California Court of Appeal Nov 25, 2013 No. E055641Unpublished
Filed 11/25/13 P. v. Luna CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055641
v. (Super.Ct.No. SWF029715)
LUIS LUNA, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael B. Donner,
Judge. Affirmed.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Heather M.
Clark, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
Defendant Luis Luna, Jr. was sentenced to 12 years in prison after a jury found
him guilty as charged of violating Penal Code section 288.5, continuous sexual abuse of a
child under the age of 14 years. The victim, defendant’s daughter Doe, testified the abuse
People v. McAlpin, supra, 53 Cal.3d at p. 1300; see also People v. Brown (2004) 33
Cal.4th 892, 906.) By contrast, CSAAS evidence may not be used to show that the
molestation occurred or that the alleged victim’s molestation claims are true. (People v.
Housley (1992) 6 Cal.App.4th 947, 957; People v. Bowker, supra, 203 Cal.App.3d at p.
394.)
Defendant argues the italicized clause of CALCRIM No. 1193 which permits the
jury to use CSAAS evidence in evaluating the complaining witness’s credibility is
contrary to “the settled law regarding the relevance and use of CSAAS testimony.” He
argues that this part of the instruction is “the same as telling the jury to use the [CSAAS]
evidence to determine whether [the victim’s] molestation claim is true.” Not so.
In addressing a claim of jury misinstruction, we assess the instructions as a whole
and view the challenged instruction in context with other instructions to determine
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whether there was a reasonable likelihood the jury applied the challenged instruction in
an impermissible manner. (People v. Jennings (2010) 50 Cal.4th 616, 677.) We also
presume that the jury followed the court’s instructions. (People v. Edwards (2013) 57
Cal.4th 658, 746.) In light of CALCRIM No. 1193 in its entirety and other instructions, it
is not reasonably likely the jury understood CALCRIM No. 1193 as allowing it to use the
CSAAS evidence in determining that the molestation occurred or that Doe’s molestation
claims were true.
The jury was initially instructed to “[p]ay careful attention to all of [the] instructions
and consider them together” (CALCRIM No. 200), and that “certain evidence was admitted
for a limited purpose” and to “consider that evidence only for that purpose and for no other”
(CALCRIM No. 303). CALCRIM No. 1193 then told the jury that the CSAAS evidence was
not evidence that defendant molested Doe, and to use the CSAAS evidence “only” for the
limited purpose of determining whether Doe’s conduct was inconsistent with the conduct of
a child who had been molested “and in evaluating the believability of her testimony” that the
molestations occurred. (Italics and underlining added.)
Reading all of these instructions together, and each in light of the others, it is unlikely
the jury interpreted the final, italicized “and” clause of CALCRIM No. 1193 as allowing it to
use the CSAAS evidence in determining that the molestations occurred or that Doe’s claims
were true per se. Rather, it is likely the jury understood CALCRIM No. 1193 as allowing it
to use the CSAAS evidence in evaluating the believability of Doe’s testimony that the
molestation occurred, in light of the evidence that Doe engaged in conduct seemingly
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inconsistent with the conduct of a child who had been molested after the molestations
occurred.
There is distinction between using CSAAS evidence for the impermissible purpose of
inferring a child’s molestation claims are true—which the first clause of CALCRIM No.
1193 expressly prohibits—and using CSAAS evidence for the permissible purpose of
evaluating the believability of the child’s trial testimony that the molestations occurred in
light of evidence that the child engaged in conduct seemingly inconsistent with the child’s
molestation claims, after the molestations allegedly occurred. As stated in People v.
McAlpin, supra, 53 Cal.3d at page 1300: Expert testimony on CSAAS “is admissible to
rehabilitate [the child] witness’s credibility when the defendant suggests that the child’s
conduct after the incident . . . is inconsistent with his or her testimony claiming molestation.”
(Italics added.) CALCRIM No. 1193 and the other instructions limited the jury’s
consideration of the CSAAS to its permissible purpose.
In sum, in view of the instructions as a whole, it is not reasonably likely the jury
understood CALCRIM No. 1193 as allowing it to use the CSAAS evidence for the
impermissible purpose of determining the molestations occurred or that Doe’s molestation
claims were true. Rather, the jury likely understood the instruction as permitting it to use the
CSAAS evidence solely for the distinct and permissible purpose of evaluating Doe’s
credibility as a witness in light of the evidence that her conduct following the alleged
molestations was seemingly inconsistent with the conduct of a child who had been molested.
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B. CSAAS Testimony Does Not Violate a Defendant’s Due Process Rights
Defendant further claims that expert testimony on CSAAS should be inadmissible per
se in California because it violates the due process rights of a defendant accused of child
molestation. He relies on several out-of-state cases limiting or prohibiting the use of CSAAS
evidence,1 and argues that CSAAS is too generic to aid the trier of fact; it is not scientific; its
concepts are not sufficiently beyond the common experience of jurors to be of assistance;
and it impermissibly bolsters the credibility of the victim.
As the People point out, the California Supreme Court has effectively acknowledged
that CSAAS evidence is admissible. (People v. Brown, supra, 33 Cal.4th at p. 906; People v.
McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) In addition, the United States Supreme Court
has held that the admission of relevant “battered child syndrome” evidence does not violate
the due process clause of the Fourteenth Amendment (Estelle v. McGuire (1991) 502 U.S.
62, 69-70), and battered child syndrome evidence is analogous to CSAAS evidence (People
1 Defendant relies on the following out-of-state decisions limiting or prohibiting the admissibility of CSAAS evidence: State v. Stribley (Iowa Ct.App. 1995) 532 N.W.2d 170; Commonwealth v. Dunkle (1992) 529 Pa. 168 [602 A.2d 830]; Bussey v. Commonwealth (Ky. 1985) 697 S.W.2d 139; Hester v. Commonwealth (Ky. 1987) 734 S.W.2d 457; Mitchell v. Commonwealth (Ky. 1989) 777 S.W.2d 930; Newkirk v. Commonwealth (Ky. 1997) 937 S.W.2d 690; State v. Ballard (Tenn. 1993) 855 S.W.2d 557; State v. Bolin (Tenn. 1996) 922 S.W.2d 870. As the People point out, however, courts in other states have held CSAAS-type evidence admissible. (See, e.g., State v. Batangan (1990) 71 Haw. 552, 556-558 [799 P .2d 48, 51-52]; In re Nicole V. (1987) 71 N.Y.2d 112, 120-121 [518 N.E.2d 914, 917-918]; State v. Lindsey (1986) 149 Ariz. 472, 473-474 [720 P.2d 73, 74-75]; Allison v. State (1986) 179 Ga.App. 303, 307-309 [346 S.E.2d 380, 384- 385]; State v. Brotherton (Iowa 1986) 384 N.W.2d 375, 378; State v. Pettit (1984) 66 Ore.App. 575, 579 [675 P.2d 183, 185]; State v. Myers (Minn. 1984) 359 N.W.2d 604, 609- 610; Smith v. State (1984) 100 Nev. 570, 571-572 [688 P.2d 326, 327].)
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v. Patino, supra, 26 Cal.App.4th at p. 1747, citing People v. Bowker, supra, 203 Cal.App.3d
at pp. 393-394). “For this reason, there can be little doubt the due process dimensions of
both types of evidence is similar if not identical. Therefore, introduction of CSAAS
testimony does not by itself deny [a defendant] due process.” (People v. Patino, supra, at p.