People v. Kelly
| Decision Date | 13 October 2021 |
| Docket Number | C087530 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ANDY KARL KELLY, Defendant and Appellant. |
NOT TO BE PUBLISHED
A jury found defendant guilty of committing a lewd or lascivious act on a child under the age of 14 (10 counts), attempting to commit a lewd or lascivious act on a child under the age of 14, engaging in sexual intercourse or sodomy with a child 10 years old or younger (two counts), and engaging in oral copulation or sexual penetration with a child 10 years old or younger (four counts). The victim, defendant's goddaughter, was six years old and younger at the time of the charged offenses. Defendant was sentenced to 110 years to life and an additional determinate term of 19 years.
On appeal, defendant contends that (1) the trial court abused its discretion in admitting expert testimony concerning Child Sexual Abuse Accommodation Syndrome (CSAAS), (2) CALCRIM No 1193 allowed the jury to consider the CSAAS evidence in an improper manner, and (3) substantial evidence did not support his conviction of attempting to commit a lewd or lascivious act on a child under the age of 14.
We affirm.
Defendant was charged with committing a lewd or lascivious act on a child under the age of 14 (Pen. Code, § 288, subd. (a); counts one, two, four, five, seven, eight, nine, eleven thirteen, seventeen)[1]; attempting to commit a lewd or lascivious act on a child under the age of 14 (§§ 664, 288, subd. (a); count three); engaging in sexual intercourse or sodomy with a child 10 years old or younger (§ 288.7, subd. (a); counts six, sixteen); and engaging in oral copulation or sexual penetration with a child 10 years old or younger (§ 288.7, subd. (b); counts ten twelve, fourteen, fifteen). It was further alleged that defendant engaged in substantial sexual contact with a victim under the age of 14 years old within the meaning of section 1203.066, subdivision (a)(8). The incidents were alleged to have occurred between February 11, 2015, and July 18, 2017.
The victim was seven years old at trial. She had a sister, S.D who was 11, and three brothers. Defendant was the victim's godfather. The victim spent a great deal of time with her godparents, defendant and his wife, who helped the victim's father and stepmother and were essentially an extended family. The victim stayed with defendant and his wife off and on her whole life until she was six. K.S. and, more recently, A.H., defendant's daughters, also lived with them at defendant's house.[2] The victim had a small bed in defendant's bedroom next to the bed defendant shared with his wife.
The victim testified that she was five and six when bad things happened to her. On one occasion, when she was six, she was in bed and defendant was tickling her. Defendant licked her armpit and then asked her what she wanted to lick. The victim licked defendant's stomach, and then defendant pulled out his “wiener” or “thingy.”
On another occasion, when the victim was five years old, she was playing outside with her friends and then went inside. Defendant came in the bedroom. Defendant pulled his penis out of his pants and “started grabbing on it for a minute....” Defendant told the victim to touch his penis, and so she touched it with her finger. Eventually, “the white stuff came out.” Defendant told the victim to eat it. The victim had to suck defendant's penis with her mouth. Defendant also put his penis in her vagina.
On another occasion, she was in the bathtub when defendant came into the bathroom. Defendant put his penis in her vagina. Defendant also put his fingers in her anus and put his mouth on her breasts.
Defendant also kissed the victim “like a grown-up kiss” by putting his lips on hers and putting his tongue in her mouth.
The victim testified that defendant told her not to tell anyone about the things he did with her. She did not tell her parents about the incidents because she was too frightened.
Eventually, the victim told S.D. S.D. wanted to tell her mother and encouraged the victim to tell someone, but the victim refused, saying that defendant told her she would get hurt if she told anyone. On the last occasion, the victim reported abuse to S.D., and then they told the victim's “cousin.”[3] S.D. and the cousin told the victim's parents. The victim's father and stepmother took the victim to a hospital.
On cross-examination, the victim testified that she got in trouble before for watching videos she was not supposed to watch. She denied ever watching videos of adults having sex. However, she further testified on recross-examination that she got in trouble for watching “nasty” videos.
An emergency room nurse testified that the victim “was very matter of fact.” The nurse acknowledged on cross-examination that the victim did not seem upset, was not crying, and did not provide many details of the alleged sexual abuse.
Sacramento Sheriff's Detectives Christopher Robertson and his partner interviewed the victim at the hospital. An audio recording of the interview was played for the jury. In the interview, the victim told the deputies that, the day before the interview, defendant made her “lick the... white stuff off him.” The victim was naked in the bathtub. Defendant said to the victim that it was “take out time.” The victim put on a towel and went into the room she shared with defendant and his wife. Defendant was rubbing his penis over his pants, and then he pulled it out. Defendant made the victim touch his penis with her hand and suck his penis. Defendant rubbed his penis to “make the white stuff come out, ” and he forced the victim “to lick the white stuff off him.” Defendant made white stuff come out again and he made the victim eat it again. He used his own hand to make the white stuff come out, and he put his “wiener” in her “hole.” However, “the whole wiener wouldn't fit.” Defendant placed his finger in her anus, and then put his finger in the hole in “front.” The victim said that defendant placed his penis in her hole on three separate occasions.
Defendant taught the victim how to “grown-up kiss” using the tongue. That occurred on the victim's birthday when she turned six.
The victim told the deputies that she never told anyone about the incidents because she was scared. Defendant threatened her that, if she told anyone, he would spank her until she could not feel anything.
On cross-examination, Robertson confirmed that, during the interview, the victim was calm and was not crying.
Julie Langston was a registered nurse who worked for the Sutter Medical Group at the BEAR Clinic, where they perform sexual assault and child abuse forensic assault exams.[4] Langston performed an exam on the victim on July 20, 2017. Langston testified that symptoms the victim had disclosed included abdominal and pelvic pain, “pain when she went to the bathroom with some genital itching, ” and bleeding when she had a bowel movement. Langston noted that the victim “had a yeast infection a couple months earlier and there had been some genital itching with that.” Langston testified that abdominal or pelvic pain, pain on urination, and yeast infections can be side effects of vaginal sexual assault, but there is no way to directly link such symptoms to a vaginal sexual assault. Langston also testified that yeast infections can have nonsexual causes.
Langston testified that, in examinations in cases of sexual assault, in more than 50 percent of adults and 90 percent of children, the physical exam results are “normal.” In other words, it is not surprising in a case of recent sexual abuse to find no injuries. In her examination of the victim, Langston did not find anything abnormal. The victim did have a slightly dilated anus, but that could have resulted from a recent bowel movement. Langston testified that the lack of findings in the victim's exam was consistent with the history of sexual abuse described to Langston.[5]
Later, Detective Shane Spence went to the victim's father's and stepmother's house to discuss with them the procedure of a SAFE interview.[6] Spence showed the victim a photograph of defendant to see if she could identify him. The victim identified defendant, said that she missed him, and spontaneously kissed the photograph.
At the SAFE interview, the victim seemed very nervous and threw up in the car on the way. The prosecution played a recording of the SAFE interview for the jury.[7]
The victim told the interviewer that defendant was very nice “but he started doing S-A-X, ” by which she meant sex. The victim stated that defendant “started putting his thingy in” her, started having sex with her, and forced her to lick white stuff off of him. According to the victim, this happened on three occasions.
On the first occasion, defendant tried to have sex with her. The victim and defendant were snuggling and he licked her armpit. He asked her what she wanted to lick, and she said his tummy. She licked his bellybutton. Defendant then pulled out his “wiener” under the blanket and “was squishing it, ” with his hands. Defendant asked the victim to have sex and she said no. The victim and defendant were “talking backwards, ” “no means yes and yes me [sic] no, ” and the victim said no. Defendant said, “[h]ow about I, I have it with your doll.” Defendant started pushing on the vagina area of the victim's doll like he was having sex. Defendant told the victim not to tell anyone that he showed her how to have sex.
The second...
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