Opinion
C084833
07-03-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN ROBERT OTERO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NCR98155)
A jury found defendant John Robert Otero guilty of continuous sexual abuse of a child under the age of 14 years (Pen. Code, § 288.5, subd. (a); statutory section references that follow are to the Penal Code unless otherwise set forth) and sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b)). The trial court sentenced defendant to an aggregate term of 27 years to life in prison.
On appeal, defendant contends the trial court prejudicially erred by admitting certain evidence on Child Sexual Abuse Accommodation Syndrome (CSAAS). Anticipating that he may have forfeited this claim, defendant alternatively argues he received ineffective assistance of counsel. Defendant further contends the trial court prejudicially erred by failing to instruct the jury, sua sponte, that simple battery is a lesser included offense of sexual penetration with a child 10 years of age or younger. We affirm the judgment.
FACTS AND PROCEEDINGS
We briefly summarize the facts relevant to the resolution of the claims raised on appeal. Additional background information is discussed post.
Sylvia is the mother of the victims, A. and L. When defendant began dating Sylvia, A. was five years old and L. was three years old. Defendant and Sylvia were together for almost nine years. During that time, they lived together, became engaged, and had three children. At the time of trial, A. was 14 years old and L. was 13 years old.
When L. was seven or eight years old, she had a medical condition involving her vagina. A physician prescribed her cream for the condition and told her not to wear underwear to bed. Defendant usually applied the cream, which was for external use only, by putting it on his fingers and rubbing it on L.'s vagina after she got out of the shower. On one occasion, he put his finger inside L.'s vagina for a few seconds while applying the cream. During the time period when defendant was applying the cream, he would put his hands up the bottom of L.'s shorts at bedtime to see if she was wearing underwear. When he did so, he would "soft touch" L.'s vagina.
Defendant began sexually abusing A. when she was 12 years old. A. explained that defendant would come into her room in the middle of night, massage her back, and then put his fingers inside her vagina. To make him stop, A. would move away from him. According to A. defendant touched her in the same way "[a]lmost every night" for about a year. However, when asked, she estimated that the touching occurred approximately 20 times.
Sylvia caught defendant in A.'s room "quite a few times" in the middle of the night. When she did so, A. would be uncovered and defendant would be standing next to her body. When asked, defendant claimed he was checking on A. and covering her with blankets.
A. disclosed the sexual abuse to her close friend about a year after it began. Shortly thereafter, Sylvia learned about defendant's conduct, including his sexual abuse of L.
Defendant testified on his own behalf. He said that he viewed A. and L. as his own daughters. He explained that he checked on all of his children in the middle of the night, and that when he went into A.'s room, it was to use her laptop, to close her window, or to pull her covers up. He denied ever putting his fingers inside A.'s vagina. He also claimed that he never put his hand near her vagina.
Defendant admitted that he applied cream to the outer area of L.'s vagina about a dozen times. However, he denied that he ever inserted a finger into her vagina.
DISCUSSION
I
CSAAS Evidence
Defendant contends the trial court prejudicially erred in admitting CSAAS evidence that exceeded the limits California courts have placed on the use of such evidence. Specifically, he argues the court should not have allowed expert testimony that false reports by children of sexual abuse are "exceedingly rare," and that most reports of sexual abuse by children are true.
The opinion testimony of an expert witness is admissible if it is: (1) "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact"; and (2) "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Evid. Code, § 801, subd. (a).) " '[T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission. . . . [E]ven if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men [or women] of ordinary education could reach a conclusion as intelligently as the witness." ' [Citation.]" (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300 (McAlpin).)
CSAAS consists of five emotional behaviors that have been observed in children who have experienced sexual abuse: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed disclosure; and (5) retraction. (See People v. Bowker (1988) 203 Cal.App.3d 385, 389 (Bowker).) While CSAAS testimony is inadmissible to prove that a molestation occurred, it is nevertheless admissible to rehabilitate a putative victim's credibility when the defense suggests the child's conduct after the incident--e.g., a delay in reporting--is inconsistent with the claim of abuse. (McAlpin, supra, 53 Cal.3d at p. 1300.) " 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.' " (Id. at p. 1301.) "CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience. [Citation.] The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." (Bowker, at p. 394.)
"Because the 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. . . ." ' [citation], is by no means a bright one, the better practice is to limit the expert's testimony to observations concerning the behavior of abused children as a class and to avoid testimony which recites either the facts of the case at trial or obviously similar facts. [Citations.]" (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383-1384 (Gilbert).) In addition, CSAAS evidence must be tailored to counter "a specific 'myth' or 'misconception' suggested by the evidence." (Bowker, supra, 203 Cal.App.3d at pp. 393-394.) "In the typical criminal case, . . . it is the People's burden to identify the myth or misconception the evidence is designed to rebut." (Id. at p. 394.) However, the People need not expressly state which evidence is inconsistent with a finding of abuse. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino).) "It is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation." (Ibid.) Admission of CSAAS evidence "is not error merely because it was introduced as part of the prosecution's case-in-chief rather than in rebuttal. The testimony is pertinent and admissible if an issue has been raised as to the victim's credibility." (Id. at p. 1745.)
"[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.' " (McAlpin, supra, 53 Cal.3d at p. 1299.)
Prior to trial, the People filed a motion in limine requesting permission to introduce CSAAS evidence. The People argued that, because the defense would likely attack the credibility of the victims, expert testimony on CSAAS was relevant and admissible to rehabilitate the victims' credibility by disabusing jurors of the following commonly held myths and misconceptions about how child molestation victims react: "1) since the victims did not disclose the molests immediately, some of the described molests did not occur or they are less believable, 2) since the victim[s] did not appear frightened, upset, or traumatized by the defendant's conduct, some of the molests did not occur, 3) since the victim[s] continued to socialize with defendant around the house despite being touched, some (if not all) of the described molests did not occur, 4) since the victim[s] do not know specifics regarding dates and times of the molests, some of the molests did not occur, 5) the victim[s] should have been able to do something to protect [themselves] from being molested, and 6) since the victim[s] gradually disclosed the abuse and did not come out with each and every detail to the first adult(s), some of the molestations did not occur or are exaggerated." In support of the motion, the People represented that its expert would not testify that defendant "fits a profile" or that his conduct is consistent with a molester. In addition, the People represented that its expert would not vouch for the credibility of the victims, opine that they suffer from a syndrome that would infer the truth of their allegations, or opine that they were actually molested. Instead, the People stated that their expert would testify about the behavior of child abuse victims as a class and explain why victims of such abuse would act in a counterintuitive way, such as delay in reporting the abuse. The People noted that their expert did not interview the victims and did not review any evidence in this case.
Defendant also filed a motion in limine regarding CSAAS evidence. He requested an order excluding or limiting the introduction of CSAAS evidence and "similar theoretical constructs." Specifically, he requested the court exclude all CSAAS evidence because only one component of CSAAS has any scientific support--delayed reporting--and jurors already know that delayed reporting "may be a phenomenon of child molest allegations." Alternatively, defendant requested the People "not be allowed to introduce the equivalent of a profile of a child molester or victim of a molestation under the subterfuge of dispelling numerous myths about child molesters or victims of molest." He also requested that the People be required to specify the alleged myths that their expert intended to testify about, and that the trial court narrowly limit the evidence regarding the specified myths to those myths that are commonly held about child sexual abuse.
At the hearing on the motions, the trial court granted defendant's motion to the extent it sought exclusion of CSAAS evidence that was "the equivalent of a profile of a child molester or victim of a molestation." Before the court addressed the People's motion, defense counsel objected to the introduction of any CSAAS evidence on the ground that such evidence is based on "junk science." Defense counsel argued that no expert is needed because the myths the People were seeking to dispel are not actually myths. The court overruled the objection and indicated that it would allow the People to introduce CSAAS evidence. In so ruling, the court explained that case law required it to allow a qualified CSAAS expert to testify in general terms about CSAAS. The court, however, noted that the People's CSAAS expert was prohibited from giving an opinion as to whether the victims in this case had been molested, and from suggesting there is a syndrome that predicts when molestation has occurred. The court also noted that it would not allow the prosecutor to give a hypothetical tracking the facts of this case and then ask the expert to give an opinion as to whether a molestation occurred.
After the prosecutor indicated that he intended to elicit testimony from his CSAAS expert on the six myths identified in his motion, the court found that the myths identified by the prosecutor "fit the profile of the myths that the case law [allows]" a CSAAS expert to testify about. The court, however, granted defendant's request that any CSAAS testimony regarding these myths must be "narrowly limited." The court noted that defense counsel could revisit the issue of whether testimony on certain myths was appropriate before the People's CSAAS expert testified.
At a subsequent pretrial hearing before a different judge (i.e., the trial judge), the prosecutor advised the court that he intended to introduce general CSAAS expert testimony on the myths identified in his motion that may affect the credibility of the complaining witnesses. When asked, the prosecutor indicated that he believed that expert testimony regarding each of the myths would be appropriate. The court stated that it intended to admit the evidence so long as the testimony was generic and not case specific. The court, however, noted that it might restrict the testimony on relevance grounds based on the trial testimony.
During the pretrial hearings on the in limine motions, neither party mentioned the admissibility or exclusion of testimony relating to false allegations of sexual abuse by children in general. As such, the trial court did not specifically rule on the admissibility of this evidence.
At trial, Dr. Blake Carmichael, a psychologist, testified as a prosecution expert on CSAAS. He testified that the term CSAAS had been coined by a psychiatrist, Dr. Roland Summit, who published an article in the early 1980's to educate people about the misconceptions commonly held about sexually abused children, including the misconception that children are typically abused by a stranger. He explained that CSAAS evidence is meant to educate people about the behavior of sexually abused children; it is not a diagnostic tool meant to predict whether or not a child was sexually abused. He specifically stated that using CSAAS evidence to determine whether a child had been abused would be improper. He also stated that he was not familiar with the facts or the people involved in this case.
Dr. Carmichael explained that CSAAS has five components: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed and unconvincing disclosure, and (5) recanting or retraction. After Dr. Carmichael testified about these components and discussed the concept of "child suggestibility," the prosecutor asked him whether he was familiar with the literature regarding false allegations of child sexual abuse. When Dr. Carmichael indicated that he was familiar with such literature, the prosecutor asked him to describe what the literature says. Dr. Carmichael responded, in relevant part, as follows: "So if you . . . look at kids who are making . . . disclosures of being sexually abused, the kid false rates are between zero and two and a half percent are being found to be false. So it is rare for kids to lie about having been sexually abused. And . . . those are documented cases where [sexual abuse] has been found to be true. [¶] And so the numbers are very low for . . . child-initiated false allegations."
On cross-examination, Dr. Carmichael stated that the child false allegation rates he discussed on direct examination were based on multiple studies. On redirect examination, the prosecutor asked Dr. Carmichael whether it is "generally true in the literature that children just don't make false allegations" of sexual abuse. In response, Dr. Carmichael stated, "It's generally true [that] it is exceedingly rare for a child to make that allegation . . . ." He explained that children are very reluctant to disclose sexual abuse, and that children who have been sexually abused are much more likely to be reluctant to disclose the abuse than to make false allegations of abuse.
When the prosecutor cross-examined defendant's CSAAS expert, Dr. William O'Donohue, he asked about an article Dr. O'Donohue wrote entitled, "Children's Allegations of Sexual Abuse: A Model for Forensic Assessment." The expert admitted that the article concluded that most allegations of child abuse made by children are true.
As an initial matter, we agree with the People that defendant's claim of evidentiary error has been forfeited. Trial counsel did not object to the testimony defendant challenges on appeal. (People v. Dykes (2009) 46 Cal.4th 731, 756 ["numerous decisions by this court have established the general rule that trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal"].)
Contrary to defendant's contention, his motion in limine concerning CSAAS evidence did not preserve his evidentiary claim. "[A] motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context. When such a motion is made and denied, the issue is preserved for appeal. On the other hand, if a motion in limine does not satisfy each of these requirements, a proper objection satisfying Evidence Code section 353 must be made to preserve the evidentiary issue for appeal." (People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
Here, as noted above, defendant's motion in limine sought an order excluding or limiting the presentation of CSAAS evidence. The testimony he now challenges had nothing to do with CSAAS. (See Gilbert, supra, 5 Cal.App.4th at p. 1386 [expert's testimony that children are more credible than adults in reporting sexual abuse did not fall within scope of rules that apply to CSAAS evidence].) Evidence on the syndrome addresses a child's common reactions to sexual abuse, and is admissible to disabuse jurors of any myths or misconceptions he or she might have regarding those reactions. (Patino, supra, 26 Cal.App.4th at p. 1744; People v. Housley (1992) 6 Cal.App.4th 947, 955.) The expert testimony regarding false allegations of child abuse was not offered to explain a reaction that might appear inconsistent with abuse that actually occurred but rather addressed the likelihood that a claim of abuse was true.
Accordingly, because defendant's motion in limine was not directed at the particular evidence he now claims was improperly admitted, the motion did not preserve the evidentiary issue for appeal.
Defendant's alternative argument that he received ineffective assistance of counsel lacks merit. He argues that trial counsel should have objected to the challenged testimony on the grounds that it exceeded the scope of permissible CSAAS evidence and the bounds of the trial court's pretrial evidentiary rulings. He further argues that trial counsel should have objected to the testimony on the ground that the evidence was inadmissible under Evidence Code section 352, and because the prosecutor engaged in misconduct by eliciting testimony outside the scope of what he represented his expert would testify to.
A defendant who contends he received ineffective assistance of counsel at trial must establish both that his counsel's performance was deficient when measured against the standard of a reasonably competent professional and that in the absence of his counsel's failings, a more favorable outcome was reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) "[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance." (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) "An attorney may well have a reasonable tactical reason for declining to object, and ' "[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation." ' " (People v. Seumanu (2015) 61 Cal.4th 1293, 1312-1313.)
On the record before us, we conclude defendant has failed to demonstrate ineffective assistance of counsel. Defendant has not shown that trial counsel did not have a rational tactical purpose for not objecting to the challenged testimony. Here, we discern several possible reasons why trial counsel may have decided not to object to the expert testimony regarding false allegations of child abuse. First, defense counsel could have reasonably concluded that the challenged testimony was not CSAAS evidence and therefore did not run afoul of the trial court's pretrial evidentiary rulings. Second, defense counsel could have reasonably concluded that the testimony was relevant to the victims' credibility, constituted proper expert testimony, and was not unduly prejudicial under Evidence Code section 352. The record shows that the limited testimony on this issue was within the scope of each expert's expertise on child sexual abuse. The challenged testimony was based on research on false allegations of sexual abuse made by children. Third, defense counsel could have reasonably concluded that the testimony supported defendant's theory of the case, as the evidence lent support to the argument that the victims were not telling the truth. Neither expert testified that children never lie about sexual abuse. Instead, Dr. Carmichael testified that that false allegations by children are "exceedingly rare," while Dr. O'Donohue testified that most allegations of sexual abuse by children are true. Contrary to defendant's contention, this testimony did not vouch for the victims' credibility. The testimony related to false allegations by children in general. Neither expert expressed an opinion about whether the victims in this case were telling the truth or had been sexually abused.
Under the circumstances, we cannot conclude defense counsel's decision not to object to the evidence fell below an objective standard of reasonableness under prevailing professional norms.
II
Alleged Instructional Error
Defendant contends the trial court prejudicially erred in failing to instruct the jury, sua sponte, that simple battery is a lesser included offense of sexual penetration with a child 10 years of age or younger.
"A trial court has a sua sponte duty to 'instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser.' [Citation.] Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. [Citation.] 'The rule's purpose is . . . to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence.' [Citation.] In light of this purpose, the court need instruct the jury on a lesser included offense only '[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of' the lesser offense. [Citation.]" (People v. Shockley (2013) 58 Cal.4th 400, 403-404 (Shockley).) Consequently, an instruction on a lesser included offense is not required "when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime." (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.)
"On appeal, we review independently whether the trial court erred in failing to instruct on a lesser included offense." (People v. Booker (2011) 51 Cal.4th 141, 181.) In a noncapital case, failure to instruct on a lesser included offense "does not require reversal 'unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.' [Citations.]" (People v. Wyatt (2012) 55 Cal.4th 694, 698; see also People v. Breverman (1998) 19 Cal.4th 142, 165, 178 [reversal for instructional error requires a showing of prejudice under People v. Watson (1956) 46 Cal.2d 818, 836].)
"To determine if an offense is lesser and necessarily included in another offense for this purpose, we apply either the elements test or the accusatory pleading test. 'Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.' [Citation.]" (Shockley, supra, 58 Cal.4th at p. 404.) Here, because the second amended information charging defendant with sexual penetration of a child 10 years of age or younger simply tracked the language of section 288.7 without providing additional factual allegations, we focus on the statutory elements test. (Shockley, at p. 404, citing People v. Anderson (1975) 15 Cal.3d 806, 809 [where the accusatory pleading is couched in terms of the statutory definition of the greater crime and no additional factual allegations are included therein, the courts necessarily must rely solely upon the statutory definition].)
Sexual penetration with a child 10 years old or younger is defined in section 288.7, subdivision (b). That statute incorporates the definition of "sexual penetration" set forth in section 289. (§ 288.7, subd. (b).) " 'Sexual penetration' is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k)(1).)
Simple battery is defined as "any willful and unlawful use of force or violence upon the person of another." (§ 242.) " 'Any harmful or offensive touching constitutes an unlawful use of force or violence' under this statute. [Citations.] 'It has long been established that "the least touching" may constitute battery. In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave a mark.' [Citations.]" (Shockley, supra, 58 Cal.4th at pp. 404-405.) "Therefore, '[o]nly a slight unprivileged touching is needed to satisfy the force requirement of a criminal battery.' " (People v. Dealba (2015) 242 Cal.App.4th 1142, 1149.) The touching can be done indirectly by causing an object or someone else to touch the person. (Id. at p. 1150; see CALCRIM No. 960.)
We need not decide whether simple battery is a lesser included offense of sexual penetration with a child 10 years old or younger. Even assuming that it is, we find no instructional error. On this record, there was no substantial evidence supporting a jury determination that defendant was in fact guilty of simple battery. The sexual penetration charge was based on defendant inserting his finger into L.'s vagina on one occasion. The defense theory was that defendant never inserted a finger into L.'s vagina. Instead, defendant claimed that he only applied cream to the outer area of L.'s vagina. If the jury believed defendant's testimony that he was merely applying the cream as instructed by L.'s physician, it would have been bound to acquit, as such conduct does not amount to a battery. (See People v. Chenelle (2016) 4 Cal.App.5th 1255, 1265 [touching a child's or dependent adult's penis in the course of normal caretaking does not amount to a battery].)
In any event, any error in failing to instruct on simple battery was harmless. "Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to [the] defendant under other properly given instructions." (People v. Lewis (2001) 25 Cal.4th 610, 646.) Here, the sexual penetration charge presented a clear credibility contest between L. and defendant. L.'s testimony was that defendant inserted his finger into her vagina on one occasion for a few seconds while he was applying cream to her vagina. Defendant, on the other hand, denied ever putting his finger inside her vagina. In finding defendant guilty of the sexual penetration charge, the jury necessarily believed L. Had the jury believed defendant, it would have returned a verdict of not guilty. Under Watson, there is no reasonable probability that defendant would have obtained a more favorable outcome had the trial court instructed the jury on simple battery. We see no possibility that the jury would have found defendant's story more believable had the trial court instructed on that offense.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: MURRAY, J. DUARTE, J.