Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD195956 William H. Kennedy, Judge.
NARES, Acting P. J.
In May 2006 a jury found John Gutierrez Rodriguez guilty of nine counts of committing a lewd act on a minor (Pen. Code, § 288, subd. (a); counts 3-11). The jury found true the allegations (1) Rodriguez committed his offenses against more than one victim (§ 667.61, subds. (b)-(c), (e)); and (2) the complaint was filed within one year of being reported to a California law enforcement agency by a person under the age of 18 at the time he was a victim of the alleged crimes (§ 803, subd. (f).)
All further statutory references are to the Penal Code unless otherwise specified.
At the close of the People's case, the court dismissed the first two counts of committing a lewd act upon a child, finding the acts did not constitute "substantial sexual conduct" within the meaning of section 803, subdivision (f).
The court sentenced Rodriguez to a term of 135 years to life in state prison, consisting of consecutive terms of 15 years to life for each count.
On appeal Rodriguez asserts (1) the court could not extend the statute of limitations under section 803, subdivision (f) (hereafter section 803(f)) as (a) there is no substantial evidence that counts 3 through 10, directed at his actions against victim Daniel R., constituted "substantial sexual conduct," and (b) there is no independent corroborating evidence supporting those counts; (2) the court erred in failing to instruct the jury sua sponte that "substantial sexual conduct" does not include masturbation that is not mutual; (3) the court erred in failing to instruct the jury the testimony of an expert witness cannot corroborate the victim's allegations; (4) the court erred in admitting evidence of Rodriguez's prior sexual misconduct; (5) the court erred in excluding evidence of a prosecution witness's 1985 conviction for welfare fraud; and (6) the court erred in allowing a prosecution expert witness to testify concerning the sexual abuse victims' delayed disclosure and sexual offenders' "grooming" of victims. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Charged Crimes
Daniel R. was born in November 1985. His brother, Eduardo R., was born in February 1984. They were raised by their mother, Monica P.
In the summer of 1994, Rodriguez was coaching baseball and invited Daniel and Eduardo to play. Rodriguez befriended Daniel and Eduardo and began picking them up several days a week to play baseball, basketball and football at a park with other boys. Rodriguez also took them out to eat, to his house to watch movies, to baseball games and to church.
Approximately a month after Daniel and Eduardo met Rodriguez, Monica asked Daniel if Rodriguez ever acted inappropriately with him. Because at that time Rodriguez had not yet touched Daniel, he responded negatively. Later that same evening, Daniel went to Rodriguez's house to watch movies. Daniel was alone with Rodriguez, sitting on the couch, when Rodriguez told Daniel to lie on top of him. Daniel did not want to, but was scared, so he did as Rodriguez asked. Daniel lay on his back on Rodriguez's stomach. Rodriguez rubbed Daniel's chest under his shirt and rubbed his erect penis around on Daniel's lower back and buttocks. After this first incident, Rodriguez did the same thing every time Daniel came over to his house to watch a movie, which was about two to three times a week. On some occasions, Rodriguez would have Daniel sit on his lap and then move his penis around on Daniel's buttocks. Sometimes, when Daniel would fall asleep on the couch, he would wake up to find the button and zipper on his pants undone. Rodriguez rubbed Daniel's penis under his underwear on numerous occasions. Rodriguez also forced Daniel to stroke Rodriguez's penis under his clothing on numerous occasions. Daniel thought about telling his mother what Rodriguez was doing, but was afraid to say anything.
Eduardo also went to Rodriguez's house. While at the house, Rodriguez would help Eduardo "stretch" by lying on top of him, with Eduardo on his back reading a newspaper. Eduardo could feel Rodriguez's erect penis on his stomach and between his legs. Rodriguez also "cracked jokes" about their genitals.
Some time in late 1995 or early 1996, Daniel told Eduardo about Rodriguez's inappropriate touching. Daniel told Eduardo he did not want to tell anyone what had happened, and they did not discuss it again. They stopped seeing Rodriguez for about a month, but then began to see him again. Although Daniel did not want to see Rodriguez, he did not want Eduardo to be alone with him. One afternoon in early 1996, after they began seeing Rodriguez again, Rodriguez put his hand on Eduardo's leg and began moving it up towards his groin. Eduardo threw Rodriguez's hand off and yelled at him that he wanted to go home. Eduardo called his aunt to come and pick him up.
In the beginning of April 1996, Monica received some information about Rodriguez that caused her to question Daniel and Eduardo about whether he had ever touched them inappropriately. Although Daniel and Eduardo again denied that Rodriguez had touched them, Monica obtained a restraining order against Rodriguez. Rodriguez obtained a restraining order against Monica and the boys' aunt.
According to Rodriguez's friend, Valerie Pena, Rodriguez continued to try to contact Daniel and Eduardo despite this and would park nearby and watch to see if they came out of their house. According to Pena, Rodriguez became obsessive and depressed about them.
When Daniel was an adult, he moved to Oklahoma. He became depressed and suicidal and was hospitalized after suffering a mental breakdown. After he was released from the hospital he returned to San Diego to report the abuse by Rodriguez. On October 25, 2005, Daniel, Eduardo and Monica went to the police station to report the abuse and were interviewed by officers.
The People presented the testimony of San Diego Police Detective Brooke Lawson, an expert on child abuse, who testified that child molesters often engage in "grooming" behavior in which they gain a position of trust with a family and the trust of a child, in order to lower their inhibitions. They may take on a parental role and provide gifts and meals to the child. Playing games and sports can also be part of grooming behavior.
Detective Lawson also discussed "delayed disclosure" by abuse victims. She explained that it is very common for a child to delay reporting abuse that has gone on over a period of time. The reluctance to report may be because the child does not understand that it is abuse, because of guilt or embarrassment, because of the actions of the offender, or because of threats by the offender.
B. Prior Crimes Evidence
At trial, the People presented two instances of Rodriguez's prior sexual misconduct.
Around 1993, when Fernando H. was 11 or 12 years old, Rodriguez approached him and asked him to play on a baseball team. Rodriguez would take Fernando to his house to watch television, out to eat, to baseball games and to church. Rodriguez bought him baseball cards. While at Rodriguez's house, he would help Fernando "stretch" by having Fernando lie on his back while Rodriguez would lie between his legs and push Fernando's legs back. Fernando felt uncomfortable when they did this "stretching." On one occasion, Fernando could feel Rodriguez's penis on his thigh. On another occasion, Rodriguez showed Fernando his erection. On another occasion, Rodriguez pinned Fernando down by lying on top of him and would not get off of him until Fernando said "uncle." Rodriguez also asked Fernando about the size of his penis. Fernando quit the baseball team and stopped seeing Rodriguez because he was uncomfortable around him. Fernando did not report Rodriguez's actions to the police until he saw a story about this case on the news.
Moises M. met Rodriguez in 2001, when he asked Moises to join his baseball team. Rodriguez became friends with Moises and his family. Rodriguez took him to baseball games, shopping, to the movies and to his house, and bought Moises school supplies.
On the evening of September 5, 2003, after Rodriguez took then 14-year-old Moises shopping, Rodriguez parked his car in a dark area near a park. Rodriguez got out of his car and checked to make sure no one could see in the car. Rodriguez and Moises got into the back seat. Rodriguez orally copulated Moises.
San Diego Police Officer John Cochran was patrolling the area around 10:00 p.m. when he saw Rodriguez's car parked in a dark corner of a parking lot. He approached the car and shined his spotlight at the back window. After a few seconds, Rodriguez rose up from the backseat. Rodriguez was naked, with an erection, and was on top of Moises. Moises was lying face down on the backseat and was also naked. Rodriguez's penis was in the area of Moises's buttocks. Officer Cochran asked Rodriguez how old he was. Rodriguez initially said he was 18, but then admitted he was 40. Rodriguez was arrested and pleaded guilty to committing lewd acts upon a child.
C. Defense Case
Rodriguez testified and denied touching Daniel, Eduardo or Fernando inappropriately. Rodriguez denied touching Moises's body with his penis or orally copulating him. Rodriguez admitted that he might have told the officer who interviewed him that Moises might have touched his penis. However, he said it was not true and he only said that because he was upset. Rodriguez said he only pleaded guilty in that case to avoid the financial and emotional stress of a long trial.
D. Rebuttal
In rebuttal, the People played Rodriguez's 2003 interview in Moises's case for the jury. In the interview, Rodriguez initially denied that anything inappropriate occurred between him and Moises. However, he eventually admitted that Moises grabbed his penis and started stroking it, that he removed Moises pants and his own pants and underwear, and that he then lay down on top of Moises. Rodriguez also admitted that he might have touched Moises's penis with his mouth.
DISCUSSION
I. SUFFICIENT EVIDENCE OF "SUBSTANTIAL SEXUAL CONDUCT"
Rodriguez asserts there is insufficient evidence to extend the statute of limitations under section 803(f) on counts 3 through 10 as to his actions against Daniel because the masturbation was not "mutual" and there was no independent evidence that corroborated Daniel's claims. This contention is unavailing.
A. Background
The People filed this case in January 2006 under section 803(f), which provides for an extension of the 10-year statute of limitations for certain sexual offenses where (1) the crime involved "substantial sexual conduct," excluding "masturbation that is not mutual"; and (2) there is "independent evidence that corroborates the victim's allegation."
At the close of the People's case, defense counsel moved to dismiss the charges, arguing there was insufficient evidence for the jury to make the requisite findings under section 803(f) as there was no evidence of "substantial sexual conduct." The court denied the motion. Defense counsel renewed the motion prior to closing arguments. The court granted the motion on counts 1 and 2, but denied the motion on counts 3 through 10.
B. Standard of Review
When an appellant challenges the sufficiency of the evidence to support a conviction, "we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Jennings (1991) 53 Cal.3d 334, 364.) We " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Davis (1995) 10 Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We draw all reasonable inferences in support of the judgment. (People v. Pensinger (1991) 52 Cal.3d 1210, 1237; People v. Mays (2007) 148 Cal.App.4th 13, 33.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
C. Discussion
The usual limitations period for a violation of section 288, subdivision (a) is six years. (See §§ 288, subd. (a) [lewd act upon a child punishable by prison term of three, six, or eight years]; 800 [prosecution for any crime punishable by imprisonment for eight years or more must be commenced within six years after commission of the offense].) Section 803(f), the extended statute of limitations, provides in part: "Notwithstanding any other limitation of time described in the chapter, a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim of a crime described in Section . . . 288." (§ 803, subd. (f)(1).)
Section 803(f) applies only when two conditions have been met. First, "[t]he crime involved substantial sexual conduct, as described in subdivision (b) of Section 1203.066, excluding masturbation that is not mutual." (§ 803, subd. (f)(2)(B), italics added.) Second, "[t]here is independent evidence that corroborates the victim's allegation." (§ 803, subd. (f)(2)(C), italics added.) "Substantial sexual conduct" under section 1203.066, subdivision (b) means "penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (Italics added.)
1. Mutual masturbation
Rodriguez asserts the extended statute of limitations does not apply because his conduct toward Daniel did not involve "mutual masturbation" as he did not touch Daniel's penis at the same time, or on the same occasion, as Daniel touched his. However, an identical argument was raised and rejected in People v. Lamb (1999) 76 Cal.App.4th 664 (Lamb).There, the Court of Appeal considered the legislative history of section 803(f) and concluded the term "masturbation that is not mutual" did not include reciprocal masturbation by two people. (Lamb, supra, 76 Cal.App.4that pp. 680-681.) Rather, the Legislature wanted to prevent the extended statute of limitations from covering masturbation by the offender of himself in the victim's presence. (Id. at p. 681.) In People v. Terry (2005) 127 Cal.App.4th 750, 771, the Court of Appeal followed the Lamb holding.
We find the reasoning of Lamb persuasive and also hold that masturbation that is not mutual is meant to cover an offender touching him or herself in the victim's presence.
2. Corroborating evidence
In a one-sentence argument, without any citation to the record or legal authority, Rodriguez claims there was no independent corroborating evidence to support the jury's finding there was substantial sexual contact between him and Daniel. We reject this contention.
First, we need not reach the merits of Rodriguez's contention there is no corroborating evidence as he has failed to make any citation to authority or evidence in support of his argument. (Dills v. Redwood Associates, Ltd. (1994) 28 Cal.App.4th 888, 890.)
Moreover, there is substantial, independent evidence corroborating Daniel's allegations. This included the testimony of Daniel's mother and aunt concerning the substantial amount of time Rodriguez spent with Daniel and Eduardo. Eduardo testified that Daniel told him about the inappropriate touching. Eduardo also testified as to Rodriguez's actions towards him. Pena, a friend of Rodriguez's, testified Rodriguez became obsessed and depressed when he could not see Daniel and Eduardo, and he watched them from a parking lot near their house. There was also evidence of the psychological impact of Rodriguez's abuse on Daniel. Finally, evidence of prior sexual misconduct, such as the evidence given by Fernando and Moises, may be used to corroborate a victim's allegations. (People v. Ruiloba (2005) 131 Cal.App.4th 674, 682-683.)
In sum, substantial independent evidence corroborates Daniel's claim of abuse.
II. COURT'S INSTRUCTIONS UNDER SECTION 803 (F)
Rodriguez asserts the court erred in failing to instruct the jury, sua sponte, that "substantial sexual conduct" does not include masturbation that is not mutual and that the expert testimony of Detective Lawson could not be used to corroborate the victim's allegations. These contentions are unavailing.
A. Background
The court instructed the jury on the requirement of "substantial sexual conduct" under section 803(f) as follows: "As to Counts 3 through 10, it is alleged that the criminal complaint in this case was filed pursuant to Penal Code section 803(f)(1) . . . . [¶] In order to prove the truth of this allegation, the People must prove each of the following: [¶] . . . [¶] (3) The crimes involved substantial sexual conduct. [¶] (4) There is independent evidence that corroborates the victim's allegation. . . . [¶] . . . [¶] Substantial sexual conduct is defined as penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, masturbation of the victim by the perpetrator, or masturbation of the perpetrator by the victim. Masturbation may refer either to the stimulation of one's own genitals or the stimulation of another's genitals. [¶] . . . [¶] . . . Corroboration is not required for each element of the offense of lewd or lascivious acts with a child under the age of 14, but only the allegation that sexual abuse occurred. Corroboration is any evidence presented and admitted in this trial. This includes, but is not limited to, uncharged sexual abuse against other victims, a defendant's propensity or disposition to commit sexual offenses, a distinctive plan or scheme, intent, other witness testimony, admissions by the defendant, admitted exhibits or stipulations. Corroboration does not have to be sufficient to support a conviction." (Italics added.)
B. Analysis
A trial court is obligated to instruct the jury on all "general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." (People v. Blair (2005) 36 Cal.4th 686, 744.) "That obligation includes instructions on all of the elements of a charged offense" (People v. Cummings (1993) 4 Cal.4th 1233, 1311); "proper jury instructions regarding the meaning of a weapon use enhancement allegation" (People v. Wims (1995) 10 Cal.4th 293, 303); and instructions defining the terms appearing within the instructions when those terms either "'do[] not have a plain, unambiguous meaning,' ha[ve] a 'particular and restricted meaning' [citation] or ha[ve] a technical meaning peculiar to the law or an area of law." (People v. Roberge (2003) 29 Cal.4th 979, 988.)
To preserve a claim that instructions that are otherwise correct in law were too general or incomplete and thus needed clarification, the defendant must request clarifying instructions in the trial court. (People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
1. Instruction on substantial sexual conduct
Rodriguez's contention that the court was required to sua sponte instruct the jury that substantial sexual conduct did not include masturbation that was not mutual is waived because he did not request any appropriate modifying, amplifying or clarifying instructions.
Moreover, such an instruction was not necessary because the evidence in this case showed only mutual masturbation. Finally, the instruction itself clearly stated that substantial sexual conduct was defined as "masturbation of the victim by the perpetrator, or masturbation of the perpetrator by the victim." Thus, it did not include non-mutual masturbation.
2. Instruction on expert testimony
Section 803, subdivision (f)(3) provides that the independent evidence necessary to corroborate the victim's allegations "does not include the opinions of mental health professionals." Citing this provision, Rodriguez asserts the court erred in failing to instruct the jury that it could not consider the testimony of Detective Lawson as corroborating the victim's allegations.
However, Detective Lawson was not a mental health professional. She testified based upon her training and experience as a law enforcement officer. There was no testimony from any mental health professional in this case. Accordingly, the instruction Rodriguez asserts should have been given was unnecessary in this case.
III. EVIDENCE OF PRIOR SEXUAL MISCONDUCT
A. Background
Prior to trial the People filed a motion in limine seeking to introduce evidence of Rodriguez's prior sexual misconduct. That evidence concerned his actions with regard to Fernando and Moises. The People argued the evidence was admissible to prove intent, a common design or plan, absence of mistake or accident, and motive. The People also argued that the evidence was admissible to show Rodriguez's propensity to commit sexual offenses and that the evidence was highly probative and not unduly prejudicial.
Rodriguez sought to exclude the evidence, asserting that while the evidence was probative given the similarity of the past conduct to the charged offenses, it should be excluded because there was no proximity in time, and it was unduly prejudicial.
The court ruled that the evidence was admissible, finding Rodriguez's actions with Fernando and Moises were not more inflammatory than the charged crimes, the grooming pattern was the same, and the other victims were in the same age group. The court also found the prior incidents were not too remote in time. The court found the probative value of the prior incidents "extremely high" as it provided independent evidence corroborating Daniel and Eduardo's claims.
B. Analysis
Evidence Code section 1101, subdivision (a) prohibits the admission of evidence of the defendant's character or a trait of his character when offered to prove the defendant's conduct on a specified occasion. However, subdivision (b) of Evidence Code section 1101 allows evidence of prior crimes or bad acts to prove facts such as motive, intent, common plan or identity. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.)
Evidence Code section 1108, subdivision (a) provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code s]ection 352." Reviewing the statute's legislative history, the California Supreme Court has explained that "'the Legislature enacted [Evidence Code] section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases.' . . . 'Available legislative history indicates [Evidence Code] section 1108 was intended in sex offense cases to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility. In this regard, [Evidence Code] section 1108 implicitly abrogates prior decisions of this court indicating that "propensity" evidence is per se unduly prejudicial to the defense.'" (People v. Abilez (2007) 41 Cal.4th 472, 502 (Abilez), quoting People v. Falsetta (1999) 21 Cal.4th 903, 911.)
Evidence Code section 352 provides that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"'Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.'" (Abilez, supra, 41 Cal.4th at p. 502, italics omitted.)
While Abilez identifies several considerations, Evidence Code section 352's "weighing process . . . depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial court's exercise of its discretion under [Evidence Code] section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314; see also People v. Mullens (2004) 119 Cal.App.4th 648, 658.) Nothing requires a trial court to consider or apply each of a list of particular factors; we need not go beyond the settled appellate standards for assessing a trial court's decision to admit evidence under Evidence Code section 352. (Jennings, supra, 81 Cal.App.4th at pp. 1314-1315.)
Under these standards, and viewing the evidence in the light most favorable to the trial court's ruling (see, e.g., People v. Carter (2005) 36 Cal.4th 1114, 1148), we cannot conclude the trial court's ruling in admitting Rodriguez's prior offenses was arbitrary, capricious, manifestly absurd, or exceeded the bounds of reason. (People v. Mullens, supra, 119 Cal.App.4th at p. 658.)
The evidence of Rodriguez's past sexual misconduct was highly probative as it provided the corroboration necessary to apply the extended statute of limitations under Penal Code section 803(f). Moreover, although similarity of the prior sexual offenses is not required for them to be admissible under Evidence Code section 1108, because there was substantial similarity between the charged and prior acts, their probative value is substantial. (People v. Soto (1998) 64 Cal.App.4th 966, 984.) In each case, Rodriguez met the victims in a local park, befriended them, coached them in sports, took them places and bought them gifts. The conduct, although not identical, was similar. The prior incidents were not remote in time.
Rodriguez cites People v. Harris (1998) 60 Cal.App.4th 727 for the proposition that the prior acts should have been excluded as being unduly prejudicial. Harris is distinguishable because none of the prior acts here involved extreme violence or severe injuries as did the defendant's prior sexual misconduct in Harris. In Harris, the Court of Appeal held the trial court abused its discretion in admitting an incomplete and distorted version of the defendant's prior act involving brutal sexual mutilation, where the charged acts involved the defendant kissing, fondling and sexually preying upon emotionally and physically vulnerable women─crimes held to be of a "significantly different nature and quality." (Id. at p. 738.) The prior act in Harris also occurred 23 years earlier than the charged acts. (Id. at pp. 732-734.)
Here, by contrast, the prior acts were no more inflammatory than the charged acts. Moreover, they all occurred within a relatively close period of time.
Nor is there any merit to Rodriguez's claim that Evidence Code section 1108 violates his right to due process under the Fourteenth Amendment. This argument was rejected by the California Supreme Court in People v. Falsetta, supra, 21 Cal.4th at pages 913-922. We are bound to follow this precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
IV. EXCLUSION OF PROSECUTION WITNESS'S CRIMINAL CONVICTION
A. Background
Prior to trial, the People filed a motion in limine to exclude witness Pena's prior felony convictions. The convictions were 1985 and 1998 state court convictions for welfare fraud, and a 1998 federal court conviction for making a false document and impersonating an officer. The People argued the 1985 conviction should be excluded as too remote, and the 1998 convictions should be excluded as overly prejudicial. Rodriguez argued the prior convictions were highly probative as to Pena's credibility.
The court ruled that the three 1998 convictions would be admitted, but excluded the 1985 conviction. The court ruled that the 1985 conviction was so remote in time that it had no probative value, making it unduly prejudicial.
B. Analysis
Any prior felony conviction that "necessarily involves moral turpitude" is admissible to impeach a witness's testimony. (People v. Castro (1985) 38 Cal.3d 301, 306.) Moral turpitude is defined as the "'general readiness to do evil.'" (Id. at p. 314, italics omitted.)
"[T]rial courts have broad discretion to admit or exclude prior convictions for impeachment purposes . . . . The discretion is as broad as necessary to deal with the great variety of factual situations in which the issue arises, and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded." (People v. Collins (1986) 42 Cal.3d 378, 389.) "When the witness subject to impeachment is not the defendant, those factors [guiding a determination whether the probative value of the impeachment is outweighed by its prejudicial effect] prominently include whether the conviction (1) reflects on honesty and (2) is near in time. [Citation.]" (People v. Clair (1992) 2 Cal.4th 629, 654.)
In Clair, the California Supreme Court held that the trial court did not abuse its discretion when it precluded the defendant from impeaching a third party witness with a 22-year-old manslaughter conviction because it was remote in time. (People v. Clair, supra, 2 Cal.4th at pp. 654-656 ; see also People v. Von Villas (1992) 11 Cal.App.4th 175, 226- 228 [order precluding impeachment with 20-year-old felony burglary conviction, that was followed by two misdemeanor convictions, on the grounds that the felony conviction was too remote in time was not an abuse of discretion].)
As noted, ante, we review a trial court's ruling under Evidence Code section 352 for an abuse of discretion and will not disturb that ruling on appeal unless the court "'exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.] [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060,1124-1125.)
The court did not abuse its discretion in finding the 1985 conviction was too remote in time to have probative value because it was 21 years old. It also had little probative value because it did not involve a false report of sexual assault. Further, the defense was allowed to impeach Pena with three other more recent fraud related convictions. The court properly exercised its discretion in excluding the 1985 conviction for welfare fraud.
V. EXPERT WITNESS TESTIMONY
Rodriguez asserts his due process and fair trial rights were violated by the court's allowance of the expert testimony of Detective Lawson. This contention is unavailing.
A. Background
Prior to trial, the People filed an in limine motion, seeking to admit the testimony of Detective Lawson regarding delayed reporting of sexual abuse and the concept of "grooming." The court held an Evidence Code section 402 hearing to determine whether Detective Lawson was qualified as an expert, and, if so, whether there should be any limits on her testimony. At the hearing, Detective Lawson testified as to her experience and training, and the fact she had been in the child abuse unit for 19 years. With regard to "grooming" behavior by child molesters, she testified that it consisted of the characteristics, patterns and behaviors offenders would use to get the victim to behave in such a way that the offender could eventually gain sexual pleasure. She explained that giving victims gifts and taking them on outings are common grooming behaviors. She also stated it was common for the offender to have contact with the parents. The purpose of grooming was to gain the victim's trust and help lower their inhibitions.
Evidence Code section 402, subdivision (b) provides in part that "[t]he court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury."
Detective Lawson also testified that it was common for children to delay their reporting of sexual abuse. Some reasons for delayed disclosure include not knowing the abuse is wrong, guilt, and fear and threats by the offender. She also testified that the timing of the disclosure did not have anything to do with the validity of the claim of abuse.
Defense counsel objected to the proposed testimony on the grounds (1) Detective Lawson did not qualify as an expert because she did not have a background in medicine or psychology, and (2) the proposed testimony was on subjects that were common knowledge.
The court ruled it would allow Lawson's testimony as it was properly the subject of expert testimony, and defense counsel's objections went to the weight, not the admissibility, of the evidence.
B. Analysis
1. Delayed reporting
A properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert's opinion will assist the trier of fact. (Evid. Code, § 801, subd. (a).) The trier of fact does not need to be wholly ignorant of the subject matter of the opinion to justify the admission of expert opinion testimony. The testimony is admissible as long as it will "assist" the trier of fact. (People v. McAlpin (1991)53 Cal.3d 1289, 1299-1300.)
Expert testimony concerning Child Sexual Abuse Accommodation Syndrome (CSAAS) is used to describe and explain how children commonly react to molestation. (People v. Patino (1994) 26 Cal.App.4th 1737, 1742-1743 (Patino).) Often, the reactive behaviors seem paradoxical—for example, when a child delays in reporting the molestation or recants the account or explains it inconsistently or in dribbled bits and pieces. (Id. at pp. 1744-1746; People v. Bowker (1988) 203 Cal.App.3d 385, 393-394; CALJIC No. 10.64.) "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. [Citations.]" (Patino, supra, 26 Cal.App.4th at p. 1744.) "'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.'" (People v. McAlpin, supra, 53 Cal.3d at p. 1301.)
"Identifying a 'myth' or 'misconception' has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. [Citations.]" (Patino, supra, 26 Cal.App.4th at pp. 1744-1745; People v. Sanchez (1989) 208 Cal.App.3d 721, 735-736, criticized on other grounds in People v. Jones (1990) 51 Cal.3d 294, 311.) Nor is the admission of CSAAS evidence 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. [Citations.]" (Patino, supra, 26 Cal.App.4th at p. 1745.) As the court in Patino explained, "[i]f it were a requirement of admissibility for the defense to identify and focus on the paradoxical behavior, the defense would simply wait until closing argument before accentuating the jurors' misconceptions regarding the behavior. To eliminate the potential for such results, the prosecution should be permitted to introduce properly limited credibility evidence if the issue of a specific misconception is suggested by the evidence." (Id. at p. 1745; see also Sanchez, supra, 208 Cal.App.3d at pp. 735-736 [once "the credibility issue was already fully present in the case[,] . . . the rehabilitative evidence on this issue was appropriately admitted"].)
Likewise in this case the court properly admitted CSAAS evidence through the testimony of Detective Lawson. The victims' credibility was placed in issue because of their initial denials molestation occurred, as well as their delay in reporting the abuse. It was relevant to rebutting the misconception that could be caused by such actions on the part of the victims. Although Rodriguez asserts "CSAAS evidence should be held inadmissible in California for all purposes," this contention is contrary to the weight of authority and unpersuasive.
Rodriguez also asserts Detective Lawson was unqualified to render an opinion on CSAAS because she did not have "the specialized training, education, and experience that qualified her to testify as an expert about matters involving the psychological processes of either victims or offenders." However, Detective Lawson did not purport to testify as an expert on the psychology of CSAAS. Instead, she testified based upon her experience as a child abuse detective on the delayed reporting of sexual abuse by victims. The fact she was not trained in psychology was a factor for the jury to consider in determining what weight to give her testimony. (People v. Bolin, supra, 18 Cal.4th at p. 322.)
2. Rodriguez's grooming behavior
Rodriguez asserts Detective Lawson's testimony concerning grooming behavior by sexual offenders constituted improper "profile" evidence. We reject this contention.
Profile evidence is a compilation of characteristics and conduct commonly displayed by individuals who commit a certain crime. (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084 (Robbie); see also U.S. v. McDonald (10th Cir. 1991) 933 F.2d 1519, 1521 [profile evidence is "a listing of characteristics that in the opinion of law enforcement officers are typical of a person engaged in a specific illegal activity"].) Law enforcement officials design criminal profiles as an investigative aid in identifying particular criminal suspects, such as drug couriers. (Reid v. Georgia (1980) 448 U.S. 438, 440.)
Evidence of criminal profiles is often inadmissible because the descriptive characteristics are as consistent with innocence as guilt and therefore offer nothing more than the opinion of an investigating officer that a defendant is guilty of the charged crime. (Robbie, supra, 92 Cal.App.4th at pp. 1084-1085 .) But profile evidence is not inadmissible per se and is excluded only if it is irrelevant, lacks foundation, or is more prejudicial than probative. (People v. Smith (2005) 35 Cal.4th 334, 357.)
In Robbie, supra, 92 Cal.App.4th at page 1081, the appellate court found that profile evidence of "'a certain type of rapist'" (italics omitted) was inherently prejudicial. There, the victim testified defendant used threats instead of physical force, engaged in friendly conversation on the way to the victim's home, and returned to the victim's neighborhood a few days later. The prosecution's expert testified defendant's behavior fit the profile of the rapist who rationalizes the incident as consensual. The court observed the expert "replaced the brutal rapist archetype with another image: an offender whose behavioral pattern exactly matched defendant's . . . . The effect of [the expert's] testimony was not to help the jury objectively evaluate the prosecution's evidence, . . . but to guide the jury to the conclusion that defendant was guilty because he fit the profile." (Id. at p. 1087.)
Relying on Robbie, Rodriguez asserts that Detective Lawson's testimony was also improper profile evidence. However, Lawson's testimony as to his grooming behavior was not innocent conduct that was as consistent with innocence as guilt. Moreover, Detective Lawson did not offer a "profile" of a typical child molester, nor did she express an opinion that Rodriguez's behavior was consistent with such a profile. Rather, she explained how a specific set of behaviors could be used by an offender to gain the trust of a child and get the child to lower his or her inhibitions. Thus, it was not improper "profile" evidence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: AARON, J., IRION, J.