Opinion
B159130.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. SATURNINO BECERRA, Defendant and Appellant.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Lawrence M. Daniels, Deputy Attorneys General, for Plaintiff and Respondent.
Saturnino Becerra appeals from the judgment entered following a jury trial resulting in his conviction of continuous sexual abuse of a child under the age of 14. (Pen. Code, § 288.5.) The trial court sentenced him to a term of 16 years in state prison. He makes the following contentions: (1) the use of child sexual abuse accommodation syndrome (CSAAS) evidence was an abuse of discretion and denied him due process, (2) the trial court was required sua sponte to charge the jury with CALJIC No. 10.64, directing it not to consider CSAAS evidence to bolster the childs credibility, and (3) the trial court abused its discretion by refusing to disclose locating information for the jurors so that he could prepare a motion for a new trial alleging juror misconduct.
All further statutory references are to the Penal Code unless otherwise indicated.
We reject the contentions and affirm the judgment.
FACT AND PROCEDURAL HISTORY
At trial, the child, a 13-year-old female seventh grader, testified that almost daily, when she was between the ages of 8 or 9 and age 11, her father sodomized her and had sexual intercourse with her. When she was molested, her mother was at work. Her brothers were at home, but her father had ordered them to go outside and do their chores. In November 1999, an older brother, Jose, died in an automobile accident. At that time, the molestation stopped. Towards the end of the three years of sexual molestation, three of her older brothers also sexually molested her a few times, with and without using a condom, and by penetrating her vaginally and in the anus.
Maria Rodriguez, the familys social worker, testified that in December 1999, the Juvenile Court awarded the mother custody of the eight or nine children in the family and excluded the father from the home subject to supervised visitation. However, in July 2000, the father took the children from the mother, and the social worker intervened and placed the children in foster care. Subsequently, the child was placed in a different foster care home than her brothers.
On September 9, 2000, Dr. Virginia Almeida, the family psychologist, was told that the child was wetting her bed, which can be an indication of sexual abuse. Dr. Almeida screened the child for sexual abuse, and the child told her about the three years of sexual abuse by her father and her brothers.
On October 6, 2000, Marsha Wehr, a nurse practitioner at the child abuse clinic at the childs local hospital, examined the 11-year-old child for signs of sexual abuse. Nurse Wehr testified that she has a Masters Degree in Ambulatory Care and obtained her special training in child abuse with the imminent Dr. Astrid Hager at the University of Southern California Center for the Vulnerable Child (L.A./U.S.C. Hospital). For the last four years, since finishing her formal training at the L.A./U.S.C. Hospital, Nurse Wehr has been employed as the examining nurse for the child abuse clinic in her geographic area.
Nurse Wehr opined that there was a reduction in muscle tone in the exterior sphincter muscle of the childs anus (dilation), and the anus was asymmetrical in shape. She concluded that the childs physical condition was "suspicious for sexual abuse" and consistent with the history of sexual abuse that the child gave. She based her opinion on her four years of clinical experience and over 1000 examinations of children where there was a complaint of sexual abuse (she had conducted over 400 examinations personally); her special child abuse training; studies on child sexual abuse; her general experience as a pediatric nurse; a consultation with Dr. Hager regarding the childs case; her interview with the child and the age-inappropriate sexual information that the child had related; and a physical examination of the childs genitalia, which disclosed that the childs anal sphincter muscle was dilated to 17 to 18 millimeters, to the upper reaches of normal, and that the childs anal opening was "irregular." In reaching her opinion, she relied upon a 1989 study by Dr. John McCann, which measured anal dilation in children and concluded that anal dilation when the child was relaxed at above 2.0 centimeters was unusual and occurred in only 1 or 1.2 percent of normal children. Also, only 3 percent of children who are not abused exhibit the kind of anal asymmetry that the child had. She concluded that the childs vagina and hymen disclosed no sign of injury or repeated sexual intercourse.
The childs testimony of sexual abuse was corroborated by the testimony of her nine-year-old brother, F.B. He testified that on one occasion, when he was seven years old, he peeked into a bedroom window after his father sent him outside the residence. Inside, he could see his father lying on the bed with the child. F.B. claimed at trial that both his father and the child were fully clothed. The prosecutor asked F.B. if at the time F.B. thought that something was wrong. F.B. replied, "Because they got to know what they were doing." F.B. also reluctantly admitted that on an earlier occasion, he told a female deputy sheriff that he saw his father fondle the childs private parts.
Appellant did not testify in defense.
Los Angeles County Deputy Sheriff Shawn Preasmeyer testified that in September 2000, the child told him a version of facts generally consistent with her trial testimony. However, she made three statements to him that were inconsistent with her trial testimony: in September 2000, she made claims that she was sexually molested sometimes several times a day, that she had vaginal bleeding, and that two, not three, of her brothers committed similar acts on her. Preasmeyer said that during the interview with him, the child behaved as if she was embarrassed by her disclosures.
The victim told the following persons about the events of the abuse: Dr. Almeida, Rodriguez, Deputy Preasmeyer, a female deputy sheriff, and her sister.
Dr. Lynne Ticson testified in defense. She is a pediatrician who works and teaches with Dr. Hager at the Center for the Vulnerable Child at the L.A./U.S.C. Medical Center. Dr. Ticson claimed to be a pioneer in child abuse and testified that she had conducted over 20,000 examinations of children for sexual abuse. She was a colleague of Nurse Wehrs and had engaged in child sexual abuse conferences and peer review with her.
Dr. Ticson explained that she did not examine the child. She read the relevant reports, including Nurse Wehrs written summary of her examination, and she looked at the photographs taken by Nurse Wehr of the childs genitalia. She said the photographs were inadequately magnified and out of focus, and she could not determine any abnormality from looking at the photograph of the anus. In Dr. Ticsons opinion, the information presented by Wehr was not medically significant, and Dr. Ticson was unaware that there was any expert who was authoritative on anal dilation. Dr. Ticson was familiar with Dr. McCann, but she said that she did not "know of any theory on range of anal dilation."
Wehr testified that the camera at the clinic was malfunctioning at the time of her examination of the victim.
The doctor explained that experts publish papers on different topics, but that did not mean that others agree with them or that they have made the same findings. She was not familiar with this study by Dr. McCann or another study on anal dilation mentioned by the prosecutor during cross-examination. When the prosecutor asked if Dr. McCann was the foremost authority on anal dilation, Dr. Ticson replied that if anyone was an expert on such a subject, it was Dr. Hager. Nevertheless, she did not know of the paper, or who agrees with Dr. McCann, or how new or old the paper was — she had never heard of it. In response to a later question by the prosecutor, Dr. Ticson implied that the reliability of anal measurements was an issue in dispute in her medical community. Dr. Ticson also explained there were any number of variables that might affect dilation at a particular time that had nothing to do with sexual abuse, and unless these other factors were eliminated, measuring dilation would not be an indicator of sexual abuse; she conceded, however, the various elements must be viewed as a whole, and sometimes lax muscle tone is an indicator of sexual abuse.
She testified, as had Nurse Wehr, that a child could have vaginal intercourse without suffering a tear or evidence of wear on her hymen. She agreed that a child might not easily distinguish between vaginal and anal penetration; but she opined that she would expect to see some evidence on the hymen of repeated sexual intercourse, allowing that only a few instances or partial penetration would not necessarily change the character of the tissue.
Dr. Ticson agreed with Nurse Wehr that it is normal to make no significant medical findings during the examination of a child for sexual abuse; the genital tissues are very elastic and heal within hours, and a delay reporting is normal. She agreed with an assessment by Dr. Hager that in 75 percent of the cases where there is a complaint that there have been chronic anal penetrations of a child, the results of the physical examination will be normal. The doctor also agreed with Nurse Wehr that the history a child relates to the examiner is an important factor in determining if there is abuse and that the history alone will support a finding of abuse if the childs versions of the abuse are consistent and if the child is able to relate a certain amount of detail about the abuse. The doctor said that bed wetting was a behavioral indicator of abuse, as is fear, embarrassment, and a sense of guilt. She also said that it was significant if a child relates age-inappropriate information about sexual matters.
Trial counsel argued in his final comments to the jury that the far more experienced and better trained Dr. Ticson had undermined Nurse Wehrs opinion that there was physical corroboration of abuse. He urged that the verdict hinged on victim credibility, that the child may well have been easily influenced to make a false report that could not be retracted gracefully, and that the child might be enjoying the attention she was getting after her complaint. He urged that the childs testimony alone, with the inadequate corroboration produced in this case and the inconsistencies between the physical evidence and her testimony (there was no physical corroboration of the reported repeated vaginal penetration), was insufficient to prove appellant was guilty beyond a reasonable doubt.
DISCUSSION
1. Improper CSAAS Testimony
Appellant contends that the trial court abused its discretion and denied him due process by admitting into evidence Nurse Wehrs testimony that there was physical corroboration of sexual abuse. The contention is meritless.
A. CSAAS Evidence
CSAAS evidence is a term social scientists and the courts use to describe a list of behaviors commonly observed in child sexual abuse victims. These behaviors were first noted in the work of Dr. Roland J. Summit, who identified and defined the child sexual abuse accommodation syndrome in 1983. He identified five characteristics commonly observed in sexually abused children: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed, conflicted, and unconvincing disclosure, and (5) retraction. (Steele, Expert Testimony: Seeking an Appropriate Admissibility Standard for Behavioral Science in Child Abuse Prosecutions (1999) 48 Duke L.J. 933, 943-944.) Summit claimed that the characteristics are behavior coping mechanisms that emerge because the child is "`fearful, tentative and confused about the nature of the continuing sexual experience and outcome of disclosure. CSAAS does not prove abuse because it assumes that the abuse occurred. Nonetheless, CSAAS is helpful in identifying common responses to child sexual abuse and in establishing reasons for the behavior of child sexual abuse victims." (Id. at p. 944.) Steeles article in the Duke Law Journal explains that there are a host of behaviors, such as bed wetting and a delay in reporting the abuse, that are now included within the syndrome. (Id. at pp. 943-944.)
It is settled that CSAAS evidence is inadmissible to prove that the child has in fact been sexually abused or to bolster the childs credibility. Such evidence is admissible only to rehabilitate the witnesss credibility when the defendant suggests that the childs conduct after the incident . . . is inconsistent with his or her testimony claiming molestation. Carefully tailored CSAAS evidence is admissible only as it is needed to disabuse jurors of commonly held misconceptions about child sexual abuse and to explain the emotional antecedents of abused childrens seemingly self-impeaching behavior. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 (McAlpin) [applying the Bledsoe and Bowker decisions to permit the testimony of a police officer expert that parents often delay in reporting abuse]; People v. Bledsoe (1984) 36 Cal.3d 236, 245-251 (Bledsoe) [seminal case holding that rape trauma syndrome is a therapeutic tool and inadmissible to predict rape]; People v. Bowker (1988) 203 Cal.App.3d 385, 390-394 (Bowker) [applying Bledsoes rule for rape trauma syndrome to CSAAS evidence].) "The evidence is admissible solely for the purpose of showing that the victims reactions as demonstrated by the evidence are not inconsistent with having been molested." (Bowker, supra, 203 Cal.App.3d at p. 394.)
CSAAS evidence is excluded at a criminal trial because it was not designed for or relevant to measuring the guilt of a third party or to determining the legal culpability of the third partys actions. It is a therapeutic tool developed to help identify, predict, and treat emotional problems, and none of the CSAAS studies have attempted to verify the truth of the childs recollections about the abuse or to determine the legal implications of the accounts of abuse. (People v. Stoll (1989) 49 Cal.3d 1136, 1160-1161 [discussing the rationale of Bledsoe in the unrelated context of the admissibility of psychologists expert opinion as to whether the defendant had any pathology in the nature of sexual deviation]; Bledsoe, supra, 36 Cal.3d at pp. 249-251; see Bowker, supra, 203 Cal.App.3d 385, 391-394.)
B. Expert Opinion by a Medical Professional
A different rule provides that expert medical opinion and the basis for the medical opinion is admissible in evidence. In exploring the admissibility of expert medical testimony on sleep disorders, the court in People v. Cegers (1992) 7 Cal.App.4th 988, discussed the Bledsoe-McAlpin-Bowker line of cases and concluded that the Bledsoe-McAlpin-Bowker rule generally is not available to limit the admissibility of an expert medical diagnosis.
The Ceger decision summarized the appropriate rule for the admissibility of medical opinions as follows: "[A medical] expert may always give his opinion as to the cause of a particular injury or condition, and lack of absolute scientific certainty does not constitute a basis for excluding the opinion. `[A] medical diagnosis based on medical literature will not be viewed as a new scientific technique, but simply the development of an opinion from studies of certain types of cases. [Citation.] [& para;] . . . `An expert medical witness may give his opinion as to the means used to inflict a particular injury, based on his deduction from the appearance of the injury itself. [Citation.] A medical diagnosis based on probability . . . is admissible; the lack of scientific certainty does not deprive the medical opinion of its evidentiary value. [Citation.]" (People v. Ceger, supra, 7 Cal.App.4th at p. 998, citing People v. Mendibles (1988) 199 Cal.App.3d 1277, 1293-1294, and People v. Jackson (1971) 18 Cal.App.3d 504, 507.)
People v. Carpenter (1997) 15 Cal.4th 312 further explains: "When expert opinion is offered, much must be left to the trial courts discretion. [Citation.] `An expert may generally base his opinion on any "matter" known to him, including hearsay not otherwise admissible, which may "reasonably . . . be relied upon" for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, "`under the guise of reasons," the experts detailed explanation "`[brings] before the jury incompetent hearsay evidence." [Citations.] [Citation.] `. . . Evidence Code section 352 authorizes the court to exclude from an experts testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.] [Citation.]" (Id. at p. 403; accord, People v. Catlin (2001) 26 Cal.4th 81, 137-138; People v. Montiel (1993) 5 Cal.4th 877, 918-919.)
"`"Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility."" (People v. Bolin (1998) 18 Cal.4th 297, 322.) "[T]he decision of a trial court to admit expert testimony `will not be disturbed on appeal unless a manifest abuse of discretion is shown." (People v. McAlpin, supra, 53 Cal.3d at pp. 1299-1300.)
C. Analysis
With these principles in mind we turn to appellants contention.
We are unable to tell from appellants briefs whether he is challenging the core of Nurse Wehrs medical conclusion that there was some corroboration of sexual abuse or whether his contention is limited to the specific complaints listed in part v of our analysis. Accordingly, we have addressed what appears to be his global claim of error here, and we will address his specific claims of error later in part v of this contention.
i. Waiver
The Attorney General argues waiver. We agree. During appellants pretrial motions, he made an objection to any CSAAS evidence that the People contemplated proffering at trial based upon the McAlpin-Bledsoe-Bowker line of cases. The trial court agreed that generally CSAAS evidence is inadmissible and ruled that it would exclude such evidence. The prosecutor indicated that a delay in reporting might be an issue at trial, and the trial court also ruled that the expert would not be permitted to comment on a delay in reporting until rebuttal and only if a delay in reporting became an issue in the case. These rulings were in full compliance with the McAlpin-Bledsoe-Bowker line of cases.
The prosecutor also pointed out that his expert would comment on delay in reporting as it was a basis for her medical conclusions following the examination of the child in this case. The trial court ascertained that trial counsel would not be challenging such testimony if it was a basis for the nurse practitioners medical opinion. The trial court also precluded Nurse Wehr from commenting on the content of the studies on child abuse that she considered as a basis for her medical opinion.
At trial, appellant made relevance, improper discovery, improper opinion, hearsay, and no-foundation objections to various items of evidence during Nurse Wehrs expert testimony. However, he did not make the objections that are the predicate to his claims on appeal — (1) that the matter Nurse Wehr relied upon in reaching her conclusion was not of a type that reasonably may be relied upon by experts in forming an opinion upon the subject to which her testimony related or (2) that the trial court improperly exercised its discretion pursuant to Evidence Code section 352 by failing to exclude unduly prejudicial matter from evidence on grounds the evidence was misleading, confusing, or should be excluded for policy reasons. The objections he made — hearsay, irrelevant, no foundation, improper opinion objections — were all too general to alert the prosecutor and the trial court that the McCann study was too unreliable to provide a valid basis for Nurse Wehrs medical opinion or that despite the evidences admissibility, it should be excluded pursuant to Evidence Code section 352 as it amounted to the use of inadmissible CSAAS evidence.
Having failed to have challenged Nurse Wehrs testimony on such grounds in the trial court, appellant has waived his contention on appeal. (People v. Holt (1997) 15 Cal.4th 619, 666-667 [objections must be accompanied by a reasonably definite statement of grounds]; People v Rodriquez (1969) 274 Cal.App.2d 770, 776 [the foundation for an experts opinion need not be established in the absence of a specific objection or unless trial court requires it]; People v. Modell (1956) 143 Cal.App.2d 724, 730 [reasonable basis for experts opinion was not challenged in the trial court and thus was waived on appeal]; see People v. Kaurish (1990) 52 Cal.3d 648, 688 [trial court has no sua sponte duty to require a party to show that a test is scientifically reliable and his or her methodology is accepted within the scientific community before the results of the test may be admitted into evidence].)
ii. Admissibility of Nurse Wehrs Testimony
Even if we address appellants global claim that CSAAS evidence was improperly admitted into evidence on its merits, appellant cannot prevail. No CSAAS evidence was admitted at the trial within the meaning of the McAlpin-Bledsoe-Bowker rule. The evidence appellant claims was CSAAS evidence was admitted on another and proper basis: Nurse Wehr confined her testimony to her medical conclusion after a personal examination of the victim, to the basis for her opinion, and to the methodology she used in reaching her conclusion that the victims physical condition was "suspicious for sexual abuse."
Appellant nevertheless complains that Nurse Wehrs testimony was so insubstantial as demonstrated by Dr. Ticsons testimony that her testimony amounted to improper expert opinion, usurped the jurys fact finding function, and amounted to improper vouching for the victims credibility. The flaw in appellants claim is that there is a basis in the record for assuming that the critical study Nurse Wehr relied upon, the 1989 study by Dr. McCann, was a scientific study, not simply a collection of psychological behaviors designed only for the treatment of sexually abused children. Nurse Wehr testified that her conclusion that anus dilation was at the upper limits of normal was based upon Dr. McCanns study. She explained that Dr. McCann was one of the foremost child abuse researchers in the world. She said that he was highly respected in the field and that he spoke at most of the child abuse conferences she attended. Moreover, she commented that his work was "interesting because it has included normal children, not just sexually abused children." Wehr testified that the threshold for abnormal anal dilation was 20 millimeters. The victim in this case had anal dilation of 17 to 18 millimeters. Wehr said that the dilation was significant as a year had passed since the claimed penetrations and she would have expected some healing and regaining of muscle tone over the period of a year. She could not say how much healing and muscle tone had been recovered over the period of a year; Wehr also testified she would be speculating if she estimated how great the dilation might have been a year earlier. She said that according to Dr. McCanns study, only about 1 or 1.2 percent of children have been found to have an anus dilated to 20 millimeters. Also, only about 3 percent of children who have not experienced sexual abuse have an asymmetric anus. She also found it unusual based upon her own personal experience that the victims exterior sphincter muscle was so open that she could see inside the victims rectum.
At this point, any further inquiry into the study itself came to an end. Appellant made a general objection to the testimony. At the bench, trial counsel complained that he had no discovery on the McCann study. The trial court overruled his objection. The trial court commented that it would not permit Nurse Wehr to comment on the contents of Dr. McCanns study, just its conclusion and that it formed the basis for her opinion. The trial court told trial counsel if he wanted to elicit more about the study, he could do so during cross-examination.
This testimony by Nurse Wehr indicated that Dr. McCanns study was in the nature of a scientific study or was reliable medical literature, and Dr. McCann had used a control group of children who had not been sexually molested. While the nature of that study was not explored at trial because trial counsel raised no objection to it on the grounds he now raises on appeal, we nevertheless think that there is a sufficient foundation in the record to show it is the type of material reasonably relied upon by experts in the field. (Evid. Code, § 801, subd. (b).) Accordingly, the trial court did not abuse its discretion by permitting Nurse Wehr to conclude that there was physical corroboration of sexual abuse based upon the McCann study and the other factors she outlined in her testimony.
Also, there is no basis in the record for this court to conclude that the experts medical opinion was the "functional equivalent" of an improper use of CSAAS evidence. The trial court barred the nurse practitioner from reciting during her testimony the contents of the studies that she was relying upon. It limited her to stating the bald assumption she reached from the studies which formed the basis of her opinion. Thus, the trial court did not admit into evidence the content of irrelevant medical literature or sociological and psychological studies which had no scientific basis. Nor is there any showing on this record that the basis for Nurse Wehrs opinion was so unreliable that it improperly proved guilt or that it improperly bolstered the credibility of the child. (People v. Catlin, supra, 26 Cal.4th at p. 137; People v. Cegers, supra, 7 Cal.App.4th at pp. 995-1001 [expert medical testimony following a physical examination of the person in question is not subject to the same rule of admissibility as is applied to expert testimony on rape trauma syndrome or CSAAS evidence]; cf. People v. Stoll, supra, 49 Cal.3d at pp. 1159-1161 [psychologists expert opinion of no indication of sexual deviance based on a personal examination and an analysis of accepted psychological tests is not precluded by the rule in Bledsoe; the proper means for challenging the experts opinion is by cross-examination and rebuttal by another expert witness.)
iii. Harmless Error
Furthermore, even if the trial court abused its discretion by admitting Nurse Wehrs testimony into evidence, appellant is not entitled to a reversal. Nurse Wehrs opinion was refuted by a pediatrician with more impressive educational qualifications and experience than Nurse Wehrs. If the jury believed Dr. Ticson, the doctors testimony would have fully undermined Nurse Wehrs expert opinion. Our reading of the record suggests that the experts opinions probably canceled one another out. We therefore assume that the jury ignored the expert evidence and decided guilt based on the victims testimony, which was in part corroborated by her brother. In these circumstances, the use of any inadmissible expert testimony was nonprejudicial. (People v. Bledsoe, supra, 36 Cal.3d at p. 252; People v. Watson (1956) 46 Cal.2d 818, 836.)
iv. Due Process
Appellant argues that the use of the evidence demonstrates a denial of due process because Nurse Wehrs testimony struck at the heart of the states burden of proving appellants guilt by competent and admissible evidence. Because we have determined that the expert opinion was properly used to prove guilt and was relevant to the issues in the case, we must reject the due process claim. (People v. Falsetta (1999) 21 Cal.4th 903, 913 [the admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendants trial fundamentally unfair].) Furthermore, the mere use of CSAAS evidence at a defendants trial does not show that the trial was unfair. (People v. Patino (1994) 26 Cal.App.4th 1737, 1747 [analogizing the use of CSAAS evidence to the use of evidence of battered child syndrome, the admission of which was held in Estelle v. McGuire (1991) 502 U.S. 62 not to constitute a violation of due process].)
v. Appellants Specific Claims of Improper Expert Testimony
Appellant also complains that in the guise of rendering a medical opinion, Nurse Wehr improperly testified to the following CSAAS evidence: (1) 80 to 90 percent of medical examinations for child sexual abuse result in no physical corroboration of sexual abuse, (2) a childs statement of the history of the abuse must be taken seriously as studies show that 90 percent of the complaints are true, (3) anal fissures may or may not be indicative of sexual abuse depending upon the history that is related by the child, (4) children do not report sexual abuse and sometimes parents also have reason to deny that such abuse is occurring, (5) there is an interrelationship between the history and the observation of abnormalities in the childs anus and genitalia — a slight abnormality may only be important if the child gives a history that makes it significant, and (6) the lack of apparent injury to the vagina does not mean that there was no sexual intercourse or no sexual abuse.
The trial court properly admitted this testimony by Nurse Wehr. Again, the evidence was relevant to explain Nurse Wehrs methodology in interviewing and examining the victim and to show how she arrived at her medical opinion. The trial court properly exercised its discretion by barring the use of inadmissible CSAAS evidence and by precluding Nurse Wehr from commenting on the contents of the studies that she relied upon in reaching her conclusion. The remaining testimony was necessary to understand her opinion and to give the jury a basis upon which to evaluate the weight to be afforded to her opinion. Accordingly, the trial court properly exercised its discretion by admitting into evidence these individual bits of testimony. (People v. Catlin, supra, 26 Cal.4th at p. 137-138.)
Furthermore, even if we decided that some of the evidence was in fact CSAAS evidence, the People were entitled to have the jury disabused of any preconceptions that it had that the victims of abuse are injured during sexual abuse and to inform jurors that most complaints of sexual abuse must be resolved by an evaluation of the credibility of the complaining witness. Also, the testimony informed the jury that delays in reporting are normal. These concepts were all placed into issue by the evidence at appellants trial and properly admitted into evidence as CSAAS evidence. (People v. Patino, supra, 26 Cal.App.4th at p. 1745 [admitting CSAAS evidence is not error merely because it is introduced in the Peoples case-in-chief rather than in rebuttal as long as the CSAAS evidence is relevant to the issues in the case].)
2. Sua Sponte Limiting Jury Instruction
Appellant contends that he was entitled to a sua sponte limiting instruction similar to CALJIC No. 10.64 on CSAAS testimony, limiting the jurys consideration of the basis of Wehrs opinion to its weight. In the alternative, he asserts that trial counsel was ineffective for failing to request such an instruction. We reject the contention.
A. The Limiting Instruction
CALJIC No. 10.64 states as follows: "Evidence has been presented to you concerning [child sexual abuse accommodation] [rape-trauma] syndrome. This evidence is not received and must not be considered by you as proof that the alleged victims [molestation] [rape] claim is true. [¶] [[Child sexual abuse accommodation] [Rape trauma] syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a [molestation] [rape] has occurred, and seeks to describe and explain common reactions of [children] [females] 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 the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victims reactions, as demonstrated by the evidence, are not inconsistent with [him] [her] having been [molested] [raped]."
B. Analysis
As a general proposition, a trial court has no duty to give the jury a limiting instruction on the admissibility of evidence in the absence of a request by the parties. (People v. Dennis (1998) 17 Cal.4th 468, 533.) As appellant points out, there are Court of Appeal decisions requiring that a charge similar to CALJIC No. 10.64 be given sua sponte if CSAAS testimony is introduced into evidence. But the authorities on this point are split. (People v. Bowker, supra, 203 Cal.App.3d at p. 394 [jury should be instructed simply and directly that expert testimony is not to be used to corroborate the childs claim of abuse]; People v. Housley (1992) 6 Cal.App.4th 950, 957 [expressly holding that sua sponte instruction required]; contra, People v. Sanchez (1989) 208 Cal.App.3d 721, 735 [instruction required only upon request]; People v. Bothuel (1988) 205 Cal.App.3d 581, 587-588 [same].)
Nurse Wehrs testimony was a medical opinion, not CSAAS evidence. Hence, none of the Court of Appeal cases appellant cites requiring a sua sponte instruction are on point. Furthermore, the evidence in this case does not support the giving of an instruction like CALJIC No. 10.64. There was no use of CSAAS evidence, and the jury in this case was entitled to consider Nurse Wehrs medical testimony that the victims complaint was corroborated by her physical examination. Hence, the use of CALJIC No. 10.64 would have misled and confused the jury. The trial court charged the jury with CALJIC No. 2.80, as to how to consider expert opinion. That was all that was required.
The trial court charged the jury with CALJIC No. 2.80 as follows: "Witnesses who have special knowledge, skill, experience, training, or education in a particular subject have testified to certain opinions. Any such witness is referred to as an expert witness. In determining what weight to give any opinion expressed by an expert witness, you should consider the qualifications and believability of the witness and the acts and materials upon which each directly is based and the reasons for each opinion. An opinion is only as good as the facts and reasons on which it is based. [¶] If you find that any fact has not been proved or has been disproved you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. You are not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable."
C. Claim of Ineffective Trial Counsel
As for appellants alternative claim of trial counsel ineffectiveness, it also lacks merit. Appellant argues that given counsels concern over the CSAAS evidence, he had no strategic or tactical reason in failing to request the instruction, and thus he was constitutionally ineffective as he failed to ask for it.
To establish trial counsel was constitutionally inadequate, a defendant has the burden of proving trial counsel failed to act in a manner to be expected of reasonably competent trial counsel. Furthermore, a defendant must affirmatively show that it is reasonably probable a determination more favorable to him would have resulted in the absence of counsels failings. (Strickland v. Washington (1984) 466 U.S. 668, 690-696; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) A reasonable probability is one sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, at p. 694.) The deficit performance must render the result of the trial unreliable or the proceedings fundamentally unfair. (Lockhart v. Fretwell (1993) 506 U.S. 364, 369-370.)
Appellant has not carried his burden of showing ineffective trial counsel. CALJIC No. 10.64 does not apply to evidence of a medical diagnosis finding physical corroboration of sexual abuse, and the basis that the medical expert states for his opinion is not what is meant by CSAAS evidence. Trial counsel did not request CALJIC No. 10.64 because he recognized that the instruction was not supported by the evidence. Trial counsel is not ineffective because he fails to request an inappropriate jury instruction. (See People v. Castillo (1997) 16 Cal.4th 1009, 1014-1015 [where trial court fully instructed the jury on the issues in the case, no additional instruction was needed, and counsels omission did not amount to ineffective trial counsel].)
3. Motion for Juror Information for Preparation of a Motion for New Trial
Appellant contends that the trial court abused its discretion by refusing to disclose locating data about the jurors so that trial counsel could prepare a motion for new trial. We disagree.
A. Facts
The trial court gave counsel the opportunity after the verdict to discuss the case with any interested jurors. Three jurors remained behind to discuss the case with counsel. Subsequent to that conversation, counsel asked for disclosure of juror information so that he could prepare a motion for new trial. He claimed that Juror No. 12 said that during the social workers testimony, the prosecutor asked why appellant was barred from the family residence. There was a defense objection that was sustained. However, Juror No. 12, heard Rodriguez say under her breath that appellant was barred from the family home for child abuse. Counsel claimed that Juror Nos. 8 and 9 indicated that they also heard the comment.
Counsel and the trial court did not hear the statement. The reporters transcript of the proceedings did not reflect Rodriguezs reply to the pending question. The prosecutor recalled the witness making the statement, although he was not certain of it.
Two weeks later, counsel petitioned the trial court pursuant to Code of Civil Procedure 237, subdivision (a)(2), asserting that he was entitled to the release of juror locating data so that he could interview the jurors in preparation for a motion for new trial.
The prosecutor argued that no juror misconduct was involved. Overhearing a witnesss reply to a question while defense counsel was objecting to the pending question does not constitute juror misconduct (the receipt of extrajudicial information) or grounds for a new trial. The unrecorded reply was merely evidence adduced during the trial that was not stricken when the objection was sustained. It was part of the evidence even if not recorded.
Trial counsel argued that he was entitled to determine if there was evidence that the witness deliberately made the statement surreptitiously to jurors from the witness stand.
The trial court ruled that there was no evidence of juror misconduct. It concluded that the "more likely scenario" is that one or more of the jurors "simply put two and two together" when they heard that the father was barred from the home and the child was accusing the father of molestation. In their own minds, they think they heard the statement.
However, the trial court said, even assuming that the juror actually heard such a statement, and the witness made the statement deliberately so that the jurors would be privy to inadmissible evidence, the statement was not grounds for granting a new trial. The statement was not sufficiently prejudicial to warrant a new trial. The court also concluded no good cause was shown because counsel did not do everything possible to investigate the claimed misconduct, including interviewing the court reporter or Rodriguez, before he petitioned the trial court.
The trial court denied the petition.
B. Relevant Legal Principles
When the verdict is recorded, the trial court orders sealed all identifying juror information, e.g., names, addresses, and telephone numbers. (Code Civ. Proc., § 237, subd. (a)(2).) If a defendant petitions the court for access to these records, the petition "shall be supported by a declaration that includes facts sufficient to establish good cause for the release" of this confidential data. (Code Civ. Proc., § 237, subd. (b).) To establish good cause, a defendant must set forth a sufficient showing to support a reasonable belief that jury misconduct occurred. (People v. Jones (1998) 17 Cal.4th 279, 317.) We review the trial courts denial of the request for disclosure of juror locating information and the motion for new trial for an abuse of discretion. (Ibid.)
The court in In re Carpenter (1995) 9 Cal.4th 634, 673, said: "`"Jurors in a criminal action are sworn to render a true verdict according to the evidence. They cannot, under the oath which they take, receive impressions from any other source." (People v. Holloway [(1990)] 50 Cal.3d [1098,]1108, quoting People v. McCoy (1886) 71 Cal. 395, 397.) Under that oath, prescribed by statute, they swear that they will `"well and truly try" the cause and `"a true verdict render according . . . to the evidence . . . ." (Code Civ. Proc., § 232, subd. (b), italics added; accord, id., former § 604.) A jurors receipt of extrajudicial information about the case `deprives [the parties] of the opportunity to conduct cross-examination, offer evidence in rebuttal, argue the significance of the information to the jury, or request a curative instruction. (United States v. Bagnariol (9th Cir. 1981) 665 F.2d 877, 884, fn. 3.)"
"`[W]hen misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test." (People v. Yeoman (2003) 31 Cal.4th 93, 158, quoting from In re Carpenter, supra, 9 Cal.4th at p. 653.)
"Section 1181, subdivision 2, authorizes the trial court to grant a motion for new trial "[w]hen the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property." Subdivision 3 of that section provides for a new trial "[w]hen the jury has . . . been guilty of any misconduct by which a fair and due consideration of the case has been prevented."
C. Analysis
The trial court did not abuse its discretion by refusing to disclose the juror locating data, by failing to conclude that there was threshold evidence of juror misconduct, and by denying appellants motion for a new trial. Even assuming that the jurors recollections reflected what occurred in the courtroom, there was no juror misconduct. What the jurors overheard was evidence in the case that inadvertently was not recorded as the court reporter did not hear it. Simply because the statement was not recorded by the court reporter does not mean that it was not made or that it is not properly part of the evidence in the case. If the statement was made, given the other evidence adduced, it was not so prejudicial that the trial court would be compelled to grant a motion for a new trial. Appellant cites no authority for his claim that there was juror misconduct here. On this record, the trial court properly exercised its discretion by concluding that the information, even taken in its best light, did not provide good cause for the release of confidential jury information and that appellant was not entitled to a new trial. (People v. Jones, supra, 17 Cal.4th at p. 317.)
DISPOSITION
The judgment is affirmed.
We concur: NOTT, J. and DOI TODD, J.