Opinion
H035570
09-30-2011
THE PEOPLE, Plaintiff and Respondent, v. AGAPITO DIAZ VASQUEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. FF929283)
Defendant Agapito Diaz Vasquez appeals a judgment following a jury trial during which he was convicted of four counts of committing a lewd or lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a)). On appeal, defendant asserts the trial court erred in its jury instructions regarding unanimity and the use of expert of testimony.
All further statutory references are to the Penal Code.
STATEMENT OF THE FACTS AND CASE
The instant case arises out of allegations that defendant molested his girlfriend's seven-year-old granddaughter on four separate occasions between October 2008 and January 2009.
Defendant was charged by information with four counts of lewd or lascivious acts on a child under 14 (§ 288, subd. (a)). In addition, the information alleged defendant was previously convicted of violations or section 288, subdivision (a).
A.D. testified at trial when she was eight years old and in second grade. Her testimony included descriptions of four incidents when defendant molested her while she was staying at her grandmother's trailer in Gilroy. A.D. said that on New Year's, she was in the living room watching T.V. with her mother, who was sitting with her back to A.D., when defendant came in and got under the blanket with her on the couch. While he was there, defendant took his "private" out and touched her "private" with his hand under her pajamas with his fingers on her skin. A.D. pushed his hand away, but defendant kept touching her. Another time, defendant touched her "private" while she was in the bedroom on the bed, and A.D. ran and hid under a table. When A.D. was sleeping in her grandmother's bed between her and defendant, defendant touched her again. Defendant touched her another time when she was in the closet during a game of hide and seek.
A.D. testified she did not tell her mother about defendant touching her because she was afraid she would get in trouble. She did not tell her grandmother about the touching, because she yelled at A.D. a lot, and A.D. was scared of her. The first person she told about the touching was her aunt and then the police officer at the hospital. A.D. said when she talked to the officer a week after she went to the hospital, she tried to tell him everything she remembered and she told him the truth.
Defendant was convicted of all four counts following a jury trial. Following a waiver of a jury trial, the court found the prior convictions true.
The court denied defendant's Romero motion to strike his prior convictions, and sentenced defendant to a term of 75 years to life in state prison on each of the four counts.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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D ISCUSSION
Defendant asserts the court erred in its jury instructions regarding unanimity and the use of expert testimony. Specifically, defendant argues the trial court omitted essential portions of both instructions, and that these omissions caused him prejudice.
Unanimity Instruction
Here, the trial court instructed the jury regarding the requirement for unanimity in their verdict with a portion of CALCRIM No. 3501 as follows: "The defendant is charged with lewd and lascivious acts on a child under the age of 14 in Counts 1, 2, 3 and 4, sometime during the period of October the 1st , 2008, to December the 31st, 2008. [¶] The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless: [¶] 1) You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each count."
The trial court omitted the second part of the standard instruction, which reads: "OR [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved that he defendant committed at least the number of offenses charged]." (CALCRIM No. 3501.) Defendant asserts the court's omission of the second part of CALCRIM No. 3501 was prejudicial error.
" 'In determining whether an instruction interferes with the jury's consideration of evidence presented at trial, we must determine "what a reasonable juror could have understood the charge as meaning." [Citation.] While the initial focus is on the specific instruction challenged [citation], we must also review the instructions as a whole to see if the entire charge delivered a correct interpretation of the law. [Citation.]' [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 446.) In this regard, the absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole. (People v. Crandell (1988) 46 Cal.3d 833, 874, disapproved on other grounds in People v. Crayton (202)28 Cal.4th 346.) In examining this type of question "we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." (People v. Mills (1991) 1 Cal.App.4th 898, 918.)
Here, when the instructions are viewed as a whole, it is clear they required unanimity, and did not mislead the jury otherwise. In addition to the unanimity instruction, the court also instructed the jury with CALCRIM No. 3515 as follows: "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each count." (CT 229) This instruction, coupled with the mandate that the jury "all agree on which act [defendant] committed for each count," from CALCRIM No. 3501, necessarily required the jury to unanimously agree to the verdict for each count. Because the instructions were clear in requiring unanimity, the court did not err in omitting the second part of CALCRIM 3501.
Instruction Regarding Expert Testimony
Defendant asserts the trial court erred in its jury instruction regarding Child Sexual Abuse Accommodation Syndrome (CSAAS), because the instruction was incomplete.
CSAAS describes five stages or behaviors commonly found in or experienced by children who have been sexually abused, including secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction. (People v. Bowker (1988) 203 Cal.App.3d 385, 389, fn. 3, 392, fn. 8.) Evidence regarding CSAAS " ' "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." ' " (People v. Housley (1992) 6 Cal.App.4th 947, 955, quoting Bowker, supra, 203 Cal.App.3d at p. 394.) Such evidence, however, "is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting— is inconsistent with his or her testimony claiming molestation." (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) The expert testimony is "admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation." (People v. Patino (1994) 26 Cal.App.4th 1737, 1744.)
Here, the court instructed the jury regarding the CSAAS expert testimony with a portion of CALCRIM No. 1193 as follows:
"You have heard testimony from Carl Lewis regarding [C]hild [S]exual [A]buse [A]ccommodation [S]yndrome. Carl Lewis's testimony . . . is not evidence that the defendant committed any of the crimes charged against [him]."
Defendant asserts this instruction was inadequate, because it was incomplete as given. The remaining paragraph of the instruction that should have been given in this case is as follows: "You may consider this evidence only in deciding whether or not [the victim's] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony." (CALCRIM No. 1193.)
Here, by giving the incomplete instruction, the court failed to inform the jury that the evidence of CSAAS was only admissible for the limited purpose of showing the victim's reaction was not inconsistent with being abused. Therefore, the court's omission of the second half of the instruction in this case was error.
Because we find the court erred in improperly instructing the jury on the use of CSAAS, we must determine if the error requires reversal. In analyzing claims of instructional error, we apply the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Flood (1998) 18 Cal.4th 470, 490 [applying Watson standard in determining whether instruction removed an element of the crime from the jury's consideration].) Under Watson, reversal is warranted only on a determination that it is reasonably probable that defendant would have obtained a more favorable result in the absence of any error. (People v. Watson, supra, 46 Cal.2d at pp. 836-838.) Instructional error such as that claimed here is "trial error whose prejudicial effect may be assessed in light of the entire record." (People v. Flood, supra, 18 Cal.4th at p. 503.)
Opinion testimony can be powerfully persuasive unless the court limits its reach. While the error here is serious we do not believe defendant would have obtained a more favorable result in its absence. Specifically, Mr. Lewis testified that he did not know anything about the facts of this particular case, and that he was explaining CSAAS to the jury so they could understand a child's potential reactions to possible sexual abuse. Mr. Lewis's testimony, coupled with the given instruction that CSAAS is not evidence that defendant committed any of the crimes charged against him, made it clear that CSAAS had limited applicability, and could not be used to determine if the molestations actually occurred.
D ISPOSITION
The judgment is affirmed.
RUSHING, P.J.
WE CONCUR:
PREMO, J.
ELIA, J.