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P. v. Luna
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P. v. Luna CA4/2
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face="Times New Roman">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opinion has not been certified for publication or ordered published for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
face="Times New Roman">THE PEOPLE,
face="Times New Roman">
face="Times New Roman"> Plaintiff and
Respondent,
face="Times New Roman">
face="Times New Roman">v.
face="Times New Roman">
face="Times New Roman">LUIS LUNA, JR.,
face="Times New Roman">
face="Times New Roman"> Defendant and
Appellant.
face="Times New Roman">
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face="Times New Roman">
face="Times New Roman"> E055641
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face="Times New Roman"> (Super.Ct.No.
SWF029715)
face="Times New Roman">
face="Times New Roman"> O P I N I O N
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APPEAL from the Superior
Court of
Michael B. Donner, Judge. Affirmed.
Mark Yanis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and Barry Carlton and Heather M. Clark, Deputy Attorneys
General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Luis
Luna, Jr. was sentenced to 12 years in prison after a jury found him guilty as
charged of violating Penal Code section 288.5, continuous sexual abuse of a
child under the age of 14 years. The victim,
defendant’s daughter Doe, testified the abuse occurred while she was between
the ages of 11 and 14 while she and defendant lived in the same home.
Doe did not
disclose the sexual abuse to anyone until she was nearly 15 years old, and when
she did she was initially unclear about exactly when and how often the abuse
occurred. In order to dispel any
misconception the jurors may have had that Doe’s delayed disclosure and other conduct
following the alleged molestation was inconsistent with the conduct of a child molestation
victim, the prosecution presented expert testimony on
(CSAAS).
On this
appeal, defendant raises two claims concerning the CSAAS testimony: (1) the jury was erroneously instructed
pursuant to the standard form language of CALCRIM No. 1193 that it could consider
the expert testimony on CSAAS “in evaluating the believability of [Doe’s] testimonyâ€;
and (2) expert testimony on CSAAS should be inadmissible per se in California because
it violates a defendant’s due process rights.
We reject these claims and affirm the judgment.
II. BACKGROUND
Doe testified that defendant began sexually
molesting her when she was 11 years old and had sexual intercourse with her at
least once each month while she was between the ages of 11 and 14. The abuse occurred while Doe lived in a house
in Hemet with defendant, her mother, and her two younger
brothers. Doe was 17 years old when she
testified at trial.
Doe lived with defendant, her mother, and her two
younger brothers. Doe’s mother did not
work and was diagnosed with bipolar disorder and obsessive compulsive disorder. One of Doe’s brothers has cerebral palsy and
the other has speech problems. When she
was in grade school, Doe was diagnosed with attention deficit/hyperactivity
disorder, dyslexia, and bipolar disorder.
When Doe was around seven years old, she and her
mother moved out of the house, but moved back in when Doe was 11 years old. After Doe and her mother returned to the
house, defendant slept in the master bedroom, Doe’s mother slept in the dining
room, Doe had her own bedroom, and Doe’s two younger brothers shared a bedroom. There were two other bedrooms; one was used
as a computer room and the other had a waterbed.
At
trial, Doe recalled that defendant first touched her sexually during the summer
when she was 11 years old and “going into the fifth grade.†They were in the master bedroom when Doe was
explaining something that had happened to her.
Defendant told Doe to show him what had happened, so Doe lay down on the
floor with her clothes on to show him. While
she was on the floor, defendant rubbed his penis against Doe’s vagina while he
was wearing only his underwear and a shirt.
It happened quickly. Afterward, defendant
got up and went to his bed and Doe walked out of the room. Doe did not tell anyone about the incident
because she was confused.
to various sex acts in the master bedroom, in Doe’s bedroom, in the computer
room, and in the waterbed room. He fondled
Doe’s breasts on more than one occasion and once “use[d] his mouth†on her “privateâ€
in her bedroom. The first time defendant
had sexual intercourse with Doe they were in the master bedroom. He told her to lay down in a sexual position,
asked her whether she wanted to have sex with him, and she agreed. This was the first time Doe had ever had
intercourse and it was painful.
Defendant
had intercourse with Doe at least once every month for the next three years and
while Doe was in the fifth, sixth, seventh, and eighth grades. The intercourse occurred in Doe’s bedroom, in
the bedroom with the waterbed, and most often in the master bedroom with the door locked. On one occasion Doe’s mother came into the
master bedroom right after defendant had intercourse with Doe. Doe recalled that the door to the bedroom was
locked, but the lock “wasn’t that steady.â€
Doe was naked but was covered with a sheet and was next to the other bed
in the room. Defendant was on the bed,
naked underneath the covers. Doe’s
mother asked what they were doing in the room with the door locked, and Doe just
pushed her out, put her clothes on, and went back to her room.
After the sexual abuse had been going on for approximately
two years, Doe began asking defendant for things in exchange for sex. When she was around 13 years old, Doe asked
defendant if, in exchange for sex, he would give her some of the liquor from
the closet in the master bedroom. He
agreed and she drank some of the liquor after they had sex. Defendant also bought Doe clothes and
inexpensive jewelry in exchange for her having sex with him.
Defendant did not use physical force to abuse Doe,
and Doe did not try to make him stop because she was “really confused†and did
not know whether the abuse was right or wrong while it was occurring. Defendant told Doe to keep the abuse a
secret; that it was “private†and not to tell anyone about it; he would go to
jail if she told anyone; and if she became pregnant by him she should say
another man was the father. To avoid
getting Doe pregnant, defendant had Doe shower and clean her “private†after he
had intercourse with her.
Doe did not tell anyone about the abuse during the
time she lived in the house. The abuse finally
stopped after Doe and her mother moved out of the house when Doe was in the eighth
grade. The first person she told about
the abuse was her best friend’s mother, Leticia Hefele.
When Doe was in ninth grade, she and her mother went
back to visit her brothers and defendant.
Defendant cried and asked Doe to forgive him because he did not know
what he was doing or why he did it. Doe
told him that she forgave him. When
asked how she felt about defendant, Doe testified she felt “sad†about being
sexually abused, but she was not angry and she did not want
the time she spent with him when she was younger, before the abuse began.
Hefele’s Testimony
Hefele testified she first knew Doe when Doe and
Hefele’s daughter were in the fourth grade and played together. When the two girls were around 12 years old,
Doe began spending more time with Hefele’s family. Hefele saw that Doe was sad and cried at
times, and she believed Doe did not have a stable home environment. Doe would tell Hefele she was happy to be
with Hefele’s family, and Hefele treated Doe as a daughter.
In August 2009, shortly before Doe turned age 15,
Doe appeared to be very upset, so Hefele confronted her and asked her whether
anything was wrong. Doe broke down
crying and said her father had been having sex with her. Hefele, herself a victim of molestation as a
child, had suspected Doe was being sexually abused because she had seen Doe apparently
feeling and behaving in ways similar to the ways she felt and acted when she
was being molested. Hefele called child
protective services and “they came over right away.â€
Pretext Meeting with Defendant
protective services, a police detective arranged for Doe to have a forensic
interview with social worker Christine Brown.
The forensic interview began on August 31, 2009, but was stopped because
Doe was tired, frustrated, and was withdrawing from the interview. Doe was taking Abilify at the time and was
hungry, nauseous, tired, and dizzy. The forensic
interview concluded on September 22, 2009.
before the forensic interview, she did not disclose everything defendant had
done. She testified that she only told
part of the truth at first because she felt uncomfortable talking to the
police. In contrast to her trial testimony,
she told the police there had been no genital penetration, and according to the
police detective she appeared confused concerning when and over what period of
time the abuse had occurred. Her answers
became clearer during the second part of her forensic interview, however.
for Doe to have a “pretext meeting†with defendant in order to elicit
information about the abuse. During the pretext
meeting, Doe reminded defendant of the times he had sex with her and told him she
thought he needed counseling. In
response, defendant said something to the effect that it was something that
never happened or something he couldn't talk about.
psychologist Dr. Jody Ward testified as an expert witness for the prosecution on
CSAAS. CSAAS is a syndrome or “pattern
of behaviors†that helps explain why child victims of sexual abuse “do what
they do.†CSAAS helps explain the
perceived inconsistency between how an adult might believe an abused child would
behave versus how the child may actually behave. For example, an adult may believe abused children
would fight back or protect themselves from abuse, or would promptly report the
abuse, but the syndrome explains why children may not take these actions.
CSAAS has five components: secrecy, helplessness, entrapment and
accommodation, delayed disclosure, and retraction or recantation. The first component, secrecy, refers to the
fact that sexual abuse often occurs in private, and this conveys an unspoken
message to the child that it should be kept secret. Some children are told to keep the abuse a
secret and do not need to be threatened in order to keep the abuse a secret. Helplessness, the second component, also explains why children tend to keep the
abuse a secret. Children are dependent
on adults for their physical and emotional needs, and they do not have any
avenues at their disposal to improve their situation. They are also taught to obey adults and do
what they are told. They are reluctant
to disclose the abuse because they do not know what will happen if they do.
The third component, entrapment and accommodation,
holds that child sexual abuse victims feel trapped because they are dependent
on the adult and they have to learn to accommodate the abuse in some way. It is consistent with the syndrome for a child to try to obtain benefits,
gifts, or rewards in exchange for accommodating the sex acts. To adults, it doesn’t make sense that a child
would continue to subject themselves to continuing abuse, but the child’s
feelings of helplessness and entrapment explain why they find ways to
accommodate the abuse. The child may
also believe the abuse is a necessary evil they have to put up with or
accommodate in order to keep the positive aspects of the relationship. The fourth component, “delayed, unconvincing
disclosure,†explains it is not uncommon for a child to delay reporting for
years, and when a child does make a disclosure of sexual abuse, it is usually
not complete at the beginning.
The fifth component, retraction or recantation,
occurs least often of the five components, but occurs when a child who discloses
abuse faces negative repercussions such as the family splitting up or the child
being taken out of the family home. The child
later recants or denies the abuse occurred in order to restore the status quo
of the family, because the child feels guilty for breaking up their family and does
not want the perpetrator to go to jail.
Dr. Ward had never met Doe, was not familiar with
the allegations against defendant, and did not offer any opinion that Doe was
credible or that her trial testimony was believable. Under cross-examination, Dr. Ward explained
that if a child has a developmental disability, the child would probably feel
more helpless and dependent upon the adults around him or her and less likely
to take action on his or her own behalf in a sexually abusive situation.
Claim That Doe Was Not Credible
that Doe was not credible and implied her testimony accusing defendant was due
to her feeling poor and depressed, having a cognitive disorder, fighting with
her mother, and wanting money, clothes, jewelry, and other material things.
Contrary to Law Limiting the Admissibility of CSAAS Evidence
The
jury was instructed pursuant to CALCRIM No. 1193 as follows: “You have heard testimony from Dr. Jody Ward
regarding [CSAAS]. [¶] Dr. Ward’s testimony about [CSAAS] 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 [Doe’s]
conduct was not inconsistent with the conduct of someone who has been molested,
and in evaluating the believability of her
testimony.†(Italics added.) The final italicized clause of the
instruction is part of the standard language of CALCRIM No. 1193.
Defendant
claims the italicized clause of CALCRIM No. 1193 impermissibly allowed the jury
to use the expert testimony on CSAAS to determine whether Doe’s molestation
claims were true. More broadly, he argues
the italicized clause is contrary to settled law prohibiting the use of CSAAS
evidence as evidence that the alleged victim’s molestation claims are
true. For the reasons we explain, it is
not reasonably likely the jury applied the instruction in the impermissible
manner defendant claims.
It has long been settled law in California that
CSAAS testimony is admissible only for the limited purpose of disabusing the
jury of any misconceptions it may hold concerning how child molestation victims
commonly react or should react to being molested. (People v. Patino
(1994) 26 Cal.App.4th 1737, 1744; People v. Bowker
(1988) 203 Cal.App.3d 385, 394.) “‘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. . . .’ [Citation.]â€
(People v. McAlpin (1991) 53 Cal.3d 1289,
1301.) “CSAAS assumes
a molestation has occurred and seeks to describe and explain common reactions
of children to the experience. [Citation.]†(People v. Bowker, supra,
at p. 394.)
Accordingly, CSAAS evidence “‘“is admissible to
rehabilitate [the molestation victim’s] credibility when the defendant suggests
that the child’s conduct after the incident . . . is inconsistent
with [the child’s] testimony claiming molestation. [Citations.]â€â€™
[Citations.]†(
show that the molestation occurred or that the alleged victim’s molestation claims
are true. (People v.
Housley (1992) 6 Cal.App.4th 947, 957; People v.
Bowker, supra, 203 Cal.App.3d at p. 394.)
Defendant argues the italicized clause of CALCRIM
No. 1193 which permits the jury to use CSAAS evidence in evaluating the
complaining witness’s credibility is contrary to
and use of CSAAS testimony.â€
He argues that this part of the instruction is “the same as telling the jury to use the [CSAAS] evidence
to determine whether [the victim’s] molestation claim is true.†Not so.
In addressing a claim of jury misinstruction,
we assess the instructions as a whole and view the challenged instruction in
context with other instructions to determine whether there was a reasonable
likelihood the jury applied the challenged instruction in an impermissible
manner. (People v.
Jennings (2010) 50 Cal.4th 616, 677.) We also presume that the jury followed the court’s
instructions. (People v.
Edwards (2013) 57 Cal.4th 658, 746.)
In light of CALCRIM No. 1193 in its entirety and other instructions,
it is not reasonably likely the jury understood CALCRIM No. 1193 as allowing it
to use the CSAAS evidence in determining that the molestation occurred or that Doe’s
molestation claims were true.
The
jury was initially instructed to “[p]ay careful attention to all of [the]
instructions and consider them together†(CALCRIM No. 200), and that “certain
evidence was admitted for a limited purpose†and to “consider that evidence
only for that purpose and for no other†(CALCRIM No. 303). CALCRIM No. 1193 then told the jury that the
CSAAS evidence was not evidence
that defendant molested Doe, and to use the CSAAS evidence “only†for the
limited purpose of determining whether Doe’s conduct was inconsistent with the
conduct of a child who had been molested “and in
evaluating the believability of her testimony†that the molestations
occurred. (Italics and underlining
added.)
Reading
all of these instructions together, and each in light of the others, it is
unlikely the jury interpreted the final, italicized “and†clause of CALCRIM No.
1193 as allowing it to use the CSAAS evidence in determining that the
molestations occurred or that Doe’s claims were true per se. Rather, it is likely the jury understood
CALCRIM No. 1193 as allowing it to use the CSAAS evidence in evaluating the
believability of Doe’s testimony that the molestation occurred,
inconsistent with the conduct of a child who had been molested after
the molestations occurred.
There
is distinction between using CSAAS evidence for the impermissible purpose
of inferring a child’s molestation
claims are true—which the first clause of CALCRIM No. 1193 expressly prohibits—and
using CSAAS evidence for the permissible purpose of evaluating the
testimony that the molestations occurred in light of
evidence that the child engaged in conduct seemingly inconsistent with the
child’s molestation claims, after the molestations allegedly occurred. As stated in People v.
McAlpin, supra, 53 Cal.3d at page 1300: Expert testimony on CSAAS “
child’s conduct after the incident . . . is inconsistent with his or
her testimony claiming molestation.†(Italics
added.) CALCRIM No. 1193 and the other
instructions limited the jury’s consideration of the CSAAS to its permissible
purpose.
In sum,
in view of the instructions as a whole, it is not reasonably likely the jury understood
CALCRIM No. 1193 as allowing it to use the CSAAS evidence for the impermissible
purpose of determining the molestations occurred or that Doe’s molestation
claims were true. Rather, the jury likely
understood the instruction as permitting it to use the CSAAS evidence solely for
the distinct and permissible purpose of evaluating Doe’s credibility as a
witness in light of the evidence that her conduct following the alleged
molestations was seemingly inconsistent with the conduct of a child who had been
molested.
Violate a Defendant’s Due Process Rights
Defendant
further claims that expert testimony on CSAAS should be inadmissible per se in
California because it violates the due process rights of a defendant accused of
child molestation. He relies on several
out-of-state cases limiting or prohibiting the use of CSAAS evidence,
aid the trier of fact; it is not scientific; its concepts are not sufficiently
beyond the common experience of jurors to be of assistance; and it
impermissibly bolsters the credibility of the victim.
As the
People point out, the California Supreme Court has effectively acknowledged that
CSAAS evidence is admissible. (
has held that the admission of relevant “battered child syndrome†evidence does
not violate the due process clause of the Fourteenth
Amendment (Estelle v. McGuire (1991) 502
U.S. 62, 69-70), and battered child syndrome evidence is analogous to CSAAS
evidence (People v. Patino, supra, 26 Cal.App.4th
at p. 1747, citing People v. Bowker, supra,
203 Cal.App.3d at pp. 393-394). “For
this reason, there can be little doubt the due process dimensions of both types
of evidence is similar if not identical. Therefore, introduction of CSAAS testimony
does not by itself deny [a defendant] due process.†(People v. Patino, supra,
at p. 1747.)
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
face="Times New Roman">KING
face="Times New Roman"> J.
We concur:
HOLLENHORST
Acting
P. J.
MILLER
J.
name="_ftn1" title=""> face="Times New Roman">
out-of-state decisions limiting or prohibiting the admissibility of CSAAS
evidence: State v. Stribley
[602 A.2d 830]; Bussey v. Commonwealth (Ky.
1985) 697 S.W.2d 139; Hester v. Commonwealth
(Ky. 1987) 734 S.W.2d 457; Mitchell
v. Commonwealth (Ky. 1989) 777 S.W.2d 930; Newkirk v. Commonwealth (Ky. 1997) 937
S.W.2d 690; State v. Ballard (Tenn.
1993) 855 S.W.2d 557; State v. Bolin (Tenn.
1996) 922 S.W.2d 870. As the People
point out, however, courts in other states have held CSAAS-type evidence
admissible. (See, e.g., State v. Batangan (1990) 71 Haw. 552,
556-558 [799 P .2d 48, 51-52]; In re Nicole V
71 N.Y.2d 112, 120-121 [518 N.E.2d 914, 917-918]; State v. Lindsey (1986) 149 Ariz. 472, 473-474 [720 P.2d 73,
74-75]; Allison v. State (1986)
179 Ga.App. 303, 307-309 [346 S.E.2d 380, 384-385]; State v. Brotherton (Iowa 1986) 384 N.W.2d 375, 378; State v. Pettit (1984) 66 Ore.App. 575,
579 [675 P.2d 183, 185]; State v. Myers (Minn.
1984) 359 N.W.2d 604, 609-610; Smith v.
State (1984) 100 Nev. 570, 571-572 [688 P.2d 326, 327].)
