Opinion
A155039
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL GONZALEZ PELAYO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR318814)
Defendant Miguel Gonzalez Pelayo was convicted of multiple sexual offenses against a child as well as other offenses. On appeal, he challenges the use of CALCRIM No. 1193 on child sexual abuse accommodation syndrome, arguing the instruction given to the jury misstated the law and violated his due process rights. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with 14 counts arising from allegations of sexual abuse of his stepdaughter S.H., physical threats to his wife L.H. (S.H.'s mother), and subsequent misconduct.
The counts were as follows (all further statutory references are to the Penal Code): forcible rape (§ 261, subd. (a)(2); counts 1-2); forcible oral copulation of a person over 14 years (§ 288a, subd. (c)(2)(C); count 3); aggravated sexual assault of a child under 14 years (§ 269, subds. (a)(1), (a)(4); counts 4-7, 9); attempted sexual penetration by foreign object of a person under 18 years (§§ 664, 289, subd. (h); count 8); lewd act upon a child under the age of 14 years (§ 288, subd. (a); count 10); criminal threats (§ 422; count 11); misdemeanor battery (§ 243, subd. (e)(1); count 12); dissuading a witness (§ 136.1, subd. (a)(2); count 13); and misdemeanor disobeying a criminal protective order (§ 166, subd. (c)(1); count 14).
A jury trial began in April 2018. The jury reached a verdict of guilty for all charges except dissuading a witness (count 13), which was dismissed at the request of the prosecution. The trial court imposed a sentence of state prison for 75 years to life, plus a determinate term of 35 years.
Evidence at Trial
L.H.
L.H. met defendant soon after her daughter S.H. was born. L.H. and defendant married in 2001 and have three children together. S.H. called defendant "dad."
S.H. was born in 2000.
L.H. and defendant lived together until defendant was arrested in December 2015.
At the time of trial, L.H. had worked at the same factory since 2006, and her schedule working second shift kept her away from home on weekday afternoons and evenings until 11:30 p.m. or later. In July 2015, L.H. began working the night shift, which meant she left home around 10:30 p.m. and returned in the morning. L.H. also worked on Saturdays about twice a month. Defendant worked in construction, and his work hours were generally 7:00 a.m. to 4:00 or 5:00 p.m., Monday through Friday.
In the period before defendant was arrested in December 2015, L.H. described her marriage as stressful. Defendant was strict with the children and "just real mean." Many of the arguments between defendant and L.H. started over defendant not letting S.H. go out with her friends or talk to boys on the phone.
L.H. testified that defendant did not place the same restrictions on their other children even though S.H. was the best behaved of her four children. R.P., S.H.'s younger half-sister by two years, was allowed to have guy friends, go to school events, and sleep over at friends' houses. Defendant did not allow S.H. to use her phone after 8 or 8:30 at night, but this rule did not apply to R.P., who also had a phone.
But defendant also "spoiled" S.H. more than the other children, giving her money and buying her more expensive clothes.
S.H.
At the time of trial, S.H. was 18 years old and a senior in high school. Defendant lived with her until he was arrested on December 31, 2015.
S.H. and her family lived in a few different places while she was growing up, and she recalled defendant's sexual conduct in relation to where the family was living at the time.
S.H. remembered that defendant first touched her in a sexual way when the family lived in the Parkway Gardens apartment complex and she was five or six years old. Defendant's sexual conduct with S.H. continued until he was arrested in 2015 and occurred over 200 times although S.H. did not remember every incident of abuse.
In the first incident, L.H. was not home, and S.H. went into defendant's room and saw a book on the floor, which seemed to be about sex. Defendant started kissing her on her cheek and neck and had her lie down on the floor. He took off her clothes and licked her vagina. S.H. looked out the window. She didn't remember much of the first incident, but she knew at the time "it wasn't supposed to happen." S.H. felt like she had to obey defendant. Defendant told S.H. if she told anyone what happened, he and L.H. would separate, and she did not want her parents to divorce. S.H. did not tell her mother what happened because she was scared.
S.H. recalled another incident at Parkway Gardens. She was in the kitchen, and defendant came in and tried to make her put his penis in her mouth.
The next place the family lived was a two-bedroom, one-bath house on Utah Street. S.H. was in elementary school. During this time, S.H. stayed with her maternal grandmother, G., during the week and spent Friday night and the weekend at Utah Street with her family. At Utah Street, defendant continued his sexual abuse. Defendant would lick S.H.'s vagina and then he would "[t]ry and put his penis in [her] vagina." This happened more than two times per week. Defendant continued to threaten divorce if S.H. told on him, but his threats also "got deeper," and he would threaten to shoot S.H., her mother, and her grandmother.
During the time the family lived on Utah Street, S.H. told her cousin that defendant was raping her, and he said she was lying.
After Utah Street, the family moved in with G. for a few months. Defendant did not sexually abuse S.H. during this period.
The family next moved to a place on Santa Cruz Drive. At first, S.H. spent some days of the week at G.'s house. Defendant resumed sexually abusing S.H. at the Santa Cruz residence.
A routine developed in which defendant would come out to the living room and "nod his head like to go, like a signal basically" to S.H. Then S.H. would go in the master bedroom and wait for defendant. Defendant told S.H. to say she was going to the bathroom in the master bedroom. Defendant would come in the bedroom, and they would go to the floor on L.H.'s side of the bed. The bedroom door would be locked. S.H. would lie on her back with her head on a pillow. Defendant would take her pants and underwear off. He would wipe her vagina with a tissue from the bathroom and smell the tissue. He would lick her vagina and put his penis in her vagina. Then he would ejaculate into a tissue. While defendant sexually abused her on the floor, S.H. would look at her phone or a tablet so she did not have to see defendant, or she would "just put a pillow on [her] head to cover [her] face" while she cried.
S.H. testified defendant did not put his entire penis past the lips of her vagina, but at least the tip of his penis went in and it hurt. Sometimes he tried to use lubrication; he tried Vaseline, and one time he used a "pink thing" from his nightstand drawer. After defendant would ejaculate, S.H. would wipe herself off and get up. When S.H. was on her period, defendant would use a condom that he would get from his nightstand or his side of the dresser. On the occasions he used a condom, defendant would dispose of it by cutting it up with scissors and flushing it down the toilet.
In a police search of the master bedroom of the Santa Cruz residence, pink packets of lubricant were found in a nightstand dresser.
S.H. testified that, in addition to taking defendant's threats seriously, she was concerned if she told on him, her half-siblings would "grow up without their dad." She also worried about her mother, stating, "I just want them to be happy."
When S.H. was a sophomore in high school, her grandmother G. and G.'s boyfriend moved into the Santa Cruz residence for a few months. They stayed in S.H.'s room, and S.H. shared her half-sister R.P.'s bedroom. During the time G. lived with the family, the sexual abuse ceased.
After G. moved out, defendant imposed a rule that the family (L.H. and the four children) could no longer talk to her. Defendant imposed other rules that applied only to S.H. and not her half-siblings. S.H. thought the rules were unfair and she thought defendant did this "just because he wanted me to himself."
S.H. would cut herself on her arm. She testified she cut herself "[b]ecause [she] was tired of getting raped."
On December 28, 2015, S.H. went to stay at her great aunt Monica's house, about an hour's drive from the Santa Cruz residence. Monica picked S.H. up and on the drive to her house, S.H. told Monica about defendant's rule that she couldn't use her phone at night. Then Monica asked about defendant and asked S.H. if he was molesting her. S.H. started crying and said no. Monica told her that she had been a victim of sexual abuse as a child.
L.H. told S.H. that she, too, had been sexually abused as a child. S.H. testified that some of the details of L.H.'s abuse were similar to what she was going through with defendant.
G. had also told S.H. that she had been sexually abused when she was a child. S.H. thought she was 14 or 15 years old when she first heard about her grandmother's abuse.
On December 30, S.H. thought she was staying at Monica's for another night. But L.H. called S.H. that night and told her defendant said she had to come home. S.H. started crying because she thought defendant wanted her to come home so he could sexually abuse her. S.H. called her best friend and told her what defendant was doing. S.H. and her best friend cried on the phone together. Monica entered the room where S.H. was staying and asked her what was wrong and again asked if defendant was molesting her. S.H. started crying and said yes.
The next day, December 31, S.H. was interviewed by two detectives. During that interview, S.H. said defendant was circumcised when asked.
In cross-examination, S.H. testified she knew the difference between a circumcised and an uncircumcised penis at the time the question was asked. Defendant, in fact, was not circumcised. Also on December 31, S.H. had a medical exam. The SART (sexual assault response team) nurse found no injury to S.H.'s genitalia.
Additional witnesses
S.H.'s half-sister R.P. testified that, during the period G. lived with them and she shared her room with S.H., defendant would look for S.H. at night. Defendant would open R.P.'s bedroom door, look in, and if S.H. wasn't there, he'd shut the door. If S.H. was there, defendant would start an argument. R.P. recalled that S.H. would say she needed to use the bathroom and then would go into the bathroom in the master bedroom. On those occasions, defendant would be in the master bedroom and the bedroom door would be closed. In cross-examination, R.P. testified that S.H. sometimes was allowed to visit friends and relatives and stay overnight.
G. (S.H.'s grandmother and L.H.'s mother) also testified. At some point while she was living with the family at the Santa Cruz residence, G. told L.H. that defendant acted more like S.H. was his girlfriend than his daughter. In cross-examination, G. agreed the Santa Cruz residence was "fairly small" and the walls were "fairly thin."
S.H.'s great-aunt Monica testified she thought it was unusual that defendant paid more attention to S.H. than to his wife at family gatherings and that S.H. was given extravagant gifts at Christmas, her birthday, and other occasions that the other children did not get. On the drive to her house on December 28, 2015, Monica asked S.H. if defendant was molesting her. S.H. was nervous and stuttering and said no. Monica told her if defendant wasn't molesting her, he was grooming her to be molested. On the night of December 30, Monica overheard S.H. on the phone; S.H. was talking about defendant and said "my aunt Monica knows." Monica thought this meant defendant was molesting S.H. Monica asked S.H. how long defendant had been molesting her, and she answered since she was four or five years old.
S.H.'s best friend testified that, in a FaceTime call on December 30, 2015, S.H. told her defendant had been touching her and raped her.
Expert on Child Sexual Abuse Accommodation Syndrome
The prosecution called Dr. Anthony Urquiza as an expert on child sexual abuse accommodation syndrome (CSAAS). He testified CSAAS is "an educational tool" for "therapists treating kids who have been abused" to "educate them about common characteristics of a child who had been sexually abused and to dispel any . . . [mis]perception or myths that those therapists may have held" about how a child sexual abuse victim would act. CSAAS was described in an article from 1983 by Dr. Roland Summit, and Urquiza cited often to the article in his testimony. Urquiza knew nothing about this case or S.H.'s allegations.
Urquiza testified there are five parts to CSAAS: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed and unconvincing disclosure, and (5) retraction or recantation.
With respect to secrecy, Urquiza testified it was a "myth" that "if a child has been abused, if this is such a big significant thing, they're going to tell somebody right away." He testified that abusers use coercive strategies "to keep kids quiet, where kids are told if you tell, then something bad will happen. . . . So kids are afraid, so they don't disclose usually right away about being sexually a bused."
Helplessness addresses the misperception that victims will do something to prevent continuing abuse. The concept of entrapment and accommodation relates in part to how children cope with being abused. Urquiza testified that children disassociate by "disengaging or detaching from the experience of what is happening to them," and agreed that looking out the window or using a phone while being molested could be examples of disassociation. Some victims cut themselves on their arms or legs with a sharp object.
Delayed disclosure relates to the observation that "[m]ost victims don't disclose right away." "[U]nconvincing disclosure" refers to, for example, a victim not giving all the details on initial disclosure. Finally, regarding retraction, Urquiza testified that "[s]ometimes kids retract," which often results from "some type of family pressure put on the child . . . to take back the allegation."
Urquiza testified CSAAS is "not diagnostic. It's not written to make a determination as to whether a particular child was sexually abused or not." Rather, "[i]ts purpose is to educate, talking about the population of kids who have been sexually abused." He agreed with the prosecutor that it would be inappropriate to view an alleged victim and "say you have three out of the five or four out of the five and that means you were or were not abused." He explained Dr. Summit "started with the assumption these are kids who have been abused and then described the pattern of abuse. He did not use it and never had any intention to use it to make that determination about whether abuse occurred or not."
Urquiza testifies for prosecution roughly 95 percent of the time. He said when he testifies on CSAAS, his testimony doesn't change from case to case; it's the same information. In cross-examination, Urquiza explained Dr. Summit's article on CSAAS was not a research article and Summit was not a researcher. Summit was a clinician, and he wrote "a conceptual article" "about his experience with clients." Urquiza agreed that cutting is a behavior most often seen in adolescents, more often with girls than boys, and "[i]t's not specific to sexual abuse."
DISCUSSION
The trial court gave CALCRIM No. 1193 on testimony on CSAAS, as follows: "You have heard testimony from Dr. Anthony Urquiza regarding Child Sexual Abuse Accommodation Syndrome. Dr. Urquiza's testimony about Child Abuse Accommodation Syndrome 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 S. H.'s conduct was not inconsistent with the conduct of someone who has been molested, and evaluating the believability of her testimony."
Defendant contends the jury instruction given misstated the law and violated his due process rights by permitting the jury to use CSAAS evidence diagnostically to determine if S.H.'s molestation allegations were true. Even though defendant concedes he did not object to CALCRIM No. 1193, nor did he request a modified instruction pertaining to Urquiza's testimony, we consider his appellate contention because "the forfeiture rule 'does not apply when . . . the trial court gives an instruction that is an incorrect statement of the law,' " and that is what defendant claims happened here. (People v. Gomez (2018) 6 Cal.5th 243, 312.) On the merits, we conclude defendant's contention fails.
We have recognized, "It is well settled that expert testimony concerning CSAAS only may be used to disabuse the jury of commonly held misconceptions regarding the behavior of abuse victims, and may not be used to corroborate the victim's claims of abuse." (People v. Housley (1992) 6 Cal.App.4th 947, 957 (Housley), citing People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker).)
In Bowker, the court explained, "the jury must be instructed simply and directly that the expert's testimony [on CSAAS] is not intended and should not be used to determine whether the victim's molestation claim is true. The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury. 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, supra, 203 Cal.App.3d at p. 394.)
In Housley, we observed, "A simple instruction similar to that described in Bowker would clearly define the proper use of such evidence and would prevent the jury from accepting the expert testimony as proof of the molestation." (Housley, supra, 6 Cal.App.4th at p. 958.) That occurred here. The jury was correctly told the expert testimony on CSAAS was "not evidence that the defendant committed any of the crimes charged against him," and it could be used "only in deciding whether or not S. H.'s conduct was not inconsistent with the conduct of someone who has been molested, and evaluating the believability of her testimony." (Italics added.)
Defendant acknowledges the jury instruction given correctly told the jury that the expert's testimony could not be used as evidence S.H. was molested, but he argues the final statement, "You may consider this evidence only in deciding whether or not S. H.'s conduct was not inconsistent with the conduct of someone who has been molested, and evaluating the believability of her testimony," eviscerated the limiting effect of that correct statement. We are not convinced. Instead, we agree with the Attorney General that the instruction correctly described the impermissible and permissible uses of CSAAS evidence. "Jurors are routinely instructed to make similarly fine distinctions concerning the purposes for which evidence may be considered, and we ordinarily presume they are able to understand and follow such instructions." (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
In effect, defendant's argument is not merely that CALCRIM No. 1193 misstates the law, but that the law on CSAAS is incorrect. He argues the instruction is incorrect because "[a] juror who uses the CSAAS testimony to evaluate S.H.'s believability as a witness would necessarily be using that same evidence to evaluate whether appellant committed the charged crimes." But there is no question that CSAAS evidence is admissible for the purpose of assessing an alleged victim's credibility (in other words, her believability). (Housley, supra, 6 Cal.App.4th at p. 956 [CSAAS evidence "properly admitted to rehabilitate [the victim's] credibility"]; People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin) [CSAAS evidence "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"].)
Here, defense counsel's cross-examination of S.H. suggested that S.H. made up the accusation against defendant so she could go to Las Vegas for spring break with her best friend. Defense counsel also established that G. was like a "surrogate mother" and that S.H. trusted her. He elicited testimony that S.H. spent more time with her grandmother than with her mother and they had a close relationship, implying that S.H. would have told her about the abuse if it had been going on for so long. CSAAS evidence was admissible for the purpose of rehabilitating S.H.'s credibility when the defense suggested her conduct (not telling her grandmother about the abuse for years) was inconsistent with her testimony describing years of abuse.
Defense counsel made this implication explicit in his closing argument, stating, "what would we expect from a smart, happy, apparently well-adjusted child who is being raped on a regular basis when she gets to that place of safety, when she gets to her grandmother [G.]'s home? Wouldn't the thing that she would tell the person she referred to as mom be what had happened to her?"
Defendant next states the phrase "not inconsistent with" means the same as "consistent with." He then argues, "A juror who uses the CSAAS evidence [to find S.H.'s conduct was consistent with that of an abuse victim] is essentially using it to make a diagnosis: that because S.H.'s conduct shows that she suffered from CSAAS, her claims of sexual abuse must be true." But his argument does not follow from his premise. Evidence that child sexual abuse victims often act in certain ways does not mean that every child who engages in similar acts is a child abuse victim. Moreover, Dr. Urquiza was very clear that CSAAS is "not diagnostic. It's not written to make a determination as to whether a particular child was sexually abused or not." Later in his direct testimony, he elaborated that Dr. Summit's article on CSAAS began "with the assumption these are kids who have been abused" and it was never intended to be used "to make that determination about whether abuse occurred or not."
Defendant also claims CALCRIM No. 1193 is flawed because "it is fundamentally argumentative." He continues, "The instruction expressly permits jurors to uses the CSAAS evidence to determine if the complainant's behavior is consistent with that of a sexual abuse victim. But there is also a contrary inference the jurors may draw from the complainant's delayed reporting, inconsistent disclosure, and retraction: that the complainant is lying. CALCRIM No. 1193 says nothing about this possible inference. Nor does the instruction offer jurors the option of rejecting CSAAS's alternative explanation for the complainant's conduct."
Although S.H. testified that she told her cousin about the abuse and he did not believe her, we are not aware of any instances of retraction, and defendant does not identify any changes in S.H.'s disclosures over time.
Again, we are not convinced. We note the jury was given CALCRIM No. 226, the general instruction on credibility of witnesses, which instructed, among other things, "use your common sense and experience" in deciding whether a witness's testimony is true or accurate and consider how "reasonable" the testimony is. We hope, however, that most jurors have been spared the experience of being sexual abuse victims as children and, lacking that experience, their common sense and experience may lead them to believe it would be reasonable for a child to promptly report such abuse. (Cf. McAlpin, supra, 53 Cal.3d at p. 1302 [observing that "[m]ost jurors, fortunately, have been spared the experience of being the parent of a sexually molested child," and "[l]acking that experience, . . . many jurors would tend to believe that a parent of a molested child . . . would promptly report the crime to the authorities"; expert opinion that "it is not at all unusual for a parent to refrain from reporting a known child molestation" was therefore relevant and admissible to rehabilitate the credibility of the parent witness who did not promptly report abuse].) Since the very purpose of CSAAS evidence is "to disabuse the jury of commonly held misconceptions regarding the behavior of abuse victims" for the purpose of rehabilitating an alleged victim's credibility (Housley, supra, 6 Cal.App.4th at pp. 956-957), we cannot say it was error to give CALCRIM No. 1193 on the ground it is "fundamentally argumentative."
Finally, we are not the first court to consider defendant's argument that CALCRIM No. 1193 improperly allows a jury to use CSAAS testimony as evidence an alleged victim was molested by a defendant. In People v. Gonzales (2017) 16 Cal.App.5th 494, 503 (Gonzales), defendant Gonzales argued "it is impossible to use the CSAAS testimony to evaluate the believability of [alleged victim] L.W.'s testimony without using it as proof that Gonzales committed the charged crimes." Rejecting this argument, the Court of Appeal reasoned CALCRIM No. 1193 "must be understood in the context of [CSAAS expert] Ward's testimony. Ward 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 has 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 CALCRIM No. 1193 to mean that the jury can use Ward's testimony to conclude that L.W.'s behavior does not mean she lied when she said she was abused. The jury also would understand it cannot use Ward's testimony to conclude L.W. 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 Ward's testimony will find both that L.W.'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 pp. 503-504.) The court concluded CALCRIM No. 1193 was proper and did not violate due process. (Id. at p. 504.)
Defendant argues that even if Gonzales was correctly decided, it is distinguishable because the prosecutor in the present case misused the CSAAS testimony. It appears that defendant is relying on portions of the prosecutor's questioning of Urquiza and her closing argument to support a showing of prejudice from the allegedly erroneous jury instruction. But, having found no error in the giving of CALCRIM No. 1193, we decline to address the claim the prosecutor's conduct caused prejudice. (See People v. Hardy (1992) 2 Cal.4th 86, 130-131 ["Finding no error, we decline to address defendants' claim that they suffered prejudice from the [claimed error]"].)
We note defendant does not raise a separate appellate claim of prosecutorial misconduct. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. WE CONCUR: /s/_________
Kline, P.J. /s/_________
Richman, J.