People v. GrayPeople v. Gray
Opinion
Kevin Gene Gray appeals from a jury conviction of two counts of lewd and lascivious conduct upon a child under 14 years of age (
The Prosecution’s Case.
Nine-year-old Tosha M., appellant’s stepdaughter, testified that onе morning, while watching television together on the bed, appellant rubbed her underpants in the vaginal area while rubbing her back. On another occasion in the bedroom, appellant placed her hand on his penis. He also touched her shirt below the navel while explaining the facts of life to her. She did not reveal these incidents—which occurred betwеen January and June 1985—until the summer of 1985 when she spent the summer with her father, Mr. M, and stepmother, Mrs. M. That summer she told Mrs. M. about two of the incidents. However, the only person to whom she related the penis-touching incident was Detective English, in response to his questions.
Doctor Mosman, a child psychologist, testified about child sexual abuse accommodation syndrome. He said it is not a diagnosis or a test, but rather an attempt to identify traits and characteristics of child sexual abuse. He did not render a diagnosis or testify on the ultimate issue—whether Tosha had been molested—but confined his opinion to experiences and behavioral traits common to child abuse victims.
The Defense Case.
Tosha’s father admitted that he always disliked appellant. Her mother said she told Mr. M. that she intended to sue for overdue support payments. He telephoned her in July 1985 to inform her of Tosha’s accusations against appellant and said he would not pursue the matter if she left appellant. When she refused, he reported Tosha’s complaints to the child custody mediator who called the police.
Tosha said her father became angry and yelled at her when she attempted to tell him about “good touches” or “bad touches” and she would agree with him to calm him. She told her mother that she may have been wrong about some of the things she said. He kept pictures of naked women, including his wife, Kathy, in the house.
Tosha’s mother testified that Tosha had a good relationship with appellant. At no time during the period of the alleged touchings did Tosha ever have sleeping, eating or school problems or behavioral changes toward appellant. She said that she and appellant explained the facts of life to Tosha one day because of an incident Tosha witnessed at school that triggered questions about “the birds and the bees.” Appellant pointed his finger below Tosha’s navel during the explanation but did not touch her.
Appellant testified that he occasionally rubbed Tosha’s back, legs and chest out of affection but denied any sexual interest in her and denied touching her vaginal area.
Discussion
I. Trial Court Did Not Commit Reversible Error in Allowing Doctor Mos-man’s Testimony.
When the prosecutor indicated he would call Doctor Mosman to testify about child sexual abuse accommodation syndrome (the syndrome), appellant moved to exclude the testimony. In an Evidence Code section 402 hearing out of the jury’s presence, appellant objected that the syndrome is not widely or generally accepted within the psychological community and thus does not satisfy the standards set forth in
Frye
v.
United States
(D.C.Cir. 1923)
The trial court, relying on this court’s opinion in People v. Payan (Nov. 5,1985) B007167, subsequently ordered unpublished by the Supreme Court January 30, 1986, ruled that where evidence is not admitted for purposes of establishing a diagnosis or rendering an opinion, the Kelly-Frye tests do not apply. Doctor Mosman said his opinion would be confined to common experiences of child molest victims, matters with which the public is not familiar. He said that the syndrome, described by Doctor Roland Summit, was not a diagnosis, but a description of traits and characteristics, specifically, secrecy, helplessness, entrapment and accommodation, delayed reporting and inconsistency, and retraction.
People
v.
Bledsoe, supra,
held that expert testimony that a complaining witness suffers from rape trauma syndrome is not admissible to prove that a witness was raped. (
“Where the expert refers to specific events, people, and personalities and bases his opinion as to credibility on his diagnosis of
this
witness, then the conclusion that the witness is credible rests upon the premise that the diagnоsis is accurate, and that in fact molestation had occurred. The jury in effect is being asked to believe the diagnosis, to agree that the doctor’s analysis is correct and that the defendant is guilty. Such a result would subvert the sound rule adopted by a unanimous Supreme Court in
Bledsoe.
It follows, therefore, that the expert testimony authorized by
Bledsoe
to permit rehabilitation of a complainant’s credibility is limited to discussion of victims as a class, supported by references to literature and experience (such as an expert normally relies upon) and does not extend to discussion and diagnosis of the witness in the case at hand.”
(People
v.
Roscoe
(1985)
Through cross-examination of Tosha and other witnesses, appellant suggested that the delay in reporting the alleged molestation and failure to disclose all incidents when she finally told her stepmother was inconsistent with her claim of molestation.
Bledsoe
acknowledged that, to rebut such evidence, “expert testimоny . . . may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.” (
Additionally, we disagrеe with appellant’s contention that the trial court erred in failing to apply the
Kelly-Frye
test.
Kelly-Frye
conditions the admissibility of evidence based on new scientific method of proof on a
Since in
Bledsoe
and cases cited therein discussing the rape trauma syndrome, the diagnosis was used to prove a rape occurred, subjecting rape trauma syndrоme to
Frye
parameters makes sense. Here, the evidence was not introduced—and did not purport—to prove molestation had occurred. It was “admissible as bona fide rebuttal, such as . . . testimony based on general literature or experience as to the reluctance of molest victims, as a class, to talk to investigators”
(People
v.
Roscoe, supra,
The evidence аt bench is much more akin to expert testimony informing the jury of certain factors that may affect an eyewitness identification. (See
People
v.
McDonald
(1984)
In the context of expert witness testimony affecting accuracy of eyewitness identification, the California Supreme Court was not persuaded that the
Kelly-Frye
rule applied.
(Id.,
at p. 372.) “It is important to distinguish in this regard between expert testimony and scientific evidence. When a witness gives his personal opinion on the stand—even if he qualifies as an expert— the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge that all human beings arе fallible. But the opposite may be true when the evidence is produced by a machine: like many laypersons, jurors tend to ascribe an inordinately high degree of certainty to proof derived from an apparently ‘scientific’ mechanism, instrument, or procedure. Yet the aura of infallibility that often surrounds such evidence may well conceal the fаct that it remains experimental and
Appellant contends that his entire defense theory was that Tosha was being pressured into making these charges by her father because he did not like appellant. He asserts that this theory is supported by Tosha’s own testimony that she told her mother she may have been wrong about some of her testimony and that she sometimes agreed with her father to make him stop yelling at her. Thus, he argues, admission of Doctor Mosman’s testimony was reversible error because, in explaining that child molestation victims often retract their stories because of fear of causing break-up of the family and unhappiness to parent, he “effectively eliminated” appellant’s defense.
We disagree. As advocated in
People
v.
Roscoe, supra,
Doctor Mosman spoke about child molestation victims as a class and did not focus upon Tosha. Moreover, the defense expert agreed with Doctor Mosman that it is not unusual for there to be a delay in reporting or for gradual disclosure of increasingly intimate details. Although he disagreed that the syndrome has been proven to encompass the five specific factors Mosman described, he acknowledged there are certain behavioral traits seen in molestation victims, i.e., delayed reporting, increased disclosure, accommodation in the sense of outward affection toward an adult the child also fears, and increased likelihood of immediately reporting a stranger than a family member. “[T]he subject of child molestation and more particularly, the sensitivities of the victims, is knowledge sufficiently beyond common experience such that the opinion of an expert would be of assistance to the trier of fact.”
(People
v.
Dunnahoo
(1984)
Finally, assuming the trial court erred in admitting Doctor Mosman’s testimony, we find inclusion of this evidence was not prejudicial. Tosha told her stepmother, the social worker and Detective English about various incidents. Detective English testified, without objection, that in his expe
Thus, one of the main factors discussed by Mosman and Oliver and the one emphasized in the prosecutor’s argument—delayеd disclosure—had already been included in evidence before Doctor Mosman even testified. As appellant’s counsel pointed out at trial, some of the other factors Doctor Mosman discussed were not particularly pertinent to the facts of this case. We conclude that it is not reasonably probable the jury would have reachеd a different result without it.
(People
v.
Watson
(1956)
II. Remand For Resentencing Unnecessary.
Appellant contends remand is required for resentencing because the trial court never stated its authority for imposing $700 in fines or a reason for so doing. As appellant concedes, the appellate court in
People
v.
Romero
(1985)
Government Code section 13967 provides that, “Upon a person being сonvicted of any crime in the State of California, the court shall, in addition to any other penalty provided or imposed under the law, order the defendant to pay . . . restitution ... in the form of a penalty assessment in accordance with Section 1464 of the Penal Code. In addition, if the person is convicted of one or more felony offenses, the court shall imрose a separate and additional restitution fine of not less than one hundred dollars ($100) and not more than ten thousand dollars ($10,000). ...” The section then delineates relevant factors the court should consider.
Penal Code section 1202.4, subdivision (a) provides, in pertinent part, that “In any case in which a defendant is convicted of a felony, the court shall order thе defendant to pay a restitution fine as provided in subdivision (a) of Section 13967 of the Government Code. Such restitution fine shall
Penal Code section 1203.1 provides, in pertinent part, that “The court shall consider whether the defendant аs a condition of probation shall make restitution to the victim or the Restitution Fund” and also provides that the court “may fine the defendant in a sum not to exceed the maximum fine provided by law in the case; or may in connection with granting probation, impose either imprisonment in county jail, or fine, or both, or neither; shall provide for restitution in proper cаses . . . .”
As stated in
People
v.
Romero, supra,
Penal Code section 1203.1 grants the court broad discretion to prescribe conditions of probation so long as they serve a proper purpose specified in the statute.
(People
v.
Feno
(1984)
Here, the sentencing court heard all the testimony, counsels’ arguments, and read the probation reports. Although a statement of reasons might facilitate review process
(People
v.
Mitchell, supra,
at p. 438;
People
v.
Romero, supra,
at p. 1157), we believe the holding of
People
v.
Romero
is sound and equally applicable to Penal Code section 1203.1. The trial court is not required to state formal reasons on the record for its choice of restitution
The judgment is affirmed.
Gilbert, J., and Abbe, J., concurred.
Appellant’s petition for review by the Supreme Court was denied March 5, 1987. Racanelli, J., * White, J.,* and Anderson, J.,* participated therein. Mosk, J., and White, J.,* were of the opinion that the petition should be granted.
Notes
Assigned by the Chairperson of the Judicial Council.