People v. Roa CA4/1

Filed 12/2/13 P. v. Roa CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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.
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 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

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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

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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."

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 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

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 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.
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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

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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.)
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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.
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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

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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."
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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

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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

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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.

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