People v. Mateo (243 Cal. App. 4th 1063, 2016)

Opinion

KRIEGLER, J.

— Defendant and appellant Luis Miguel Mateo was convicted by jury of continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a)), based in part on expert testimony on child sexual abuse accommodation syndrome (CSAAS). In the published portion of this opinion, we hold the trial court had no sua sponte duty to give the pattern jury instruction (CALCRIM No. 1193) explaining the limited purpose of expert testimony on CSAAS.

Defendant’s first jury trial, in which expert testimony on CSAAS was not presented, resulted in a hung jury. Defendant was sentenced to the middle term of 12 years in prison after the guilty verdict in the second trial.

Defendant contends the trial court used an incorrect standard when it denied his motion objecting to the prosecution’s exercise of peremptory challenges to excuse four African-American jurors. He further contends that the trial court erred in failing to sua sponte instruct the jury regarding (1) an expert witness’s testimony on CSAAS and (2) the offense of lewd or lascivious act on a child under the age of 14 (§ 288, subd. (a)) as a lesser included offense of continuous sexual abuse of a child under the age of 14. Defendant also argues he was prejudiced by ineffective assistance of counsel and cumulative error.

We affirm the judgment.

FACTS

Prosecution

I.T. was eight years old when defendant moved into her mother’s apartment, where I.T. lived with her two brothers. Defendant first sexually abused I.T. when she was nine years old. I.T. testified in detail to five specific acts of sexual intercourse with defendant, which occurred when she was between the ages of nine and 12. I.T. also testified that defendant molested her about three or four other times in that same time period, although she did not remember specific details about those incidents.

After living with other relatives for a year when she was 17 or 18, I.T. moved into the house her mother and defendant shared in Las Vegas to reconnect with her mother. At that time, I.T.’s half sister, A.M., was nine or 10 years old. One evening, defendant screamed at A.M. while defendant and I.T.’s mother were drinking alcohol. Upset by defendant’s conduct and concerned that A.M. might be victimized by defendant, I.T. told her mother about the sexual abuse that began when she was around A.M.’s current age for the first time. I.T. moved out of the house the same day, was unable to contact her mother, and out of fear for A.M.’s safety, reported the incidents to police within a few days of the argument.

Los Angeles Police Detective Paul Bowser investigated the case. During an interview with the detective, I.T. recounted the details of four of the five specific incidents of sexual intercourse with defendant. I.T. testified consistently regarding all five specific instances of sexual abuse at the preliminary hearing and at trial.

Detective Bowser and Officer Jose Ramirez conducted a recorded interview of defendant in Las Vegas. On Detective Bowser’s request, Las Vegas Metropolitan Police Detective Chad Russell conducted a video-recorded interview of defendant the next day, which was played for the jury. Defendant was advised of his Miranda rights and confirmed that he understood the advisement. He knew that he was being questioned because I.T. accused him of sexually abusing her as a child. Defendant could not recall hurting I.T. He would sometimes “have some beers, but that didn’t cause [him] to get up and go bother [I.T.] or anything.” Defendant initially denied any wrongdoing, and when the detective untruthfully suggested that DNA evidence had been collected, defendant said that they would not find anything, because he had not done anything.

The detective then suggested that maybe I.T. had taken advantage of defendant when he had been drinking and it was dark in the bedroom. He suggested that maybe, when defendant came home tired after a long day at work and had a few beers, I.T. had climbed on top of him in the dark and put his penis inside her. Defendant might not have realized that it was I.T. and not his wife until they had begun having sexual intercourse. Defendant might not have come forward with this information because he feared that I.T. would get into trouble. Detective Russell said that he had heard stories about I.T. having a lot of sexual intercourse with people and that she had been a prostitute at one point. Defendant said that he did not remember anything happening with I.T. and he did not know that I.T. had been a prostitute.

Detective Russell continued to suggest that I.T. may have taken advantage of defendant without his knowledge when he was drunk and/or sleepy and did not realize that I.T. was not his wife. Defendant remembered “them” getting on top of him more than two or three times, but he did not know if it was his wife or I.T. Detective Russell said that defendant should not protect I.T. He said that I.T. needed help, and it was her fault that defendant was being questioned. Defendant then admitted he had awoken with I.T. on top of him with his penis inside of her more than three times, and maybe five or six times. Defendant said he would sometimes go to bed drunk, so he could not remember the number of times it happened. He remembered that she got on top of him and that “there was penetration.” I.T. got on top of him and put his penis inside of her vagina more than once or twice when he had come home from work tired. He would not fully wake up for about five minutes, but when he did he would tell her to get off of him. She would leave, but it made her angry. Until he realized it was I.T., the intercourse felt good. Defendant then said he just remembered I.T. getting on top of him once, when she was about 11. He did not tell his wife, because she had a bad temper. Defendant did not tell the detectives about it when they initially interviewed him because they asked him whether he had abused or hurt I.T., not whether she had put his penis in her vagina while he was asleep.

The prosecution presented the testimony of clinical psychologist Jayme Jones regarding the behavior of abused children generally. Dr. Jones had not interviewed or evaluated I.T. or anyone else involved in the case.

Defense

I.T.’s maternal aunt and grandmother testified that when I.T. was 17 years old, she told them that she did not want her mother and defendant to be together, and intended to break up the relationship.

I.T.’s mother did not believe defendant was sexually attracted to young girls. She never observed defendant acting inappropriately with her daughters or nieces. At the time of the alleged incidents, defendant was working at three jobs and was rarely home. She never left her children in his care. She contradicted I.T.’s testimony regarding two specific instances of sexual intercourse, one occurring on Halloween and another when the family went to Knott’s Berry Farm. The mother also denied seeing defendant in the bathroom with I.T. on one occasion, as testified to by I.T. When I.T. moved back in with them, she acted jealous of defendant and wanted a lot of attention from her mother. I.T.’s mother had tried to talk to I.T. about the accusations, but I.T. refused to speak with her.

I.T.’s cousins and her close childhood friend testified that they did not believe defendant was sexually attracted to young girls, and that he had never acted inappropriately with them. I.T.’s two female cousins testified that defendant was working with their father on the Halloween night that I.T. said defendant molested her. The family had looked at photo albums for pictures of the Halloween in question, and defendant was not in any of the photos.

DISCUSSION

Wheeler/Batson Motion

Juror No. 3539, Juror No. 1512, Juror No. 9705, Juror No. 0479

Exercise of Peremptory Challenges and the Wheeler/Batson Motion

The Wheeler/Batson Rule

Analysis

Duty to Instruct on Child Sexual Abuse Accommodation Syndrome

Defendant next contends the trial court erred in failing to give a limiting instruction on the expert witness’s testimony regarding CSAAS. In the alternative, he asserts that trial counsel was ineffective for failing to request such an instruction.

Expert testimony about CSAAS “is inadmissible to prove that a child has been abused because the syndrome was developed not to prove abuse but to assist in understanding and treating abused children. However, . . . such evidence may be admitted to dispel common misconceptions the jury may hold as to how such children react to abuse.” (People v. Stark (1989) 213 Cal.App.3d 107, 116 [261 Cal.Rptr. 479] (Stark).) Defendant makes no argument that evidence of CSAAS was improperly admitted in this case; instead, he focuses on the absence of a limiting instruction on the use of the expert’s testimony.

Proceedings

Clinical psychologist Dr. Jayme Jones testified on behalf of the prosecution regarding CSAAS. The prosecution had not presented expert witness testimony regarding CSAAS in defendant’s first trial. Dr. Jones explained that CSAAS is a model for understanding the behavior of children who have been sexually abused. It dispels the myths that children in abuse situations fight back and immediately disclose the abuse. The model has five components: secrecy, helplessness, accommodation, disclosure, and recantation. Child abuse generally occurs in secrecy, signaling to the child that they are not supposed to disclose what has happened. Although there may be other individuals in the area at the time of the abuse, there will often not be others watching. Children do not fight their victimizers in many cases because they are physically weaker and have been socially conditioned not to say “no” to adults. Children adopt mechanisms to cope with the trauma. If the abuser is a family member, it is not unusual for the child to continue to show the abuser affection. It is also not uncommon for the victim to return to the home where the abuser is living even after the victim becomes an adolescent or adult. Most children delay disclosure if they disclose at all. Disclosure will often occur during an argument or in another volatile situation, when the victim feels something unfair has happened. Children may disclose when their parents deny them privileges, which causes them to be disbelieved. When the victim does disclose, there can be problems with memory, and details may merge together. Victims may recant their version of events in order to avoid talking about the abuse, or suffering other negative consequences of disclosure, such as familial disapproval or removal from the home.

The prosecutor questioned Dr. Jones regarding her familiarity with this case and regarding CSAAS’s ability to predict whether abuse has occurred:

“Q: Now, have you yourself interviewed anybody related to this case or read any sort of reports related to this case at all?

“A: I have not.

“Q: And have you done any studies or done any sort of clinical evaluations of anyone related to this case?

“A: No.

“Q: Now does this model necessarily predict one way or the other whether someone was, in fact, sexually abused?

“A: Not at all. And one of the things [the doctor who authored CSAAS] later published was a paper basically stating he wished he hadn’t called it a syndrome. Because ‘syndrome’ makes it sound like it is predictive, and it’s not. It doesn’t tell us whether or not a child has been abused. It simply explains their behavior if they have been abused.”

Defense counsel did not request a limiting instruction with respect to the permissible uses of the CSAAS testimony. The trial court instructed the jury with CALCRIM No. 332 that it could give the expert’s testimony whatever weight it felt appropriate. The court gave no other instructions regarding expert testimony.

Standard of Review

We review independently the question of whether the trial court has a duty to give a particular jury instruction. (People v. Guiuan (1998) 18 Cal.4th 558, 569 [76 Cal.Rptr.2d 239, 957 P.2d 928].) “ ‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ (People v. St. Martin (1970) 1 Cal.3d 524, 531 [83 Cal.Rptr. 166, 463 P.2d 390].)” (People v. Najera (2008) 43 Cal.4th 1132, 1136 [77 Cal.Rptr.3d 605, 184 P.3d 732].)

Sua Sponte Duty to Provide Limiting Instructions

As a general matter, the Legislature has determined that limiting instructions need not be given sua sponte. “When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Evid. Code, § 355, italics added.) Our Supreme Court has consistently applied the concept set forth in Evidence Code section 355. “ ‘Absent a request, a trial court generally has no duty to instruct as to the limited purpose for which evidence has been admitted.’ (People v. Cowan (2010) 50 Cal.4th 401, 479 [113 Cal.Rptr.3d 850, 236 P.3d 1074].)” (People v. Murtishaw (2011) 51 Cal.4th 574, 590 [121 Cal.Rptr.3d 586, 247 P.3d 941]; see People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052 [16 Cal.Rptr.3d 880, 94 P.3d 1080] [no sua sponte duty to instruct on limited use of gang evidence]; People v. Humphrey (1996) 13 Cal.4th 1073, 1088, fn. 5 [56 Cal.Rptr.2d 142, 921 P.2d 1] (Humphrey) [clarifying instruction on use of evidence of battered women’s syndrome might be appropriate on request]-, People v. Collie (1981) 30 Cal.3d 43, 63 [177 Cal.Rptr. 458, 634 P.2d 534] [limited purpose of prior criminal acts does not require sua sponte limiting instruction]; People v. Jennings (2000) 81 Cal.App.4th 1301, 1316-1317 [97 Cal.Rptr.2d 727] [no duty to give limiting instruction regarding evidence of other acts of domestic violence committed by defendant].)

As pertinent here, the Legislature has determined that only one instruction need be given sua sponte on expert testimony. “When, in any criminal trial or proceeding, the opinion of any expert witness is received in evidence, the court shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their opinions on questions in controversy at a trial. To assist the jury in deciding such questions, the jury may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. The jury is not bound to accept the opinion of any expert as conclusive, but should give to it the weight to which they shall find it to be entitled. The jury may, however, disregard any such opinion, if it shall be found by them to be unreasonable. [¶] No further instruction on the subject of opinion evidence need be given.” (§ 1127b, italics added.)

The trial court complied with its obligation to instruct pursuant to the requirements of section 1127b by providing the jury with the pattern instruction on expert testimony found in CALCRIM No. 332. Under the plain language of the final sentence of section 1127b, no further limiting instruction on the use of CSAAS was required.

Despite the plain language of section 1127b and Evidence Code section 355, defendant argues that People v. Housley (1992) 6 Cal.App.4th 947, 957 [8 Cal.Rptr.2d 431] (Housley) imposes a sua sponte duty on the trial court to instruct the jury on the use of expert testimony on CSAAS. The principles are set forth in CALCRIM No. 1193, which states: “You have heard testimony from_ regarding child sexual abuse accommodation syndrome. [¶] _’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_’s