P. v. Santamaria

Filed 10/20/06 P. v. Santamaria CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant Ulises Santamaria was convicted after a jury trial of seven counts of committing lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a))^[1] and of misdemeanor child abuse (§ 273a, subd. (b)). Sentenced to an aggregate term of 18 years in state prison, defendant appeals. He contends the trial court improperly admitted evidence of Child Sexual Abuse Accommodation Syndrome (CSAAS) and that, even if the syndrome evidence was generally admissible, the prosecution asked improper hypothetical questions. We affirm.

BACKGROUND

We dispense with a recitation of the facts underlying the offenses as they are not pertinent for resolution of this appeal. Instead, we summarize the relevant procedural facts.

On July 2, 2004, the prosecution filed a motion in limine requesting they be permitted to present the testimony of David Love as an expert on CSAAS. CSAAS attempts to explain how a child generally copes with or adjusts to sexual abuse, including the exhibition of certain seemingly paradoxical behaviors. Defendant filed an objection to the presentation of such evidence based on discovery rule violations and requested an Evidence Code section 402 hearing. Defendant also requested the court order that the CSAAS evidence be limited to dispelling myths regarding how child sexual abuse victims act and that the court strictly prohibit any “profile“ evidence of child molesters or victims of molest.

Judge Terrence Van Oss denied defendant’s request for a continuance and held an Evidence Code section 402 hearing on July 7, 2004. At the hearing, defense counsel argued, inter alia, that society’s attitudes may have changed and perhaps there were no longer misconceptions requiring the introduction of CSAAS evidence. Judge Van Oss ruled that CSAAS evidence was admissible but that the prosecution was limited to presenting evidence of the syndrome generally and could not have Love talk about the facts of this specific case.

On August 20, 2004, at the beginning of trial, defendant made another motion in limine -- this time in front of the trial judge, William J. Murray. Defendant requested another Evidence Code section 402 hearing and objected to some of the CSAAS evidence as failing the Kelly-Frye test for the admission of scientific evidence. (Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013; People v. Kelly (1976) 17 Cal.3d 24, 39.) Counsel also raised concerns about the hypothetical questions used by the prosecutor in the previous hearing and objected, again, to the general admissibility of the CSAAS evidence. Judge Murray agreed to a supplemental Evidence Code section 402 hearing for counsel to explore the testimony regarding a child victim’s inability to recall details of the molestations. At the conclusion of the hearing, Judge Murray ruled that the CSAAS evidence was admissible but that the prosecutor could use only more “generic” hypothetical questions than she had at the hearing in front of Judge Van Oss and must refrain from using case specific hypothetical questions.

DISCUSSION

I

Defendant argues that the trial court should not have permitted the introduction of CSAAS evidence unless or until the prosecution established that there are widely held public misconceptions about how child victims react to abuse. The People respond that CSAAS evidence was permissible because there was evidence of paradoxical behavior, including a delay in reporting the molestation, which was sufficient to support the admission of CSAAS evidence.

CSAAS is a therapeutic tool/research approach that seeks to describe and explain how children commonly react to molestation. Often, the reactive behaviors seem paradoxical -- for example, when a child delays in reporting the molestation, or recants the account, or explains it inconsistently. (See People v. Bowker (1988) 203 Cal.App.3d 385, 393-394; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1746 (Patino); see also CALJIC No. 10.64.) “Although inadmissible to prove that a molestation occurred, CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation. [Citations.]” (Patino, supra, 26 Cal.App.4th at p. 1744.) “‘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.’” (People v. McAlpin (1991) 53 Cal.3d 1289, 1301.)

“Identifying a ‘myth’ or ‘misconception’ has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim’s credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. [Citations.]” (Patino, supra, 26 Cal.App.4th at pp. 1744-1745; People v. Sanchez (1989) 208 Cal.App.3d 721, 735-736, criticized on other grounds in People v. Jones (1990) 51 Cal.3d 294, 311.) “[T]he prosecution should be permitted to introduce properly limited credibility evidence if the issue of a specific misconception is suggested by the evidence.” (Patino, supra, 26 Cal.App.4th at p. 1745; see also People v. Sanchez, supra, 208 Cal.App.3d at pp. 735-736 [once “the credibility issue was already fully present in the case[,] . . . the rehabilitative evidence on this issue was appropriately admitted”].)

Defendant acknowledges this caselaw but argues that the cases are 10 years or more old and that “the public state of knowledge as to child victims and their reactions may well have radically shifted in the interim.” (Italics added.) Accordingly, he argues, the prosecution should have been required to show that “the public still labors under myths and misconceptions about child victims,” instead of relying on the misconceptions previously identified and recognized by California caselaw.

The California Supreme Court has recently recognized the need for CSAAS expert testimony to disabuse jurors of commonly held misconceptions about child sexual abuse and to explain the children’s seemingly self-impeaching behavior in an opinion filed only weeks before the start of defendant’s trial. (See People v. Brown (2004) 33 Cal.4th 892, 905-908.) Accordingly, we decline defendant’s invitation to revisit and abandon what is now established precedent based on his speculation that CSAAS evidence may no longer be needed to dispel misconceptions.

II

Defendant also contends that, even if CSAAS evidence was generally admissible, the prosecution asked improper hypothetical questions in violation of the trial court’s in limine order.

The trial court ruled in limine that the testimony of David Love, the prosecution’s expert on CSAAS, was admissible, but that the prosecution’s hypothetical questions must be generic and not factually specific to the instant case.

At trial, Love testified that there are five components of CSAAS: secrecy, helplessness, entrapment and accommodation, delayed or conflicted disclosure, and retraction. After Love explained the components, he stated that he had purposely never interviewed the child in this case and was only discussing the syndrome as a generalized concept and was not talking about this case specifically.

The prosecutor then asked Love if CSAAS also applied to older children. She asked: “Does [CSAAS], does this apply also to preteens and teens? Have they exhibited this? Because I know mostly when you were talking, you spoke about eight-year-olds, 12-year-olds. Are we also talked [sic] about children perhaps even older than that, 14, I would say?” Love responded that CSAAS applied to them as well.

The prosecutor then asked if it would be consistent with the syndrome for a victim to report a physical abuse before actually reporting anything sexual. Love explained that this was often the case. The prosecutor then asked if it would be consistent with the syndrome for a child to deny they were being molested when someone close to them asked, “Are you being molested?” Love said, “yes.”

At this point, defense counsel objected to the line of questioning and the trial court addressed her concern, outside the presence of the jury that they were “starting to get into profile.” After hearing the prosecutor’s proposed questions, the trial court reiterated the boundaries of the permissible questions and informed the prosecutor which of her remaining intended questions would and would not be permitted, and testimony resumed. Love’s testimony then resumed along the guidelines reiterated by the court.

Defendant now complains that the above-mentioned questions were improper hypothetical questions in violation of the trial court’s in limine order and were prejudicial to defendant.

Even if we agreed with defendant that the questions consisted of fact-specific hypotheticals and, therefore, the prosecutor violated the trial court’s in limine order, we would find the claim of error forfeited because defendant’s trial counsel did not object. (People v. Clark (1992) 3 Cal.4th 41, 125-126.) Evidence Code section 353 specifies that “[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless[] . . . [t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . .”

Defense counsel did not object to the questions defendant now complains of on appeal until after the answer to the last “offending” question. At that point, defense counsel objected to the line of questioning as starting to create a “subtle profile” of a child with CSAAS, the trial court addressed the issue, and testimony resumed. Defense counsel, however, never asked for any of the testimony to be stricken. Defendant has forfeited any claim of prejudicial error.

Defendant also complains that Love’s earlier testimony was prejudicial because after he talked about the fact that most children are abused by people with whom they have a previous relationship, he used the examples of step dad, brother, priest, minister, and youth leader in his discussion of why that puts them at an additional disadvantage. Defendant also complains that Love invoked “sympathy” for child abuse victims by using the terms “little child” and “very small people” versus “big adult.”

Once again, trial counsel never objected to this testimony at trial. (See Evid. Code, § 353.) Accordingly, any claim of error is forfeited.

DISPOSITION

The judgment is affirmed.

SIMS , J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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^[1] Undesignated statutory references are to the Penal Code.