Opinion
— Defendant and appellant Luis Miguel Mateo was convicted by jury of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a)),
Defendant’s first jury trial, in which expert testimony on CSAAS was not presented, resulted in a hung jury.
Defendant contends the trial court used an incorrect standard when it denied his motion objecting to the prosecution’s exercise of peremptory challenges to excuse four African-American jurors. He further contends that the trial court erred in failing to sua sponte instruct the jury regarding (1) an expert witness’s testimony on CSAAS and (2) the offense of lewd or lascivious act on a child under the age of 14 (§ 288, subd. (a)) as a lessеr included offense of continuous sexual abuse of a child under the age of 14. Defendant also argues he was prejudiced by ineffective assistance of counsel and cumulative error.
FACTS
Prosecution
I.T. was eight years old when defendant moved into her mother’s apartment, where I.T. lived with her two brothers. Defendant first sexually abused I.T. when she was nine years old. I.T. testified in detail to five specific acts of sexual intercourse with defendant, which occurred when she was between the ages of nine and 12. I.T. also testifiеd that defendant molested her about three or four other times in that same time period, although she did not remember specific details about those incidents.
After living with other relatives for a year when she was 17 or 18, I.T. moved into the house her mother and defendant shared in Las Vegas to reconnect with her mother. At that time, I.T.’s half sister, A.M., was nine or 10 years old. One evening, defendant screamed at A.M. while defendant and I.T.’s mother were drinking alcohol. Upset by defendant’s conduct and concerned that A.M. might be viсtimized by defendant, I.T. told her mother about the sexual abuse that began when she was around A.M.’s current age for the first time. I.T. moved out of the house the same day, was unable to contact her mother, and out of fear for A.M.’s safety, reported the incidents to police within a few days of the argument.
Los Angeles Police Detective Paul Bowser investigated the case. During an interview with the detective, I.T. recounted the details of four of the five specific incidents of sexual intercourse with defendant. I.T. testified consistently regarding all five specific instances of sexual abuse at the preliminary hearing and at trial.
Detective Bowser and Officer Jose Ramirez conducted a recorded interview of defendant in Las Vegas. On Detective Bowser’s request, Las Vegas Metropolitan Police Detective Chad Russell conducted a video-recorded interview of defendant the next day, which was played for the jury.
The detective then suggested that maybe I.T. had taken advantage of defendant when he had been drinking and it was dark in the bedroom. Hе suggested that maybe, when defendant came home tired after a long day at work and had a few beers, I.T. had climbed on top of him in the dark and put his penis inside her. Defendant might not have realized that it was I.T. and not his wife until they had begun having sexual intercourse. Defendant might not have come forward with this information because he feared that I.T. would get into trouble. Detective Russell said that he had heard stories about I.T. having a lot of sexual intercourse with people and that she had been a prostitute at one point. Defendant said that he did not remember anything happening with I.T. and he did not know that I.T. had been a prostitute.
Detective Russell continued to suggest that I.T. may have taken advantage of defendant without his knowledge when he was drunk and/or sleepy and did not realize that I.T. was not his wife. Defendant remembered “them” getting on top of him more than two or three times, but he did not know if it was his wife or I.T. Detective Russell said that defendant should not protect I.T. He said that I.T. needed help, and it was her fault that defеndant was being questioned. Defendant then admitted he had awoken with I.T. on top of him with his penis inside of her more than three times, and maybe five or six times. Defendant said he would sometimes go to bed drunk, so he could not remember the number of times it happened. He remembered that she got on top of him and that “there was penetration.” I.T. got on top of him and put his penis inside of her vagina more than once or twice when he had come home from work tired. He would not fully wake up for about five minutes, but whеn he did he would tell her to get off of him. She would leave, but it made her angry. Until he realized it was I.T., the intercourse felt good. Defendant then said he just remembered I.T. getting on top of him once, when she was about 11. He did not tell his wife, because she had a bad temper. Defendant did not tell the detectives about it when they initially interviewed him because they asked him whether he had abused or hurt I.T., not whether she had put his penis in her vagina while he was asleep.
The prosecution presented the testimony of cliniсal psychologist Jayme Jones regarding the behavior of abused children generally. Dr. Jones had not interviewed or evaluated I.T. or anyone else involved in the case.
I.T.’s maternal aunt and grandmother testified that when I.T. was 17 years old, she told them that she did not want her mother and defendant to be together, and intended to break up the relationship.
I.T.’s mother did not believe defendant was sexually attracted to young girls. She never observed defendant acting inappropriately with her daughters or nieces. At the time of the alleged incidents, defendant was working at three jobs and was rarely home. She never left her children in his care. She contradicted I.T.’s testimony regarding two specific instances of sexual intercourse, one occurring on Halloween and another when the family went to Knott’s Berry Farm. The mother also denied seeing defendant in the bathroom with I.T. on one occasion, as testified to by I.T. When I.T. moved back in with them, she acted jealous of defendant and wanted a lot of аttention from her mother. I.T.’s mother had tried to talk to I.T. about the accusations, but I.T. refused to speak with her.
I.T.’s cousins and her close childhood friend testified that they did not believe defendant was sexually attracted to young girls, and that he had never acted inappropriately with them. I.T.’s two female cousins testified that defendant was working with their father on the Halloween night that I.T. said defendant molested her. The family had looked at photo albums for pictures of the Halloween in question, and defendant was not in any of the photos.
DISCUSSION
Wheeler/Batson Motion
Juror No. 3539, Juror No. 1512, Juror No. 9705, Juror No. 0479
Exercise of Peremptory Challenges and the Wheeler/Batson Motion
Analysis
Duty to Instruct on Child Sexual Abuse Accommodation Syndrome
Defendant next contends the trial court erred in failing to give a limiting instruction on the expert witness’s testimony regarding CSAAS. In the alternative, he asserts that trial counsel was ineffective for failing to request such an instruction.
Expert testimony about CSAAS “is inadmissible to prove that a child has been abused because the syndrome was developed not to prove abuse but to assist in understanding and treating abusеd children. However, . . . such evidence may be admitted to dispel common misconceptions the jury may hold as to how such children react to abuse.” (People v. Stark (1989)
Proceedings
Clinical psychologist Dr. Jayme Jones testified on behalf of the prosecution regarding CSAAS. The prosecution had not presented expert witness testimony regarding CSAAS in defendant’s first trial. Dr. Jones explained that CSAAS is a model for understanding the behavior of children who have been sexually abused. It dispels the myths that children in abuse situations fight back and immediately disclose the abuse. The model has five components: secrecy, helplessness, accommodation, disclosure, and recantation. Child abuse generally occurs in secrecy, signaling to the child that they are not supposed to disclose what has happened. Although there may be other individuals in the аrea at the time of the abuse, there will often not be others watching. Children do not fight their victimizers in many cases because they are physically weaker and have been socially conditioned not to say “no” to adults. Children adopt mechanisms to cope with the trauma. If the abuser is a family member, it is not unusual for the child to continue to show the abuser
The prosecutor questioned Dr. Jones regarding her familiarity with this case and regarding CSAAS’s ability to predict whether abuse has occurred:
“Q: Now, have you yourself interviewed anybody related to this case or read any sort of reports related to this case at all?
“A: I have not.
“Q: And have you done any studies or done any sort of clinical evaluations of anyone related to this case?
“A: No.
“Q: Now does this model necеssarily predict one way or the other whether someone was, in fact, sexually abused?
“A: Not at all. And one of the things [the doctor who authored CSAAS] later published was a paper basically stating he wished he hadn’t called it a syndrome. Because ‘syndrome’ makes it sound like it is predictive, and it’s not. It doesn’t tell us whether or not a child has been abused. It simply explains their behavior if they have been abused.”
Defense counsel did not request a limiting instruction with respect to the permissible uses of the CSAAS testimony. Thе trial court instructed the jury with CALCRIM No. 332
We review independently the question of whether the trial court has a duty to give a particular jury instruction. (People v. Guiuan (1998)
Sua Sponte Duty to Provide Limiting Instructions
As a general matter, the Legislature has determined that limiting instructions need not be given sua sponte. “When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scоpe and instruct the jury accordingly.” (Evid. Code, § 355, italics added.) Our Supreme Court has consistently applied the concept set forth in Evidence Code section 355. “ ‘Absent a request, a trial court generally has no duty to instruct as to the limited purpose for which evidence has been admitted.’ (People v. Cowan (2010)
The trial court complied with its obligation to instruct pursuant to the requirements of sеction 1127b by providing the jury with the pattern instruction on expert testimony found in CALCRIM No. 332. Under the plain language of the final sentence of section 1127b, no further limiting instruction on the use of CSAAS was required.
Despite the plain language of section 1127b and Evidence Code section 355, defendant argues that People v. Housley (1992)
The Housley court concluded “that because of the potential for misuse of CSAAS evidence, and the potential for great prejudice tо the defendant in the event such evidence is misused, it is appropriate to impose upon the courts a duty to render a sua sponte instruction limiting the use of such evidence. Accordingly, in all cases in which an expert is called to testify regarding CSAAS we hold the jury must sua sponte be instructed that (1) such evidence is admissible solely for the purpose of showing the victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested; and (2) the expert’s testimony is not intended and shоuld not be used to determine whether the victim’s molestation claim is true.” (Housley, supra, 6 Cal.App.4th at pp. 958-959.)
Defendant’s contention, and the holding in Housley, are at odds with our Supreme Court’s decision in Humphrey, supra,
Harmless Error
Assuming the trial court erred in failing to sua sponte instruct the jury on the limited use оf CSAAS evidence, any error was harmless under the standard set forth in People v. Watson (1956)
The prosecution presented a solid case against defendant. I.T. testified to her version of events consistently and in detail when speaking with detectives and when testifying at the preliminary hearing and trial. Defendant admitted to officers that he had sexual relations with her on multiple occasions. Although defendant suggests his confession was gained through “trickery,” he does not separately contend that his statements were involuntary. “We note that the ‘ “mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent [statement or admission] involuntary.” [Citation.]’ ” (People v. Esqueda (1993)
The witnesses who testified on defendant’s behalf said little to refute I.T.’s account of the incidents, nor could they, considering that according to both I.T. and defendant, there were no witnesses. At most, the defense witnesses suggested an alibi for a molestation that occurred on Halloween and another on the day of a trip to Knott’s Berry Farm, but those were only
Defendant argues that prejudice is established by the fact that the first jury, which did not hear evidence on CSAAS, was hung nine to three in his favor. He reasons that the CSAAS evidence tipped the balance in favor of the prosecution in his second trial. Defendant’s speculation on this point does not establish prejudice because he does not contend that the CSAAS evidence was improperly admitted. Even if a limiting instruction had been given, the jury would have heard the same evidence, which provided a reаsonable explanation for I.T.’s seemingly inconsistent behavior.
We reject defendant’s argument that the length of deliberations and the fact that the jury requested readback of testimony establishes that his case was close, and that he was prejudiced by lack of instruction. Defendant does not quantify the time the jury spent in deliberations, but by our calculations it was approximately six and a half hours, including readback of testimony. Juries sometimes return a verdict quickly in close cases, and other times engage in extended deliberations in cases with overwhelming proof of guilt. Here we find no correlation between the length of deliberations and the strength or weakness of the prosecution’s case. Consistent with making a careful decision, “we assume that the jury spent time going over their instructions to make sure that they were properly carrying out their duties.” (People v. Walker (1995)
Defendant does not contend the prosecution used the CSAAS testimony in an improper fashion in argument to the jury. We are satisfied that CALCRIM No. 1193, had it been given, would not have added to what the jury already understood. Prejudice has not been shown.
Ineffective Assistance of Counsel
Defendant alternately contends counsel was ineffective in failing to request a limiting instruction. “To establish ineffective assistance, defendant bears the burden of showing, first, that counsel’s performance was deficient,
Because the record sheds no light on why counsel did not request CALCRIM No. 1193, we cannot reach the merits of the claim of ineffective assistance of counsel. And on the record presented, there is no basis to conclude counsel’s performance was deficient. As a tactical matter, competent counsel could rationally conclude that it would be counterproductive to request an instruction highlighting expert testimony supporting the victim’s credibility. “A reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide.” (People v. Maury (2003)
Lewd or Lascivious Act Instruction
The Accusatory Pleadings Test
Ineffective Assistance of Counsel
DISPOSITION
The judgment is affirmed.
On January 15, 2016, the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied March 30, 2016, S232405.
All further statutory references are to the Penal Code, unless otherwise indicated.
On the prosecution’s motion, the trial court dismissed three counts of lewd or lascivious act on a child under thе age of 14 (§ 288, subd. (a)) during the first trial.
Detective Russell was assisted by a Spanish interpreter.
Miranda v. Arizona (1966)
See footnote, ante, page 1063.
See footnote, ante, page 1063.
CALCRIM No. 332 reads in pertinent part as follows: “(A witness was/Witnesses were) allowed to testify as [an] expert[s] and to give [an] opinion[s]. You must consider the opinion [s], but you are not required to accept (it/them) as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, expеrience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching
“There is a ‘possible’ narrow exception in the ‘ “occasional extraordinary case” ’ in which the evidence ‘ “is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.” ’ (People v. Hernandez[, supra,] 33 Cal.4th [at pp.] 1051-1052, quoting People v. Collie[, supra,] 30 Cal.3d [at pp.] 63-64.)” (People v. Murtishaw, supra,
See footnote, ante, page 1063.
See footnote, ante, page 1063.