of defendant commenced on November 2, 2020. The jury convicted defendant of all charges and found true all special circumstances on November 30, 2020.
On January 26, 2021, the trial court sentenced defendant to a total term of 74 years to life comprised of 25 years to life for forcible rape with great bodily injury as to count five (§ 667.61, subd. (a)), two consecutive 15-year-to-life terms for aggravated sexual assault of a child as to counts 2 and 4 (§ 269, subd. (b)), consecutive terms of nine years for rape of a minor (count 6) and eight years for a forcible lewd act upon a child (count 3), and two years (one-third of the middle term) for a lewd act upon a child (count 1). The trial court ordered defendant to pay $4,800 to the California Victim Compensation Board (former § 1202.4, subd. (f)(2)) and imposed a $10,000 restitution fine (former § 1202.4) and a suspended $10,000 parole revocation restitution fine (§ 1202.45). However, the trial court then waived restitution, as well as a $300 habitual sexual offender fine (§ 290.3), $180 in criminal conviction assessments (Gov. Code, § 70373), and $240 in court operations assessments (§ 1465.8) after determining that defendant did not have the ability to pay them.
Defendant timely appealed on January 27, 2021.
FACTS
T.C. met defendant, her stepfather, when she was "around five years old," although she had previously believed him to be her biological father. She was between five and 10 years old when they lived at their first residence (between 2005 &2010) and between 10 and 15 years old when they lived at their second residence (between 2010 &2015).
When T.C. was approximately 10 years old, defendant came into her room and began hugging her. Defendant then used his hand to touch her vagina, moved his hand causing her to feel pain, and put his finger inside her vagina. T.C. told him to stop and tried to push defendant away. Defendant hugged her for a while and then left. T.C. was afraid and did not tell her mother.
Defendant came into her bedroom another time while she was sleeping. Defendant hugged T.C. tightly and rubbed her vagina on the outside of her pajamas. Afterwards, defendant told T.C. that her mother should not find out.
T.C. described another time that defendant touched her vagina underneath her clothes. Defendant usually came into T.C.'s room after she was already asleep. He would hug T.C. tightly with both his arms and one leg and she felt restrained. He ignored T.C. when she said, "[N]o." Defendant used his finger to penetrate her vagina and touched her chest. After defendant left, T.C. went back to sleep but awoke when she heard someone walk by her room. T.C. started crying when she saw her mother but was too scared to tell her mother why she was upset. Before defendant left for work, he again warned T.C. not to tell her mother. Defendant told T.C. that fathers did things like this to their daughters to prepare them for marriage.
When T.C. would try to prevent defendant's abuse, defendant would threaten her. Defendant once threatened T.C. with a machete and other times threatened to deport her or her mother. He once told T.C. that if she wanted to die that he would do it for her. T.C. was a freshman in high school at that time and had reached out to a counselor. Defendant prevented her from seeing the counselor further.
T.C. estimated that defendant used his finger to penetrate her vagina more than 20 or 30 times. The abuse worsened and occurred too many times to count. Eventually, defendant used his penis to penetrate her vagina. T.C. was living at their second residence when defendant first had intercourse with her. Defendant came into her bedroom while she was sleeping and got on top of her. T.C. tried to keep her legs closed and said, "[N]o." Defendant told her to shush and pushed her legs apart before inserting his penis into her vagina. Defendant told her to be quiet and put his hand over her mouth. Afterwards, T.C. went into the bathroom and saw that she was bleeding. T.C. estimated that she was 13% years old when this first happened.
Defendant continued to force her to have sexual intercourse and ignored her refusals to do so. Sometimes she noticed a white substance when she cleaned herself after the abuse. Around October 2015, T.C. went to a pregnancy care center and learned she was pregnant. T.C. had been having cravings for ice and missed her period. T.C. had a baby in January 2016, after approximately seven hours of labor. DNA tests of DNA swabs from defendant, T.C., and T.C.'s daughter showed that defendant could not be eliminated as and provided strong evidence that defendant was the father of T.C.'s daughter.
T.C.'s pregnancy had been characterized as "high risk," and she went to the hospital once or twice during the pregnancy because she experienced pain and bleeding. After labor, T.C. required stitches.
One of the last times defendant forced T.C. to have sexual intercourse was on October 15, 2015, approximately one week before she learned she was pregnant. T.C. did not remember too much about the incident because defendant forced her to have sexual intercourse more times than she was able to count. This time, defendant had sexual intercourse with her during the day. T.C.'s mother had gone to the store, and defendant sent T.C. to her room. T.C. told defendant that she did not want him to do it anymore, and defendant replied that he was almost finished teaching her. Defendant locked the doors to her bedroom, pulled down her clothing, bent T.C. over, and penetrated her vagina with his penis.
The day T.C. learned she was pregnant, T.C. told the pregnancy counselor that defendant had been sexually abusing her. T.C. told her mother that same day. They left their house before defendant returned home and stayed with T.C.'s uncle. T.C.'s mother told officers that defendant came to her brother's residence and tried to convince T.C. to leave with him by claiming that immigration authorities had been to the home looking for T.C.
T.C.'s mother told officers that sometimes when she awoke at night, defendant would be in bed with one of the children. One night, she went to T.C.'s room and the door was locked. Defendant later came from the room.
When interviewed by police in October 2015, defendant told officers that he was 53 years old, had been living with T.C.'s mother for 10 years, and they had four children. Defendant said that T.C. had just turned 15 years old and was angry because she wanted things that he could not afford. At first, defendant denied that he ever slept in T.C.'s room but then admitted that he sometimes did because his own mattress was bad. He claimed that they slept back to back and it had been several months since he last slept with her.
Defendant denied ever touching T.C. inappropriately when she was little and claimed that T.C. was lying because defendant had tried to take her phone away. Defendant later admitted that he had sexual intercourse with T.C. but said that he did not force it; T.C. approached him in his room, unzipped his pants and touched him everywhere. He claimed this had happened only two times and within two months before the interview.
The prosecutor designated Dr. David Love as an expert in CSAAS, and defense counsel noted he had no objection. Dr. Love explained that CSAAS describes the most common symptoms and behaviors of sexually abused children as the result of research conducted by Dr. Roland Summit in 1979. Dr. Summit reviewed the behaviors of 2,000 sexually abused children to catalogue their reactions to abuse. Dr. Love participated in the 1979 study, the results of which were presented at a 1983 conference regarding child abuse. Dr. Summit catalogued the most common and important behaviors into five areas: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicted and unconvincing disclosure; and (5) retraction.
The trial court ruled on defense counsel's objections to the admissibility and scope of Dr. Love's testimony during a hearing outside the jury's presence, which we shall discuss in further detail below.
Dr. Love testified that since the original 1979 study, eight additional studies (involving approximately 3,000 children) had been conducted and contributed to further understanding the phenomenon by using more current scientific information and brain scans "to see which areas of the brain[,] when children would retell the trauma[,] would be over or underreactive [sic]." Dr. Love explained that these studies were based on the original work of Dr. Summit but each focused on a specific area.
Dr. Love explained that an abused child often keeps the abuse secret due to sexual taboos, feelings of responsibility, fear of stigma, coercion, and threats. An abused child will also keep the abuse secret due to an undeveloped prefrontal cortex that inhibits the child's ability to assess the consequences of revealing or not revealing the information. Dr. Love testified that many abused children will not report the abuse.
Abused children will not report abuse due to feelings of helplessness. Such helplessness derives from being younger and less powerful than their abusers, most of whom the children have been taught to respect and trust, which causes them to feel that they should not question the abuse or they will not be believed and contributes to their inability to disclose the abuse. Most children are molested at home and in places they routinely inhabit.
Addressing the category of entrapment and helplessness, Dr. Love testified that when a child is abused by someone close to them, the child will feel stuck and will deal with it by accommodating emotionally and psychologically. Such accommodations may include self-medicating, inappropriate sexual activity, or running away. Dr. Jim Hooper's studies found that the children react to stress and threats by disassociating or suppressing the feelings caused by the abuse. An adult brain will react to such situations by fleeing, fighting, or freezing up. A child, however, is likely to freeze and not resist the abuse, hoping that it will stop if the child cooperates. Therefore, an abused child would attempt to behave normally.
Dr. Love described that a fourth characteristic of abused children is that they will delay disclosure of the abuse for some time and may have trouble recalling it. This results from the way different types of memories are encoded into the brain and the way in which they are retrieved. Dr. Love explained the results of Dr. David Lisak's study in the area that revealed how cortisol, a neurochemical, can affect the brain's ability to encode memories. The actual sexual abuse is a core memory that encodes into the brain "quite well" and is one of the most reliable pieces of information. The peripheral memories associated with the abuse, such as when and where the abuse occurred, do not encode as well due to the cortisol released during periods of stress. Therefore, a child's inability to recall the details of the abuse should not be used to discount the core memory of the abuse itself, which is one of the most reliable pieces of information when conducting a professional interview of an abused child. Dr. Love uses this information to train forensic interviewers in the need to make children comfortable and to feel safe, which will cause the children to remember more of the details and teaches that several interviews may be necessary to access such memories.
We note that Dr. Lisak's name is incorrectly spelled "Lasik" in the reporter's transcript.
Dr. Love testified that Lisak's research is used by forensic interviewers to understand how a child's memories of abuse might be fragmented and that a child's disclosure of abuse might be confusing to the interviewer.
Finally, Dr. Love testified that abused children may sometimes retract their accusations of sexual abuse because they want to avoid testifying in court or avoid further discomfort and embarrassment. Dr. Love explained that CSAAS is not a diagnostic tool, meaning that neither the presence nor absence of any of the described behaviors should be used to conclude whether the child was molested. CSAAS is used to explain behaviors exhibited by abused children that one might otherwise use to disbelieve a child that sexual abuse occurred.
DISCUSSION
I. The trial court did not abuse its discretion in determining that Dr. Love was qualified to testify as an expert regarding CSAAS, and Dr. Love's testimony regarding other studies that informed his opinion on CSAAS was not outside the scope of his expertise.
A. Background
1. Motions in limine.
The prosecution filed a written motion to permit the expert testimony of Dr. Love regarding CSAAS so as to disabuse the jury of common misconceptions regarding the behavior of child sex abuse victims. Defense counsel filed a written objection to the admission of such expert testimony and requested an Evidence Code section 402 evidentiary hearing. Defense counsel moved to exclude CSAAS testimony entirely or to disallow profile evidence and statistical evidence of false allegations.
Our description of the evidence as to Dr. Love's expertise and background is derived from both his Evidence Code section 402 hearing and trial testimony, which we review in its entirety to analyze the trial court's decision to admit Dr. Love's testimony.
Dr. Love is the founder and executive director of Valley Community Counseling Services, created in 1974 and one of the largest child abuse and children's mental health nonprofit agencies in California. The program treats approximately 600 to 800 children a year throughout five clinics staffed by 50 therapists. Dr. Love is a licensed marriage and family therapist with a graduate degree in psychology. To obtain and retain his license, Dr. Love completed 3,000 hours of supervised clinical experience, passed state examinations, and received 36 hours of advanced training every two years. He taught graduate classes relating to child abuse, mental health, and substance abuse to individuals training to become licensed therapists, doing so for over 10 years at the University of San Francisco and eight years for the University of California, Los Angeles in an extended learning program. He also taught seminars and conferences at the University of California Davis School of Medicine and the University of the Pacific.
We note that Dr. Love's estimate of the number of children treated per year during the Evidence Code section 402 hearing (3,000 children) was higher than the number he estimated during trial. The difference may be explained if Dr. Love's trial testimony addressed the number of children treated in only one of the five separate clinics for which his organization is responsible.
Dr. Love was also a consultant and trainer for the Child Abuse Training and Technical Assistance Center, which provides therapy, counseling, and training for therapists who perform forensic work for law enforcement. He provided training for the American Professional Society on the Abuse of Children twice a month, relating to childhood trauma, childhood abuse, and childhood sexual abuse.
Dr. Love described his area of expertise as generally childhood trauma and "specifically child sexual abuse and physical abuse and impact of domestic violence on children"; he taught "both symptoms and signs" and diagnosis. Dr. Love taught courses on the neurophysiology of trauma: "In other words, when children are traumatized, how is their brain affected both neuro chemically [sic] and structurally[?] What are the symptoms of that and what are the therapy approaches that are available to assist those children[?]" Dr. Love explained that his course addressed how neurology impacts behavior from a therapist perspective but not from a neurophysiology perspective, as he was neither a neurologist nor a radiologist.
Regarding the physical neurology of trauma, Dr. Love worked with Drs. Bruce Perry and Linda Chamberlain. Dr. Perry conducted PET scans and MRI tests that observed the parts of the brain that were affected by childhood trauma. Dr. Love used their examinations and conclusions to develop therapy models that could help children heal both behaviorally and "neurophysiology-wise." The California Attorney General's Office hired them for three years to train police officers, Child Protective Services workers, and victim advocates on the way childhood trauma affects physiology.
Dr. Love's responsibilities included teaching police officers how to interview children and obtain information, and he served as a clinical advisor to the "California Victims of Crime Program."
After conducting a study at the University of California Davis School of Medicine relating to the ongoing treatment of children sexually abused by priests, Dr. Love coauthored a book intended as a guide for parents who discover their child has been abused. He also published results of a five-year study regarding the treatment of youthful sex offenders.
Dr. Love received extensive training regarding CSAAS and worked with Dr. Summit during the original research in 1979. Dr. Love's university-level instruction related to understanding neurological results and using such results in formulating a treatment model. Dr. Love estimated he previously testified as an expert on child sexual abuse 150 to 175 times and on neurophysiology 50 to 70 times.
Dr. Love testified that CSAAS developed from Dr. Summit's 1979 clinical study of the typical reactions exhibited by 2,000 children who were being treated for sexual abuse. Dr. Love participated in organizing the study, the results of which were published. The purpose of CSAAS is to "understand the most common behaviors or symptoms that have been observed and reported in actually molested children, and in particular, those that were used historically to somehow or another reduce the credibility of a child's disclosure because on the surface it didn't make sense or it was different than nonmolested children in other circumstances." Dr. Love testified, "That's all it is, is to help better understand molested children and use that when anyone's trying to determine in this whole process whether or not this is actually something that truly took place."
The study revealed certain unexpected behaviors exhibited by victims of child abuse that were categorized into the five areas that form the components of CSAAS. Studies subsequent to the original 1979 study have consistently resulted in observations of the same behaviors in abused children. Dr. Love also explained that since the Summit study, neurophysiological data has become available to explain the behaviors observed.
Dr. Love testified that CSAAS should not be used to diagnose sexual abuse and is only designed to explain common behaviors or characteristics of abused children that might otherwise be used by professionals to disbelieve that a child has been abused. He stressed that CSAAS cannot be used to either confirm or rule out abuse. The improper use of CSAAS to opine whether a child has been abused was the subject of a second published article by Dr. Summit.
3. Trial Court's Admissibility Ruling.
During the Evidence Code section 402 hearing, defense counsel elicited testimony from Dr. Love that he was not a psychiatrist, psychologist, or neurologist. Dr. Love could review an MRI to ascertain which parts of the brain were overactive or underactive as, from a therapist perspective, it was important for him to know whether the frontal or prefrontal cortex was impacted when targeting behavioral therapy to a specific part of the brain. However, he relied upon other experts to interpret brain scans and used their information in formulating a therapy. Dr. Love received extensive training from Dr. Perry regarding neurophysiology and worked with Dr. Perry to develop and select proper therapies using neurological alteration to treat issues that Dr. Perry helped identify.
Defense counsel objected to Dr. Love testifying as to any questions relating to the anatomy of the brain, "an area that has nothing to do with his education, training, [or] speciality," and as to CSAAS. The trial court characterized defense counsel's objection as one directed to Dr. Love's qualifications, overruled the objection, and found Dr. Love to be "a qualified expert to testify in the area of [CSAAS]." The trial court then requested that the prosecutor elicit testimony and lay a foundation as to the areas to be presented at trial. After hearing this testimony, the trial court asked Dr. Love if he understood that he was testifying primarily to explain CSAAS. Dr. Love responded, "Yeah, the syndrome, and my understanding was research that supports and further explains the syndrome in more detail." Dr. Love confirmed that he had not interviewed T.C. nor provided her any treatment or therapy. The prosecutor argued that Dr. Love's testimony was necessary to explain behaviors of the victim that might be different than what a jury would expect and to assist the jury in judging T.C.'s credibility.
Defense counsel argued that Dr. Love's testimony included a "vast" amount of profile evidence in the form of "[t]hings that [the perpetrator] would do. Manipulation. Threats. The perpetrator's access to the child, grooming." She also moved to strike the entire testimony because CSAAS is not accepted in New Jersey. Dr. Love testified that studies have shown it is very unusual for children to falsely report sexual abuse; his agency treated 600 children a year for 25 years and only dealt with false accusations approximately four or five times. Defense counsel argued that this testimony impermissibly bolstered the victim's credibility. Defense counsel argued that Dr. Love referred to other doctors but that such testimony lacked foundation, and counsel had not been provided the articles Dr. Love had referenced. Defense counsel also argued, "I also do have great concerns of him talking about different parts of the brain and hippocampus and, you know, throwing out fancy medical terms when he does not hold a medical degree, a Ph.D. He can't himself even interpret scans. His involvement in those studies is essentially this is what's going on here, you come up with some sort of treatment."
The trial court indicated that it had read and considered the briefs submitted relating to the motions of the prosecutor and defense counsel addressing the admissibility of expert testimony regarding CSAAS. The court denied defense counsel's motion to exclude CSAAS testimony. The court found that Dr. Love was an expert as to CSAAS and could testify regarding the syndrome because it was relevant to explaining the child's state of mind relating to sexual abuse and would assist the jury in assessing the victim's credibility. The court did, however, exclude any testimony regarding whether the alleged assault in this case occurred. The court also excluded any testimony relating to the frequency or unusualness of false accusations. The trial court explained this latter limitation again during a side bar during Dr. Love's trial testimony.
4. Jury Instruction.
The trial court instructed the jury as to the limitations of use for Dr. Love's testimony:
"You have heard testimony from David Love regarding [CSAAS]. David Love's testimony about [CSAAS] is not evidence that the Defendant committed any of the crimes charge[d] against him. You may consider this evidence only in deciding whether or not [T.]C.'s conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of his [sic] testimony."
B. Applicable Law and Standard of Review
"Evidence Code section 720 provides that a person may testify as an expert 'if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates,' and that '[a] witness'[s] special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.' The trial court's determination that a witness qualifies as an expert is a matter of discretion that will not be disturbed absent a showing of manifest abuse. [Citation.] We will find error regarding a witness's credentials as an expert only if '" 'the evidence shows that a witness clearly lacks qualification as an expert ....'" '" (People v. Jones (2012) 54 Cal.4th 1, 57, first bracketed insertion in original.) Once it is established that a witness has adequate credentials to qualify as an expert, questions as to the degree of his or her expertise go more to weight of the evidence than to admissibility. (People v. Bolin (1998) 18 Cal.4th 297, 322.)
C. Analysis
1. The scope of Dr. Love's expertise and testimony.
Defendant argues that the trial court abused its discretion in permitting Dr. Love to testify about other studies that went beyond a description of CSAAS and were outside Dr. Love's qualifications. Dr. Love testified regarding: Dr. Lisak's cortisol study that described a physiological reason that an abuse victim might not recall details of the abuse; his own experience with the length of time it took victims of sexual abuse to disclose the abuse; that a child's undeveloped prefrontal cortex explains why a child would delay disclosing abuse; Dr. Hooper's study that explained a child accommodating abuse by reference to the brain's function while under stress; and Dr. Lisak's study regarding cortisol and its effect on memory coding.
In a related argument, defendant argues that these studies were admitted without foundation and constituted inadmissible hearsay. However, defendant failed to object to the testimony on this basis and has forfeited the issue. During the evidentiary hearing, defense counsel objected to the studies because he had not been provided a copy of them. A party is required to raise objections to evidence at the trial court level or their objection is forfeited. (See Evid. Code, § 353 [defendant must make timely evidentiary objection on same ground urged on appeal]; People v. Romero and Self (2015) 62 Cal.4th 1, 24 [failure to object" 'deprives the trial court of the opportunity' to create a record and to 'correct potential error in the first instance' "].)
We reject defendant's arguments that testimony regarding these areas was outside the scope of CSAAS. As Dr. Love explained, he participated in Dr. Summit's 1979 research and described that additional studies had been conducted and contributed to further understanding CSAAS by using more current scientific information and brain scans "to see which areas of the brain[,] when children would retell the trauma[,] would be over or underreactive [sic]." Dr. Love explained that these studies were focused on some of the components identified by Dr. Summit in his original work. Defendant argues, without evidentiary support in the record or case law, that Dr. Love's testimony "exceeded the scope of CSAAS evidence" and contained "several unvetted, questionable studies under the guise of scientific evidence to both amplify and solidify the shaky basis of CSAAS evidence." However, defendant failed to object on this basis, and Dr. Love testified that CSAAS is highly regarded by researchers, therapists, counselors, law enforcement, and forensics "across the board," despite some that disagree. Given Dr. Love's explanation of the studies, their relationship to CSAAS, and defendant's failure to provide contrary evidence or authorities, we cannot conclude on this record that the trial court abused its discretion in admitting the testimony.
Defendant also argues that Dr. Love's testimony in these areas exceeded his qualifications. This claim lacks merit. Defendant does not claim that Dr. Love is not qualified to testify as to CSAAS as a licensed therapist. Defendant argues, however, that Dr. Love's description of the studies since CSAAS was announced in 1983 was beyond his expertise because he lacks a degree in neurology or medicine and is not a doctor. However, Dr. Love's description of CSAAS and the subsequent studies that inform CSAAS did not require Dr. Love to have an expertise beyond that which was shown-he was a licensed family therapist specializing in the treatment of sexually abused children and using the research of others into the functioning of the human brain to inform his treatment of neurological trauma. Dr. Love is the founder and executive director of Valley Community Counseling Services, created in 1974, and one of the largest child abuse and children's mental health nonprofit agencies in California. He testified that he completed 3,000 hours of supervised clinical experience, passed state examinations, received 36 hours of advanced training every two years, and had extensive experience teaching and training others relating to childhood trauma, childhood abuse, and childhood sexual abuse. Dr. Love's research and instruction has extended to the neurophysiology of trauma to devise therapies to assist abused children. Dr. Love's university-level instruction related to understanding neurological results and using such results in formulating treatment models. Additionally, he previously testified as an expert on CSAAS approximately 150 to 175 times and on neurophysiology 50 to 70 times. As we have concluded that the additional studies on CSAAS are properly considered within the scope of CSAAS testimony, we conclude that Dr. Love's qualifications are sufficient to permit him to describe the studies upon which his opinion is based.
Once an expert witness establishes knowledge of a subject sufficient to permit his or her opinion to be considered by a jury, the question of the degree of the witness's knowledge goes to the weight of the evidence and not its admissibility. (People v. Bolin, supra, 18 Cal.4th at p. 322.) The criticism that Dr. Love lacked more specific or in-depth knowledge of neurology and brain functions, therefore, goes to the weight of his opinion, not its admissibility. The trial court did not abuse its discretion finding Dr. Love qualified to describe and discuss CSAAS.
The cases cited by defendant are distinguishable from the present case. For example, in People v. Hogan (1982) 31 Cal.3d 815, a criminalist, although qualified to give an opinion concerning the source of various bloodstains, was erroneously allowed to offer additional "blood spatter" testimony. The criminalist in that case admitted he had no education or training regarding blood spatter and had never performed any laboratory analysis to make blood spatter determinations. The criminalist had merely observed bloodstains at certain crime scenes and determined in his own mind whether they were "spatters" or "wipes" without ever verifying his conclusions in any way. (Hogan, at pp. 852-853.) In Kelly, our Supreme Court held that the witness, having experience as a technician and law enforcement officer, could not render an opinion that the scientific community (with which he had no experience) had generally accepted voiceprint analysis. (Kelly, supra, 17 Cal.3d at p. 39.) In People v. DeHoyos (2013) 57 Cal.4th 79, our Supreme Court held that the trial court appropriately allowed a licensed clinical psychologist to explain her views of the connecting links between the defendant's workplace problems and his subsequent killing and properly precluded her from generalizing about how job loss may cause someone to commit a homicide. The witness conceded she was not a researcher, had not authored any paper regarding the effect of workplace environment on homicides, and had conducted no research concerning the effect of being fired from a job on a subsequent homicide. (Id. at pp. 128-129.)
Disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.
While the cases relied upon by defendant express the general rule that an expert must be qualified to render a specific opinion, they do little to demonstrate that the trial court in this case abused its discretion in concluding that the additional studies relied upon by Dr. Love regarding his opinion as to CSAAS were outside the scope of his expertise in the area. Dr. Love may rely upon any matter "of a type that reasonably may be relied upon by an expert in forming an opinion." (Evid. Code, § 801, subd. (b).) We find no abuse of discretion in admitting the testimony.
2. The trial court's admission of CSAAS evidence did not violate defendant's right to due process of law.
Defendant's second argument in his opening brief is that Dr. Love's testimony regarding the neurological studies that informed CSAAS were irrelevant and inflammatory, depriving defendant of a fair trial. We have concluded that Dr. Love's testimony was within the area of his expertise and that the trial court did not abuse its discretion in admitting the evidence.
A court's compliance with the rules of evidence ordinarily do not infringe on a defendant'sright to a fair trial. (People v. Hall (1986) 41 Cal.3d 826, 834-835.) Here, defendant's due process claim is based on the premise that the admission of the CSAAS evidence violated state evidentiary law. Because we have found no evidentiary errors regarding the admission of the CSAAS expert testimony, we are not persuaded by defendant's argument. "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. [Citation.] Battered child syndrome evidence is analogous to CSAAS evidence. [Citation.] 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." (People v. Patino (1994) 26 Cal.App.4th 1737, 1747.)
Defendant objected to the expert evidence at trial on the ground that it would violate his due process rights if the expert testified as to profile evidence of accused molesters or as to statistical evidence of false accusations. The trial court precluded Dr. Love from testifying as to these two areas in accordance with defendant's objection. Defendant now also argues, however, that admission of the expert testimony violated due process because CSAAS is "unreliable, being grounded in mythical expertise and nonexistent science," and "buttressed the prosecution's burden of proof by improperly arming the prosecution with a 'scientific' framework into which the jurors could pigeonhole the facts of the case." We agree with the People that defendant has forfeited this argument because he did not object to CSAAS evidence on this basis in the trial court. (See People v. Partida (2005) 37 Cal.4th 428, 434 [a"' "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable' "].)
We find no due process violation.
II. The trial court did not allow CSAAS evidence to be admitted for an improper purpose.
A. Background
Defendant further contends the trial court erred because the CSAAS testimony in this case was not limited to disabusing the jury of misconceptions about reactions of child victims to sexual abuse. Defendant challenges the following testimony that a jury would improperly use to find the abuse occurred: underdevelopment of the prefrontal cortex inhibits children from reporting abuse; the home is the number one place where children are abused; older abused children may engage in indiscriminate sexual behavior; an abused child may go to a family event with an abuser; and a victim may not remember all details of abuse during the initial interview.
B. Applicable Law
CSAAS evidence has long been held admissible in California for limited purposes: "[E]xpert 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." (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin); see People v. Munch (2020) 52 Cal.App.5th 464, 468 (Munch) ["CSAAS evidence has been admitted by the courts of this state since the 1991 McAlpin decision."].)" '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.'" (McAlpin, at p. 1301.)
However, the admissibility of such evidence is subject to certain recognized limits. Such evidence "is not admissible to prove that the complaining witness has in fact been sexually abused." (McAlpin, supra, 53 Cal.3d at p. 1300.)" 'The expert is not allowed to give an opinion on whether a witness is telling the truth ....'" (People v. Julian (2019) 34 Cal.App.5th 878, 885.)
The expert providing CSAAS testimony may not give" 'general' testimony describing the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused." (People v. Bowker (1988) 203 Cal.App.3d 385, 393.) The expert may not present "predictive conclusions" (ibid.), such as alleged child abuse victims "should be believed" or "abused children give inconsistent accounts and are credible nonetheless" (id. at p. 394). To ensure the jury does not misuse expert testimony about CSAAS, "at a minimum the [CSAAS] evidence must be targeted to a specific 'myth' or 'misconception' suggested by the evidence" (id. at pp. 393-394) and the jury must also 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" (id. at p. 394).
C. Analysis
Viewed as a whole, we reject defendant's claim that the jury was likely to misuse the CSAAS evidence to conclude that T.C. was sexually abused as opposed to explaining why her failure to disclose earlier and consistent inability to remember details did not necessarily mean that she was fabricating the abuse. Discussion of a sexual abuse victim's delayed disclosure, inconsistent statements, and willingness to continue living with the perpetrator despite the abuse addressed jurors' potential misconceptions that these circumstances might indicate fabrication of the victim's story. Dr. Love properly helped the jury understand that abuse victims often do not immediately report abuse, and when they do disclose, their initial stories are not always detailed or perfectly consistent with later versions. He also properly explained children may have conflicted feelings about an abuser that might lead them to remain in an abusive situation. This expert testimony regarding victims' delayed disclosure, the manner of disclosure, the effect of a close relationship with the abuser on disclosure, and responses to sexual abuse was presented in general terms regarding typical cases rather than this case.
That some of Dr. Love's general observations about disclosures by sexually abused children, as a class, were also reflected in the evidence of T.C.'s disclosures does not mean that Dr. Love engaged in improper "profiling." Instead, it demonstrates that the disclosures of the victim in this case were not inconsistent with disclosures by other victims of sexual abuse. Dr. Love's testimony did not suggest that anyone could conclude that T.C. had been abused based merely on her lack of immediate disclosure, the failure to disclose all details of abuse during the initial interview with police, or normal behavior with her abuser during the abuse. Rather, Dr. Love's testimony served to prevent jurors from misapprehending that the presence of such factors necessarily indicated that T.C. had fabricated the abuse.
Dr. Love's testimony as a whole, and his specific testimony that he was unaware of the specific facts of the instant case, demonstrate that Dr. Love did not present an opinion that defendant sexually abused T.C. He explained that his knowledge of CSAAS was based on his formal training as a psychologist and his professional experience. He further explained that CSAAS is an educational tool to help people better understand the variety of ways children might react to sexual abuse or disclose sexual abuse and emphasized that CSAAS cannot be used as a diagnostic tool to determine whether abuse has occurred. This testimony was properly "limited to discussion[s] of victims as a class, supported by references to literature and experience (such as an expert normally relies upon) and [did] not extend to discussion and diagnosis of the witness in the case at hand." (People v. Roscoe (1985) 168 Cal.App.3d 1093, 1100; see also People v. Mateo (2016) 243 Cal.App.4th 1063, 1074 ["Where, as here, the expert testifies regarding the behavior of abused children as a class, there is little, if any, chance the jury will misunderstand or misapply the evidence."]; People v. Housley (1992) 6 Cal.App.4th 947, 955-956 [where the CSAAS expert "advised the jury, both during her direct examination and again during her cross-examination that she had never met [the victim] and was unfamiliar with the particulars of the case," it was "unlikely the jury would interpret [the expert's] statements as a testimonial to [the victim's] credibility"].)
Additionally, the trial court correctly instructed the jury that Dr. Love's testimony was not evidence that defendant committed the charged crimes and could only be considered to evaluate the believability of the victim's testimony. We presume the jury understood and followed these instructions regarding the appropriate limits of Dr. Love's testimony. (See People v. Cain (1995) 10 Cal.4th 1, 34, overruled on other grounds in People v. Moon (2005) 37 Cal.4th 1, 17.)
III. The trial court did not abuse its discretion in instructing the jury that they could consider charged offenses as evidence that defendant committed other charged offenses.
A. Background
The prosecutor filed a motion requesting that the trial court permit evidence of charged offenses to prove defendant's propensity to commit other charged offenses pursuant to Evidence Code section 1108 and so instruct the jury in accordance with CALCRIM No. 1191B. The motion advised the trial court that "[t]he presence of this jury instruction notwithstanding, the trial court must still make an express analysis under Evidence Code section 352." Defense counsel responded orally to the request during the motion hearing on November 2, 2020, and expressed concern regarding testimony of approximately 30 uncharged acts of sexual abuse: "I think with this particular 1108 [sic] and the jury instruction, I think we're just going to have to be careful that the jury understands that the evidence is introduced for a limited purpose and what the standard of proof is for [Evidence Code section] 1108."
Uncharged acts of sexual abuse used for propensity need only be proved by a preponderance of the evidence while the jury is instructed that charged acts must be proven beyond a reasonable doubt before being used as evidence of defendant's propensity to commit other charged offenses. (People v. Villatoro (2012) 54 Cal.4th 1152, 1168 (Villatoro); compare CALCRIM No. 1191A with CALCRIM No. 1191B.)
The trial court apparently erroneously believed that the charged offenses need only be proven by a preponderance of the evidence for use as propensity evidence and voiced concern that the jury might be confused by using that standard for determining whether the conduct had been proven for purposes of guilt. The prosecutor pointed out that in this circumstance, the jury would be instructed that the jury must find that a charged offense was proven beyond a reasonable doubt before using that offense to find defendant had the propensity to commit the remaining charged offenses. The trial court responded:
"My tentative ruling at this time is this is supported by the law as admissible type of evidence and admitted for a limited purpose. I think we start down a slippery slope when we are telling the jurors how they can consider it and how they can use it, and that may tend to be confusing. And the Courts have upheld modified versions of the instructions. And I will look to see whether the proposed instructions need to be modified to make it clear to the jury what their charge is and how they can use the evidence, specifically it being offered as propensity evidence. I will rule later on this. But my tentative ruling is to grant this."
The following day, the trial court revisited this motion. Defense counsel responded:
"Nothing new, Judge. Again, my concern is the standard of proof. I think it could lead to confusing the jury and potentially a denial of his federal due process rights because of the confusion that it could cause to the jury, so I would ask the Court not to give-I would ask the Court not to allow an admission of that CALCRIM instruction again on both federal grounds, [and Evidence Code, section] 352 grounds."
The trial court overruled defendant's objection:
"All right. And the Court is overruling your objection not finding that there's any federal violation in giving this nor any state. This is a scheme that has been approved. It does have it's [sic] drawback from the standpoint that it may be difficult for jurors at times to understand, so I think it's a matter of how the instruction is framed. The standard instruction has been approved, therefore the Court's ruling is that the People may use the current charges in this case as propensity evidence for other charges within this case. The issue will be whether the instruction itself is modified in any way and that we will take up at the jury instruction conference, but the Court at this point does intend to instruct that that, [sic] those offenses can be considered as propensity evidence assuming the People establish that the evidence by the evidence as required by law for propensity evidence is met. The Court's ruling is to grant that instruction and grant that request. We will deal with the actual instruction that the Court gives at the conclusion of the evidence."
The parties and the trial court addressed the wording of the instruction during the jury instruction conference. Defense counsel objected to the instruction as violating defendant's "federal due process right" in an unspecified manner and also argued that it lowered the prosecution's burden of proof. The trial court ruled that it would give CALCRIM No. 1191B because the instruction had "been approved and ... is supported by case law." The jury was instructed in accordance with CALCRIM No. 1191B as follows:
"The People presented evidence that the Defendant committed the crimes charged in Counts One through Six. If the People have proved beyond a reasonable doubt that the Defendant committed one or more of these crimes, you may, but are not required to conclude from that evidence that the Defendant was disposed or inclined to commit sexual offenses and based on that decision also conclude that the Defendant was likely to commit and did commit the other sex offenses charged in this case. If you find that the Defendant committed one or more of these crimes, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the Defendant is guilty of another crime. The People must still prove each charge and allegation beyond a reasonable doubt."
B. Applicable Law and Standard of Review
Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. (See Evid. Code, § 1101.) But the Legislature has created exceptions to this rule in cases involving sexual offenses. Evidence Code section 1108, subdivision (a) provides that 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 inadmissible character evidence under Evidence Code section 1101 if such evidence is not inadmissible pursuant to Evidence Code section 352. Our Supreme Court has held that Evidence Code section 1108 conforms with the requirements of due process. (People v. Falsetta (1999) 21 Cal.4th 903, 915-922.)
Evidence Code section 1108 authorizes juries to consider a charged sexual offense that the jury has already determined that the defendant committed to prove the defendant's propensity to commit another sexual offense charged in the same case. (Villatoro, supra, 54 Cal.4th at pp. 1160-1161, 1164-1165.) Evidence Code section 352 generally gives a trial court discretion to "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." (Villatoro, at p. 1160, fn. 3.) However, when the propensity evidence under Evidence Code section 1108 involves a charged offense in the same case, evidence of the charged offense is not excludable under Evidence Code section 352. (Villatoro, at p. 1163.) While evidence of a charged offense is not excludable under Evidence Code section 1108, the Evidence Code section 352 balancing test applies to determine whether the jury should be instructed about using a charged offense as propensity evidence for the other charged offenses. (Villatoro, at p. 1163.) As our Supreme Court explained, when a defendant is charged with multiple sex offenses, the offenses" 'may be dissimilar enough, or so remote or unconnected to each other, that the trial court could apply the criteria of [Evidence Code] section 352 and determine that it is not proper for the jury to consider one or more of the charged offenses as evidence that the defendant likely committed any of the other charged offenses.'" (Ibid.)
We review a trial court's ruling under Evidence Code sections 352 and 1108 for abuse of discretion. (People v. Loy (2011) 52 Cal.4th 46, 61.) We will not disturb a trial court's exercise of discretion unless the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Dworak (2021) 11 Cal.5th 881, 899-900, citing People v. Miles (2020) 9 Cal.5th 513, 587, 587-588.)
C. Analysis
1. The trial court conducted an Evidence Code section 352 balancing analysis when granting the prosecutor's motion to instruct the jury with CALCRIM No. 1191B.
Defendant first argues that the trial court did not, either expressly or impliedly, conduct an analysis pursuant to Evidence Code section 352 Contrary to defendant's argument, counsel did object to the instruction based upon Evidence Code section 352. As set forth ante, in part III.A., on the second day of the motions hearing defense counsel specifically argued that use of CALCRIM No. 1191B would confuse the jury and asked the trial court to refuse the instruction on "352 grounds." The trial court responded to defense counsel's argument that the instruction would confuse the jury pursuant to Evidence Code section 352 and agreed to examine the wording of the instruction during the jury instruction conference. By responding to defense counsel's argument, the trial court indicated its awareness of Evidence Code section 352.
Trial courts are not required to conduct an express Evidence Code section 352 analysis, however. "[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 functions under Evidence Code section 352." (People v. Taylor (2001) 26 Cal.4th 1155, 1169; accord, People v. Williams (1997) 16 Cal.4th 153, 213.) Our Supreme Court has made clear that on review, we may" 'infer an implicit weighing by the trial court on the basis of record indications well short of an express statement.'" (Villatoro, supra, 54 Cal.4th at p. 1183, quoting People v. Padilla (1995) 11 Cal.4th 891, 924, overruled in part on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; accord, Williams, at p. 213 [rejecting argument trial court's comments were too short and conclusory to demonstrate balancing required by Evid. Code, § 352, Supreme Ct. stated, "All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352."].)
Defendant acknowledges this principle but asserts the record does not suggest the trial court conducted an implicit balancing either. We disagree. Although the court's final order regarding the use of charged conduct as evidence of defendant's propensity to commit the remaining charges did not expressly mention the weighing process required by Evidence Code section 352, we conclude the record reflects the trial court was aware of its duty to weigh the probative value of such evidence against its potential for prejudice. As reflected above, the prosecutor filed a written motion to permit the jury to use evidence of charged conduct as evidence that defendant had the propensity to commit the other charges pursuant to Evidence Code section 1108. In so doing, the prosecution specifically addressed that the trial court would need to conduct a balancing pursuant to Evidence Code section 352. During the motion's hearing, the trial court referred to the prosecutor's written motion filed as part of his trial brief. Defense counsel's response indicated her only issue related to the differing burdens of proof between the six charged offenses and the 30 instances of uncharged abuse. The trial court indicated that it would examine modification of the proposed instructions to clarify the obligations of the jury but that the prosecutor's request was supported "by the law."
The next day, after defense counsel renewed her objection "on both federal grounds, [and Evidence Code section] 352 grounds," the trial court confirmed its tentative ruling to permit use of the charged crimes as propensity evidence for the other charged crimes under section 1108 and would determine the actual language of the instruction later to avoid juror confusion. Thus, the "court implicitly conducted [an Evidence Code] section 352 analysis" regarding the charged acts before giving the instruction. (Villatoro, supra, 54 Cal.4th at p. 1168; see People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 829 [rejecting similar claim].)
This record reflects the court understood its responsibilities under Evidence Code section 352, and it implicitly conducted the analysis under that section when it considered the prosecution's motion.
2. The trial court did not err in giving CALCRIM No. 1191B.
Even if the record in the present case did not expressly demonstrate that the trial court conducted an Evidence Code section 352 analysis before instructing with CALCRIM No. 1191B, we conclude that the trial court's "fail[ure] to conduct such an analysis was harmless." (Villatoro, supra, 54 Cal.4th at p. 1168.) As in Villatoro, the evidence here regarding the charged crimes was highly probative of propensity because T.C. described materially similar conduct perpetrated by defendant during the same time frame. Moreover, as to the question of prejudice, T.C.'s testimony to the earlier abuse was no more inflammatory than that of the later rape. Thus, this circumstance is not one in which consideration of the evidence regarding the earlier counts would"' "tend[] to evoke an emotional bias against a party as an individ ual"' [citation] or ... cause the jury to '" 'prejudg[e]' a person or cause on the basis of extraneous factors." '" (People v. Cowan (2010) 50 Cal.4th 401, 475, third bracketed insertion in original.) For these reasons, we conclude that any trial court error in failing to conduct an Evidence Code section 352 analysis here before instructing the jury with CALCRIM No. 1191B was harmless, as it is reasonably probable the trial court would have decided that the probative value of the propensity evidence was not substantially outweighed by its prejudicial effect.
We reject defendant's claim of instructional error.
IV. Defendant's due process rights were not violated by the admission of testimony as to CSAAS Evidence
Defendant next argues that the admission of CSAAS testimony violated his right to due process as guaranteed by the federal constitution because the evidence was irrelevant" 'junk science' that has not been scientifically accepted as a valid theory." (Capitalization &boldface omitted.) Defendant argues that evidence obtained "through a new scientific technique may be admitted only after its reliability has been established under" the Kelly-Frye criteria and the trial court did not do this nor has CSAAS gained the necessary level acceptance for admissibility. The initial problem with defendant's argument is that he did not object on these grounds in the trial court, and thus has forfeited the contention. (See People v. Partida, supra, 37 Cal.4th at pp. 433-434, 438 [constitutional argument is forfeited to the extent the defendant argued on appeal that the constitutional provisions required the trial court to exclude the evidence for a reason not included in the actual trial objection].)
Based on the rulings of Kelly, supra, 17 Cal.3d 24 and Frye, supra, 293 Fed. 1013, the rule is now the "Kelly rule" in California after changes to the Federal Rules of Evidence that superseded Frye. (People v. Nieves (2021) 11 Cal.5th 404, 442.)
In any event, in contrast to evidence that is based on a new scientific technique or procedure, expert opinion testimony, such as Dr. Love's opinion testimony here, is not necessarily subject to Kelly. Our Supreme Court has explained as follows: "Unlike results 'produced by a machine,' to which jurors may 'ascribe an inordinately high degree of certainty,' jurors presented with the personal opinion of a witness, even an expert witness, 'may temper their acceptance of his [or her] testimony with a healthy skepticism born of their knowledge that all human beings are fallible.' [Citations.] For this reason, ' "[a]bsent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly[]."' [Citation.] Of course, some expert testimony may be 'based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law' [citation]; where the novel technique 'appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury,' additional scrutiny under Kelly is warranted." (People v. Peterson (2020) 10 Cal.5th 409, 457-458 (Peterson).)
Defendant argues Kelly is applicable to CSAAS evidence because our Supreme Court applied Kelly to evidence regarding the rape trauma syndrome in People v. Bledsoe (1984) 36 Cal.3d 236. According to defendant, the court only "mused" in dicta that such evidence would be admissible for a limited purpose and suggested it might play a "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." (Id. at pp. 247-248.) Defendant asks this court to ignore such dicta, as well as our Supreme Court's decisions in People v. Brown (2004) 33 Cal.4th 892, 906-907 and McAlpin, supra, 53 Cal.3d at pages 1300-1301 that approved using CSAAS testimony to dispel misconceptions about sexually molested children without addressing the applicability of Kelly.
Significantly, however, none of the parties in Bledsoe disputed that the Kelly test was the appropriate standard in evaluating accommodation syndrome evidence. (People v. Stoll (1989) 49 Cal.3d 1136, 1160 (Stoll).) As a result, our Supreme Court "[a]ssum[ed], like the parties, that the [Kelly] test did apply," and "simply concluded that the prosecution would not be able to prove that rape trauma syndrome was generally accepted by the counseling community to prove criminal guilt." (Id. at p. 1161.) Our Supreme Court has subsequently made clear that its opinion in "Bledsoe did not hold that the Kelly[] test applied to the expert opinion in that case" and that Bledsoe did not "discuss the test's relationship to 'syndrome' or other expert psychological evidence in general." (Ibid.) In fact, our Supreme Court in Stoll concluded that, where psychological testimony is based on methods that "are not new to psychology or the law" and "carry no misleading aura of scientific infallibility," the testimony is not subject to the Kelly rule. (Stoll, at p. 1157.)
Defendant relies upon In re Sara M. (1987) 194 Cal.App.3d 585, wherein the court reversed a dependency finding after holding that the CSAAS evidence should not have been admitted because no foundation established that the syndrome had been generally accepted in the scientific psychological community. However, that case predated both Stoll and Peterson. In the present case, defendant fails to demonstrate CSAAS evidence is based on methods that are "new to psychology or the law" and that testimony about CSAAS carries a "misleading aura of scientific infallibility." (Stoll, supra, 49 Cal.3d at p. 1157; accord, Peterson, supra, 10 Cal.5th at p. 458.) As pointed out in Munch, "[t]he CSAAS evidence Munch challenges has been ruled to be properly admitted by the courts of this state for decades" and is not scientific evidence subject to the Kelly rule. (Munch, supra, 52 Cal.App.5th at p. 472 [citing cases admitting CSAAS testimony]; People v. Lapenias (2021) 67 Cal.App.5th 162, 173 ["expert CSAAS testimony is not '" 'scientific'" evidence' subject to the Kelly rule"].)
Defendant also relies upon In re Amber B. (1987) 191 Cal.App.3d 682, In re Christine C. (1987) 191 Cal.App.3d 676, and Seering v. Department of Social Services (1987) 194 Cal.App.3d 298, 309-311, cases that predate Stoll and Peterson and find reversible error because CSAAS had not been shown to meet Kelly-Frye requirements for admission.
Further, testimony about CSAAS does not purport to provide any" 'definitive truth'" (Peterson, supra, 10 Cal.5th at p. 458) about whether a child has been abused and instead simply attempts to rebut misconceptions about the conduct of child sexual abuse victims (see Munch, supra, 52 Cal.App.5th at pp. 468, 473). Indeed, in this case, Dr. Love repeatedly testified that CSAAS cannot be used to determine whether a child has been sexually abused. In addition, our Supreme Court has rejected the notion that the "use of 'syndrome' ... terminology by a mental health professional makes the [testimony] seem 'scientific' to a jury, and thus invokes Kelly[]." (Stoll, supra, 49 Cal.3d at p. 1161, fn. 22 [court was "not persuaded that juries are incapable of evaluating properly presented references to psychological . 'syndromes' "].)
We conclude that the trial court did not abuse its discretion in admitting expert testimony about CSAAS without subjecting it to analysis under Kelly. Therefore, we similarly reject defendant's claim that admission of CSAAS violated due process. (People v. Scott (2011) 52 Cal.4th 452, 487, fn. 29 ["No separate constitutional discussion is required, or provided, when rejection of a claim on the merits necessarily leads to rejection of any constitutional theory or 'gloss' raised for the first time here."].)
In view of defendant's failure to demonstrate the applicability of the Kelly rule to the CSAAS evidence in this case, we find unpersuasive his reliance on out-of-state authority regarding whether CSAAS evidence meets a Kelly (or Frye) requirement regarding general acceptance within the scientific community. (See, e.g., State v. J.L.G. (2018) 234 N.J. 265 [190 A.3d 442, 463] ["we apply the Frye test and consider whether CSAAS has achieved general acceptance in the scientific community"].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, J. POOCHIGIAN, J.