Opinion
C091960
04-06-2022
THE PEOPLE, Plaintiff and Respondent, v. JOSE INIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 18FE000818
MAURO, ACTING P.J.
A jury found defendant Jose Iniguez guilty on 14 counts of lewd and lascivious acts involving five victims. At trial, the prosecution presented testimony from an expert witness to explain the behavior of child sexual abuse victims, using principles of Child Sexual Abuse Accommodation Syndrome (CSAAS). On appeal, defendant asserts the trial court erred in admitting this testimony because a number of courts in other jurisdictions have disapproved of CSAAS evidence, and it does not satisfy established requirements for admissibility. He further argues defense counsel provided ineffective assistance of counsel when he elicited testimony from the expert witness about the frequency of false accusations in child sexual abuse cases. Finding no merit in defendant's contentions, we will affirm the judgment.
BACKGROUND
The prosecution charged defendant with eight counts of lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a) -counts 1 through 4, 6 through 7, and 13 through 14), one count of a lewd and lascivious act on a 14-year-old child (§ 288, subd. (c)(1)-count 5), and five counts of forcible lewd and lascivious acts on a child under the age of 14 (§ 288, subd. (b)(1)-counts 8 through 12).
Undesignated statutory references are to the Penal Code.
The counts alleged conduct involving five victims: S., P., L., V., and A. S. and P. are sisters, and are defendant's nieces. Both would sleep over at defendant's home when they were younger. L. and V. are defendant's sisters-in-law, and are substantially younger than defendant. Defendant sometimes lived with L. and V. and would babysit them when they were younger. A. is defendant's daughter.
At trial, S. testified defendant "put his penis in [her] bottom" approximately five times between the time she was in fourth and seventh grade. The first instance occurred during a sleepover at defendant's house when S. encountered him sitting on a couch with his pants down. Defendant pulled her pants down and lifted her onto his lap, where he rubbed his penis against her thigh. The next morning, S. was playing a computer game when defendant pulled her pants down and "put his penis in [her] butt." S. also recounted several other similar incidents, as well as instances where defendant touched her vagina with his hand or fingers.
S. did not tell anyone about these incidents until she was in the seventh grade, when she told A. A. replied "he had been touching her too." S. never told her mother because she was afraid "our families would split." One evening, however, her mother woke her up and asked her directly whether defendant had ever touched her inappropriately, and S. responded that he had.
P., who is close in age to S., testified similarly at trial about sleeping over at defendant's house. During one sleepover, when P. was in fourth grade, defendant came into the room where she was sleeping, "tried shoving something up [her] butt," and placed his fingers in her vagina. A similar incident occurred at a drive-in movie two months later. P. did not tell anyone about either incident until the evening S. told their mother; P. then also said defendant had touched her.
A. testified at trial that defendant never did "anything to [her] body that made [her] feel uncomfortable." She explained she did not want to testify at trial because her family blamed her for what was happening to defendant. When she had previously been interviewed by a police detective, however, she acknowledged defendant had "touch[ed her] private areas" between the time she was in third and fifth grade. A recording of the interview was admitted into evidence and played for the jury at trial. She also corroborated S.'s middle school statements between the two of them about the incidents with defendant.
At trial, A. said she only confirmed S.'s account in middle school because she wanted to make S. "feel better" and thought that was what "she wanted to hear." She did not recall speaking with a police detective, but later said she did not deny defendant had done anything to her because "[t]here was a big fat police officer standing at my door," so she was scared. She also stated the detective had misinterpreted many of her responses to his questions.
L. testified about incidents that occurred between the time she was six years old and 14 years old. In one incident, defendant kissed her breasts and touched her thighs. In a later incident, he rubbed and kissed her thighs while applying VapoRub. She also recounted several instances where defendant made "kissing noises" at her when she passed nearby, and one incident where he exposed his penis in front of her. L. did not tell anyone about these incidents until she was 21 years old, when she told a therapist. She then told V., who replied that defendant had done similar things to her.
V. testified that once when she was in second grade, she was sleeping, and defendant placed his penis on her face. She also testified about other incidents where defendant had touched her bottom and vagina when she was in middle or high school. V. did not tell anyone about these incidents at the time because she was embarrassed. The first time she disclosed the abuse was after L. told her about L.'s own experiences.
After L. told V. about her experiences, the two told their mother, and the family convened a family meeting. At the meeting, L. and V. told the family, including defendant's wife and S. and P.'s mother (L. and V.'s older sisters), what had happened to them. The family decided not to call the police. S. and P.'s mother asked P. if defendant had ever done "anything to her to make her feel uncomfortable," and P. said he had not. The families continued to have contact after the meeting.
Sometime later, defendant's wife came to S. and P.'s house looking for defendant. Defendant was drinking at the house, and his wife shouted, "Why would you have this child molester at your house knowing what he's done?" Later that night, defendant's wife left a voicemail for S. and P.'s mother, telling her to "ask [S.] about her little secret [that A.] told me." S. and P.'s mother then asked S., "did [defendant] do things to you," and S. "cried and . . . shook her head yes." P. was also present and nodded her head too.
The prosecution introduced testimony from Anna Washington, Ph.D., a psychologist at the UC Davis Child and Adolescent Abuse Resource and Evaluation Center. Dr. Washington had no information about the specific facts of the case. She testified, however, about the frequent reluctance of child sexual abuse victims to disclose their experiences, saying that children may "take months or years or might never themselves disclose" the abuse. She explained such delays arise for a variety of reasons, including threats, fears about getting in trouble, or "a false sense of consent related to the abuse." Children may fear that disclosure could break up the family unit. The existence of a preexisting positive relationship with a perpetrator may also delay disclosure. Such relationships can also cause victims to have positive feelings about the abuser and attempt to recant their statements about the abuse later on.
On cross-examination, defense counsel solicited testimony that "[a]dults can influence children to lie," although Dr. Washington explained "it's very difficult to get a child to lie about another person abusing them." Defense counsel then asked about the "research on false accusations, what are the percentages," and Dr. Washington replied, "[i]t's been my understanding in the past that the court does not allow me to give percentages." The trial court agreed, and Dr. Washington did not respond to the question. Defense counsel then had the following exchange with Dr. Washington:
"[DEFENSE COUNSEL]: So false accusations that you would agree that they're more prevalent kind of in custody disputes or divorce proceedings?
"[DR. WASHINGTON]: So the research is showing that false allegations are very rare, but when they do occur, they are more common in conflicted custody cases than they would be in other cases.
"[DEFENSE COUNSEL]: Sure. So situations when you have two adults that are kind of in a dispute?
"[DR. WASHINGTON]: Yeah. So the rates of false allegations tend to be a little bit higher in cases where there are high-conflict custody disputes.
"[DEFENSE COUNSEL]: And you would agree that those are types of situations where a child might be influenced by an adult to make the false accusation?
"[DR. WASHINGTON]: I would disagree with that statement. I think that that is unlikely, and what we see from the research about false allegations is that when false allegations are made, they tend to be made by adults and not directly by children through disclosures."
Dr. Washington concluded by explaining that her testimony was consistent with CSAAS. She also discussed various "concerns" about CSAAS, but said it was "not a controversial topic within the mental health field." After Dr. Washington's testimony finished, the trial court admonished the jury, consistent with CALCRIM No. 1193, that her "testimony is not evidence that the defendant committed any of the crimes charged against him. You may consider her testimony only in deciding whether or not the complaining witnesses' conduct was inconsistent with the conduct of someone who has been molested in evaluating the believability of the testimony." The trial court promised to give the same instruction when it offered the full set of jury instructions, which it did at the close of evidence.
DISCUSSION
I
Defendant contends the trial court erred in admitting Dr. Washington's testimony because CSAAS evidence fails to satisfy established requirements for admissibility and courts in many other jurisdictions have disapproved of the use of CSAAS evidence. Defendant acknowledges that in People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1301 (McAlpin), the California Supreme Court permitted the use of CSAAS evidence "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." But he urges us to disagree with that decision based on the issue's public importance.
The People argue defendant forfeited this issue because, despite promising to file pretrial written briefing on the CSAAS evidence, defense counsel never did so. But even if the issue is not forfeited, we decline to reject current California law.
Evidence Code section 801, subdivision (a), permits the introduction of testimony by a qualified expert on a subject sufficiently beyond common experience when the opinion would assist the trier of fact. Although expert testimony on CSAAS is not admissible to prove the complaining witness has in fact been sexually abused, California courts consistently have held that such evidence is admissible to disabuse the jury of myths and misconceptions it might hold about the behavior of abuse victims. (See McAlpin, supra, 53 Cal.3d at pp. 1300-1301; People v. Gonzales (2017) 16 Cal.App.5th 494, 503; People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) The prosecution need not identify the specific misconception to be addressed; "[i]t is sufficient if the victim's credibility is placed in issue due to [] paradoxical behavior, including a delay in reporting a molestation." (Patino, at pp. 1744-1745.) Inconsistencies in the victim's statements may also support the use of CSAAS evidence. (People v. Perez (2010) 182 Cal.App.4th 231, 245.) That other jurisdictions have resolved the issue differently does not compel a contrary result. (People v. Williams (1997) 16 Cal.4th 153, 195 [case from other state is not controlling]; In re Walton (2002) 99 Cal.App.4th 934, 946 [same].)
Here, the CSAAS testimony was relevant because defense counsel challenged the victims' credibility by asking about delays in reporting abuse. Dr. Washington's testimony was also relevant to explain the inconsistencies in A.'s testimony, including the discrepancies in statements she made to police and her later recantations at trial, as well as her continued positive feelings toward defendant, despite the abuse. Defense counsel highlighted these delays and inconsistencies in his closing argument. Dr. Washington's testimony was thus relevant to explain that "such normally self-impeaching behavior is not unusual for sexually abused children." (People v. Munch (2020) 52 Cal.App.5th 464, 475; McAlpin, supra, 53 Cal.3d at p. 1302.)
We likewise reject defendant's argument that the standards set forth in People v. Kelly (1976) 17 Cal.3d 24 and Frye v. United States (D.C. Cir. 1923) 293 F. 1013 required the rejection of Dr. Washington's testimony. Such challenges have been routinely rejected by California courts. (People v. Munch, supra, 52 Cal.App.5th at pp. 472-473; People v. Housley (1992) 6 Cal.App.4th 947, 954-956; People v. Bowker (1988) 203 Cal.App.3d 385, 391-394.) The Kelly/Frye test does not prohibit the use of CSAAS evidence when limited in the manner directed by the trial court in this case. (People v. Harlan (1990) 222 Cal.App.3d 439, 448-449.)
Finally, we disagree with defendant's contention that Dr. Washington's testimony invited the jury to impermissibly use it to establish the victims had, in fact, been sexually abused. Dr. Washington testified that she did not know the victims and had no specific information about the case. The trial court correctly instructed the jury that Dr. Washington's testimony was not evidence that defendant committed the charged crimes, and could only be considered to evaluate the believability of the victims' testimony. The jury was not compelled to accept Dr. Washington's testimony or her opinion that any delays in disclosure were the result of CSAAS, rather than fabrication, as defense counsel argued. We see no abuse of discretion in admitting Dr. Washington's testimony.
II
Defendant contends his trial counsel's elicitation of testimony on the infrequency of false accusations in child sexual abuse cases constituted ineffective assistance of counsel. Citing People v. Julian (2019) 34 Cal.App.5th 878 (Julian) and authorities from other jurisdictions, defendant argues the testimony about false accusations "supplanted the jury in determining whether the allegations were credible." He asserts no possible reason could justify his counsel's invitations to tell the jury that victims rarely lie about sexual abuse. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674, 693-694, 697-698]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
" 'Surmounting Strickland's high bar is never an easy task.'" (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642].) "It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' [Citations.] The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom." (Ibid.) "When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of the representation provided by counsel. 'If the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," [citation], the contention must be rejected.'" (People v. Mitcham (1992) 1 Cal.4th 1027, 1058.)
Here, there was an explanation for counsel's actions. The defense theory of the case was that S. and P.'s mother had convinced the victims to lie about defendant's actions. Defense counsel explained this theory in his closing argument, saying, "What's wors[e] than a child molester? Well, somebody that would lie about it. What's worse than a person that would lie about it? Well, it would be [S. and P.'s mother]. Somebody that would convince others to lie. It's the worst type of person." Defense counsel later expanded on this theory, explaining that S. and P.'s mother was "jealous and envious of [defendant]" and his wife, and that the mother was the "common denominator" behind the accusations.
Defense counsel's theory was evident in his cross-examination of the victims. For example, defense counsel asked S. whether her mother had helped her practice her answers to the prosecutor's questions beforehand. He also asked her about her mother's poor relationship with defendant's wife. Defense counsel asked A. whether defendant's wife had a bigger house than S.'s mother, and whether defendant had a better job than S.'s father. Defense counsel later inquired whether A. ever "felt pressure by [S.'s mother] to say something happened to you by your dad?"
Defense counsel used Dr. Washington's testimony to support this theory. Dr. Washington testified on cross-examination that adults can influence children to lie, but qualified that statement by saying "it's very difficult to get a child to lie about another person abusing them." Nevertheless, defense counsel's closing argument used Dr. Washington's statement to imply the victims had been pressured to lie, saying: "A lot of common sense given out by Dr. Washington. Adults are more sophisticated than children. Children tend to do what adults want them to do, and adults can pressure children to do inappropriate things. Lying about being sexually abused, I think we can all agree that that's inappropriate. Right?" Given the defense theory of the case, counsel likely concluded that the value of having Dr. Washington tell the jury that false accusations occur-and that they are most likely to occur in the context of family disputes between adults, such as the one defense counsel asserted was present in this case-outweighed the damage of having the jury learn how rare false claims are. While defense counsel's strategy was not ultimately successful, we cannot say it fell below an objective standard of reasonableness.
We similarly disagree that Julian, supra, 34 Cal.App.5th 878 establishes that Dr. Washington's testimony about false accusations "worked nothing but grave harm" and thus prejudiced defendant. In Julian, the prosecution's expert psychologist testified at length concerning the percentage of false allegations made by children in 12 studies. (Id. at p. 883.) He specifically cited a Denver Department of Social Services study that found only 2.5 percent of sexual abuse allegations were false allegations out of 551 cases. (Ibid.) He also cited a study of 798 cases in which not a single false allegation was made by a child. (Id. at p. 884.) The defense counsel in Julian did not object to the expert's statistical evidence. (Id. at p. 887.)
The Court of Appeal determined that defense counsel had provided ineffective assistance of counsel by not objecting to the statistical evidence. Noting the weak prosecution evidence and comparatively strong defense evidence, the court explained: "[The expert's] statistical evidence tipped the scales in favor of the People based on statistical studies that were irrelevant to the issue of Julian's guilt or innocence. It distracted the jury from its duty to decide the properly admitted evidence. [Citation.] Such evidence may not be prejudicial where it occurs in a slight passing reference by the expert. But here the jury was bombarded with it." (Julian, supra, 34 Cal.App.5th at p. 888.)
Unlike the wide-ranging statistical evidence in Julian, this case included only minor references to the fact that false child sex abuse allegations are rare. Dr. Washington explicitly declined to offer any specific statistics on false accusations and her testimony about false accusations consisted of only a few exchanges with defense counsel. And, as noted above, the jury was instructed on the proper uses of Dr. Washington's testimony, mitigating any risk that the jury would weigh or use the testimony improperly. We see no ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
We concur: HOCH, J., KRAUSE, J.