Opinion
G053146
08-11-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL DIAZ PEREZ, Defendant and Appellant.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13NF3108) OPINION Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed and remanded for resentencing. Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
A jury convicted Daniel Diaz Perez (Defendant), as charged by information, of three counts (counts 1, 4, and 5) of committing a lewd and lascivious act upon a child under the age of 14 years in violation of Penal Code section 288, subdivision (a), and two counts (counts 2 and 3) of committing a lewd and lascivious act upon a child 14 or 15 years of age by a person who is at least 10 years older than the child. The jury found true the allegation alleged as to counts 1, 4, and 5 that Defendant committed an offense specified in Penal Code section 667.61, subdivision (c) against more than one victim. The victim in counts 1 and 2 was Defendant's daughter L.D., the victim in count 3 was Defendant's daughter N.D., and the victim in counts 4 and 5 was Defendant's granddaughter, identified in the information as A.S.
The trial court sentenced Defendant to a total of 75 years to life in prison on counts 1, 4, and 5, made consecutive to a term of three years and eight months on counts 2 and 3. A component of the sentence was a sentence on count 1 of 25 years to life in prison which had been imposed pursuant to Penal Code section 667.61, subdivision (j)(2) (Section 667.67(j)(2)).
Defendant challenges the convictions on two grounds. First, he argues the trial court erred by allowing evidence of child sexual abuse accommodation syndrome (CSAAS). Second, he argues the trial court erred by instructing the jury with CALCRIM No. 1193 because it told the jury it could consider CSAAS evidence in assessing the victims' believability. Defendant challenges the 25-years-to-life sentence on count 1 on the ground the underlying charged conduct occurred before the effective date of Section 667.67(j)(2).
We conclude the trial court did not err either by allowing the CSAAS evidence or by instructing the jury with CALCRIM No. 1193. The Attorney General acknowledges, and we agree, that Defendant could not be sentenced on count 1 pursuant to Section 667.67(j)(2). We therefore affirm but vacate the sentence on count 1 and remand for the limited purpose of resentencing.
FACTS
I.
L.D. (Counts 1 and 2)
Defendant was born in 1956. He and his wife had five children together. The oldest child is a boy, R.D., followed in age order by four girls, L.S., N.D., G.D., and L.D. When L.S. was 16 years old, she gave birth to A.O., Defendant's granddaughter. After Defendant and his wife separated, his daughters moved in with him permanently.
Defendant's ex-wife died in October 2010.
L.D. was born in 1997. While L.D. was growing up, she lived in an apartment with Defendant and her sister G.D. When. L.D. was 11 years old, Defendant started kissing her on the mouth. He put his tongue inside her mouth when he kissed her. This occurred nearly every day. Defendant told L.D. this was "normal."
Starting when L.D. was about 12 years old, Defendant would give her sleeping pills for insomnia. When L.D. was about 14 years old, she stopped taking the pills once she noticed that, upon waking, her pajamas were untied or her pants were unbuttoned.
Starting in about December 2011, when L.D. was 14 years old, Defendant began touching her breasts and vagina. Sometimes Defendant had L.D. stand in front of him while he touched her breasts, and at other times he would have her sit on his lap while they were alone in the living room. Sometimes Defendant waited for L.D. to get out of the shower and would touch her breasts over or under the towel wrapped around her. Defendant touched L.D.'s breasts too many times a week for L.D. to count.
Defendant also touched L.D.'s vagina under her pants about 10 times a day, every day. A couple of times, he put his finger inside of her vagina. Sometimes when L.D. asked Defendant for a ride to volleyball practice or asked him for money, he directed her to lie down on the bed so that he could touch her vagina, breasts, or all. L.D. would cry and ask "what are you doing?" but Defendant would tell her "it's okay" and "it's normal." Defendant would adjust the amount of time that L.D. had to let him touch her based on how much money she was asking for. He would ask her to kiss him after the touching, and if she refused, he would call her names, such as "bitch" in Spanish. The incidents of sexual abuse continued on a daily basis until L.D. was 15 or 16 years old.
When L.D. was nine years old, she began sleeping next to Defendant in the same bed. While she was between the ages of 14 and 16 years old, there were a couple of occasions when she awakened to feel Defendant's hand in her underwear touching her vagina. There also were times when L.D. was lying in the bed and felt Defendant guiding her hand over his pants toward his penis. On two occasions, L.D. saw Defendant touching his penis while he was in bed. The first time she saw this, she left the bedroom. The second time L.D. saw this, she ran into N.D.'s bedroom in tears. Defendant told L.D. and N.D. that he was a man and his actions were normal.
L.D. did not tell anyone else about the abuse because she was embarrassed, she was afraid of Defendant, and he threatened her and threatened to kill himself. Whenever G.D. asked L.D. if Defendant was touching her, L.D. would deny it.
On September 8, 2013, Defendant drove L.D. to the store to buy volleyball shorts. While they were in the car, L.D. and Defendant got into an argument about L.D. taking money from G.D. Defendant asked L.D. why she was taking money from G.D. and accused L.D. of stealing for her boyfriend. L.D. admitted she took money from G.D. but did so because she did not want to ask Defendant for money. Defendant said, "it was normal" and if L.D. needed volleyball shorts, "I need to touch you." L.D. said she did not need the shorts, and Defendant drove them back to the apartment. L.D. went into the bathroom. A few minutes later, L.D. emerged from the bathroom, argued with Defendant, and called him a "fucking bitch." N.D. overheard L.D. and asked her why she had said that. L.D. did not say anything at first, but a few minutes later told N.D. for the first time that Defendant had been touching her. When N.D. confronted Defendant, he asked her if she was really going to believe L.D. N.D. replied, "[d]o you forget what you did to me?"
N.D. and L.D. left the apartment on foot. Their sister G.D. picked them up and took them to L.S.'s house, where R.D. met them. At L.S.'s house, N.D. told everyone what had happened. The siblings went back to the apartment and confronted Defendant. He denied doing anything wrong. G.D. called the police.
II.
N.D. (Count 3)
N.D. was born in 1987 and is 10 years older than L.D. N.D. started living with Defendant when she was 13 years old. When N.D. was 14 years old, Defendant would touch her breasts, vagina, legs, and thighs. The touching would happen whenever Defendant and N.D. were alone in the apartment.
When N.D. and her sisters first moved in with Defendant, they lived in a one bedroom apartment with two beds. N.D. shared a bed with G.D., L.D. slept in a smaller second bed, and L.S. slept in the living room. Defendant slept on the floor next to the bed N.D. shared with G.D. Defendant touched N.D. after everyone else was asleep. When N.D. was sleeping at night next to G.D., N.D. would wake up to find Defendant's hand on her vagina as he knelt by the bed. This conduct started when N.D. was 14 years old and happened about three times a week until she was 16 years old. Sometimes N.D. awakened to find her pants were unbuttoned.
If N.D. wanted to go out, buy something, or needed money, Defendant would tell her that she had to "pay" him and that she knew what she had to do. N.D. would put on short shorts. Defendant would kneel in front of her and caress her legs, thighs, and backside. The length of the encounter depended on what N.D. wanted. This would happen more than once a week.
On one occasion when N.D. was showering, she turned around and saw Defendant watching her. Another time, while N.D. was wrapped in a towel and getting ready in the bathroom, she saw Defendant lying on the floor looking up the towel.
N.D. told G.D. that Defendant would touch her at night. G.D. cried. N.D. did not tell anybody else because she was afraid she would be separated from her sisters. When N.D. was over 20 years old, she also told her sister L.S. about "some things," but not everything, that Defendant had done to her.
N.D. was 26 years old at the time she and her siblings confronted Defendant on September 8, 2013.
III.
A.O. (Counts 4 and 5)
A.O. (identified in the information as A.S.) is L.S.'s daughter and Defendant's granddaughter. A.O. was born in 1999. When A.O. was 11 years old, Defendant gave her a quick kiss on the mouth as she was sitting on the couch at Defendant's apartment. He did not use his tongue. When A.O. looked at Defendant, he said, "it's okay, you don't have to tell anybody."
A.O.'s father, Ar.O., saw Defendant kiss A.O. Ar.O. asked A.O. about the incident, but she denied it at first because she did not want Defendant to go to jail. The next day, however, A.O. confirmed to her father that Defendant had kissed her on the mouth. Ar.O. and L.S. kept A.O. away from Defendant for several months, but later allowed A.O. to stay at Defendant's home.
On another occasion, when A.O. was still 11 years old, Defendant took her with him to a nearby drive-through car wash. As Defendant and A.O. sat inside the car as it went through the carwash, Defendant told A.O. to lean forward and said he was going to show her how to kiss. Defendant put his tongue in A.O.'s mouth and told A.O. to put her tongue in his mouth, but she refused.
Once Defendant placed his hand under the leg of A.O.'s sweatpants, ran his hand up her thigh, and almost reached her vagina. A.O. felt uncomfortable, so she got up and went to the bathroom and then to L.D.'s room.
Another time Defendant was seated on the couch watching television while L.D. was in the bedroom, and Defendant told A.O. to come sit on his lap. Defendant moved A.O.'s buttocks on his penis, grabbed A.O.'s hips, and moved them as he moved his own hips. After Defendant tried to move her to another position, A.O. felt uncomfortable and got up saying she needed to use the bathroom. Defendant said nothing to A.O. A.O. was 11 or 12 years old when these incidents occurred.
One day, A.O. saw L.D. crying and asked her if Defendant was "doing that" to L.D. too. L.D. asked A.O. what she meant. A.O. then asked, "is he kissing you too and touching you in places?" L.D. said Defendant was doing that and started crying. A.O. told L.D. they "had to say something," but L.D. said they could not disclose Defendant's conduct because Defendant was their father and grandfather. L.D. was like a sister to A.O., so A.O. listened to her.
A.O. eventually told her parents that Defendant gave her kisses and sat her down on his lap. For a while, L.S. tried to keep A.O. away from Defendant.
IV.
L.S. (Uncharged Conduct)
L.S. is four years older than N.D. and 14 years older than L.D. She was 32 years old when she testified at trial.
When L.S. was 7 or 8 years old, Defendant called L.S. into the living room where he told her that he had to check her to see if she had been molested while on a recent family trip to Mexico. Defendant locked the door to the living room, pulled down L.S.'s pants and touched her bare vagina with his hand. Defendant continued to touch L.S. for a period of time until R.D. knocked on the door. At that point, Defendant directed L.S. to pull up her pants, gave her some money, and told her not to say anything. According to R.D., L.S. appeared upset when she emerged from the living room.
Later, when L.S.'s mother picked up L.S. and R.D. at school, L.S.'s mother asked her if anything had happened. Because Defendant had told L.S. not to say anything, L.S. denied anything had happened. When L.S.'s mother slapped her, L.S. said that Defendant had touched her private part. Mother told L.S. not to say that Defendant had touched her inappropriately, and L.S. retracted her story. When Defendant and the mother periodically separated, she would ask L.S. to say that Defendant had touched her. At times, her mother would tell L.S. specifically to say that Defendant touched her breasts and vagina. L.S. ultimately confirmed that Defendant did molest her.
Defendant touched L.S. on other occasions. Sometimes he watched her shower, carried her inappropriately, and sat her on his lap and rubbed her against himself. At times, on those occasions, she felt Defendant's erect penis. Other times Defendant kissed L.S. on the mouth. Once when L.S. was showering, Defendant put his hand inside the shower and grabbed her breast. Another time, L.S. awakened to find her pants pulled down and her underwear pushed over to the side. Defendant told L.S. that if she told anyone what he did, he would get in trouble and go to jail. The sexual abuse lasted until L.S. was 18 or 19 years old.
V.
Police Investigation
After the confrontation on September 8, 2013, G.D. contacted the police. Anaheim Police Officer Kevin Sanchez responded to the call. He first spoke with L.D. alone. She told him that Defendant began touching her sexually when she was 14 years old and that he would not let her go out or buy anything unless she let him touch her. She told Sanchez about Defendant calling her a "slut" and telling her "it was normal." She described the incidents involving Defendant touching her in bed, Defendant walking in on her in the shower, and Defendant masturbating in bed.
Defendant was interviewed by police detectives at the Anaheim police station on September 9, 2013. Defendant acknowledged he understood and then waived his rights under Miranda v. Arizona (1966) 384 U.S. 436. Defendant told the detectives that he believed they were speaking to him because he had gotten into an argument with L.D. about her stealing money from G.D. He told the detectives that after he lectured L.D. about stealing, she became upset and made the sexual abuse allegations. Only after L.D. talked to N.D. did the family accuse him of touching L.D. and tell him to pack his things and go to Mexico.
During the first part of the interview, the detectives confronted Defendant with the allegations made by L.D., N.D., L.S., and A.O. He denied the allegations. When asked whether his DNA would be found anywhere on L.D., Defendant at first said, "no," but then said that his hand might have come into contact with L.D.'s breast one time when she was poking him in the side and he swatted her away. Defendant acknowledged sleeping in the same bed with L.D. up until two years beforehand. He said that L.D. was a "crazy sleeper" and flailed her arms and hit him while she slept, and claimed her hand might have touched his penis on one of those occasions.
Defendant said that N.D. once awakened him from a dead sleep to tell him he was masturbating in bed next to L.D. Defendant told the detectives that might have been the case, but he was not aware of it because he was asleep at the time. After that incident, L.D. slept in the living room.
Later in the interview, the detectives decided to use a ruse. They told Defendant that L.D. had videotaped sexual incidents during which he had touched her. Defendant became quiet and stopped making eye contact. The detectives gave Defendant a five- to ten-minute break, during which he put his head down on the table and placed his hands on his head. When the interview resumed, Defendant told the detectives that L.D. had told him she had intercourse with her boyfriend and was worried because she had redness and a possible infection in her vagina. L.D. did not want to see a doctor, so Defendant examined and placed his finger in L.D.'s vagina. Except for that one instance, Defendant continued to maintain he never touched any of his daughters inappropriately.
VI.
CSAAS Testimony
Dr. Jody Ward testified on the subject of CSAAS. At the time of trial, Dr. Ward had been a clinical forensic psychologist for 16 years. Dr. Ward testified as to the meaning and history of CSAAS: "Child Sexual Abuse Accommodation is a pattern of behaviors that many children exhibit who have been sexually abused. Not all children exhibit all these behaviors, but many do, and it helps us as adults, lay people, or even therapists to understand why children do what they do in response to sexual abuse because many times it can be counter[-]intuitive or not what we would expect. [¶] It was developed in 1983 by Dr. Roland Summit. He was a psychiatrist at what is now known as Harbor U.C.L.A. Medical Center. He had a number of clients who had been sexually abused[;] he said in the hundreds. He noticed this pattern of behaviors that many of them exhibited. He compared his notes with other therapists across the country and people who were dealing in sexual abuse at that time, and out of his studies and discussions with other people came Child Sexual Abuse Accommodation Syndrome."
Dr. Ward testified that CSAAS is not a diagnosis, a mental disease, or disorder but "a pattern of behaviors." Dr. Summit developed CSAAS to "explain the dynamics that go on in a sexually abusive relationship in which the perpetrator is well-known to the victim" because "[t]hese children respond very differently than do children who have been molested by a stranger."
Dr. Ward explained that CSAAS has five components or stages: (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed unconvincing disclosure, and (5) retraction or recantation. Except for secrecy and helplessness, each component is not necessarily present in every case.
The first component, secrecy, refers to the fact that children often do not report sexual abuse right away due to guilt, shame, and the fear of not being believed. The second component, helplessness, refers to the fact that children are reliant on adults and therefore do not have the ability to get out of a sexually abusive relationship by leaving. The third component, entrapment and accommodation, refers to the fact that children cannot leave the abusive relationship, which allows the perpetrator to continue to abuse the child. Abused children thus must learn to cope with the situation and may acquiesce in or go along with the sexual abuse. A child generally is loyal to a sexually abusive parent or parental figure, fears being disbelieved, and fears that disclosure of the abuse may lead to breaking apart the family or disintegrating the foundation upon which the child's life is built. Thus, children tend to make a disclosure of sexual abuse over a period of time and may be tentative and hesitant in their disclosure.
The fourth component, delayed unconvincing disclosure, refers to the fact that research shows two-thirds of sexually abused children do not report the abuse until adulthood. Many never report the abuse. When a child does disclose the abuse, the child might be "tentative and hesitant" and not altogether forthcoming. The abused child might "test the waters" with an indirect disclosure, such as "I don't feel comfortable around so and so," and see if the listener picks up on what the child is saying. In that situation, the child might believe he or she has made a disclosure of sexual abuse, but the person hearing the disclosure did not understand it in that way.
The fifth component, retraction or recantation, can occur when the consequences of disclosure—such as the family breaking apart, family divisions, intrusive interviews and physical examinations, and punishment of the abuser—lead the child to want "to put everything back into the Pandora's box."
Dr. Ward testified that she had not reviewed the police reports in the case and had not spoken with L.D., N.D., A.O., or L.S. She confirmed that her testimony was not directed to whether L.D., N.D., A.O., or L.S. was a victim of sexual abuse.
VII.
Defendant's Testimony
Defendant testified on his own behalf. He denied the allegations and testified he never touched L.D, N.D., L.S., or A.O. in a sexual manner. He testified that his daughters and A.O. "made up" their testimony.
Defendant testified he touched L.D.'s vagina on a single occasion after she complained of vaginal redness and irritation, and only after she had refused his suggestion to see a doctor. He claimed he did not touch L.D. in a sexual way.
Defendant testified that on September 8, 2013 he and L.D. got into an argument about L.D. stealing money from G.D. He believed L.D. stole the money in order to help her then boyfriend. L.D. became angry and left the apartment with N.D. When they returned, Defendant's children accused him of molesting or "bothering" L.D. Defendant testified that he did sleep in the same bed as L.D. until she was about 15 years old and that he gave L.D. money necessary for her expenses and needs.
DISCUSSION
I.
The Trial Court Did Not Err in Allowing Expert
Testimony on the Subject of CSAAS.
A. Background
Defendant argues the trial court erred in allowing Dr. Ward to testify on CSAAS because: (1) CSAAS evidence is inadmissible under the Kelly/Frye rule in that it is based on a new scientific method that has not been accepted as reliable in the relevant scientific community; (2) the CSAAS evidence was unduly prejudicial under Evidence Code section 352; and (3) admission of CSAAS testimony deprived Defendant of a fair trial.
After People v. Kelly (1976) 17 Cal.3d 24, 30 and Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014.
Before trial, the prosecution brought a motion in limine to admit Dr. Ward's testimony. The prosecution argued expert testimony on CSAAS was necessary because none of the victims immediately disclosed the sexual abuse to law enforcement or other authority figures, and a juror might view the late disclosure as discrediting the victims' testimony. Defendant brought a motion in limine arguing CSAAS testimony was barred by the Kelly/Frye rule to show the alleged abuse actually occurred. Defendant requested that if the court permitted the testimony, it be limited to the purpose of showing the reactions of the victims were not inconsistent with having been sexually abused.
At the hearing on the motions in limine, defense counsel acknowledged that she would be impeaching the victims on their failure to immediately report the abuse. In response, the trial court stated, "[t]hat would seem to me to bring this CSAAS concept into the realm of probativeness and highly relevant." The court allowed the CSAAS evidence on condition the prosecution would not solicit personal opinions from Dr. Ward or ask her hypothetical questions. At the close of evidence, the trial court instructed the jury with CALCRIM No. 1193 which told the jurors they may consider the CSAAS evidence only in deciding whether the conduct of L.D., N.D., A.O., and L.S. "was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony." B. The Kelly/Frye Rule Does Not Apply to CSAAS Evidence.
Defendant contends the trial court erred by admitting Dr. Ward's expert testimony because it did not meet the conditions of the Kelly/Frye rule. The decision whether to admit expert testimony is reviewed under the abuse of discretion standard. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299.) Expert opinion may be admitted whenever it would "'assist'" the jury and will be excluded "only when it would add nothing at all to the jury's common fund of information." (Id. at p. 1300.)
The Kelly/Frye rule conditions the admissibility of evidence based on a new scientific method on a showing that the method is generally accepted as reliable in the relevant scientific community. (People v. Shirley (1982) 31 Cal.3d 18, 34.) Reliability of the evidence is established by showing that the method has gained general acceptance in the relevant scientific community. (Kelly, supra, 17 Cal.3d at p. 30.) The Kelly/Frye rule applies only to expert testimony "based, in whole or part, on a technique, process, or theory which is new to science, and, even more so, the law." (People v. Stoll (1989) 49 Cal.3d 1136, 1156.) The Kelly/Frye rule applies only if "the unproven 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. The most obvious examples are machines or procedures which analyze physical data." (Ibid.)
The theory of CSAAS is not new, but dates back at least to 1983 when it was described in Summit, The Child Sexual Abuse Accommodation Syndrome (1983) 7 Internat. J. of Child Abuse & Neglect 177. (See People v. Bowker (1988) 203 Cal.App.3d 385, 389, fn. 3.) Nor does CSAAS testimony purport to provide "definitive truth"; rather CSAAS testimony attempts to disabuse laypersons of misconceptions they might have about the conduct of children who have been sexually abused. As such, CSAAS testimony, if properly limited, is not "scientific evidence" subject to the conditions of the Kelly/Frye rule.
In People v. Harlan (1990) 222 Cal.App.3d 439, 448-450, the Court of Appeal concluded that CSAAS is not scientific evidence subject to the Kelly/Frye rule. The court explained that CSAAS is not based upon a new scientific method but upon clinical experience with child abuse victims and the professional literature which evaluates the reactions of such victims. A line of cases has followed suit in holding that CSAAS evidence is admissible when offered to show that the victim did not act inconsistently with abuse, to dispel common misperceptions about a child's reaction to abuse, or to rebut a defendant's attack on the victim's credibility. (People v. Mateo (2016) 243 Cal.App.4th 1063, 1069; People v. Perez (2010) 182 Cal.App.4th 231, 245; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino); People v. Housley (1992) 6 Cal.App.4th 947, 956; People v. Bowker, supra, 203 Cal.App.3d at pp. 393-394; People v. Gray (1986) 187 Cal.App.3d 213, 218-220.) "Although inadmissible to prove that a molestation occurred, CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation." (Patino, supra, 26 Cal.App.4th at p. 1744.)
In People v. McAlpin, supra, 53 Cal.3d 1289, the California Supreme Court addressed whether an expert witness could testify that it was not unusual for a parent to refrain from reporting a known molestation of his or her child. In concluding the testimony was admissible, the court found a direct analogy to expert testimony on common stress reactions of children who have been sexually abused. (Id. at p. 1300.) The court cited with approval and described as "rules" the proposition that such testimony, though inadmissible to prove that the victim had in fact been sexually abused, was admissible to rehabilitate the victim's credibility when the defendant suggests a delay in reporting the abuse is inconsistent with the victim's testimony. (Ibid.)
The trial court in this case limited the use of the CSAAS testimony to its admissible purpose. The CSAAS testimony therefore was not scientific evidence subject to the conditions of the Kelly/Frye rule. C. The CSAAS Testimony Was Not Made Inadmissible by Evidence Code Section 352 .
Defendant argues the CSAAS testimony was unduly prejudicial under Evidence Code section 352 and therefore was inadmissible. Evidence Code section 352 allows for the exclusion of evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." A trial court's decision to admit or exclude evidence pursuant to Evidence Code section 352 is reviewed for abuse of discretion. (People v. Thomas (2011) 51 Cal.4th 449, 485.)
The trial court did not abuse its discretion. Dr. Ward's testimony was relevant to disabuse the jurors of misconceptions they might have had about children who are sexual abuse victims, to show that L.D., N.D., L.S., and A.O. did not act inconsistently with abuse, and to rebut Defendant's attack on their credibility. All victims had displayed at least three categories of CSAAS—secrecy, helplessness, and entrapment and accommodation. N.D. also displayed the fourth (delayed unconvincing disclosure), and L.S. also displayed the fifth (retraction or recantation).
The defense sought to exploit each of these characteristics. At the outset of trial, defense counsel confirmed she would be impeaching the victims based on their failure to immediately report the abuse. (See Patino, supra, 26 Cal.App.4th at p. 1744 ["It is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior"].) The defense theory was the victims had lied about being sexually abused by Defendant because their mother encouraged the lies and had taught them "this narrative of abuse" or because L.D. was angry at Defendant for accusing her of stealing money from G.D. Defense counsel argued in closing that proof the victims had lied was the fact they never talked amongst themselves about the alleged abuse or sought to protect each other. Defense counsel also argued that L.D. lied about Defendant giving her sleeping pills because she never disclosed that claim and did not initially tell Officer Sanchez about Defendant kissing and touching her when she was 11 years old.
Thus, Dr. Ward's testimony about CSAAS was highly probative of the issues at trial. Whatever prejudice that testimony might have caused was not undue and certainly did not outweigh, much less substantially outweigh, the testimony's probative value. D. Admission of CSAAS Evidence Did Not Violate Defendant's Due Process Rights.
Defendant contends the admission of the CSAAS testimony violated his right to a fair trial guaranteed by the Fourteenth Amendment to the United States Constitution. He argues he was deprived of a fair trial because the CSAAS evidence was unreliable and therefore irrelevant. We conclude admission of the CSAAS testimony did not violate Defendant's right to due process.
"[I]ntroduction of CSAAS testimony does not by itself deny appellant due process." (Patino, supra, 26 Cal.App.4th at p. 1747.) In Estelle v. McGuire (1991) 502 U.S. 62, 70, the United States Supreme Court held that admission of evidence of battered child syndrome did not violate the defendant's due process rights because the evidence was relevant. We have concluded the CSAAS evidence was not unreliable and was highly relevant here.
Defendant also argues the admission of CSAAS testimony was "inflammatory." We disagree. Dr. Ward's testimony did not address any specific acts of abuse, but described in general terms a child's reaction to abuse. Dr. Ward did not address the acts of abuse in this or in any case.
II.
The Trial Court Did Not Err By Instructing the Jury
With CALCRIM No. 1193.
Defendant contends the trial court erred by instructing the jury with CALCRIM No. 1193, modified to read as follows: "You have heard testimony from Dr. Jody Ward regarding child sexual abuse accommodation syndrome. [¶] Dr. Ward's testimony about child sexual 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 [the complaining witnesses'] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony." (Italics added.)
CALCRIM No. 1193 states: "You have heard testimony from <insert name of expert> regarding child sexual abuse accommodation syndrome. [¶] __________'s <insert name of expert> testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her). [¶] You may consider this evidence only in deciding whether or not __________'s <insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony." --------
Defendant argues the language in italics erroneously permitted the jury to consider the CSAAS testimony as supporting the truth of the allegations against him. According to Defendant, "[t]here simply is no difference between relying on CSAAS testimony to evaluate the complaining witnesses' believability, and relying on CSAAS testimony as evidence the crime took place."
CALCRIM No. 1193 correctly states the law, and the trial court did not err in giving it. In People v. McAlpin, supra, 53 Cal.3d at page 1300, the California Supreme Court stated the CSAAS evidence is admissible to rehabilitate the credibility of a child abuse victim when the defendant suggests the victim's conduct after the abuse is inconsistent with the child's testimony. While it is true that evaluating an alleged molestation victim's "believability" may ultimately assist the jury in determining whether to credit the victim's testimony that the molestations occurred, the same may be said of any evidence that is admitted solely on the issue of a witness's credibility. As CSAAS evidence may properly be used to determine whether the conduct of child abuse victim was inconsistent with that of a person who has been molested, it could properly be used to evaluate a victim's credibility.
III.
Sentence on Count 1 Must Be Vacated.
Defendant argues, and the Attorney General agrees, that the 25-years-to-life sentence on count 1 must be vacated and reduced to 15-years-to-life. The trial court sentenced Defendant to a total of 75 years to life in prison based on three consecutive 25-years-to-life sentences on counts 1, 4, and 5 for convictions under Penal Code section 288, subdivision (a). All of these convictions included a finding by the jury under Penal Code section 667.61, subdivision (e)(4) that Defendant committed the crimes against multiple victims.
Defendant was sentenced on count 1 under Section 667.61(j)(2), which provides: "Any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life." Subdivision (j)(2) was added to section 667.61 on September 9, 2010. (Stats. 2010, ch. 219, § 16.) Before the effective date of the amendment, the maximum punishment for the offense was 15 years to life. (Former § 667.61, subd. (b).)
The victim in count 1 was L.D., who was 13 and 1/2 years old when Section 667.61(j)(2) became effective in September 2010. Count 1 of the information alleged that Defendant committed a lewd act upon L.D. between March 7, 2008 and March 6, 2011. The Attorney General concedes, however, the only testimony specific to count 1 was that Defendant started kissing L.D. and placing his tongue in her mouth when she was 11 years old, that is, before the effective date of Section 667.61(j)(2). The evidence leaves reasonable doubt whether the conduct underlying count 1 occurred on or after September 9, 2010, the effective date of Section 667.61(j)(2). The ex post facto clauses of the United States Constitution and the California Constitution prohibit the application of a statute to punish as a crime an act previously committed that was not a crime when done or to inflicts greater punishment than the law in effect when the crime was committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42-43; People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.)
We therefore vacate the sentence on count 1 and remand for resentencing.
DISPOSITION
The sentence on count 1 is vacated and the matter is remanded for the sole purpose of resentencing. In all other respects, the judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.