Filed 4/6/15 P. v. Figge CA4/1 REDACTED NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066962
Plaintiff and Respondent,
v. (Super. Ct. No. SWF1100774)
BRIAN KEITH FIGGE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, Albert J.
Wojcik, Judge. Affirmed.
Brown White & Newhouse and Kenneth P. White for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Peter Quon, Jr., and Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent. Brian Figge appeals from a judgment convicting him of various sex offenses arising
from charges that he sexually molested Jane Doe 1 and Jane Doe 2.1 He argues the
judgment must be reversed because the record does not support the trial court's excusal of a
juror for failure to deliberate. Additionally, he contends the court abused its discretion and
deprived him of a fair trial by (1) excluding defense impeachment evidence, (2) admitting
prosecution expert testimony on Child Sexual Abuse Accommodation Syndrome, and (3)
excluding defense expert testimony opining that he lacked the attributes of a pedophile.
We find no reversible error and affirm.
In the proceedings before the trial court, a portion of the record relevant to the
proffered defense impeachment evidence was sealed as mandated by statute. To maintain
the confidentiality of the sealed material, on appeal the parties filed redacted briefs available
to the public and unredacted briefs under seal. Because our resolution of defendant's claims
requires discussion of the sealed material, the portion of this opinion available to the public
has been redacted to remove Sections II and IV in which the sealed material is discussed.
The unredacted version of this opinion (containing Sections II and IV) has been filed under
seal.
FACTUAL AND PROCEDURAL BACKGROUND
The molestation committed by defendant included three incidents of oral sex
involving Jane Doe 1 in 2004, 2005, and 2006, and one incident of sodomy involving Jane
1 To preserve confidentiality, the victims were identified at trial as Jane Doe 1 and Jane Doe 2. We use the same designation.
2 Doe 2 in 2010. Jane Doe 1, age 19 at the time of trial, testified that defendant first molested
her when she was about 11 years old and in the sixth grade. He came to her bedroom late at
night, sat on the edge of her bed, and said something like, "Oh, I have a favor, can you help
me out." Defendant stood up, removed his boxers, and had Jane Doe 1 perform oral sex on
him. Jane Doe 1 felt "really terrified" but defendant kept reiterating "the favor part of it and
to not worry," and Jane Doe 1 thought "he must be right" although she did not really
understand what was going on. Defendant told her not to say anything and to keep her
"mouth shut."
The second and third incidents occurred during the following two years, when Jane
Doe 1 was 12 and 13 years old and in the seventh and eighth grade, respectively. The
incidents were essentially the same, involving Jane Doe 1 performing oral sex on defendant
late at night in her bedroom. During the second incident, defendant said things like "You're
gonna do this. . . . You want to do this. . . . You have to do this." Jane Doe 1 still felt "really
scared" but she was "a little bit more coherent to the situation" and knew "it wasn't right."
Defendant told her, "Don't tell . . . don't say anything, keep your mouth shut" and made small
threats such as taking her cell phone away. During the third incident, Jane Doe 1 told
defendant she did not want to do this anymore, and defendant said, "Don't say anything. . . .
No one will know. . . . You don't want to get in trouble." On a fourth occasion when she
was still in eighth grade and defendant came to her room, Jane Doe 1 told defendant "I'm not
doing this anymore, this isn't gonna happen, this is wrong." Defendant started "backtracking
a lot," saying "I'm sorry, I'm sorry, don't say anything, keep your mouth shut, don't tell . . . ."
After this, there were no further incidents.
3 Jane Doe 1 testified she put the molestation "away for a really long time" and did not
"revisit it until recently." Jane Doe 1 explained that she did not tell anyone about the
molestation when it occurred because defendant told her not to; she did not want to cause
more problems in her family; she was afraid; she thought defendant would be angry and call
her a liar; she thought she could be "strong enough to hold it"; she thought she would get in
trouble; and by the time of the last incident she realized defendant would get in trouble. Jane
Doe 1 finally disclosed the molestation in March 2011 during a conversation with her
boyfriend (Boyfriend 2) when she was 17 years old and a senior in high school.2 Jane Doe 1
testified that she never really wanted to "be sexual" with Boyfriend 2 because it made her
uncomfortable; he would repeatedly ask her why; and she finally told him what happened
with defendant when she was younger. Boyfriend 2 reported what she said to the police,
which upset Jane Doe 1 because at the time she did not want defendant prosecuted.
Jane Doe 2, age 13 at the time of trial, lived at defendant's home for about seven
weeks when she was 10 years old and in the fifth grade, while her family was relocating and
looking for a house to buy. Defendant molested her on one occasion while she was there.
She was in the living room watching television and no one else was at home. When
defendant came into the living room and Jane Doe 2 asked if she could finish watching her
show, defendant said no. Apparently because of a dispute over the remote control, defendant
hit Jane Doe 2 on her arm, and she started crying and went upstairs to her room. Defendant
2 The defense proffered impeachment evidence from Jane Doe 1's previous boyfriend (Boyfriend 1), whom she dated when she was 16 years old, which we shall discuss below in our sealed, unredacted opinion. 4 went up to her room, pulled her off the bed, removed her pants and underwear, removed his
pants, and put his "private part" inside her "butt." Defendant told her if she "told anybody
[she] was gonna pay." She did not tell anyone that day because she was scared and thought
defendant would hurt her.
More than one year later, in November 2011, Jane Doe 2 told her mother about the
molestation when Jane Doe 2 got suspended from school in the seventh grade. Jane Doe 2's
mother testified that she had previously told Jane Doe 2 that defendant and his wife were
getting divorced and defendant had moved out of his home because he was "mean to [Jane
Doe 1]." While Jane Doe 2 was home on suspension, Jane Doe 2 kept asking her mother to
tell her what she meant by defendant being mean to Jane Doe 1, and when Jane Doe 2's
mother did not provide any details, Jane Doe 2 finally said to her mother that defendant was
mean to her and explained that he had "put his pee-pee in [her] butt." Jane Doe 2's mother
contacted the police to report what her daughter said. Jane Doe 2 testified that she asked her
mother whether defendant had molested Jane Doe 1 because she wanted to know if what
happened to her had happened to someone else.
Jury Verdict and Sentence
For the offenses against Jane Doe 1, defendant was charged with lewd act, oral
copulation, and aggravated sexual assault of a child during three different time periods. For
the offense against Jane Doe 2, he was charged with forcible lewd act, sodomy, and
aggravated sexual assault of a child in 2010. The information also alleged that he committed
the offenses against more than one victim. The jury found defendant guilty as charged. The
trial court sentenced him to four terms of 15 years to life for each of the aggravated sexual
5 offense convictions (for a total of 60 years to life), and stayed the sentences on the remaining
counts.
DISCUSSION
I. Excusal of Juror
Defendant argues the trial court's decision to excuse a juror for failing to deliberate is
unsupported by the record.
A. Background
After about one and one-half days of deliberation, several jurors reported that Juror
No. 11 was refusing to deliberate. The court convened a hearing and separately questioned
four jurors, and then separately questioned Juror No. 11.
Juror No. 4 told the court that Juror No. 1l was being "very close minded and . . . he
doesn't even want to talk about the whole scenario of what's going on here." Juror No. 4
explained that the jurors had discussed the case at length and Juror No. 11 had listened and
heard what other jurors were saying, but he had "his mind made up" from the beginning of
deliberations and has not changed his mind; he does not "want to even go there"; he does not
"want to infer or look at anything"; and he said he did not "believe in these scenarios" and
"in these kind of things." Juror No. 4 felt Juror No. 11 was failing to deliberate soon after
the beginning of deliberations, explaining the jurors were trying to be fair and do their "jobs"
and "go over everything," but Juror No. 11 did not "want to acknowledge that there was
anything to talk about," and it appeared he had his mind made up and it did not matter what
the other jurors were going to say.
6 Juror No. 8 told the court that she felt Juror No. 11 was failing to deliberate from the
very beginning when they first "sat down," and it appeared from the discussions that Juror
No. 11 "made up his mind before [they] ever entered the jury room." She explained that they
started discussing the case, and Juror No. 11 said, "I just don't see any of it. . . . I can't put
this together. It just does not make sense to me." Juror No. 8 elaborated that one of the
jurors was very skilled at explaining everything from all angles and was trying to discuss the
case from every angle, but it was very frustrating because they were not making progress.
She stated Juror No. 11 was providing "no feedback," explaining "It's like you're staring at
me and I'm gonna keep talking and you're not gonna say anything."
Juror No. 7 said she felt Juror No. 11 was being "very closed minded"; he made his
decision "from the very, very beginning"; and he was not making a good faith effort to
deliberate. For example, he would say "that's it. That's what I believe." In response, Juror
No. 7 told Juror No. 11 that they were "here today to continue to talk about this and this is all
part of the process" and this "is a very serious matter," but it seemed he was not cooperating
with the process. Juror No. 7 stated that Juror No. 11 had complained that the other jurors
were "badgering" him, but when jurors tried to listen and also interject at appropriate times,
Juror No. 7 would say "he is just gonna shut down."
Juror No. 2 told the court that Juror No. 11 had a closed mind starting in the first hour
of deliberations; he had his opinion "right away"; and he was not making an effort to
deliberate. She stated that although he was listening and at times he was participating, it was
also hard to tell if he was listening "because he is so shut down on what we're talking about"
and "his opinion is so strong." She explained, "[H]e thinks it's good deliberating because
7 we're all talking. But he's not changing his mind in any way. And we've had three or four
readbacks and nothing's changing." When the court noted there was nothing wrong with
having an opinion and not changing his mind as long as he listens and discusses with
everyone, Juror No. 2 agreed there was nothing wrong, but reiterated her view that Juror No.
11 has been "closed-minded from the beginning." She stated that when Juror No. 11 engages
in discussions, he repeats the "same thing over and over again"; they were not getting
anywhere with the deliberations; and it was clear Juror No. 11 was at a point that he was not
going to change his mind.
After hearing from these four jurors, Juror No. 11 was questioned. Juror No. 11 told
the court he did not make up his mind from the very first hour of deliberations; he did not
fail to deliberate or keep an open mind; and, to the contrary, he was the first juror who turned
the deliberations "into a discussion." He stated that at the outset of deliberations another
juror said "my mind's made up, he's . . . guilty . . . as hell." In response, Juror No. 11 told
him "no" and they needed to discuss this; he started with count 1 but the other jurors "were
all over the place"; and they had a discussion but the other jurors "didn't like that [his]
opinion was different." He said one of the jurors "got up and swore" at him; another juror
was "badgering" him by asking him the "same things over and over" and "making statements
to [him] over and over without having [him] saying anything"; he was trying to enter into a
discussion but it was impossible; and he was "respecting everyone's opinions but they just
didn't like [his] opinion."
After hearing counsel's arguments, with the prosecutor arguing to excuse Juror
8 No. 11 and defense counsel arguing in opposition, the court decided to excuse him. The
court found that Juror Nos. 8, 7, 2, and 4 were more credible than Juror No. 11, and Juror
No. 11 appeared "to be trying to hide something." The court reasoned that the four jurors
essentially indicated that although Juror No. 11 might be listening and hearing, he "just does
not seem to get involved in the process"; he entered into the deliberation process closed-
minded and did not keep an open mind; and he had not made a good faith effort to deliberate.
B. Analysis
To protect a defendant's right to the individual votes of an unbiased jury, great caution
is required when deciding to excuse a sitting juror. (People v. Allen and Johnson (2011) 53
Cal.4th 60, 71 (People v. Allen).) When reviewing a trial court's decision to discharge a
juror, we do not reweigh the evidence; however, we apply a standard that requires a
somewhat stronger showing than is typical for abuse of discretion review, and we engage in
a more comprehensive and less deferential review than simply determining whether any
substantial evidence supports the court's decision. (Ibid.) The basis for a juror's discharge
must appear on the record as a demonstrable reality, and we evaluate whether the trial court's
conclusion is manifestly supported by evidence on which the court actually relied. (Ibid.)
A trial court may dismiss a juror if it finds the juror is unable to perform his or her
duties, including the duty to deliberate. (People v. Cleveland (2001) 25 Cal.4th 466, 474,
485.) "A refusal to deliberate consists of a juror's unwillingness to engage in the deliberative
process; that is, he or she will not participate in discussions with fellow jurors by listening to
their views and by expressing his or her own views. Examples of refusal to deliberate
include, but are not limited to, expressing a fixed conclusion at the beginning of
9 deliberations and refusing to consider other points of view, refusing to speak to other jurors,
and attempting to separate oneself physically from the remainder of the jury." (Id. at p. 485,
italics added.) However, the "circumstance that a juror does not deliberate well or relies
upon faulty logic or analysis [or] . . . disagrees with the majority of the jury as to what the
evidence shows, or how the law should be applied to the facts . . . does not constitute a
refusal to deliberate . . . . A juror who has participated in deliberations for a reasonable
period of time may not be discharged for refusing to deliberate, simply because the juror
expresses the belief that further discussion will not alter his or her views." (Ibid.)
Regarding the requirement that a juror keep an open mind, the courts recognize the
"reality that a juror may hold an opinion at the outset of deliberations is . . . reflective of
human nature. . . . We cannot reasonably expect a juror to enter deliberations as a tabula
rasa, only allowed to form ideas as conversations continue. What we can, and do, require is
that each juror maintain an open mind, consider all the evidence, and subject any
preliminary opinion to rational and collegial scrutiny before coming to a final
determination." (People v. Allen, supra, 53 Cal.4th at p. 75, italics added.) Thus, a juror's
mere failure to change his or her opinion does not show a failure to deliberate under
circumstances where the juror was participating in the deliberative process. (See id. at
pp. 74-75.)
When evaluating the court's ruling, we defer to its assessment that the four jurors
credibly described Juror No. 11's conduct, and that Juror No. 11's description of what
occurred was not credible. (People v. Merriman (2014) 60 Cal.4th 1, 101.) A trial
" ' " 'judge who observes and speaks with a juror and hears that person's responses (noting,
10 among other things, the person's tone of voice, apparent level of confidence, and demeanor),
gleans valuable information that simply does not appear on the record.' " ' " (Ibid.)
The four jurors indicated to the court that although Juror No. 11 was speaking and
listening during the discussions, he had made up his mind from the outset of the deliberations
and was not willing to consider other points of view. Juror No. 4 told the court that Juror
No. 11 had a closed mind and his mind was made up from the beginning; it did not matter
what other jurors were going to say; he told the other jurors he did not "believe in these
scenarios"; he did not want to "infer or look at anything"; and he did not want to
acknowledge that there was anything to talk about. Juror No. 8 told the court that Juror No.
11 had made his mind up before he entered the jury room; at the outset of their discussions
he said he did not "see any of it" and it did not make sense; and he would provide no
feedback during their discussions. Juror No. 7 told the court that Juror No. 11 had made his
decision from the beginning; he had a closed mind; and when other jurors interjected
comments he indicated he was just going to "shut down." Juror No. 2 told the court that
Juror No. 11 had his opinion and a closed mind from the first hour of deliberations, and
because of his strong opinion he was "shut down" during the discussions.
As described by these jurors, during the deliberations Juror No. 11 was at times
listening and talking, but he was not engaging in an evaluation of other jurors' opinions and
he at times withdrew from the deliberations because he did not want to consider the points
raised by other jurors. Their descriptions reflect that he was not deliberating in a meaningful
manner because he had already decided the case in his mind and he was not willing to give
other jurors an opportunity to change his views. The jurors consistently stated that Juror No.
11 11 engaged in this intransigent approach from the beginning of the deliberations, which
reflects this is not a situation where a juror has deliberated with an open mind for a
reasonable period and is now simply communicating that he or she has made a final decision.
The record shows as a demonstrable reality that Juror No. 11 was not willing to
engage in the deliberative process, which requires that he enter deliberations with an open
mind and not become entrenched in any particular decision until he has in good faith
considered the views expressed by the other jurors. Although Juror No. 11 clearly had the
right to adhere to his position after good faith deliberations, the four jurors that the court
interviewed showed that Juror No. 11 was adamantly maintaining his opinion without giving
other jurors' opinions any consideration. This was in violation of his duty to consider other
jurors' points of view before making a final decision. (People v. Cleveland, supra, 25
Cal.4th at p. 485; People v. Allen, supra, 53 Cal.4th at p. 75.)
We are not persuaded by defendant's claim that the jurors' statements that Juror No.
11 was not deliberating were conclusory and often made in response to leading questions,
and any facts the jurors did provide showed Juror No. 11 was deliberating. Although the
jurors were at times asked leading questions, they also spoke in a nonconclusory manner and
provided details to explain how Juror No. 11 was not willing to engage in meaningful
discussions (e.g., he shut down; he said he did not believe in these scenarios; he refused to
acknowledge there was anything to talk about). Further, the record shows that although
Juror No. 11 was talking and listening, he was not deliberating in a meaningful manner; that
is, maintaining an open mind and taking the views of other jurors into account before
reaching a final conclusion.
12 Based on the showing that Juror No. 11 was unwilling to engage in the deliberative
process, the court did not err by discharging him.
SECTION II REDACTED AND FILED UNDER SEAL
III. Evidentiary Rulings Concerning Expert Testimony
Defendant asserts the trial court made two erroneous rulings regarding expert
testimony proffered by the parties. He asserts the court erred by (1) allowing the prosecution
to present expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS),
and (2) precluding the defense from presenting an expert's opinion that defendant did not
have an abnormality related to pedophilia.
A. General Principles Governing Expert Testimony
Expert opinion testimony is admissible if it is (1) "[r]elated to a subject that is
sufficiently beyond common experience that the opinion of an expert would assist the trier of
fact" and (2) "[b]ased on matter . . . that is of a type that reasonably may be relied upon by an
expert in forming an opinion upon the subject to which his testimony relates . . . ." (Evid.
Code, § 801.) The jury need not be wholly ignorant of the subject matter of the opinion to
justify its admission; even if the jury has some knowledge of the matter, expert opinion may
be admitted whenever it would assist the jury. (People v. McAlpin (1991) 53 Cal.3d 1289,
1299-1300.) The opinion evidence is properly excluded when it would add nothing to the
jury's common fund of information, i.e., when the subject of inquiry is of such common
knowledge that a person of ordinary education could reach a conclusion as intelligently as
the witness. (Id. at p. 1300.) A trial court's decision on the admission of expert testimony
will not be disturbed on appeal unless " 'a manifest abuse of discretion is shown.' " (Id. at
13 p. 1299.)
B. Admission of Expert Testimony on CSAAS
CSAAS evidence refers to the common reactions of child molestation victims,
including delayed reporting. (People v. McAlpin, supra, 53 Cal.3d at p. 1300.) CSAAS
testimony is inadmissible to prove that a molestation has actually occurred, but it is
admissible for the limited purpose of disabusing the jury of misconceptions it might hold
about how a child reacts to a molestation. (People v. Patino (1994) 26 Cal.App.4th 1737,
1744.) The limited admission of CSAAS evidence gives "the jurors information they need[]
to objectively evaluate the [child's] credibility" so as to provide for a fair trial. (People v.
McAlpin, at p. 1302.) However, to ensure the jury will not use the expert evidence to
improperly infer the abuse occurred, (1) the CSAAS evidence must be targeted to a specific
myth or misconception suggested by the evidence, and (2) the jury should be instructed that
the evidence may not be used to determine the truth of the molestation claim and is only
admitted to show that the victim's reactions are not inconsistent with having been molested.
(People v. Bowker (1988) 203 Cal.App.3d 385, 393-394; People v. Housley (1992) 6
Cal.App.4th 947, 956-957.) It is the People's burden to identify the myth or misconception
the evidence is designed to rebut, and where "there is no danger of jury confusion, there is
simply no need for the expert testimony." (People v. Bowker, at p. 394.)
The record here shows compliance with these requirements. The victims did not
immediately report the molestation, with Jane Doe 1 waiting about six years and Jane Doe 2
waiting over one year after its occurrence. In its pretrial motions the prosecution referred to
the victims' delayed reporting as a basis for admission of the CSAAS testimony and stated
14 the testimony would be relevant for the jury to understand that this delay was not abnormal
for a molested child. At trial, the prosecution's CSAAS expert qualified her testimony by
stating she was not testifying about whether the complaining witnesses were or were not
sexually abused; CSAAS was developed based on information showing that children react to
trauma differently than adults; CSAAS assumes that abuse has occurred and that there is a
relationship between the child and the abuser; and CSAAS is never used to diagnose whether
abuse has occurred. When testifying regarding delayed reporting, the expert explained that
in the past it was assumed that if a child had been molested "of course they would tell right
away," but research has revealed this is often not the case. She stated that a child might not
report the molestation because of overt threats or feelings that they need to protect someone
or they have been bad and will get in trouble. Thus, children often wait to reveal the
molestation until they feel in a safe environment such as when they are older, or something
occurs that finally makes it necessary for them to speak out such as a threat to a sibling.
At the conclusion of the expert's testimony, as well as at the conclusion of all the
evidence, the court instructed the jury on the limited purpose of the testimony, stating the
jury must not consider the CSAAS evidence as proof that the alleged molestation was true
and it should consider the evidence "only for the limited purpose of showing, if it does, that
the alleged victim's reactions, as demonstrated by the evidence, are not inconsistent with her
having been molested." (See CALJIC No. 10.64.)
Defendant asserts the court should have excluded the CSAAS evidence because the
defense did not attack the victims' credibility based on delayed reporting; there was no
15 particularized showing that the jury in this case would unfairly evaluate the delayed
reporting; and under these circumstances the evidence was more prejudicial than probative.
The contention is unavailing. Although in closing arguments defense counsel did not
focus on delayed reporting as an issue, he did note that Jane Doe 1 did not tell anyone when
she was first molested. In any event, CSAAS evidence may be admitted when a specific
myth or misconception is suggested by the evidence, regardless of whether the defense refers
to the matter to support its case. (People v. Patino, supra, 26 Cal.App.4th at p. 1745; see
People v. Riggs (2008) 44 Cal.4th 248, 293 ["there is no requirement that the defendant
explicitly challenge a witness's credibility on a basis that might be explained by [battered
women syndrome] evidence before such evidence may be introduced"].) As explained in
Patino, "Regardless of how or by whom [the victim's] delay in reporting the molests was
introduced to the jury, an obvious question was raised in the minds of the jurors. It would be
natural for a jury to wonder why the molestation was not immediately reported if it had
really occurred . . . . If it were a requirement of admissibility for the defense to identify and
focus on the paradoxical behavior, the defense would simply wait until closing argument
before accentuating the jurors' misconceptions regarding the behavior. To eliminate the
potential for such results, the prosecution should be permitted to introduce properly limited
credibility evidence if the issue of a specific misconception is suggested by the evidence."
(Patino, at p. 1745, italics added; accord Riggs, at p. 293 ["Even if the defendant never
expressly contests the witness's credibility along these lines, there is nothing preventing the
jury from ultimately finding in its deliberations that the witness was not credible, based on
misconceptions that could have been dispelled" by battered woman syndrome evidence.].)
16 Here, the trial court could reasonably assess that the CSAAS evidence had significant
relevance for the jury to evaluate the victims' credibility with an understanding of the
psychological factors that can make molestation victims reluctant to tell anyone what has
occurred. Further, there was nothing that required the court to exclude the evidence based on
undue prejudice grounds. The expert explained the limited purpose of the expert's testimony
concerning CSAAS; the jurors were repeatedly instructed on the limited purpose of the
evidence; and we presume the jurors understood and followed this instruction. (See People
v. McCurdy (2014) 59 Cal.4th 1063, 1096.)
We note this is not a case where the prosecution introduced the CSAAS evidence in
its case-in-chief under circumstances reflecting that it was improperly introduced to support
the truth of the molestation claim rather than to disabuse the jury of a common
misconception. (See, e.g., People v. Bowker, supra, 203 Cal.App.3d at pp. 394-395.) The
record here shows the CSAAS evidence was presented to the jury in a manner that was
narrowly tailored to inform the jury that counterintuitive reactions, including delayed
reporting, were not uncommon for child molestation victims.
C. Exclusion of Defense Expert Testimony on Absence of Pedophilic Traits
Defendant argues the trial court abused its discretion by excluding testimony from
Richard Rappaport, a forensic psychiatrist who would have testified that his examination of
defendant did not reveal any pedophilic deviancy.
1. Proffered Defense Expert Testimony
The trial court conducted an Evidence Code section 402 hearing during which
Dr. Rappaport testified regarding his examination of defendant for pedophilia.
17 Dr. Rappaport has been a psychiatrist for 43 years and has testified as an expert in over 100
cases; however, his testimony concerning pedophilia has been less frequent (estimated at less
than 10 cases). Dr. Rappaport testified a pedophile is a person who has difficulty relating
sexually to adults, has sexual fantasies about children, tends to collect and look at materials
involving children, and at times has sexual interactions with children.
Dr. Rappaport interviewed defendant for about four hours, and stated the personal
interview is the most important part of his evaluation. However, he did not expect defendant
to admit being a pedophile, so before the interview he reviewed defendant's records to see if
there was anything indicative of pedophilia. The records included a letter from defense
counsel providing some details about the case; the charging information; a questionnaire
answered by defendant's wife about her relationship with defendant; police reports and other
reports concerning witnesses; and the preliminary hearing transcript.
From his review of the records, Dr. Rappaport noted there were no indications of
"suspicious" activities by defendant, such as living in an area where there were a lot of
children around; working in "child organizations" such as Boy Scouts; being a "gym rat"
where he would be "hanging around" children; collecting photographs of children or child
pornography; or having previous allegations of child molestation. Also, defendant had been
married more than once, had his own children, had a relationship with an adult woman
outside of marriage, and presented as a person without any mental illness.
Dr. Rappaport stated that when conducting personal interviews he asks the person
about their "childhood, their school, background, educational history and so forth, their
occupation history, marital history, psychiatric history, social history, family background";
18 he conducts a mental status exam; and he talks in detail about the charged incident. Based
on his interview with defendant, Dr. Rappaport opined that the "manner in which [defendant]
speaks, the manner in which he gives his history, the evidence of what he's done in his life is
all supportive of a person who doesn't have any history of [pedophilic] behavior." Dr.
Rappaport concluded defendant does not have a "deviant personality"; does not have "any
abnormality related to pedophilia"; and there is no evidence that he has an abnormal sexual
interest in children.
On cross-examination, Dr. Rappaport testified that although a "classic pedophile"
does not have adult sexual relationships, a pedophile can have sexual interests and relations
with both adults and children. Also, Dr. Rappaport acknowledged he did not use any
standardized tests to examine defendant, such as the "Minnesota Multiphasic Assessment,"
the "penile plethysmograph exam," the "Multiphasic Sex Inventory Test," the "Abel
Assessment for Sexual Interest" exam, the "SORAG," or the Static 99. Dr. Rappaport stated
that psychologists, not psychiatrists, generally administer standardized tests; the tests are
based on self-reporting; in his view most of them are "too subjective" and "not definitive
enough"; and examiners can accentuate the elements that support their particular view. Dr.
Rappaport acknowledged he was not familiar with the penile plethysmograph or the Abel
Assessment tests. He stated that psychiatrists engage in a "classic psychological evaluation"
which is generally accepted in the community; they "become experts in evaluating people";
and forensic psychiatrists "also try to evaluate the veracity of people, keeping in mind that
there is often . . . great incentive for lying. . . . We use our experience and judgment. And
people try to fool us at times and we have to be able to detect that."
19 2. Court's Ruling
After the presentation of Dr. Rappaport's testimony, the prosecutor told the court she
had some concerns about the witness because despite his long tenure in the field, he did not
know about some of the tests that are used to assess pedophilia and he did not administer any
tests. The prosecutor noted that in the California Supreme Court case (People v. Stoll (1989)
49 Cal.3d 1136) allowing the admission of expert opinion on the absence of pedophilic traits,
the expert had conducted an interview and administered tests. Also citing Stoll, defense
counsel responded that Dr. Rappaport was entitled to base his opinion on an interview; he
could be cross-examined concerning the material he relied on; and it was up to the jury to
determine the materiality of the information.
The trial court ruled Dr. Rappaport could not provide the jury with his opinion that
defendant did not have the traits of a child molester. The court stated under Stoll, experts
may opine on this matter if they go through "some extensive interviews and some recognized
or standardized psychological, personality tests." However, there had to be something more
than a four-hour interview with the expert relying on what the defendant was telling him; it
was "suspect" that the expert could determine truthfulness from an interview; there was no
indication how the reports reviewed by the expert could reveal whether defendant had
pedophilic personality traits; and the expert's evaluation was not "accurate, thorough and
comprehensive" and did not include the use of tests that are recognized by the courts. The
court further stated the expert's opinion that defendant did not exhibit pedophilic traits was
more prejudicial than probative because it was based on a "minimal foundation" given the
20 "lack of an extensive study of the defendant," and it would usurp the jury's role in deciding
whether defendant committed the crime.
3. Analysis
In People v. Stoll, supra, 49 Cal.3d 1136, the court held that an expert's opinion that a
defendant did not show signs of sexual deviancy was admissible character evidence and the
evidence did not need to be subjected to the "Kelly/Frye" standards because it did not
involve a new, unproven scientific technique that might mislead the jury. (Id. at pp. 1140-
1141, 1152-1157.) The expert in Stoll made his sexual deviancy assessment based on "an
interview and professional interpretation of standardized written personality tests." (Id. at
p. 1140.) The court noted that the evidence must still satisfy the traditional limits governing
expert testimony, including that the evidence be sufficiently beyond common experience to
be of assistance to the jury and that the expert rely "upon professionally reasonable 'matter.' "
(Id. at pp. 1140, 1154.) The court reasoned the expert's opinion that the defendant showed
no signs of sexual deviancy was relevant to the issue of whether he committed the crime; the
opinion testimony would assist the jury because it "could not otherwise have been aware of
personality traits inconsistent with such misconduct"; and the jury was free to decide what
weight, if any, to afford the opinion. (Id. at pp. 1153-1154.) Regarding the requirement that
the expert rely on professionally reasonable material, the court reasoned the courts defer to
an expert's decision to rely on standardized psychological tests; the expert's testimony
indicated professionals routinely use material from these tests to draw behavioral
conclusions; the expert was also entitled to base his opinion on a psychological interview;
the expert could be cross-examined at trial concerning the material underlying his opinion;
21 and the jury could reject his conclusions if it had doubts as to the underlying material. (Id. at
pp. 1154-1155, 1158.)
Unlike the circumstances in Stoll, Dr. Rappaport did not rely on both standardized
tests and a personal interview when forming his opinion, but only on the latter. Although
standardized testing may not be essential to establish an adequate foundation for an expert
opinion on a defendant's lack of pedophilic characteristics in all cases, the court could
reasonably conclude that Dr. Rappaport's record review and personal examination in this
case was insufficient to satisfy the required foundational showing that the expert relied on
professionally reasonable material.
Before allowing an expert's opinion to be presented to the jury, a trial court has an
obligation to require a showing of an adequate foundation for the opinion. (Korsak v. Atlas
Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.) Trial courts have a "substantial 'gatekeeping'
responsibility" concerning expert testimony, including to determine whether the matter relied
upon by the expert is "of a type on which an expert may reasonably rely." (Sargon
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769-770,
(Sargon) italics omitted; see People v. Lucas (2014) 60 Cal.4th 153, 227; People v. Ramos
(1997) 15 Cal.4th 1133, 1175.) When making this determination, the court may "inquire
into, not only the type of material on which an expert relies, but also whether that material
actually supports the expert's reasoning. 'A court may conclude that there is simply too great
an analytical gap between the data and the opinion offered.' " (Sargon, at p. 771.) Further,
the "required foundational showing that the opinion rests on matters of a type experts
22 reasonably rely on is not made where . . . the expert does not disclose what he relied on in
forming his opinion." (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.)
However, courts must be cautious in excluding expert testimony, and must confine
their gatekeeping role to a preliminary determination whether the matter relied on can
provide a reasonable basis for the opinion or whether it is clearly invalid and unreliable.
(Sargon, supra, 55 Cal.4th at p. 772 ["the gatekeeper's role 'is to make certain that an expert,
whether basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert in
the relevant field' "].) If there is a threshold showing of reliability, questions concerning the
soundness of the material underlying the opinion is a matter of weight for the jury, not
admissibility. (See People v. Stoll, supra, 49 Cal.3d at p. 1158; People v. Sundlee (1977) 70
Cal.App.3d 477, 484-485.) On appeal, we review the trial court's determination of threshold
reliability for abuse of discretion. (Sargon, supra, at p. 773; People v. Ramos, supra, 15
Cal.4th at p. 1175.)
Here, Dr. Rappaport briefly referred to several characteristics that were indicative of
pedophilia (i.e., difficulty relating sexually to adults, having sexual fantasies about children,
collecting materials involving children, sexual interactions with children), and then explained
that there were no "suspicious" matters depicted in the records that he reviewed concerning
defendant's case. The trial court could reasonably assess that unlike the more comprehensive
evaluation that would be reflected when standardized tests are used in conjunction with a
personal interview (see People v. Stoll, supra, 49 Cal.3d at pp. 1148-1149), Dr. Rappaport
relied on only scant criteria to evaluate sexual deviancy based on a small number of
23 pedophilic criteria. Further, the court could assess that the records he reviewed—which
concerned primarily the current allegations with no indications that they contained a
comprehensive investigation of defendant's personal history—were not shown to provide
sufficient information to make a reasonable assessment regarding the absence of pedophilic
traits. (See People v. Ramos, supra, 15 Cal.4th at p. 1175 [court could reasonably find
expert did not have "adequate basis for formulating a relevant expert opinion
notwithstanding his general qualifications"].)
Likewise, although Dr. Rappaport described the general categories of information that
he discusses during a personal interview, he provided scant information about what factors
he relied on from the personal interview with defendant to determine defendant did not
exhibit pedophilic traits. He broadly referred to the "evidence of what [defendant has] done
in his life," but provided no details or explanation of how this related to a pedophilia-trait
assessment. He also cited "the manner" in which defendant spoke and gave his history, but
again failed to correlate this with the issue of pedophilia. When explaining his reliance on
the personal interview, Dr. Rappaport emphasized that his lengthy experience as a forensic
psychiatrist made him skilled at making credibility assessments. Although this may well be
true, it is well established that credibility determinations are for the trier of fact and generally
are not a proper subject of expert testimony. (People v. Wells (2004) 118 Cal.App.4th 179,
189.) The trial court could properly determine that Dr. Rappaport's conclusions derived from
mere credibility assessments during the personal interview did not fall with the realm of
expert opinion that would assist the jurors in a matter beyond their common experience.
24 The record supports findings that Dr. Rappaport's opinion concerning defendant's lack
of pedophilic abnormality had only minimal foundational support and was partially premised
on an assessment of credibility that would not assist the jury. Accordingly, the court did not
abuse its discretion by excluding the opinion testimony because it lacked a threshold
reliability showing, and, for the same reasons, it was more prejudicial than probative.
Likewise, the exclusion of the evidence did not violate defendant's right to a fair trial.
(People v. Ramos, supra, 15 Cal.4th at pp. 1175-1176 [no federal constitutional violation
when expert evidence excluded because it fails to meet foundational requirements].)
SECTION IV REDACTED AND FILED UNDER SEAL
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
MCINTYRE, J.