Filed 12/10/19 P. v. Dew CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT ALLEN DEW,

Defendant and Appellant.

C087485

(Super. Ct. No. 17FE000718)

Following a jury trial, defendant Robert Allen Dew was convicted of eight counts of lewd and lascivious acts on a child under the age of 14. (Pen. Code, § 288, subd. (a); statutory section references that follow are to the Penal Code unless otherwise stated.) The trial court sentenced defendant to 20 years in state prison.

On appeal, defendant contends the trial court erroneously issued a protective order for the adult victim in this case, and the section 243.4 fine must be stricken. In a supplemental brief, he contends it was prejudicial error to admit expert evidence regarding the statistical probability of false accusations. Agreeing with defendant’s first two contentions, but finding the erroneous expert testimony harmless, we shall modify the protective order to exclude the adult victim, strike the section 243.4 fine, and affirm the judgment as modified.

FACTS AND LEGAL PROCEEDINGS

The Prosecution Case

Melody (born June 1989) is the mother of Sophia (born June 2011). Her husband, B., is Sophia’s father, as well as the father of Sophia’s younger brother. In 2016, they all lived with Melody’s mother, Evelyn, and her husband, defendant. Melody’s sister M.E. and brother E. also lived in the home. The remainder of Melody’s family lived in the Philippines.

Sophia

Melody and her husband took Sophia to school on September 1, 2016, for Sophia’s first day of kindergarten. When school ended, they stopped at the store and then went to the home of defendant and Evelyn. Melody went to the backyard to visit with her mother, while Sophia was in the master bedroom where defendant sat on a chair by the bed.

After about a minute, Melody went to get some toothpaste to give to her mother to send to the Philippines. As she walked back through the house, she heard Sophia loudly scream, “Stop it. Stop it.” Melody rushed to the master bedroom, where she saw defendant with his hand up Sophia’s dress while Sophia tried to push him away.

Melody got Sophia into another room and asked what happened. Sophia said defendant rubbed her “pee-er” with two fingers on the outside of her underwear. Melody and her family then left the home and contacted the authorities.

Melody

Officers investigating the attack on Sophia asked Melody if defendant ever sexually abused her. She initially denied any sexual abuse, but eventually admitted that defendant had abused her as well. She first told her husband of the abuse about three to four weeks before defendant’s April court date. She first told law enforcement in April 2017, after going to court and hearing defendant enter his not guilty plea.

Melody was born in the Philippine Islands. Her mother Evelyn moved to the United States when Melody was two, and Melody came over when she was 10. Melody lived in a house off Mack Road with her mother, her brother, and defendant when she was in the fifth and sixth grades. Her mother worked two jobs, so defendant was at times left alone with Melody. When defendant was alone with Melody, he would use his hands or one of his fingers to touch her vagina. This happened more than once a week. Sometimes defendant touched her over her clothes while other times he did so under her clothes. His fingers would penetrate her vagina at times, and he eventually had forcible intercourse with her.

Melody did not disclose the touching when it happened; she was not very close to her mother and felt her mother would not support her if she disclosed. She tried to distance herself from defendant at this time. After the incident with Sophia, Melody initially lied to the police about what defendant did to her because her mother had repeatedly told her she would get killed if she fought back.

Melody’s brother E. came to the United States with Melody when he was 20. He lived with them, working at a hotel from 4:00 p.m. to 1:00 a.m. His mother also worked. Melody would at times separate herself from the group during family activities. He never saw inappropriate behavior between defendant and Melody.

District Attorney Investigator Laura Chase spoke with Melody just after defendant’s April 4, 2017 court date. Melody, who was angry and upset, said defendant molested her when she was 11 and 12 years old. Melody was very quiet and emotional when she talked to Chase.

Expert Testimony

Clinical psychologist Dr. Blake Carmichael testified as an expert on child sexual abuse. It is common for a child to delay disclosure of sexual abuse. Only 20 percent disclose quickly, while nearly 70 percent do not tell until they are 18. Children delay disclosing to prevent loss of special attention, out of guilt or embarrassment, from fear of not being believed, because of criticism, or from feelings that they contributed to their abuse. Disclosure is a process rather than an event and can be traumatic for an adult as well.

Some of the ways children cope with trauma such as sexual abuse include disassociation and avoidance, which can lead to losing certain details of the abuse while the central part of the memory remains. Thus, abused children often omit details of the abuse. Some abused children will not show negative emotions toward the abuser, and some will deny that the abuse occurred.

Sexually abused children are highly resistant to suggestive or misleading questions. Even leading questions do not immediately lead to false information.

A number of different studies have concluded that false accusations of child sexual abuse are quite rare. The studies found the rate of false allegations by children was in the range of two to six percent.

The Defense Evidence

Clinical psychologist Dr. Christopher Fisher testified as an expert in forensic psychology. Defendant did not meet the criteria for pedophilic disorder or antisocial personality disorder. He did not lack social skills or an age-appropriate partner. Pedophilia typically manifests around puberty, and usually no later than early adulthood. Pedophilia first manifesting itself at the age of 55 would be very atypical.

Delayed reporting of child sexual abuse is not common. Most children report abuse immediately or soon after to a trusted individual.

Clinical psychologist Dr. William O’Donohue gave expert testimony on child sexual abuse and its effect on small children, suggestibility, and false memories. He did not agree with all the concepts discussed by Dr. Carmichael.

Memory is constructive and not like a tape recorder. Children are more susceptible to suggestion than adults; they adopt memories that did not happen to them. A child’s suggestibility lessens as the child gets older. Spontaneous disclosures of abuse are more reliable.

A false memory is asserting that you remember something that did not actually happen. Suggestibility is a major cause of false memories. False memories can be induced through leading questions or by questioning from a trusted figure.

Children tend to remember core details of an incident rather than peripheral matters. The number of times the victim was abused and whether the touching was on the skin or over the clothes are examples of core details. Inconsistencies in core details may indicate a false memory. A more detailed disclosure is consistent with the incident actually happening.

Dr. Carmichael’s testimony regarding the false allegation rates in child sexual abuse cases was incorrect. There were about 15 studies, and they showed a much wider range, with some going up to 55 percent. None of the studies on false allegations had a representative sample. All studies struggle with determining whether an allegation is actually false, using very error prone proxy measures such as professional judgment. There was no study of currently adjudicated cases, which would be most used in a forensic setting such as this. Several of the authors of the studies on false allegations say those rates should not be used in forensic settings because of those problems.

The person who conducted the forensic interview with Sophia employed a protocol for interviewing children similar to one he helped develop. The interviewer followed some, but not all of the protocols, failing to talk to her about truth meaning, not clarifying for her what her job was during the interview, not assessing her disclosure level or inhibitions, not ruling out the influence of bribes or threats, and not always asking open-ended questions.

Forty-four-year-old Marie Shevlin was 10 when her mother began dating defendant in 1983-1984. Soon after, defendant moved in with her mother, Shevlin, and her brother, and lived with them for 9-10 years. Defendant never did anything sexually inappropriate with Shevlin or her friends. She had not seen or spoken to defendant in 25 years.

DISCUSSION

I

Protective Order

Section 1202.05 authorizes the trial court to prohibit visitation between a prisoner convicted of certain offenses including, as relevant here, section 288, and a person under the age of 18 who was the victim of the offense. (§ 1202.05, subd. (a).) The trial court issued such an order regarding both Melody and Sophia, the two victims of defendant’s crimes. Defendant contends the order must be vacated regarding Melody, as she was over the age of 18 when the court imposed the no visitation order. The Attorney General concedes the issue. We agree.

While Sophia was a child when defendant sexually abused her, section 1202.05 applies only to those victims who are under the age of 18 at sentencing. (People v. Ochoa (2011) 192 Cal.App.4th 562, 565.) The unauthorized sentence may be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354.) We order the provision stricken as to Melody.

II

Section 243.4 Fine

The trial court imposed a $600 fine pursuant to section 243.4. Section 243.4 prohibits sexual battery, but defendant points out that sexual battery was not pleaded or proved. The Attorney General agrees that the fine is unauthorized and should be stricken.

Although there was no objection to the fine, as with the no visitation order, the contention is not forfeited because the fine was unauthorized. We will modify the judgment to strike the fine.

III

Statistical Evidence on False Accusations

In a supplemental brief, defendant contends that it was prejudicial error for the trial court to allow, over his objection, Dr. Carmichael to testify that research shows only two to six percent of sexual abuse allegations by children are false. The Attorney General concedes the inadmissibility, but claims the error is harmless.

Allowing an expert to testify regarding the statistical probability of false accusation sexual abuse cases has been, with rare exceptions, rejected by the courts. (See, e.g., Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 737-738; State v. Lindsey (1986) 149 Ariz. 472 [720 P.2d 73, 77]; State v. Myers (Iowa 1986) 382 N.W.2d 91, 92, 97-98; State v. Parkinson (Ct.App. 1996) 128 Idaho 29 [909 P.2d 647, 654]; State v. Williams (Mo.Ct.App. 1993) 858 S.W.2d 796, 801; State v. MacRae (1996) 141 N.H. 106 [677 A.2d 698, 702]; State v. W.B. (2011) 205 N.J. 588 [17 A.3d 187, 201-202]; Wilson v. State (Tex.Ct.App. 2002) 90 S.W.3d 391, 393; State v. Catsam (1987) 148 Vt. 366 [534 A.2d 184, 186-188]; United States v. Brooks (C.A.A.F. 2007) 64 M.J. 325, 329-330; but see Alvarez-Madrigal v. State (Ind.Ct.App. 2017) 71 N.E.3d 887, 892-893 [finding expert testimony that some statistics show less than two or three children out of a thousand made up claims was not improper vouching].) California courts come to the same conclusion as the overwhelming weight of authority hold that such testimony is improper. (People v. Julian (2019) 34 Cal.App.5th 878, 880, 887 (Julian); People v. Wilson (2019) 33 Cal.App.5th 559, 571 (Wilson).)

We agree with Wilson, Julian, and the overwhelming majority of other jurisdictions holding such evidence inadmissible. “The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert’s opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful. [Citations.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.) Testifying that child sexual abuse victims make false accusations in only two to six percent of cases informs the jury that the two victims here had a 94 to 98 percent chance of telling the truth. Allowing Dr. Carmichael to give statistical probability evidence that usurped the jury’s credibility finding function was an abuse of discretion.

In Julian, the expert testified, “false allegations of sexual abuse by children ‘don’t happen very often.’ ‘The range of false allegations that are known to law enforcement or [Child Protective Services] . . . is about as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases that appear to be false allegations.’ ” (Julian, supra, 34 Cal.App.5th at p. 885.) The Court of Appeal agreed with the defendant’s contention that this testimony “was highly prejudicial, and deprived him of his right to a fair trial.” (Ibid.) Defendant did not object to the evidence at trial, but the Julian court found counsel’s ineffectiveness in failing to object deprived him of a fair trial under the Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674] standard of prejudice. (Julian, at p. 889.) The Julian court also found the defendant was prejudiced by trial counsel’s soliciting from an investigating officer that the officer believed one of the children was truthful in making claims of sexual abuse against the defendant. (Ibid.) Finding these errors prejudicial under any standard of harmless error, the Court of Appeal reversed. (Id. at p. 890.)

The expert in Wilson “testified that there was a limited amount of research on the topic of false allegations of child sexual abuse, but that false allegations occur ‘very infrequently or rarely,’ most often during a child custody dispute. He continued, ‘There are a number of studies that talk about the pressures put on children to make a false allegation.’ He referred to a ‘classic’ Canadian study that found ‘about 4% of cases in which there was an allegation that was determined to be false,’ remarking that ‘[w]hat was notable [about the study] was that in none of those cases was it a child who made the allegation that was false, it was somebody else,’ such as a parent disputing custody.” (Wilson, supra, 33 Cal.App.5th at p. 568.) The expert admitted on cross examination that it was difficult to determine whether an allegation is false, but the Canadian study was among the best available. (Ibid.) The expert also noted that the 12 to 15 other studies on the subject showed a range of one to six percent false allegations. (Ibid.)

The Court of Appeal found the testimony improperly admitted, but not prejudicial under the People v. Watson (1956) 46 Cal.2d 818 standard (Watson). (Wilson, supra, 33 Cal.App.5th at pp. 571-572.) In finding the error harmless, the Wilson court cited the relative brevity of the improper expert testimony, the fact that the expert acknowledged it was difficult to determine whether an allegation was false, and the expert’s admission he had come across two cases where he believed the child he treated was making false claims of sexual abuse. (Id. at p. 572.) The Court of Appeal further relied on expert evidence submitted by the defense to rebut the improper expert testimony. (Ibid.) The defense expert “testified that the 4 percent number reflected only the cases in which there was positive proof a child’s allegations were false, and that there was no way to know the actual ratio of true to false allegations.” (Ibid.) The expert also noted there were many specific examples of false memories where children were influenced by adults investigating the alleged crimes or through interviewers using unreliable methods, and that false accusations are most likely to result from outside influences. (Ibid.) Finally, the prosecutor did not mention the statistical evidence in closing argument. (Ibid.) Thus, where the two victims “testified extensively and the jurors could assess their credibility, other percipient witnesses were called, and the defense offered effective rebuttal expert testimony, we see no reasonable probability defendant would have achieved a more favorable result in the absence of the challenged testimony.” (Ibid.)

We agree with Wilson regarding the standard for harmless error to improperly admitted expert testimony on the statistical probability of false allegations of child sexual abuse. “The erroneous admission of expert testimony only warrants reversal if ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ([Watson, supra,] 46 Cal.2d [at p.] 836 []; [Citation].” (People v. Prieto (2003) 30 Cal.4th 226, 247.) Thus, improper rape trauma syndrome expert testimony that the victim was actually raped is evaluated under the Watson standard. (People v. Bledsoe (1984) 36 Cal.3d 236, 251-252.) The fact that the testimony improperly uses statistics to vouch for the complaining witnesses does not change the standard for harmless error. For example, the Watson standard applies to improper admission of evidence regarding the mathematical probability of the defendant’s guilt. (People v. Collins (1968) 68 Cal.2d 319, 320, 332.)

As in Wilson, the error here is harmless. Like Wilson, the improper expert testimony took comparatively little time in the context of the entire trial. Also like Wilson, defendant’s trial counsel commendably presented expert evidence to contest the improper statistical testimony, and to show how children can make false accusations without lying. The expert who gave the erroneous testimony, Dr. Carmichael, also admitted that “[n]othing can be used to diagnose child sexual abuse. That is why we have the trier of fact, the jury.” He also testified that “[i]t’s fair to say that there is nothing that can be used to tell you if a child was sexually abused. That is why we have the legal process.” The prosecutor here, like the one in Wilson, did not mention the statistical evidence in closing argument. Finally, again like in Wilson, the jury was able to see the complaining witnesses testify and assess their credibility, and also had the benefit of other percipient witnesses. We conclude that it is not reasonably probable that absence of the error would have led to a more favorable result for defendant. (Watson, supra, 46 Cal.2d at p. 836.)

DISPOSITION

The judgment is modified to strike any reference to Melody Doe in the visitation order, and to strike the section 243.3 sexual battery fine. As modified, the judgment is affirmed. The trial court is directed to prepare a new visitation order and an amended abstract of judgment reflecting the modified judgment, and to forward certified copies to the California Department of Corrections and Rehabilitation.

HULL, Acting P. J.

We concur:

MURRAY, J.

KRAUSE, J.