Filed 12/2/13 P. v. Roa CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D063110
Plaintiff and Respondent,
v. (Super. Ct. No. SCE314715)
JESUS MANUEL ROA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego 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 unlawful sexual intercourse with a child
under the age of ten (Pen. Code, § 288.7, subd. (a)),1 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.
1 Further statutory references are to the Penal Code unless otherwise noted. 2 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
3 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
4 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."
5 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 in limine but placed limits on the 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
6 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."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
2 The "two experts" referenced by the People appear to be Fortin and Dr. Joyce Adams, who conducted the medical examination of A.A. 7 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." (People v. Minifie (1996) 13 Cal.4th
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
8 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." (McAlpin, supra, 53 Cal.3d at p. 1300.) 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.)3
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
3 CSAAS, developed as a therapeutic tool, describes five stages of the syndrome, including secrecy, helplessness, entrapment and accommodation, delayed disclosure, and retraction. (People v. Bowker, supra, 203 Cal.App.3d at p. 389.) The shorthand term "CSAAS evidence" does not necessarily refer to all of these stages, but encompasses the aspects that are relevant to rebut misconceptions about a child's reaction to abuse. (See id. at p. 391, and fn. 8.) 9 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 People v.
Ward (2005) 36 Cal.4th 186, 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.4 On the contrary, the evidence showed that the
victim's response to child abuse may be the explanation for behavior that would
4 We have explained that "[i]t is one thing to say that child abuse victims often exhibit a certain characteristic or that a particular behavior is not inconsistent with a child having been molested. It is quite another to conclude that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused. The former may be appropriate in some circumstances; the latter . . . clearly is not." (People v. Bowker, supra, 203 Cal.App.3d at p. 393.) Roa appears to be arguing that the CSAAS evidence in this case falls within the latter category. Based on our review, the record does not substantiate Roa's argument. 10 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
11 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; People v. Stark (1989) 213
Cal.App.3d 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.5 We therefore find no abuse of discretion in 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. 1193.6 Roa contends that CALCRIM
No. 1193 improperly allows the use of CSAAS evidence as direct evidence of guilt
5 Roa's further contention regarding the adequacy of the court's limiting instruction is discussed in the next section, post.
6 CALCRIM No. 1193 provides as follows: "You have heard testimony from [expert] regarding child sexual abuse accommodation syndrome. [Expert]'s testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her). You may consider this evidence only in deciding whether or not [victim]'s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony." 12 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 . . . ."
(People v. Partlow (1978) 84 Cal.App.3d 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
13 reasonably susceptible to such interpretation." (People v. Laskiewicz (1986) 176
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
14 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 ibid.)
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.