Filed 12/20/19 P. v. Woods CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL PHILLIP WOODS,

Defendant and Appellant.

G056445

(Super. Ct. No. 14NF5190)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed.

Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Michael Phillip Woods of three counts of sexual penetration with a child who was 10 years old or younger (Pen. Code, § 288.7, subd. (b); all further unlabeled statutory references are to this code), one count of sexual intercourse with a child age 10 or younger (id., subd. (a)), and three counts of committing a lewd act on a child under the age of 14 (§ 288, subd. (a)). The jury found true a sentencing enhancement that Woods committed the lewd acts against more than one victim (§ 667.61, subds. (b), (e)). The trial court sentenced Woods to a prison term of 65 years to life.

Contrary to Supreme Court precedent, Woods argues that expert testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS) should be inadmissible for all purposes. He also argues the evidence was inadmissible here because none of the jurors harbored preconceived ideas about victims of child sexual abuse and because the expert exceeded the scope of permissible CSAAS testimony. Woods further contends the trial court erred in admitting under the “fresh complaint” doctrine the parents’ brief accounts of the victims’ initial reports of abuse. These contentions are all without merit. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On evenings that she had to work the graveyard shift, Woods’s sister turned to him to watch her four-year-old daughter, N.P. N.P. testified that “a lot of times” in the middle of the night when Woods babysat her, he would stand her up on the bed as she slept, pull down her pajama bottoms and underwear, face her away from him, and tell her to go back to sleep. But she would feel his body moving, “his penis, like in my butt area,” and a wetness there, too. She did not know it was his penis until “as I got older, I realized what it was.” The abuse stopped “[a] few years later” when she was seven, which was around the time Woods moved to Ohio.

When N.P. was 10 years old, her mother learned of allegations against Woods involving a child from Ohio. Without mentioning this, N.P.’s mother asked her whether Woods had ever touched her inappropriately; in tears, N.P. responded, “‘Yes, Mommy.’” N.P.’s mother testified that N.P. told her that “‘he used to spit on my butt and stick something in it.’” N.P. reported the abuse to a responding police officer, underwent a physical examination, and described the abuse to a social worker in a videotaped interview, which was played for the jury at trial.

N.P. testified she did not tell anyone about the abuse before her mother asked her “[b]ecause I was so little. I thought it was my fault. And so I didn’t say anything. I didn’t want to get in trouble.” She said Woods would “buy [her] things,” and he was a “pretty good uncle” apart from the abuse and was “more nice to [her] than [her] other cousins.” He always greeted her and said “Hi” to her first. N.P. told the social worker that while she kept the abuse to herself, she sometimes wanted to cry. She explained to police that she was embarrassed and “just wanted to forget about it and let it go away . . . .”

Wood’s stepdaughter, A.D., also testified that Woods abused her. A.D. lived in Ohio, but testified her mother had met Woods “online, and then flew him out there [to Ohio] so they could date or something.” Woods and A.D.’s mother eventually got married, and in 2011, when A.D. was 10 years old, the three of them moved to California, along with Woods’s toddler daughter. Soon after they settled into a one bedroom apartment in Anaheim, Woods began touching A.D. in ways she thought were “a little weird,” including “like, cuddling on the couch.” She initially “didn’t know what to think about it” because he was her stepdad. He then began to kiss her on her lips, which made her uncomfortable.

A.D. slept on a mattress on the floor in a large walk-in closet with a door on it. Woods entered the closet early one morning before he went to work, pulled A.D.’s pants and underwear down, laid on top of her while he still had his shirt and other clothes on, and had sex with her. A.D. testified that Woods subsequently touched her body with his penis “more [times] than I can remember” between August—when they moved into the Anaheim apartment—and January—when they were evicted.

They then moved in with Woods’s uncle, his uncle’s wife, and two of her relatives in an apartment in Huntington Beach, where A.D.’s family shared a room. Woods molested her once there, putting his hands down her pants. She was on the computer and he told her “we should go in the bathroom,” but A.D. testified that she refused: “I said, ‘No.’” A.D. only lived in that apartment for a couple of months before they moved back to Ohio. Within about a week of her return to Ohio, A.D. moved in with her father and would only visit her mother, who continued to live with Woods, “during the day. Never overnight . . . .”

A.D. did not tell anyone about the abuse because she was frightened. When she told Woods he was hurting her during sex, he dismissed it by saying that “it was fine [or] [s]omething like that.” A.D. believed her mom loved Woods; thus, she did not feel she could ever disclose the abuse to her.

When A.D. lived in Anaheim, she attended the same school as N.P., but though the two were friendly, they were not close. Neither knew Woods had abused the other until years later. A.D. testified she did not tell her father about the abuse because “I mean, that’s something you wouldn’t want to tell your dad.”

A.D’s father testified that once she moved in with him in Ohio, A.D. seemed to “br[eak] off all contact” with her mother and Woods. A.D.’s grades had been “pretty good” in kindergarten through fourth grade, but she did not attend school for a portion of fifth grade while they lived in Huntington Beach. A.D.’s grades dropped when she returned to school in sixth grade, and she testified, “I was always, like, fighting and, like, not doing well in school.” After A.D. began seeing a guidance counselor, she disclosed the abuse to the counselor.

A.D.’s father testified that about a year after she returned from California, he received a telephone call from her school advising him to “come down right away.” He recalled that, after he arrived at the school, A.D. “really didn’t go into details,” just “bits and pieces.” She told him that Woods “would come over to her, when her mother was gone. She was either at work or out of the house. And he would come over and grab ahold of her and have sex with her.”

DISCUSSION

Woods raises two evidentiary challenges on appeal. He contends the trial court erred by admitting CSAAS evidence and by applying the fresh complaint doctrine. We disagree with both contentions. We turn to his CSAAS challenge first.

A. CSAAS Testimony

Woods argues expert testimony concerning CSAAS should never be admissible because it is so broad as to be meaningless, and therefore it is inherently unreliable as a diagnostic tool. As an example of the breadth of conduct that may fall under CSAAS, he faults the expert’s testimony here that, as Woods describes it: “a victim returning to the home of their abuser fits the syndrome as does a victim who [vaguely] requests and tries not to return to the home of the abuser.” (Italics added.) Based on this premise, Woods argues that jurors “cannot possibly avoid using CSAAS to support whatever version of events the victim in any given case describes.”

We are not persuaded. We find no issue raised by the expert’s testimony that a child may return to the home of an abuser based on feelings of powerlessness or as a result of grooming and that a child may make only ambiguous, halting, or tentative initial references to abuse in an unsuccessful effort to escape abuse at home.

CSAAS testimony is not a diagnostic tool, and it was never meant to be such a tool; it was not suggested or implied at trial that the jury could use it that way. To the contrary, the expert witness, Dr. Jody Ward, informed the jurors unequivocally that CSAAS is “nondiagnostic,” that the behaviors observed in CSAAS therapy “can’t be proven [to] come from a certain cause,” that the CSAAS rubric “cannot determine whether or not someone has actually been abused,” and that behaviors consistent with CSAAS “can be caused by other problems in a child’s life, other than sexual abuse,” including neglect, domestic violence, divorce, and bullying.

The trial court similarly, and correctly, admonished the jury that Dr. Ward’s testimony was “not evidence that the defendant committed any of the crimes charged against him.” Instead, the evidence was only admissible to allow the jury to consider whether the victims’ failure to immediately report abuse, or other self-impeaching conduct, may not have been “inconsistent with the conduct of someone who has been molested.” (CALCRIM No. 1193.)

The court instructed the jury the CSAAS evidence potentially could be used “in evaluating the believability” of the alleged victims (CALCRIM No. 1193), but it did not itself constitute independent evidence “on the scale of guilt.” The question of witness credibility remained solely for the jury to determine. (CALCRIM Nos. 226, 301-302.) Dr. Ward did not deviate from these instructions; she said nothing about whether the children should be believed or not.

The court’s instructions were consistent with Supreme Court precedent, which contradicts Woods’s position that CSAAS evidence should always be excluded. As the Supreme Court has explained, CSAAS evidence regarding typical reactions children may have to abuse, including initially denying the abuse or delay in reporting the abuse, “is not admissible to prove that the complaining witness has in fact been sexually abused,” but “it is admissible to rehabilitate such witness’s credibility.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin).) The high court recognized that CSAAS testimony is approved by the “‘great majority of courts’” to “‘disabuse jurors of commonly held misconceptions about child sexual abuse,’” including to rebut “‘abused children’s seemingly self-impeaching behavior.’” (Id. at p. 1301.) We find no merit in Woods’s bid to categorically exclude CSAAS evidence.

Woods also contends the CSAAS evidence was inadmissible in this case because there was no need to disabuse jurors of misconceptions about child sexual abuse, as contemplated in McAlpin. Woods relies on the fact that the prosecutor in voir dire spoke to potential jurors about “delayed reporting,” and when she questioned whether any—in Woods’s words—“had a problem with, or did not understand, delayed reporting or . . . believed a victim would be less credible due to a delayed report,” none responded they did.

Woods’s argument is misplaced. The prosecutor was entitled to present her case using actual evidence. Here that evidence demonstrated there were numerous opportunities for N.P. and A.D. to disclose the abuse earlier than they did, including because of the peculiar circumstance that they were in the same combined fourth and fifth grade classroom in Anaheim and knew each other outside the classroom. A.D. also kept silent about the abuse even though it did not occur in the most secretive of locations, but instead in a walk-in closet attached to her mother’s bedroom and at a computer station in a shared space in a crowded apartment. The trial court reasonably allowed the prosecutor to present CSAAS testimony from Dr. Ward to rebut misconceptions (e.g., a child would surely disclose or cry out in response to actual abuse) that the jurors may not have contemplated during voir dire.

It is enough that a juror “might hold” misconceptions “about how a child reacts to a molestation.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744, italics added.) CSAAS evidence may aid the jury in evaluating a child witness’s credibility; to be admitted, “[i]t is sufficient if the victim’s credibility is placed in issue due to . . . paradoxical behavior, including a delay in reporting . . . .” (Ibid.) Testimony by an expert is admissible if it is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a), cited in McAlpin, supra, 53 Cal.3d at p. 1299.) Child sexual abuse is beyond the common experience of most jurors, and therefore the trial court did not err in admitting the CSAAS testimony.

Woods also argues Dr. Ward’s testimony exceeded the bounds of proper CSAAS evidence, relying on People v. Bowker (1988) 203 Cal.App.3d 385 (Bowker), one of the first cases to consider CSAAS evidence. In Bowker, the court emphasized, “It 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—given the current state of scientific knowledge—clearly is not.” (Bowker, supra, 203 Cal.App.3d at p. 393.)

In Bowker, the psychologist’s testimony overstepped these bounds because it “was replete with comments designed to elicit sympathy for child abuse victims and solicitations that children should be believed.” (Bowker, supra, 203 Cal.App.3d at p. 394.) There, “the picture painted by [the psychologist] happened to be of the two children in the case,” exemplified by direct overlap between details like the child being removed from the parental home based on sex abuse allegations and the psychologist suggesting that child sex abuse victims may ask questions like, “‘Why are they taking me away from my mom?’” (Ibid.) The expert spoke of the alleged child victims in the case as if he knew they had been abused, stating: “how frightening it was ‘for a child to come into this courtroom, and I know they have to, and tell their story.’” (Ibid., original italics.)

Dr. Ward did not fall into this error. She testified she had not interviewed the children, the defendant, or other witnesses, and that she knew nothing of the details of the case. She did not opine whether N.P. or A.D. should be believed or not. As defense counsel elicited on cross-examination, Dr. Ward testified that children may be subject to false or implanted memories and that “in regards to secrecy and delayed reporting” or other CSAAS factors, “it could also be consistent with a fabrication” or “with a lie.” Contrary to Woods’s claim, Dr. Ward did not “profile” him as a molester. She did not suggest in her testimony the false inference behind profiling evidence, namely, that “act[ing] in a given way” is “only” consistent with criminal conduct. (People v. Robbie (2001) 92 Cal.App.4th 1075, 1085.) Instead, she explained that children’s reports of abuse falling under the CSAAS model may have other causes besides sexual abuse. Viewed as a whole, Dr. Ward’s testimony properly informed the jury of circumstances in which an abuse victim’s reactions may not be inconsistent with abuse, but left the question regarding whether abuse occurred for the jury to decide. In sum, Woods’s challenges to admission of CSAAS testimony are without merit.

B. Fresh Complaint Evidence

Woods argues the trial court erred by allowing N.P.’s mother and A.D.’s father to testify that the children disclosed his abuse to them, respectively. Woods contends that by permitting the parents “to testify to the out-of-court statements,” the court misapplied what is known as the “fresh-complaint doctrine.” (See People v. Brown (1994) 8 Cal.4th 746, 748-750 (Brown) [updating doctrine from common law roots].) As we explain, the court did not err.

The evidentiary principles underlying the fresh complaint doctrine provide that “proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim’s disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact’s determination as to whether the offense occurred.” (Brown, supra, 8 Cal.4th at pp. 749 750.) The evidence is admissible only “for the limited purpose of showing that a complaint was made by the victim, and not for the truth of the matter stated. [Citation.] Evidence admitted pursuant to this doctrine may be considered by the trier of fact for the purpose of corroborating the victim’s testimony, but not to prove the occurrence of the crime.” (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522.)

The trial court instructed the jury regarding the foregoing limitations on fresh complaint evidence, but Woods still asserts the parents’ testimonial description of the abuse was too detailed. N.P.’s mother reported that N.P. told her that Woods “‘used to spit on my butt and stick something in it.’” A.D.’s father relayed that A.D. told him that when her mother was at work or otherwise out of the house, Woods would “grab ahold of her and have sex with her.”

Woods relies on the Supreme Court’s “[c]aution[ary]” direction in Brown that “if the details of the victim’s extrajudicial complaint are admitted into evidence, even with a proper limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault.” (Brown, supra, 8 Cal.4th at p. 763.) Woods, however, does not state with specificity which aspects, if any, of the parents’ brief testimony crossed into excessive detail here. And he cites no case illustrating reversible error.

In any event, this is not a case where the line—whatever its specific contours—was crossed. The nature of the alleged sexual conduct may be disclosed under the doctrine. Thus, complaints to a third party that the defendant touched the child “in my weenie” in a public restroom (People v. Daily (1996) 49 Cal.App.4th 543, 548, 552) or “‘pulled her pants down and . . . kissed her between the legs’” (People v. Cordray (1963) 221 Cal.App.2d 589, 594) were properly admitted. The same is true for the evidence admitted in this case.

Woods further challenges the admission of the complaint A.D.’s father recounted because it was “double hearsay.” Woods objected below when A.D.’s father initially testified he first learned of A.D.’s allegations from a school counselor when he went to pick her up at school. Woods’s suggestion that this constitutes multiple layers of hearsay is misplaced because fresh complaint evidence is not admitted for its truth—therefore, it is not hearsay. (Brown, supra, 8 Cal.4th at p. 749.)

Woods’s fundamental premise is also mistaken. He infers from A.D.’s testimony that she did not tell her father of the abuse, thereby placing his account of her supposed reporting of the abuse outside the fresh complaint doctrine. But the jury could credit her father’s testimony that A.D. did tell him “bits and pieces” about the abuse, including what he relayed to the jury. Consequently, there was no error in admitting his testimony under the doctrine.

DISPOSITION

The judgment is affirmed.

GOETHALS, J.

WE CONCUR:

IKOLA, ACTING P. J.

THOMPSON, J.