P. v. Roa
Filed 12/2/13 P. v. Roa CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JESUS MANUEL ROA,
Defendant and Appellant.
D063110
(Super. Ct.
No. SCE314715)
APPEAL from
a judgment of the Superior Court
of
County, Patricia K. Cookson, Judge. Affirmed.
Martha L.
McGill, 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 Marissa Bejarano, Deputy
Attorney General, for Plaintiff and Respondent.
A jury convicted Jesus Manuel Roa of
under the age of ten (Pen. Code, § 288.7, subd. (a)),
forcible lewd acts with a child under the age of 14 (§ 288, subd. (b)(1)),
and lewd acts with a child under the age of 14 (§ 288, subd.
(a)). The jury found that Roa had
engaged in substantial sexual contact with the victim, A.A., within the meaning
of section 1203.066, subdivision (a)(8).
Following his conviction, the court sentenced Roa to prison for an
indeterminate term of 25 years to life, plus a consecutive determinate term of
16 years.
Roa
appeals, contending that the court erred in admitting expert testimony relating
to the behavior of child abuse victims, often called "child sexual abuse
accommodation syndrome" or "CSAAS" evidence (CSAAS). He further contends that the court's limiting
instruction on CSAAS evidence, CALCRIM No. 1193, was erroneous even if such
evidence was properly admitted. We
affirm the judgment.
FACTS
Roa was in
a relationship with T.P. for approximately nine years. Their relationship resulted in four
children. T.P. also had a fifth child, A.A.,
from a previous relationship. Following
time apart, Roa and T.P. lived together, with the children, for a period of
several months in 2009. T.P. then moved
out because she married another man, though the five children stayed with Roa
off and on for several additional months.
At some point, the children came to permanently live with T.P. and her
new husband.
While he
lived together with the children in 2009, Roa began to molest A.A. Roa placed his hand on A.A.'s vagina, touched
and rubbed A.A.'s vagina with his finger, and penetrated her vagina with his
finger, both over her underwear and with her underwear pulled down. On at least one occasion, Roa held down A.A.
during the molestation. During the final
episode of molestation, Roa forced his penis into A.A.'s vagina. Roa told A.A. not to tell anyone about the
molestation, and on one occasion threatened to hit her if she told.
Around the
time of the molestation, both T.P. and I.A., A.A.'s step-mother, found spots of
blood on A.A.'s underwear. Also around
this time, A.A. told I.A. that she was afraid of Roa, that she was hiding from
Roa, and that she did not want to be around Roa.
At least a
year later, after A.A. and her half-siblings had permanently moved in with T.P.
and her husband, A.A. complained to T.P. about discomfort in her vaginal
area. T.P. examined the area, which was
inflamed and appeared injured. A.A. then
told T.P. that Roa had touched the vagina of one of A.A.'s half-sisters. T.P. asked A.A. if she too had been molested
by Roa, and A.A. answered yes. A.A.
later said that she had not seen her half-sister and Roa engaged in any sexual
behavior, but she confirmed that she herself had been molested. She said that Roa had touched her vagina and
put his fingers inside her vagina.
The day
after these disclosures, T.P. took A.A. to a sheriff's station. A.A. was profoundly upset and unable to give
a statement to a sheriff's deputy.
Several days later, A.A. was questioned by a forensic interviewer
specializing in child abuse, and she described her molestation by Roa. Again, A.A. stated that Roa had touched her
vagina and put his fingers inside her vagina.
Under
questioning by the sheriff's department, Roa admitted inappropriate contact
with A.A. He admitted placing his
fingers on A.A.'s vagina on two occasions, but he contended that it was
accidental. Roa stated that he was
sleeping in the same bed as A.A. and, while he was sleeping, mistook A.A. for T.P. Roa said that he told A.A. that he was sorry,
and that it was an accident, but that she should not tell anyone because Roa
could get in trouble. An investigator
with the sheriff's department suggested that Roa write an apology letter to A.A. Roa did so.
In the letter, Roa wrote that he was sorry for touching A.A. the "wrong
way" on her "privates."
Sometime later, Roa was taken into custody.
Following
Roa's arrest, T.P. showed A.A. the teen comedy Easy A. The plot of the
movie revolves around sexual conduct and, in particular, one character's
infection with Chlamydia. The movie
prompted a number of questions from A.A. to T.P. regarding sex and sexually
transmitted diseases. During the
resulting discussion, A.A. again complained of discomfort in her vaginal
area. A.A. became upset and, in response
to T.P.'s questioning, told T.P. that Roa had put his penis into her
vagina. A.A. told T.P. that she was too
scared to disclose this additional molestation
before. Later, A.A. told a forensic
interviewer that she had forgotten this additional molestation and that the
movie reminded her. Medical examination
could neither confirm nor rule out sexual abuse.
Roa was
tried before a jury on five felony charges stemming from A.A.'s allegations of
abuse. At trial, the People called
Laurie Fortin, a forensic interviewer and licensed social worker, to testify
regarding the behavior of children who have been sexually abused. Fortin identified certain commonly-held myths
and misconceptions surrounding children who have been sexually abused, including
that such children usually report the abuse immediately. Fortin testified that, in reality, children
who are sexually abused often delay disclosing the abuse and, even then, make
only incremental disclosures over an extended period of time. Fortin also testified that the child's
statements may be inconsistent, as the story is retold multiple times.
During
Fortin's testimony, the People played two videotaped forensic interviews with A.A. Fortin used examples from those interviews in
her testimony about incremental disclosures.
Fortin testified, "So what [A.A.] described is exactly what we
would expect. She only talks about one
thing with [the social worker]. But when
she comes into a different setting, there may be additional things that come out,
because the questioning is going to be different, and the purpose of the
interview is different. . . .
My experience is that as kids get in counseling, which we make a
referral for, even more may come out.
And there may be certain things within the environment or things they
are exposed to that all of a sudden just trigger an additional memory for them
that they may have forgotten, or pushed away, or denied to themselves or to
others." The People asked Fortin
whether the "two videos, or any of the questions [the interviewer] asked,
or any of the responses, or the pattern of disclosure that you saw" raised
"any red flags that you saw or any indications or inconsistencies that you
observed in either of the two videos."
Fortin responded, "None that are atypical from what is pretty
common, from my experience."
Fortin also
testified about interviewing techniques, the importance of asking open-ended
questions, and the role of the forensic interviewer, which is not to determine
whether or not a child is telling the truth.
Both the People and Roa's counsel questioned Fortin extensively
regarding hypothetical interview questions, where they fell on the spectrum of
leading to open-ended, and the effects of such questions on a child's
statements.
Prior to
trial, Roa had moved in limine to
exclude Fortin's testimony regarding the behavior of sexually-abused children
under Evidence Code, section 352. Roa
argued that testimony such as Fortin's, or CSAAS testimony, was unreliable, not
probative to any issue in the case, and would confuse and mislead the
jury. Roa also requested a limiting
instruction that "the testimony is introduced to dispel a myth [and] the
jury must not use that evidence to predict a [molestation] has been committed,"
should Fortin's testimony be admitted over his objection. Roa did not specify a particular instruction
and did not reference CALCRIM No. 1193, which deals with CSAAS testimony. The court denied Roa's motion
scope of Fortin's testimony. The court
appears to have suggested sua sponte
that CALCRIM No. 1193 be given to the jury.
Roa did not object.
CALCRIM No.
1193 was in fact given to the jury in connection with CALCRIM No. 303, and with
some embellishments, as follows:
"THE COURT: You have heard testimony from Laurie Fortin
regarding child abuse. Laurie Fortin's
testimony about child abuse 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 Alyssa A.'s conduct was
not inconsistent with the conduct of someone who has been molested and in
evaluating the believability of her testimony.
"THE PEOPLE: Could I interrupt?
"THE COURT: Yes.
"THE PEOPLE: The name you mentioned was Alyssa.
"THE COURT: [A.A.].
I'm sorry. I said Alyssa. It should be [A.A.]. Excuse me . . . It's [A.A.]. My apologies.
During the trial certain evidence was admitted for a limited purpose,
and you may consider that evidence only for the purpose and for no other. That goes back to Laurie Fortin's testimony
regarding the child abuse accommodation syndrome."
During
their closing argument, the People referenced Fortin's testimony several
times. For example, the People argued, "Why
else believe everything A.A. has said is the absolute truth? The expert witness told us that the evidence
in this case is completely consistent with the reported behavior. The disclosure was delayed. It took her over two years. Then when she started to disclose the
information it came out in pieces.
Completely normal." The
People further stated, "[T]here is nothing that the two experts in the
field say which should raise any red flags or anything inconsistent at all with
what A.A. has said."
name="_ftnref2" title="">[2]
During Roa's
closing argument, his counsel repeatedly questioned A.A.'s credibility. Roa's counsel stated, "On
cross-examination [of a sheriff's detective] I pointed out just a couple of the
inconsistencies between the preliminary hearing and A.A.'s trial testimony. . . . I was able to point out that A.A. lied as
well about using the word 'berdy.' She
was willing to lie at the preliminary hearing and say they had no other word
for it. . . . The inconsistencies in A.A.'s statements are
clear." Roa's counsel provided
several additional examples of alleged inconsistencies in A.A.'s
statements.
DISCUSSION
I
Roa
contends that the court erred by denying his motion in limine to exclude Fortin's testimony pursuant to Evidence
Code, section 352. Roa argues that the
testimony lacked probative value, was not helpful to the trier of fact, and
created a substantial risk that the jury would misuse Fortin's testimony as
evidence of guilt.
Section 352
of the Evidence Code states: "The
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." "Rulings under Evidence Code section 352
come within the trial court's discretion and will not be overturned absent an
abuse of that discretion." (
1055, 1070.) "A trial court's
discretionary ruling under this statute ' "must not be disturbed on
appeal except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in a miscarriage
of justice." ' [Citation.]" (People
v. Williams (2008) 43 Cal.4th 584, 634-635.)
Here, the
court's denial of Roa's motion in limine
regarding CSAAS evidence was not an abuse of discretion. As noted above, CSAAS evidence refers to the
common reactions of child molestation victims, such as delayed reporting and
retraction. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin); see People v.
Bowker (1988) 203 Cal.App.3d 385, 389, 392-394.) Such testimony is
admissible in California for limited purposes.
"[E]xpert testimony on the common reactions of child molestation
victims 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." (
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.)
Relying on
out-of-state authorities and legal commentary, Roa first argues that California
authority on this issue should be reconsidered and CSAAS testimony held
inadmissible for all purposes. We
disagree. Our Supreme Court has repeatedly
and approvingly cited authorities allowing the use of CSAAS evidence, and it
has ratified the reasoning underlying the admission of such evidence. For example, in McAlpin, supra, the court considered the admission of expert
testimony regarding the response of parents
of abused children to their children's trauma.
(53 Cal.3d at p. 1300.)
After discussing the authorities approving of CSAAS evidence, the court
analogized those authorities to the case before it: "In the case at bar the challenged expert
testimony dealt with the failure not of the child victim, but of the child's
parent, to report the molestation. Yet
the foregoing rules appear equally applicable in this context." (Id.
at p. 1301.) The court found no
abuse of discretion in the admission of such testimony. (Id.
at p. 1302.) The court later
analogized expert testimony regarding the behavior of domestic violence victims
to CSAAS evidence, and it found such testimony admissible in the domestic
violence context. (People v. Brown (2004) 33 Cal.4th 892, 906-907; see also
211 [expert testimony on gang culture].)
We are bound to follow the clear import of our high court's rulings, and
we therefore decline to overturn California's long-standing rule allowing CSAAS
evidence. (See People v. Perez (2010) 182 Cal.App.4th 231, 245.)
Roa further
argues that the court abused its discretion in admitting CSAAS evidence under
the circumstances of this case. Roa
contends that CSAAS evidence was not probative because it incorrectly relies on
the assumption that certain behaviors are unique to children who have been
sexually abused. We discern no such
assumption in the CSAAS evidence offered in this case.
victim's response to child abuse may be the explanation for behavior that would
otherwise undermine the victim's credibility.
This is a recognized and proper purpose for CSAAS evidence. (See McAlpin,
supra, 53 Cal.3d at p. 1301 [" '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. [¶] The great majority of courts approve such
expert rebuttal testimony.' [Citation.]"].)
We likewise
reject Roa's contention that CSAAS evidence was not beyond the common knowledge
and experience of jurors and thus was not proper expert testimony. (See Evid. Code, § 801.) Most jurors, thankfully, were not sexually
abused themselves as children, nor do they have knowledge and experience
regarding child sexual abuse. The
behavior of sexually abused children therefore falls outside their common
experience. As our Supreme Court has
explained, with respect to the parents of sexually abused children, expert
testimony on the behavior of such individuals "would therefore 'assist the
trier of fact' (Evid. Code, § 801, subd. (a)) by giving the jurors
information they needed to objectively evaluate [the individual's] credibility." (McAlpin,
supra, 53 Cal.3d at p. 1302.)
The same principle applies here as well.
(See People v. Perez, supra,
182 Cal.App.4th at p. 245.)
Finally,
Roa contends that the danger of unfair prejudice, based on the risk that jurors
would misinterpret CSAAS evidence as direct evidence of guilt, substantially
outweighed any probative value. We
disagree. CSAAS evidence has probative
value, and is admissible, to assess the credibility of an alleged victim of
sexual abuse. (McAlpin, supra, 53 Cal.3d at p. 1300 ["[I]t is admissible
to rehabilitate such witness's credibility when the defendant suggests the
child's conduct after the incident—e.g., a delay in reporting—is inconsistent
with his or her testimony claiming molestation.
[Citations.]"]; People v.
Perez, supra, 182 Cal.App.4th at p. 245.) Roa's defense put the credibility of the
victim here at issue. Based on our
review of the record, the probative value of CSAAS evidence was not
substantially outweighed by the danger of misinterpretation identified by Roa. (See Evid. Code, § 352;
107, 114-115.) Moreover, the court
properly instructed the jury that CSAAS evidence was not direct evidence of
guilt, thus minimizing any risk of misinterpretation by the jury.
the court's denial of Roa's motion in limine
seeking to exclude CSAAS evidence.
Because we hold there was no error in the court's denial of Roa's motion
in limine, we need not address
his arguments regarding the effect of the alleged error.
II
Roa argues
that, even if CSAAS evidence were properly admitted, the court erred by
instructing the jury with CALCRIM No. 1193.
improperly allows the use of CSAAS evidence as direct evidence of guilt because
it instructs the jury that they may use the evidence "in evaluating the
believability of [the victim's] testimony." Roa argues that this portion of CALCRIM
No. 1193 effectively gave the jury license to consider CSAAS testimony "to
determine whether the victim's molestation claim is true." (See People
v. Housley (1992) 6 Cal.App.4th 947, 959.)
Roa did not
object to CALCRIM No. 1193 in the trial court.
However, "a defendant need not assert an objection to preserve a
contention of instructional error when the error affects the defendants 'substantial
rights.' [Citation.]" (People
v. Felix (2008) 160 Cal.App.4th 849, 857.)
We therefore consider the merits of Roa's claim of error. (See People
v. Andersen (1994) 26 Cal.App.4th 1241, 1249 ["Ascertaining whether
claimed instructional error affected the substantial rights of the defendant
necessarily requires an examination of the merits of the
claim . . . ."].)
"[A]ssertions
of instructional error are reviewed de novo." (People
v. Shaw (2002) 97 Cal.App.4th 833, 838.)
The proper test for judging the adequacy of instructions is to decide
whether the trial court "fully and fairly instructed on the applicable
law . . . ." (
540, 558.) " 'In determining
whether error has been committed in giving or not giving jury instructions, we
must consider the instructions as a whole . . . [and]
assume that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given. ['] [Citation.]" (People
v. Yoder (1979) 100 Cal.App.3d 333, 338.)
"Instructions should be interpreted, if possible, so as to support
the judgment rather than defeat it if they are reasonably susceptible to such
interpretation." (
Cal.App.3d 1254, 1258.)
We conclude
that the court properly instructed the jury on the admissibility of CSAAS
evidence with CALCRIM No. 1193. The
purpose of CSAAS evidence is to help the jury evaluate the credibility, i.e.,
the "believability," of an allegedly abused child's testimony. (McAlpin,
supra, 53 Cal.3d at p. 1300 [expert testimony on CSAAS "is
admissible to rehabilitate such witness's credibility when the defendant
suggests that the child's conduct after the
incident . . . is inconsistent with his or her testimony
claiming molestation."]; People v.
Housley, supra, 6 Cal.App.4th at p. 955 ["[E]xpert psychological
testimony may be used to aid the jury's assessment of the victim's
behavior. [Citation.]"].) Roa does not cite any authority for the
proposition that instructing the jury on the permissible purposes for which it
may consider evidence would be error. Indeed, such a rule would make no sense
because, in the case of evidence admitted for a limited purpose, that is the
precise function of the instruction. (See
Evid. Code, § 355.)
We likewise
see no internal inconsistency between the portion of CALCRIM No. 1193 that
directs the jury not to consider CSAAS evidence as "evidence that the
defendant committed any of the crimes charged against (him/her)" and the
portion that allows the jury to use CSAAS evidence "in evaluating the
believability of [the alleged victim's] testimony." The two portions correctly describe the
impermissible and permissible applications, respectively, of CSAAS
evidence. There is nothing in the latter
portion that would contradict the former, e.g., by instructing the jury to
conclude that the victim is credible if the child acts like a molestation
victim, which would plainly be impermissible.
(See People v. Bowker, supra,
203 Cal.App.3d at p. 393.) Roa's
contention that the jury would be unable to understand and apply the
instruction is unsupported speculation. "Jurors
are routinely instructed to make . . . fine distinctions
concerning the purposes for which evidence may be considered, and we ordinarily
presume they are able to understand and follow such instructions." (People
v. Yeoman (2003) 31 Cal.4th 93, 139.)
Roa has provided "no reason to abandon the presumption in this
case, where the relevant instructional language seems clear and easy to
understand." (See
Roa has not
shown any error in the trial court's instruction, which fully and fairly
instructed the jury on the use of CSAAS evidence in this instance. Because we hold there was no error in the
court's instruction, we need not address Roa's arguments regarding the effect
of the alleged error.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
name="_ftn1" title="">[1]
Further statutory references
are to the Penal Code unless otherwise noted.
name="_ftn2" title="">[2]
The "two experts"
referenced by the People appear to be Fortin and Dr. Joyce Adams, who conducted
the medical examination of A.A.
