People v. Dias
| Decision Date | 21 December 2018 |
| Docket Number | A144802 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO DIAS, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCR296165)
Humberto Dias was convicted by a jury of oral copulation with a child under 10. He contends the court committed prejudicial error when it (1) admitted expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS), and (2) declined to modify CALCRIM No. 330, the standard instruction on evaluating the testimony of child witnesses. Neither contention is persuasive, so we affirm the judgment.
Dias's first trial ended in a mistrial when the jury was unable to agree on a verdict. The following evidence is from Dias's retrial. We will discuss only the evidence and proceedings relevant to the admissibility of the CSAAS evidence and the alleged instructional error—the two discrete issues raised in this appeal.
The victim was nine years old when she testified. In 2011, when she was seven years old, Dias was married to her mother. The couple later divorced, but Dias continued to spend time with the victim at Mother's home.
The victim described an occasion when she was watching television while Dias was in Mother's bedroom. The victim got tired, so she changed into her pajamas, went into the bedroom and got under the covers. Dias was under the blanket. The prosecutor asked the victim if anything unusual happened when she got into the bed. The victim said she needed a break.
After a brief recess the prosecutor again asked the victim what happened when she was in the bed with Dias. The victim said that Dias looked at her. Asked what happened next, she repeatedly said she could not remember except that Dias got out of bed after a couple of minutes and went to the bathroom. The court recessed the trial for the day and Mother was admonished not to discuss the case with the victim.
When proceedings resumed the defense counsel disclosed that the victim and Mother had spoken with the victim advocate after the prior day's testimony. The victim told the advocate that she was scared to see Dias, and asked, " 'Are you going to let him out?' " The advocate responded that the victim " 'needed to answer the questions truthfully and that we are trying to make sure she never has to see him again.' " Mother said that Dias " 'will get out and come to their house' " if the victim did not tell the truth. Defense counsel moved for mistrial on the ground that the victim had been coached or at least subjected to her mother's undue influence. The court observed that the statements raised such a concern but denied the motion and commented that Dias could question the victim about them.
When questioning resumed the victim continued to respond, "I forgot," when asked what happened next. The prosecutor asked if Dias touched her while she was on the bed. The victim said no. The prosecutor asked about the victim's conversation with the victim advocate the previous day. The victim said she forgot. The court called another recess.
After the recess the prosecutor resumed questioning the victim about what happened on the bed. This time the victim said she remembered. She testified that Dias pulled down his boxer shorts and her pajamas and underwear. Facing her, he held his "bird" or "private" with his hands, rubbed cream from a green bottle with an apple on thelabel onto his penis, and "put his private in [hers]." Dias moved his penis slowly back and forth and put his tongue in the victim's mouth. The victim felt pain in her genitals and saw "white stuff come out of Dias's penis onto their legs and the bed. Dias wiped it up with a tissue or paper towel.
After Dias left the house, the victim told Mother what he had done. Mother told her to write it down, but she said they had to keep it a secret. The victim wrote what happened on a piece of paper, but she left her note behind when the family moved to a new house.
On cross-examination, the victim acknowledged that her mother, therapist Pamela Cooke, the prosecutor and two victim advocates had talked to her about what she was supposed to say in court.
Pamela Cooke counseled the victim's younger brother Daniel in 2012. On July 24, 2012, when the victim was seven, Mother, panicked and tearful, told Cooke that the victim had just disclosed that Dias molested her. Cooke spoke with the victim, who told her about an incident when Dias told her to take a shower, pushed his tongue into her mouth "and then he pushed his pee-pee into her mouth and stuff came out." The victim said this had happened six or seven times but Cook questioned the statement's reliability because the victim had become distracted and upset. The victim also said Dias would sometimes take down his underwear and "push his pee-pee into her face." Cooke reported this to Children's Protective Services.
Cooke met with the victim again on September 11, 2012. The victim told her " '[i]t hurt a whole lot when [Dias] pushed his pee-pee against her pee-pee.' " The victim spoke about being worried Dias would come to the door.
A social worker interviewed the victim at home on July 31, 2012. The victim pointed to a room where she said her stepfather had done something to her that she did not like. The victim recounted that she had become tired while watching television, so she went into the bedroom and lay down. Dias came in, lifted her up, put his penis in hermouth and asked her to move her tongue around. The social worker asked the victim if any sexual acts had occurred before July 24, 2012. The victim answered, "I forgot."
A forensic interview of the victim was conducted on August 7, 2012. A recording of the interview was played at trial and a transcript was distributed to the jury. Appellate counsel for both parties acknowledge correctly that the transcript of the interview contains numerous inconsistencies and non-sequiturs by the victim.
The victim told the interviewer that Dias had picked her and her brother up from their babysitter's. The victim watched television until she became tired and went into the bedroom. Dias came into the room wearing only his underwear, grabbed her by the waist, pushed her head down and put his "peep" in her mouth. After that, the victim told the interviewer, she pulled her pants down; she did not know why. Dias put his "peep" inside the victim's "peep" and moved it faster and faster until he stopped and "[t]he white stuff came out."
The victim said Dias put his "peep" in her "peep" "millions of times," starting when she was in first grade. She said "the white stuff" only came out in her mouth just once. Dias also put his tongue in her mouth. Dias put his "peep" in her mouth "[a] lot" of times, and put slimy and sticky "green stuff, like it's a apple" on his "peep."
The interviewer asked whether the victim ever told anyone about the molestation. She responded, She also said, "I keep it a secret on my paper." It is a She said her mother gave it to her, and that her mother "was happy when she gave it to me."
Psychologist Anthony Urquiza testified for the prosecution as an expert on CSAAS. He acknowledged he had no knowledge of the facts of this case.
CSAAS was initially identified by Dr. Roland Summit in a peer reviewed article written for the purpose of dispelling therapists' common misperceptions about sexually abused children. According to Dr. Urquiza, victims of child sexual abuse typicallydemonstrate five common characteristics: secrecy; helplessness; entrapment and accommodation; delayed and unconvincing disclosure; and retraction or recantation. Entrapment and accommodation relates to the fact that child sexual abuse usually occurs within the context of an ongoing relationship. Children in such abusive relationships are unable to protect themselves from the abuser. To accommodate or cope with their feelings of shame, trauma, disgust and humiliation, they may dissociate, or "distanc[e] them[selves] from what's going on." In other words, the victim tries to suppress the experience to "shut it down and not feel it anymore." This process
As to delayed and unconvincing disclosure, Dr. Urquiza testified that an enormous amount of research shows that a sexually abused child will commonly delay disclosing the abuse, sometimes for months or years. Children are generally afraid to tell someone about the abuse, and their reports may seem unconvincing for several reasons. They may present the information in a piecemeal fashion, e.g., ...
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