Opinion
H045380
09-25-2019
THE PEOPLE, Plaintiff and Respondent, v. SAUL ANTONIO ARTERO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1523043)
A jury convicted defendant Saul Antonio Artero on two counts of committing a lewd or lascivious act on a child under 14. The jury acquitted him on three other counts. The trial court imposed a total term of eight years.
Artero raises three claims on appeal. First, he contends the trial court erred by admitting expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS). Second, he contends the trial court erred by instructing the jury based on CALCRIM No. 1193 because it allowed the jury to consider CSAAS testimony as evidence that the victim was telling the truth. We find these claims without merit.
Third, Artero requests that we conduct an in camera review of the victim's school records, which the trial court found immaterial after its own in camera review. The Attorney General accedes to this request. Having reviewed the victim's school records independently, we find they contain no material evidence. Accordingly, we will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
The prosecution charged Artero with five counts of committing a lewd or lascivious act on a child under 14. (Pen. Code, § 288, subd. (a).) The jury found him guilty on counts 1 and 5, and not guilty on counts 2, 3, and 4. The trial court imposed a total term of eight years, equal to the midterm of six years on count 1 plus a consecutive of term of two years on count 4.
Subsequent undesignated statutory references are to the Penal Code.
B. Facts of the Offenses
1. Testimony of L.D.
The victim, L.D., was 11 years old when she testified at trial. Artero was her cousin. In the summer of 2015, she was living in San Jose with Artero, her mother, her stepfather, and her brother.
One night around 1:00 a.m., when L.D. was 10, she was lying on a couch watching a movie with Artero. L.D.'s mother and stepfather were at home but asleep at the time. Artero was reclining on the couch, and L.D. was leaning against him with her head on his stomach. L.D. was starting to fall asleep when she realized Artero was touching her "private parts," meaning her breasts and vagina. He touched her vagina with a cupped hand under her clothes for about four or five minutes. He touched her breasts under her shirt for about two minutes, moving his hand in a circular motion. At some point, L.D. got up to go to the bathroom, after which she went to her bedroom to go to sleep. At the time, she did not tell anyone about the incident because she was scared and did not know what to do.
L.D. testified about other times Artero touched her and made her feel uncomfortable. Sometimes he would grab her hand, twirl her around, put his arms around her, and touch her breasts from behind. He did this over her clothes. L.D. estimated that this happened more than five times. Artero would also say things that made L.D. uncomfortable. She testified that once when they were at Target, he "basically asked me to like marry him."
When L.D. was around six or seven years old, Artero lived with his wife and his three daughters in an apartment in San Jose. L.D. would spend time at the apartment with Artero's daughters. L.D. once spent the night there, sleeping on the bedroom floor with the three daughters in the same bedroom as Artero and his wife. At some point in the middle of the night, L.D. felt Artero's hands on her "private parts" while she was lying on the floor. His hands were touching her vagina and her breasts under her shirt. L.D. couldn't remember if he was touching her vagina under her clothes, but she testified that "his hands were touching my skin. And he was basically, I guess, like his hands were on top of it." L.D. did not tell anyone about it at the time because she was scared, she did not know what to do, and she was afraid she would never see Artero's daughters again.
In September 2015, L.D. told her brother about the incident on the couch. After she told her brother, the police got involved, and she told them about it as well.
2. Expert Testimony on Child Sexual Abuse Accommodation Syndrome
Dr. Blake Carmichael, a clinical psychologist, testified for the prosecution as an expert in CSAAS. He had not been told the facts of the case, he did not review any police reports, and he did not interview any of the witnesses or the defendant.
Dr. Carmichael testified that CSAAS is "a concept that was brought forward about 30 or 40 years ago" to help dispel some of the myths and preconceived notions about how sexually abused children behave. There are five elements in CSAAS: secrecy; helplessness; entrapment or accommodation; delayed and unconvincing disclosure; and retraction or recanting. However, not all children react the same way, so an abused child would not necessarily display all those traits. CSAAS is not a diagnosis, and it is not used to determine whether a child has been abused.
Dr. Carmichael testified about the five elements of CSAAS. The element of secrecy means that the abuser relies on secrecy to maintain ongoing sexual access to the child. Some methods of maintaining secrecy can be overt and forceful, such as threatening to hurt the child if they disclose the abuse, but the abuser can also use subtle methods, such as gaining the child's trust or giving the child rewards. Helplessness refers to the imbalance of power that occurs because the abuser is bigger, stronger, and more sophisticated, while the child is more vulnerable and emotionally or cognitively weaker. Dr. Carmichael testified that the vast majority of child sex crimes are committed by people who know the child.
Entrapment or accommodation means that children may attempt to cope with the abuse in ways that are ineffective. They have cognitive or emotional ways of dealing with abuse, such as dissociation or ignoring the feelings and thoughts that occur when the abuse is happening. Delayed or unconvincing disclosure refers to delays in revealing the abuse to an adult. Dr. Carmichael testified that only 20 percent of children tell someone about the abuse immediately or quickly, and 50 to 75 percent don't disclose the abuse within the first year. When they do disclose the abuse, they may not give the same information consistently over multiple periods of time, or they may confuse dates and disclose new details. Recanting or retraction means the child may take back or retract their initial disclosures. Dr. Carmichael estimated that about 20 percent of children will retract valid claims of abuse.
II. DISCUSSION
A. Admission of Expert Testimony on CSAAS
Artero contends the trial court erred by admitting testimony from the prosecution's expert witness on CSAAS. He argues that CSAAS should be inadmissible for all purposes, but that even if CSAAS is generally admissible, the trial court erred by allowing the expert to opine on whether L.D.'s behavior was consistent with that of an abused child. The Attorney General argues that CSAAS is admissible and that the expert testimony in this case did not constitute improper profiling of the victim. The Attorney General further contends Artero forfeited his claims by failing to object to the expert's testimony. Artero argues that if his trial counsel failed to object sufficiently then counsel provided ineffective assistance.
1. Background
The prosecution moved pretrial for the admission of expert testimony on CSAAS under Evidence Code sections 720 (qualification as an expert witness) and 801 through 805 governing expert witnesses and opinion testimony. Defense counsel moved to exclude the testimony on the grounds that it failed to meet scientific standards under Kelly/Frye ; the testimony would be used to improperly bolster the victim's credibility; the proffered testimony was irrelevant given the limitations of People v. Bowker (1988) 203 Cal.App.3d 385 (Bowker); and the risk of undue prejudice outweighed any probative value under Evidence Code section 352.
People v. Kelly (1976) 17 Cal.3d 24, 27; Frye v. U.S. (D.C. Cir. 1923) 293 F. 1013. --------
The trial court admitted testimony on CSAAS subject to the limitations set forth in the case law. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1302 (McAlpin) [expert testimony on reactions to child sexual abuse admissible to assist trier of fact in assessing credibility of victim's mother]; Bowker, supra, 203 Cal.App.3d at p. 387 [CSAAS testimony admissible for the purpose of showing the victim's reactions were not inconsistent with having been molested].) The court stated, "CSAAS evidence comes in to prove that the way a victim acts is not inconsistent with being a victim. CSAAS evidence does not come in to prove that the way a victim acted is consistent with sexual assault."
At the start of the expert's testimony, the trial court instructed the jury based on CALCRIM No. 1193 as follows: "So, members of the jury, you're about to hear testimony from Dr. Carmichael about child sexual abuse accommodation syndrome. That testimony is not evidence that the defendant actually committed any of the crimes that he's charged [sic]. [¶] You may consider this evidence only in deciding whether or not [L.D.]'s conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony." Defense counsel did not object or request any modifications to this instruction. Dr. Carmichael then testified as summarized above in section I.B.2.
After the close of evidence, the trial court further instructed the jury based on CALJIC No. 10.64 as follows: "Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim's molestation claim is true. Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. [¶] The research begins with the assumption that a molestation has occurred and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt. [¶] You should consider the evidence concerning child sexual abuse accommodation syndrome only for the limited purpose of showing, if it does, that the alleged victim's reactions as demonstrated by the evidence are not inconsistent with her having been molested." Defense counsel did not object or request any modifications to this instruction.
2. Legal Principles
"Expert opinion testimony must be '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .' (Evid. Code, § 801, subd. (a).) We review the trial court's ruling in this regard for abuse of discretion. [Citation.]" (People v. Smith (2003) 30 Cal.4th 581, 627.)
CSAAS evidence may not be used to prove the alleged sexual abuse actually occurred. Rather, "CSAAS is admissible evidence for the limited purpose of disabusing the fact finder of common misconceptions it might have about how child victims react to sexual abuse. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 418.) The prosecution may explicitly identify misconceptions about victims' behavior that CSAAS testimony is intended to rebut. (People v. Harlan (1990) 222 Cal.App.3d 439, 449-450.) Furthermore, the prosecution may elicit testimony about a victim's conduct that relates directly to those misconceptions. (Id. at p. 450.) "For instance, 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." (Bowker, supra, 203 Cal.App.3d at p. 394.)
3. Admission of the Expert's Testimony Was Not an Abuse of Discretion
Artero contends CSAAS testimony should be inadmissible for all purposes. He concedes that California courts have held expert testimony on CSAAS is admissible for the purpose of rebutting common misperceptions jurors may have about how children react to sexual abuse. (See McAlpin, supra, 53 Cal.3d at p. 1300; Bowker, supra, 203 Cal.App.3d at p. 392; People v. Housley (1992) 6 Cal.App.4th 947, 955 (Housely).) Citing courts from other jurisdictions, Artero invites us to disregard these precedents. We decline to do so, as we are required to follow the California Supreme Court's holdings on this matter. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Artero further contends the trial court erred by admitting the testimony for an improper purpose. He argues that the trial court allowed the expert to testify in response to hypothetical questions that suggested the victim's behavior satisfied the "elements" of CSAAS, constituting improper profiling. For this proposition, he relies on People v. Jeff (1988) 204 Cal.App.3d 309 (Jeff). (See also People v. Bledsoe (1984) 36 Cal.3d 236 [evidence that victim suffered from rape trauma syndrome inadmissible to show victim was raped]; Bowker, supra, 203 Cal.App.3d at pp. 391-394.)
In Jeff, two experts for the prosecution testified: the first described the victim's symptoms based on interviews with the victim, and the second described child molest syndrome. The prosecution prefaced their testimony in opening statement by stating that the second expert would tell the jury "what these symptoms mean." (Jeff, supra, 204 Cal.App.3d at p. 338.) The prosecution then asked the second expert a series of hypothetical questions that incorporated "the exact same facts and details" as those in the allegations against the defendant. (Ibid.) The expert explained that the victim's "emotions, fears, and reactions to others are symptoms exhibited by a child molest victim." (Ibid.) The court of appeal held this evidence inadmissible because the expert's testimony "told the jury that they should accept" the victim's version of events. (Ibid.)
The expert testimony presented here was distinguishable from that in Jeff in several ways. First, the prosecution did not present any expert testimony based on any interviews or examinations of the victim. Dr. Carmichael testified that he had never interviewed the victim or any other witnesses in the case; he had never been told the facts of the case; and he had never reviewed any police reports or other materials related to the case. Second, while the prosecutor's hypothetical questions generally bore similarities to the victim's situation, neither the questions nor the expert's responses tracked the victim's conduct so closely that the evidence "told the jury" it should believe her allegations. Third, Dr. Carmichael specifically testified that the elements of CSAAS could not be "used in the reverse order" to say that if a child is displaying that conduct then the child must have been abused. He emphasized that CSAAS is "not a diagnostic tool" and added, "There's no tool we have that can do that, and that's why we have the court system."
Finally, the trial court instructed the jury that CSAAS evidence "is not received and must not be considered by you as proof that the alleged victim's molestation claim is true. Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. [. . .] You should consider the evidence concerning child sexual abuse accommodation syndrome only for the limited purpose of showing, if it does, that the alleged victim's reactions, as demonstrated by the evidence, are not inconsistent with her having been molested." In the absence of any showing to the contrary, we presume the jury understood and followed these instructions. (People v. Hinton (2006) 37 Cal.4th 839, 871.)
Given these distinctions, we are not persuaded that the prosecution's hypothetical questions and Dr. Carmichael's responses were impermissible under Jeff, supra, or any other binding authority. We conclude admission of the CSAAS testimony did not constitute an abuse of discretion, and this claim is therefore without merit.
B. Jury Instructions Based on CALCRIM No. 1193
As described above in section II.A.1, the trial court instructed the jury based on CALCRIM No. 1193 at the start of the expert's testimony. Artero contends this instruction impermissibly allowed the jury to use CSAAS testimony as evidence that the victim's claims were true. He further argues that the instruction conflicted with the instructions given to the jury at the close of evidence based on CALJIC No. 10.64, set forth above. The Attorney General contends the instruction based on CALCRIM No. 1193 correctly stated the law.
As Artero concedes, the Court of Appeal for the Second District rejected the same argument in People v. Gonzales (2017) 16 Cal.App.5th 494 (Gonzales). "A reasonable juror would understand CALCRIM No. 1193 to mean that the jury can use [the expert's] testimony to conclude that [the victim's] behavior does not mean she lied when she said she was abused. The jury also would understand it cannot use [the expert's] testimony to conclude [the victim] was, in fact, molested. The CSAAS evidence simply neutralizes the victim's apparently self-impeaching behavior. Thus, under CALCRIM No. 1193, a juror who believes [the expert's] testimony will find both that [the victim's] apparently self-impeaching behavior does not affect her believability one way or the other, and that the CSAAS evidence does not show she had been molested. There is no conflict in the instruction." (Id. at p. 504.) We find this reasoning persuasive.
Artero nonetheless contends we should reject Gonzales based on Housley, supra, 6 Cal.App.4th 947. With respect to CSAAS evidence, Housley held "that (1) such evidence is admissible solely for the purpose of showing the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested; and (2) 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. 959.) For the reasons set forth in Gonzales, supra, the instructions given here were not inconsistent with this holding. And for the same reasons, the instructions did not conflict with the instructions given at the close of evidence based on CALJIC No. 10.64. Accordingly, we conclude this claim is without merit.
C. Review of L.D.'s School Records
After Artero filed a subpoena for L.D.'s school records, the school produced the records and the trial court conducted an in camera review. Finding them immaterial, the court declined to provide them to the parties. Artero now asks this court to conduct an independent review to ensure the trial court's ruling complied with state and federal law. The Attorney General did not oppose this request. We granted Artero's request for independent review and ordered the record augmented accordingly.
In his in limine motions, Artero sought "[a]ll transcripts and academic progress reports, counseling reports, counseling notes and counseling progress reports and all disciplinary reports" for L.D. over a six-year period. Artero argued the documents were relevant for impeachment, the credibility of L.D.'s allegations, and whether she sought counseling in connection with them. After reviewing the records, the trial court concluded they contained nothing material, and the court declined to disclose them.
"Information concerning a pupil shall be furnished in compliance with a court order or a lawfully issued subpoena." (Ed. Code, § 49077, subd. (a).) Furthermore, "the due process clause requires the 'government' to give the accused all 'material' exculpatory evidence 'in its possession,' even where the evidence is otherwise subject to a state privacy privilege, at least where no clear state policy of 'absolute' confidentiality exists. [Citation.] When the state seeks to protect such privileged items from disclosure, the court must examine them in camera to determine whether they are 'material' to guilt or innocence. [Citation.]" (People v. Webb (1993) 6 Cal.4th 494, 518 (Webb).)
Under Webb's strictures, we ordered the record supplemented with the sealed documents produced in response to Artero's subpoena. We then reviewed them independently to determine whether they contained any evidence material to his guilt or innocence. We found nothing material or relevant in these documents. Accordingly, we will affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Elia, J.