People v. Gray

• Decision Date: 24 November 1986
• Citation: 231 Cal.Rptr. 658,187 Cal.App.3d 213
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kevin Gene GRAY, Defendant and Appellant. Crim. B019329.

Page 658

231 Cal.Rptr. 658

187 Cal.App.3d 213

The PEOPLE, Plaintiff and Respondent, v. Kevin Gene GRAY, Defendant and Appellant.

Crim. B019329.

Court of Appeal, Second District, Division 6, California.

Nov. 24, 1986.

Review Denied March 5, 1987. ^**

[187 Cal.App.3d 215] Clifford Gardner, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Donald J. Oeser and Robert N. Kwong, Deputy Attys. Gen., for plaintiff and respondent.

STONE, Presiding Justice.

Kevin Gene Gray appeals from a jury conviction of two counts of lewd and lascivious conduct upon a child under 14 years of age (Pen.Code, § 288, subd. (a)) and resultant sentence of 5 years on probation, 135 days in county jail, and $800 in fines--$100 to the State Restitution Fund, $200 in restitution fines, and a statutory fine of $500. He contends the trial court committed reversible error in ruling admissible the prosecution's expert testimony on child abuse accommodation syndrome and that the case must be remanded for resentencing because the trial court did not adequately state its reasons for imposing $700 of the fine. We find neither reversible error nor necessity for remand, and affirm the judgment.

FACTS

The Prosecution's Case

Nine-year-old Tosha M., appellant's stepdaughter, testified that one morning, while watching television together on the bed, appellant rubbed her underpants in the vaginal area while rubbing her back. On another occasion in the bedroom, appellant placed her hand on his penis. He also touched her shirt below the navel while explaining the facts of life to her. She did not reveal these incidents--which occurred between January and June 1985--until the summer of 1985 when she spent the summer with her father, Mr. M, and stepmother, Mrs. M. That summer she told Mrs. M. about two of the incidents. However, the only person to whom she related the penis-touching incident was Detective English, in response to his questions.

Doctor Mosman, a child psychologist, testified about child abuse accommodation syndrome. He said it is not a diagnosis or a test, but rather, an attempt to identify traits and characteristics of child sexual abuse. He did not render a diagnosis or testify on the ultimate issue--whether Tosha had been molested--but confined his opinion to experiences and behavioral traits common to child abuse victims.

The Defense Case

Tosha's father admitted that he always disliked appellant. Her mother said she told Mr. M. that she intended to sue for overdue support payments. He telephoned her in July 1985 to inform her of Tosha's accusations against appellant and said he would not pursue the matter if she left appellant. When she refused, he reported Tosha's complaints to the child custody mediator who called the police.

Tosha said her father became angry and yelled at her when she attempted to tell him about "good touches" or "bad touches" and she would agree with him to calm him. She told her mother that she may have been wrong about some of the things she said. He kept pictures of naked women, including his wife, Kathy, in the house.

Tosha's mother testified that Tosha had a good relationship with appellant. At no time during the period of the alleged touchings did Tosha ever have sleeping, eating or school problems or behavioral changes toward appellant. She said that she and appellant explained the facts of life to Tosha one day because of an incident Tosha witnessed at school that triggered questions about "the birds and the bees." Appellant pointed his finger below Tosha's navel during the explanation but did not touch her.

Doctor Oliver, defense expert, testified that child abuse accommodation syndrome is not a generally accepted syndrome but acknowledged that delayed reporting is not unusual in child molestation cases.

Appellant testified that he occasionally rubbed Tosha's back, legs and chest out of affection but denied any sexual interest in her and denied touching her vaginal area.

DISCUSSION

I. Trial Court Did Not Commit Reversible Error In Allowing Doctor Mosman's Testimony.

When the prosecutor indicated he would call Doctor Mosman to testify about child sexual abuse accommodation syndrome (the syndrome), appellant moved to exclude the testimony. In an Evidence Code section 402 hearing out of the jury's presence, appellant objected that the syndrome is not widely or generally accepted within the psychological community and thus does not satisfy the standards set forth in Frye v. United States (D.C.Cir.1923) 293 F. 1013 and People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240. Appellant also claimed the rule of People v. Bledsoe (1984) 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291 precluded this "highly prejudicial" testimony.

The trial court, relying on this court's opinion in People v. Payan (Nov. 5, 1985) B007167, subsequently ordered unpublished by the Supreme Court January 30, 1986, ruled that where evidence is not admitted for purposes of establishing a diagnosis or rendering an opinion, the Kelly/Frye tests do not apply. Doctor Mosman said his opinion would be confined to common experiences of child molest victims, matters with which the public is not familiar. He said that the syndrome, described by Doctor Roland Summit, was not a diagnosis, but a description of traits and characteristics, specifically, secrecy, helplessness, entrapment and accommodation, delayed reporting and inconsistency, and retraction.

People v. Bledsoe, supra, held that expert testimony that a complaining witness suffers from rape trauma syndrome is not admissible to prove that a witness was raped. (36 Cal.3d 236, 251, 203 Cal.Rptr. 450, 681 P.2d 291.) The Supreme Court held that admissibility of expert testimony on a given subject must turn both on the nature of the particular evidence and its relation to a question actually at issue in the case. (p. 246, 203 Cal.Rptr. 450, 681 P.2d 291.) Although in a rape prosecution case, expert testimony on the after-effects of rape may be admitted for a variety of purposes, the evidence in Bledsoe was not admissible for the purpose for which it was offered--namely, to prove that a rape occurred. (Id., at p. 238, 203 Cal.Rptr. 450, 681 P.2d 291.)

Here, Doctor Mosman's testimony was not admitted "as a means of proving--from the alleged victim's post-incident trauma--that a [molestation] had, in fact, occurred." (Id., at p. 248, 203 Cal.Rptr. 450, 681 P.2d 291.) It was admitted after Tosha testified she did not tell anyone about touching appellant's penis except in response to Detective English's questioning, she did not tell anyone until she testified in court that appellant said, at the time, "it won't bite you", and she told her mother she might have been incorrect about some incidents but agreed with her father because she feared his anger. Doctor Mosman said that delayed reporting and inconsistency is not unusual with victims of child molest, a statement concurred in by the defense expert, and explained what causes children to react differently to molestation than adults might expect.

"Where the expert refers to specific events, people, and personalities and bases his opinion as to credibility on his diagnosis of this witness, then the conclusion that the witness is credible rests upon the premise that the diagnosis is accurate, and that in fact molestation had occurred. The jury in effect is being asked to believe the diagnosis, to agree that the doctor's analysis is correct and that the defendant is guilty. Such a result would subvert the sound rule adopted by a unanimous Supreme Court in Bledsoe. It follows, therefore, that the expert testimony authorized by Bledsoe to permit rehabilitation of a complainant's credibility is limited to discussion of victims as a class, supported by references to literature and experience (such as an expert normally relies upon) and does not extend to discussion and diagnosis of the witness in the case at hand." (People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099-1100, 215 Cal.Rptr. 45, fns. omitted.) Here, the expert did just that. He did not make a diagnosis of molestation nor did he rely "on a detailed analysis of the facts in the case at hand." (Id., at p. 1100, 215 Cal.Rptr. 45.)

Through cross-examination of Tosha and other witnesses, appellant suggested that the delay in reporting the alleged molestation and failure to disclose all incidents when she finally told her stepmother was inconsistent with her claim of molestation. Bledsoe acknowledged that, to rebut such evidence, "expert testimony ... may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths." (36 Cal.3d 236, 247-248, 203 Cal.Rptr. 450, 681 P.2d 291.) Similarly here, explanation of the difference between child and adult behavior when faced with the alleged incidents was useful.

Additionally, we disagree with appellant's contention that the trial court erred in failing to apply the, Kelly-Frye test. Kelly-Frye conditions the admissibility of evidence based on new scientific method of proof on a showing that the technique has been generally accepted as reliable in the scientific community in which it developed. (People v. Shirley (1982) 31 Cal.3d 18, 34, 181 Cal.Rptr. 243, 723 P.2d 1354.) The proponent must establish reliability of method and proper qualifications of the testifying witness. (People v. Roehler (1985) 167 Cal.App.3d 353, 388, 213 Cal.Rptr. 353.) A single witness is insufficient to represent the views of an entire scientific community regarding reliability of the technique. (People v. Kelly, supra, 17 Cal.3d 24, 37, 130 Cal.Rptr. 144, 549 P.2d 1240.) Those techniques are not necessarily limited to manipulation of physical evidence. (People v. Shirley, supra, 31 Cal.3d at p. 53, 181 Cal.Rptr. 243, 723 P.2d 1354.) "(W)e do not doubt that if testimony...