People v. Munch

• Decision Date: 20 July 2020
• Docket Number: 2d Crim. No. B296380
• Citation: 266 Cal.Rptr.3d 136,52 Cal.App.5th 464
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frederick Louis MUNCH, Defendant and Appellant.

52 Cal.App.5th 464

266 Cal.Rptr.3d 136

The PEOPLE, Plaintiff and Respondent,

v.Frederick Louis MUNCH, Defendant and Appellant.

2d Crim. No. B296380

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

Filed July 20, 2020

Certified for Partial Publication.^*

Sanger Swysen & Dunkle, Stephen K. Dunkle, Santa Barbara, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

GILBERT, P. J.

Frederick Louis Munch appeals a judgment following his conviction of three counts of forcible lewd acts upon a child ( Pen. Code, § 288, subd. (b)(1) ); forcible sexual penetration (§ 289, subd. (a)(1)(B)); aggravated sexual assault on a child (§ 269, subd. (a)(5)); and four counts of lewd acts on a child ( § 288, subd. (a) ). The trial court sentenced him to an aggregate determinate term of 26 years, plus a consecutive indeterminate term of 15 years to life in prison.

Twenty-nine years ago, in People v. McAlpin (1991) 53 Cal.3d 1289, 1300, 283 Cal.Rptr. 382, 812 P.2d 563, our Supreme Court held that expert testimony on "the common reactions of child molestation victims," known as CSAAS, child sexual abuse accommodation syndrome, "is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident – e.g., a delay in reporting – is inconsistent with his or her testimony claiming molestation."

Munch argues McAlpin is out of date. He contends that changes in the public perceptions of child abuse and decisions in other jurisdictions require us to reevaluate the prejudicial effect of CSAAS evidence.

In the published portion of this opinion, we discuss why CSAAS evidence is a valid and necessary component of the prosecution case in matters involving child abuse. We conclude the reasoning of McAlpin is as valid today as it was in 1991 and affirm.

FACTS

The tawdry details of the facts of this case are not necessary for the published portion of our opinion. Suffice it to say that from the ages of six to 11 years, Jane Doe was subjected to various acts of sexual abuse by defendant Munch.

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Police Investigation

In a search of Munch's residence, police found 150 photographs of Jane Doe. Deputy Sheriff Jonathan Fleming testified that in one "selfie" photograph, Munch is "topless" standing near Jane Doe who "appears to be topless and in her underwear and looks to be pulling up her shorts." She was holding her shorts "around the knee area." In another photograph, Jane Doe is wearing "black tights or leggings" and a shirt with "see-through sleeves," and "part of her midriff is exposed." In another, she is in "a ballet pose" with a label attached to the picture with the phrase "[l]ong and lean." Another photo shows Jane Doe in a "denim top with no sleeves" and a skirt with her midriff exposed. A label on the back of the photo contains the phrase "[l]ooking grown up at eight years."

On one of Munch's cell phones, there were 111 photos of Jane Doe. On another, there were 84 photos. In one of those photos, Jane Doe is in a "bathing suit" with a background of rocks and pebbles. In another, she is wearing "purple and yellowish colored shorts."

Munch's Admissions to the Police

During a police interview, Munch said he and Jane Doe "were affectionate" and related facts concerning his conduct with her.

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CSAAS Expert Testimony

Anthony Urquiza, a psychologist, testified on the "characteristics of children who have been impacted by sexual abuse." He said he had no information about this case other than the name of the defendant. He was not testifying to "indicate whether or not sexual assaults took place or occurred here."

Urquiza testified that most children are sexually abused by someone with whom they have some preexisting relationship. Some children "often have a tremendous sense of ambivalence because they may like the person who sexually abuses them, but not like being abused." Abused children may often return to the abuser because they have learned to "compartmentalize and tolerate the experience of abuse" and may still "want to be around" the abuser.

Most child abuse victims have a significant delay in reporting abuse. It may be months or years before they reveal it. Abused children often "detach" themselves from those experiences, do not appear to be distressed, and usually do not want to talk about the experience. Abused children do not always "report the abuse the same way each time they talk about the abuse."

Defense Case

Munch testified that he was 70 years old and recovering from prostate cancer

. From December 1, 2016, to the time of his arrest, he had "difficulties with ejaculation and erection" and wore a "leg bag" during that period to "void" his bladder. He began providing care for Jane Doe eight or nine years ago.

Munch testified that various acts over the years that occurred between Jane Doe and him were at her request.

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DISCUSSION

Admission of CSAAS Evidence

Munch contends the trial court erred by admitting expert testimony on CSAAS because it is irrelevant and "the public no longer holds the presumed misconceptions this testimony purports to address." He claims he is entitled to a reversal of the judgment. We disagree.

Our Supreme Court has rejected Munch's contentions. It ruled that CSAAS evidence "is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident – e.g., a delay in reporting – is inconsistent with his or her testimony claiming molestation." ( People v. McAlpin , supra , 53 Cal.3d at p. 1300, 283 Cal.Rptr. 382, 812 P.2d 563.) " ‘Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.’ " ( Id. at p. 1301, 283 Cal.Rptr. 382, 812 P.2d 563.) Such evidence "is not admissible to prove that the complaining witness has in fact been sexually abused." ( Id. at p. 1300, 283 Cal.Rptr. 382, 812 P.2d 563.) "The expert is not allowed to give an opinion on whether a witness is telling the truth ...." ( People v. Long (2005) 126 Cal.App.4th 865, 871, 24 Cal.Rptr.3d 654.) CSAAS evidence has been admitted by the courts of this state since the 1991 McAlpin decision.

Munch cites decisions from a small number of out-of-state courts that he claims reached a different result than McAlpin. He invites us to no longer follow McAlpin. We decline. That Supreme Court decision is binding on all lower courts in this state. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) That other jurisdictions may disagree with it does not change its impact on California cases. ( Ibid . )

Moreover, California is not alone in admitting this expert testimony. In McAlpin , the court said, " ‘The great majority of courts approve such expert rebuttal testimony.’ " ( People v. McAlpin , supra , 53 Cal.3d at p. 1301, 283 Cal.Rptr. 382, 812 P.2d 563.)

New Trend to No Longer Admit CSAAS Evidence?

Munch claims several jurisdictions have decided to no longer admit CSAAS evidence because they have discovered its deficiencies. But many of the cases he cites from these jurisdictions do not support his position.

For example, Munch cites Commonwealth v. Dunkle (Penn. 1992) 529 Pa. 168, 602 A.2d 830 where the Pennsylvania Supreme Court ruled CSAAS evidence was inadmissible. But after the Dunkle decision, the Pennsylvania Legislature passed a law "providing for the admissibility of this type of expert testimony." ( Commonwealth v. Olivo (Penn. 2015) 633 Pa. 617, 127 A.3d 769, 780.)

Munch claims Washington has "held CSAAS evidence inadmissible." He cites State v. Maule (1983) 35 Wash.App. 287, 667 P.2d 96. But in State v. Jones (1993) 71 Wash.App. 798, 863 P.2d 85, 96, the court said, "More recent case law has brought into question the prohibition set forth in Maule ." They now approve "the use of expert testimony describing the behaviors of sexually abused children in general." ( Ibid . )

Munch cites a 1989 Ohio Court of Appeals case, State v. Davis (1989) 64 Ohio App.3d 334, 581 N.E.2d 604. But in 1998 the Ohio Supreme Court held, "An expert witness's testimony that the behavior of an alleged child victim of sexual abuse is consistent with behavior observed in sexually abused children is admissible ...." ( State v. Stowers (1998) 81 Ohio St.3d 260, 690 N.E.2d 881, 883.) " ‘Most jurors would not be aware, in their everyday experiences, of how sexually abused children might respond to abuse.’ " ( Ibid . )

Munch cites a Tennessee case, State v. Schimpf (Tenn.Crim.App. 1989) 782 S.W.2d 186, where the court held child sexual abuse expert testimony was inadmissible. But there the expert examined the victim and testified that the child "had, in fact, been sexually abused." ( Id. at p. 193.) The court's ruling that this invaded the jury's province is consistent with McAlpin . Moreover, in State v. Livingston (Tenn. 1995) 907 S.W.2d 392, 395, the Tennessee Supreme Court recognized that "child victims, in particular, commonly are reluctant to report such incidents and delay in doing so, or fail to provide a full report." That is consistent with much of Urquiza's testimony here.

Munch cites the language from a 1997 dissenting opinion of a Ninth Circuit justice. But he does not mention that in 2003 the Ninth Circuit stated, "[W]e have held that CSAAS testimony is admissible in federal child-sexual-abuse trials, when the testimony concerns general characteristics of victims and is not used to opine that a specific child is telling the truth." ( Brodit v. Cambra (9th Cir. 2003) 350 F.3d 985, 991.) This does not violate a defendant's right to due process. ( Ibid . ) Ninth Circuit decisions are consistent with McAlpin .

New Jersey and Kentucky Cases

Munch notes that in ...