Opinion
A157102
01-07-2021
THE PEOPLE, Plaintiff and Respondent, v. BOSTYON JOHNSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 614127)
Bostyon Johnson was convicted by a jury of multiple counts of child molestation involving three separate victims. He contends the court violated Kelly-Frye when it admitted expert testimony about common behaviors of sexually abused children; that it erred when it allowed the expert to testify about certain "case-specific" facts; and that it misinstructed the jury on the permissible use of the expert testimony. Johnson also asks us to independently review of one of the victims' confidential medical records and to correct an error in the abstract of judgment.
People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F.1013.
We have conducted the requested in camera review and determined the trial court properly declined to disclose the confidential records to the defense. We order the abstract of judgment amended to accurately reflect the judgment. In all other respects we find Johnson's arguments are meritless, and therefore affirm the judgment.
BACKGROUND
The following summary of the evidence is focused on the issues raised on appeal and is not meant to be exhaustive. We describe additional testimony as necessary in our discussion section, post.
When Johnson was 18 he moved in with his father Chris, Chris's wife Robin, and their children, including Christian and Jessica. Johnson and Robin became intimate, and eventually Chris moved out and filed for divorce. Johnson and Robin married and lived together until Robin died in an accident in 2012.
We will use first names to protect the victims' identities. We intend no disrespect by this practice.
Christian
Christian was 23 years old at the time of trial. When he was a young boy he lived in Oakland with Chris, Robin and his siblings. Christian was six or seven when Chris left the home and Robin and Johnson became a couple.
One day Christian walked into the family room and saw Johnson sitting at a computer with his penis exposed and erect. Christian told his mother about the incident, but he felt that she didn't want to believe him. Johnson and Robin suggested to Christian that he had dreamed or imagined the incident. "So [he] just went with that, and that was the end of that."
A couple of weeks later Johnson began sexually abusing Christian. On multiple occasions when no other family members were home he took Christian into the master bedroom, showed him pornography and molested him. The abuse continued until Christian was in eighth grade.
Christian never told anyone about the molestation because [a]fter telling the last time, I didn't, like, want to go through that again." One day, when Christian was 15 or 16, his father asked him if Johnson had ever done anything to him. Christian broke down in tears but said nothing. His mother died when he was 17 and he moved in with Chris.
In 2014 an investigator in the Alameda County Special Victims Unit contacted Christian and said his name had been mentioned during an investigation. Christian immediately suspected the investigation was about Johnson and he answered the investigator's questions.
Christian acknowledged on cross-examination that in 2013 he initiated several Facebook conversations with Johnson and suggested they "hang out" or smoke marijuana together. He also acknowledged that some of his trial testimony was inconsistent with prior statements he had made. For example, Christian had sometimes described the molestations as occurring in the family's kitchen, but other times he said they occurred primarily in the bedroom. He also acknowledged he testified at the preliminary hearing that the abuse started when he was 11 or 12, and he told police it began when he was nine or 10.
Jessica
Jessica is three years older than her brother Christian. Johnson started to molest her when she was in third or fourth grade, after her father moved out of the family home. Johnson would come into her bedroom at night or in the morning and touch her breasts and vagina under her nightgown. Jessica never screamed; she did not know why not.
The abuse escalated over time. When Jessica was in third or fourth grade Johnson would carry her from her bed to the living room, remove her underwear and orally copulate her. Sometimes he lowered his pants, put her on his lap or lay her on top of him, and rocked her back and forth until he ejaculated. Jessica would try to resist by turning away, bundling herself up in the bedcovers, and wearing extra layers of clothing, but her tactics never worked. On other occasions Johnson molested Jessica in a vacant apartment and a storage facility.
When Jessica was in fifth or sixth grade Johnson started forcing her to perform oral sex on him. Once when she was in high school, Johnson ordered her to give him oral sex. Her mother walked through the room while Jessica lay on her bed with defendant hovering over her, his hands on the wall and his erect penis in her mouth. Johnson jumped up and left the room. Robin walked away as though she had seen nothing and never mentioned the incident.
The abuse continued until Jessica was kicked out of the house when she was seventeen or eighteen. She eventually disclosed the abuse to her cousin, but even then did not call the police because she was ashamed and felt "it was too late to say something." In 2016, police contacted Jessica and asked her about Johnson.
Kayana
Jessica and Christian's cousin Kayana was 18 years old at the time of trial. Kayana was 11 or 12 when Robin, her aunt, died. After the funeral, she and her family attended a family gathering at Robin's house.
As Kayana climbed the stairs from the backyard to the house she felt something touch her buttocks and turned around to see Johnson behind her, smirking. A month later she and her family returned to the house for a birthday party. Kayana was playing piano when Johnson entered the room and pulled her onto his lap. She could feel his penis against her through their clothing. Johnson held her there until he heard someone coming.
The family spent that night at Robin's house. Kayana was going to sleep on the living room couch when defendant came in and asked if she wanted to watch a DVD in his room. She agreed, but when she saw the DVD was pornographic she became frightened and returned to the living room. Johnson followed her, started touching and kissing her, stood in front of her and put his penis in her mouth Kayana told him she did not like it and tried to resist, but his hand was on her head. Then Johnson removed her underwear performed oral sex on her and tried unsuccessfully to penetrate her with his penis. Afterward he told Kayana not to tell anyone what had happened. She was scared and "felt like something was going to happen to [her]" if she told, so she did not tell her mother what Johnson had done.
Johnson later offered to buy Kayana an expensive pair of shoes for her birthday. He never gave her the shoes, and Kayana felt disappointed.
When Kayana was a freshman or sophomore in high school her friends persuaded her to tell her mother, Tara, about the abuse. Tara took Kayana to see Dr. Ansolabehere, where Kayana disclosed the full details of the abuse. Dr. Ansolabehere said there was nothing she could do medically to determine whether Kayana had been raped, but she informed Kayana and Tara that she was obligated to report the abuse to the police.
Kayana was seeing a therapist around the time she disclosed the abuse to her mother, but she never discussed the abuse in therapy. She testified that "I knew [the therapist] was going to report it, and, like I said, I wasn't ready to tell yet. I was scared. And basically I was only going to therapy for grieving of my auntie [Robin]."
Other Witnesses
Tara and Dr. Ansolabehere testified consistently with Kayana's testimony. Oakland Police Officer Alonzo Weatherly testified about his investigation of Johnson's actions. As described in the discussion section, post, Dr. Blake Carmichael testified as an expert on constellation of behaviors known as Child Sexual Abuse Accommodation Syndrome, or CSAAS.
The jury convicted Johnson as charged of 12 sexual offenses against the three victims, with multiple victim enhancements. Johnson was sentenced to 45 years to life in prison, consecutive to a term of 21 years and four months. This timely appeal followed.
DISCUSSION
I. Expert Testimony
Johnson contends the admission of expert testimony on the Child Sexual Abuse Accommodation Syndrome (CSAAS) violated his constitutional fair trial and due process rights because CSAAS has not gained the necessary level of acceptance in the relevant scientific community to qualify for admission under the Kelly-Frye test. Alternatively, he argues, the court committed reversible error when it allowed the expert psychologist to testify to case-specific behaviors. We disagree on both points.
A. Background
The prosecutor moved before trial to introduce Dr. Carmichael's expert testimony to dispel common misconceptions about how children react to sexual abuse. Johnson argued the proposed testimony was inadmissible under Kelly-Frye and Evidence Code section 352.
The trial court ruled that Dr. Carmichael would be permitted to testify that "there are things about the behavior of the alleged victims in the aftermath of the alleged events that are not inconsistent with having been the victim of child molestation—what the case law refers to as disabusing the jurors of certain myths or preconceived notions about how the victim of such a crime should react or would be expected to react or act." However, "the testimony cannot be used in a way to suggest that the expert is opining on the credibility of the victims - alleged victims - or in any way testifying to the jury that the alleged victims have been or are more likely to have been the subject of child molestation."
Dr. Carmichael's anticipated testimony was addressed briefly by defense counsel in her opening statement. She said that "[instead] of corroboration of these events, the prosecutor will present an expert. And the expert will tell you very little, if anything, about this case. His claims are not scientific and are pretty obvious. He doesn't know the people in the story he doesn't know [sic] about the case. He is merely here to dispel possible myths about sexual assault[.] [F]or example[,] just because someone doesn't come to court right away doesn't mean they were not molested. These types of myths may or may not exist in 2019. What he is not here to tell you is anything about this case and the truth of these allegations."
Before Dr. Carmichael testified, the trial court ruled over the prosecutor's objection that he could not refer to CSAAS by name or acronym or identify it as a "syndrome." The court reiterated its ruling that Dr. Carmichael could testify that certain behaviors are not inconsistent with sexual molestation, but not that such behaviors are consistent with or predictive of molestation. It explained, "what the courts are worried about with this CSAAS is the idea of it being used as a predictive tool by the trier of fact. If we get away from that whole idea, which is what I want to do and why I don't want to use a name, call it a syndrome and suggest to the jury that there's some constellation of behaviors that they can match this case against and therefore determine whether or not there's been a molestation, I want to get away from that. And if we do get away from that in our minds and just treat this witness just like any other expert who's here to tell us based upon their experience in the field whether they have some opinions about certain things, just like an expert on possession for narcotics for sale does."
Dr. Carmichael testified that it is not uncommon for children who are molested by a trusted adult to keep the abuse secret. Children often feel helpless to make the abuse stop and that other adults will disbelieve them or be angry if they disclose it. Nor is it uncommon for children to "accommodate" to the ongoing abuse in various ways in order to "tolerat[e] what's happening, zone out and not think about it, do lots of things to keep the abuse at bay." For example, they may put on extra layers of clothing, shut their bedroom door, or change their routes or schedules to ward off the abuser. They may "escape mentally and kind of check out and so we call that disassociation, or numbing. . . . [T]hey try to ignore what's happening by thinking about something different, or staring off into space, or doing those kinds of things to avoid and ignore what's happening to them when they know they can't kick and scream and get their way out." It is not at all unusual for molested children to continue to maintain otherwise normal and affectionate relationships with their abusers.
Dr. Carmichael explained that it was not uncommon for children to delay disclosing the abuse and give inconsistent accounts when they do disclose it. Children may be unable to remember everything that happened and may selectively disclose certain things to different people, especially when they have been abused multiple times.
Dr. Carmichael testified he did not know the facts of this case and had not met the victims. He was not there to provide an opinion as to whether any of the complaining witnesses had in fact been sexually abused. On cross-examination, defense counsel asked whether the presence of helplessness or accommodation can be used to determine whether an allegation of child abuse was in fact true. Dr. Carmichael responded that "there's no tools, there's no diagnosis. . . . there's nothing like that that can be done to do that in particular."
Immediately after Dr. Carmichael's testimony, the court admonished the jury that "[i]n regard to the doctor's testimony, you heard counsel make it clear that the doctor has never met any of the three alleged victims in this case. The purpose of his being called was not to tell us that he has some opinion about whether these folks were molested or not. That's not the idea. As he's made clear there's no analytic tool he would employ in that regard. And you can imagine if there were such a person, not the doctor, but some other doctor, for instance, who had spoken with any or all of the three alleged victims in this case and had some opinion as to whether or not they had been molested or not based upon these conversations, I wouldn't let that person testify because that's for you to determine based upon your analysis of the testimony."
In his closing argument, the prosecutor reiterated that Dr. Carmichael's testimony had been presented "to dispel certain misconceptions" about child sexual assault victims. The prosecutor went on to discuss aspects of the victims' behavior that were implicated by Dr. Carmichael's testimony. Each of them remained silent for years before disclosing the abuse and, when they did come forward, there were inconsistencies in their descriptions of what occurred. Christian and Jessica experienced a sense of helplessness exacerbated by their mother's failure to intervene after being told of and even witnessing the abuse. Christian tried to protect himself by wearing extra pajamas and "playing opossum." The prosecutor related these behaviors to Dr. Carmichael's testimony that children do things to accommodate to the situation and can maintain relationships with their abusers despite the molestation.
The court instructed the jurors that "Dr. Carmichael's testimony is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not the conduct of the alleged victim here was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony." B. Kelly-Frye
Relying primarily on authorities from other states, Johnson argues the court should have excluded Dr. Carmichael's testimony under Kelly-Frye because it purports to present a new scientific analytic technique that has not gained general acceptance as reliable in the scientific community. In his view, the numerous cases that hold CSAAS evidence is admissible for the limited purpose of dispelling common misconceptions about how children react to abuse are based on misreadings of Supreme Court precedent. Not so.
Under the Kelly-Frye test, when a party offers expert testimony based on a new scientific technique the proponent must establish the reliability of the method by showing the procedure has been generally accepted in the relevant scientific community. (People v. Harlan (1990) 222 Cal.App.3d 439, 448 (Harlan).) "The Kelly standard provides a framework within which courts can analyze the reliability of expert testimony based on new or novel scientific methods or techniques. As we have acknowledged, there is no clear definition of science under this test. [Citation.] Accordingly, the application of that term is guided by resort to the 'narrow "common sense" purpose' behind the rule: 'to protect the jury from techniques which . . . convey a " 'misleading aura of certainty.' " ' [Citation.] The danger of a false aura of certainty is acute where the 'technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury,' such that a lay jury might treat the procedure as 'objective and infallible.' [Citation.] The analysis is designed to address 'scientific evidence or technology that is so foreign to everyday experience as to be unusually difficult for laypersons to evaluate.' [Citation.] [¶] In contrast, when an expert's methods are based on everyday processes of observation and analysis, we trust jurors to 'rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them.' " (People v. Lucas (2014) 60 Cal.4th 153, 223-224, footnote omitted, disapproved on another point in People v. Romero (2015) 62 Cal.4th 1, 53 fn. 19.)
Over the past 30 years California courts have widely held that expert testimony about CSAAS is not subject to Kelly-Frye analysis when it is not offered as proof that a molestation occurred but is instead offered to rehabilitate a child's credibility when the defense suggests the child's conduct after the incident is inconsistent with having been abused. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 & fn. 4 (McAlpin) [citing collected cases]; People v. Gray (1986) 187 Cal.App.3d 213, 219-220 (Gray); Harlan, supra, 222 Cal.3d at pp. 448-449; People v. Wells (2004) 118 Cal.App.4th 179 (Wells).) Thus, as we observed in Wells, supra,118 Cal.App.4th at p. 188, CSAAS testimony is admissible " 'for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation' " and "must be tailored to address the specific myth or misconception suggested by the evidence."
Gray, supra, 187 Cal.App.3d 213, is instructive. The child victim admitted at trial that she had not revealed all of the details of some molestations when she disclosed two incidents to her father and stepmother. (Id. at pp. 216-218.) An expert on CSAAS testified that it is not unusual for sexually abused children to make delayed or inconsistent reports about the molestation. (Id. at p. 218.) The court of appeal held admissibility of the CSAAS testimony was not subject to the Kelly-Frye test. Drawing and developing on the Supreme Court's discussion of "rape trauma syndrome" evidence in People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe), the court observed that the CSAAS evidence was not introduced to prove the child had been molested, but as " 'bona fide rebuttal, such as testimony based on general literature or experience as to the reluctance of molest victims, as a class, to talk to investigators' [citation] or to discuss the intimate details of the incidents." (Gray, supra, at p. 219.)
Gray emphasizes that there is a material difference between "expert testimony" and "scientific evidence" for purposes of Kelly-Frye: " 'When a witness gives his personal opinion on the stand—even if he qualifies as an expert—the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge that all human beings are fallible. But the opposite may be true when the evidence is produced by a machine: like many laypersons, jurors tend to ascribe an inordinately high degree of certainty to proof derived from an apparently "scientific" mechanism, instrument, or procedure. Yet the aura of infallibility that often surrounds such evidence may well conceal the fact that it remains experimental and tentative.' " (Gray, supra, 187 Cal.App.3d at p. 219-220, quoting People v. McDonald (1984) 37 Cal.3d 351, 372 (McDonald) [holding Kelly-Frye does not apply to expert testimony on eyewitness identification], overruled on another point in People v. Mendoza (2000) 23 Cal.4th 896, 914.)
CSAAS evidence, Gray observes, was more akin to expert testimony informing the jury of certain factors that may affect eyewitness identification—which is not subject to the Kelly-Frye test—than to " 'scientific evidence . . . derived from an apparently "scientific" mechanism, instrument, or procedure." (Gray, supra, 187 Cal.App.3d at pp. 219.) Moreover, "[w]e have never applied the Kelly-Frye rule to expert medical testimony, even when the witness is a psychiatrist and the subject matter is as esoteric as the reconstitution of a past state of mind or the prediction of future dangerousness, or even the diagnosis of an unusual form of mental illness not listed in the diagnostic manual of the American Psychiatric Association.' " (Id. at p. 220.) Applying the Supreme Court's reasoning in McDonald, supra, 37 Cal.3d 351, to the CSAAS testimony before it, the court held that general testimony about traits and characteristics of child victims of molestation as a class does not fall into the category of scientific evidence for purposes of Kelly-Frye when introduced for the limited purpose of rebutting a suggestion that a child's behavior is inconsistent with abuse. (Gray, supra, at p. 220.)
Since Gray, California courts have consistently authorized the admission of CSAAS evidence to disabuse a jury's possible misconceptions about a child's reaction to and reporting of sexual abuse. (See, e.g., Harlan, supra, 222 Cal.App.3d at pp. 448-450; Wells, supra, 118 Cal.App.4th 179, 188-190; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745; People v. Housley (1992) 6 Cal.App.4th 947 (Hously); People v. Sanchez (1989) 208 Cal.App.3d 721, 734-735; cf. People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099-1100 (Roscoe); People v. Bowker (1988) 203 Cal.App.3d 385, 391-394 (Bowker).)
The Supreme Court has also signaled its agreement with the cases allowing expert testimony to describe common reactions to sexual abuse. In McAlpin, supra, 53 Cal.3d 1289, the Court held a police officer could properly testify that it is not unusual for parents to refrain from reporting a known molestation of their child. (Id. at pp. 1300-1301.) The Court noted its recognition in Bledsoe, supra, 36 Cal.3d 236, that expert testimony on rape trauma syndrome, although inadmissible to prove the complaining witness had been raped, is admissible to rehabilitate her when the defense impeaches her by suggesting her post-incident conduct was inconsistent with having been raped. "[I]n such a context expert testimony on rape trauma syndrome may play a particularly 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 p. 247-248.)
In the Court's view, expert testimony on CSAAS provides "[a]n even more direct analogy." (McAlpin, supra, 53 Cal.3d at p. 1300.) "In a series of decisions the Courts of Appeal have extended to this context both the rule and the exception of People v. Bledsoe, supra, 36 Cal.3d 236: i.e., expert 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. [Citations.]' " (McAlpin, supra, 53 Cal.3d at pp. 1300-1301, citing, inter alia, Gray, supra, 187 Cal.App.3d at pp. 217-220; Roscoe, supra, 168 Cal.App.3d at pp. 1097-1100.) Although the case before it concerned the failure of the parent, rather than the child, to report abuse, the Court held the rule developed in the context of CSAAS was equally applicable. (McAlpin, supra, 53 Cal.3d at p. 1301.) More recently, the Court cited McAlpin (and Housley, supra, 6 Cal.App. at pp. 955-956) with approval in People v. Brown (2004) 33 Cal.4th 892, 905-906 when it extended the same principles to expert testimony about the common behaviors of domestic violence victims. We decline to depart from this guidance in favor of a handful of out-of-state authorities and professional articles that criticize the validity of CSAAS evidence.
Johnson's contention that CSAAS evidence is nonetheless subject to and inadmissible under Kelly-Frye when offered to rebut common misconceptions about victim behavior fails in view of the distinctions addressed in McAlpin and Bowker. Nor is his position supported by Bledsoe, supra, 36 Cal.3d 236, as he asserts. Bledsoe held that expert testimony about rape trauma syndrome may not, consistent with Kelly-Frye, be admitted to prove that the victim was in fact raped. (Bledsoe at p. 251.) But it clearly distinguishes between such an improper use of rape trauma syndrome evidence and, as here, its proper admission to counter common misconceptions about victims' reactions to sexual assault. "As a number of decisions have recognized, in [the latter] context expert testimony on rape trauma may play a particularly useful role by disabusing the jury of some widely held misconceptions . . . so that it may evaluate the evidence free of the constraints of popular myths." (Bledsoe at pp. 247-248.) It was only in that latter context that the jury was permitted to use Dr. Carmichael's testimony.
C. "Case-Specific" Testimony
Alternatively, Johnson contends the court should have barred Dr. Carmichael from testifying that for a child to put on extra layers of clothing was " 'not inconsistent' with being molested." He contends this testimony was impermissibly case-specific in view of Jessica's testimony that she would bundle herself in covers and wear extra layers of clothing and Christian's that he slept "wrapped up and closed door and stuff." Here too, we disagree.
The trial court recognized that Dr. Carmichael's anticipated testimony did not specifically serve to counteract a general misconception about how child abuse victims likely behave, but it allowed Dr. Carmichael to testify generally "that that is behavior that is sometimes seen in a child abuse victim." It explained, "the doctor is not disabusing the trier of fact of a myth in that circumstance. The doctor is just saying, oh, in my experience I've seen that. Just like any expert would say" based on his or her experience. The court permitted Dr. Carmichael to testify that such behavior is sometimes seen in child abuse victims, but not that it was "consistent with having been, because that suggests a diagnosis."
This was not error. Dr. Carmichael's testimony was properly limited to his "observations concerning the behavior of abused children as a class." (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1384 (Gilbert).) He made clear that he had not interviewed the victims and had no information about the facts of the case. His testimony about abused children wearing multiple layers of clothing was provided in the context of describing how, rather than disclose it, children not uncommonly "accommodate" their abuse through various adaptive behaviors. And the jury was admonished and instructed by the court and reminded in the prosecutor's argument of the limited purpose for which it could use the expert testimony. "[T]he line between impermissible use of expert testimony to prove the child was abused, and permissible use of such testimony to ' "explain the emotional antecedents of abused children's seemingly self-impeaching behavior . . . ." ' is by no means a bright one" (Gilbert, supra, 5 Cal.App.4th at pp. 1383-1384), but we are satisfied Dr. Carmichael's testimony did not cross that line.
II. CALCRIM No. 1193
The court instructed the jury with CALCRIM No. 1193 as follows: "You have heard testimony from Dr. Blake Carmichael, whom the Court permitted to testify as an expert in child sexual abuse. [¶] Dr. Carmichael's testimony is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not the conduct of the alleged victim here was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony." (Italics added.) Johnson contends the italicized phrase improperly permitted the jurors to use Dr. Carmichael's testimony to determine if the sexual abuse actually happened because "[i]t is not possible to use testimony to evaluate the believability of the witnesses . . . and simultaneously not use the testimony as evidence that [Johnson] committed those offenses."
Assuming the point was not forfeited due to Johnson's failure to object to the instruction at trial, we reject it for the reasons stated in People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504. Citing the same purported inconsistency in the instruction, the defendant in Gonzales argued "it is impossible to use the CSAAS testimony to evaluate the believability of [the child's] testimony without using it as proof that Gonzales committed the charged crimes." (Id. at p. 503.) The court disagreed. "[T]he instruction must be understood in the context of [the expert's] testimony. [The expert] testified that CSAAS is not a tool to help diagnose whether a child has actually been abused. She said that if it is not known whether a child had been abused, CSAAS is not helpful in determining whether a child has, in fact, been abused. The purpose of CSAAS is to understand a child's reactions when they have been abused. [¶] A reasonable juror would understand CALRIM No. 1193 to mean that the jury can use [the expert's] testimony to conclude that [the child'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 child] 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 child'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; accord, People v. Munch (2020) 52 Cal.App.5th 464, 474.)
So too here. The trial court admonished the jury that Dr. Carmichael was not called to opine on whether the victims were molested and that, as an expert, he had "no analytic tool for that." In view of that admonishment and the instruction under CALCRIM No. 1193, no reasonable juror could have believed the CSAAS evidence could be used as direct evidence that Johnson molested the children.
Johnson's argument that it is impossible to use CSAAS testimony to evaluate the believability of the witnesses without also using it as evidence that he committed the charged crimes does not persuade us to the contrary. Evidence that tends to rehabilitate a child's credibility will of course bear indirectly on the defendant's guilt to the extent it "neutralizes the [child]'s apparently self-impeaching behavior" and therefore removes a roadblock to believing the child. (Gonzales, supra, 16 Cal.App.5th at p. 504.) But while jurors may not rely on CSAAS evidence as direct proof that a child has been molested, i.e., "as a predictor of child abuse . . . where a child meets certain criteria" (Bowker, supra, 203 Cal.App.3d 385 at p. 393), they may properly rely on such evidence to determine the child's behavior does not undermine the child's credibility. (Ibid.)
III. Psychiatric Records
Johnson asked this court to review privileged psychiatric records that the trial court reviewed in camera and found, but for one brief excerpt that was disclosed to the defense, to contain nothing relevant to the victim's credibility or the case. The People do not oppose the request. We have reviewed the records and agree with the trial court that they contain no information relevant to Johnson's defense.
IV. Abstract of Judgment
The court orally imposed a concurrent term of 15 years to life for Johnson's conviction on count four, lewd act on a child under 14 against Kayana. The abstract of judgment reflects this term but not that it is to run concurrently to the other terms. The parties agree, correctly, that the abstract should therefore be amended to correctly reflect that the term for count four is concurrent. (People v. Farrell (2002) 28 Cal.4th 381, 384, fn. 2 [oral pronouncement of sentence controls over the abstract of judgment].) "[W]here, as here, the Attorney General identifies an evident discrepancy between the abstract of judgment and the judgment that the reporter's transcript and the trial court's minute order reflect, the appellate court itself should order the trial court to correct the abstract of judgment." (People v. Mitchell (2001) 26 Cal.4th 181, 188.) We do so.
DISPOSITION
The trial court is ordered to correct the abstract of judgment to reflect that the term for count four is concurrent. In all other respects the judgment is affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Fujisaki, J. /s/_________
Jackson, J.