California Court of Appeal May 24, 2021 No. E073112Unpublished
Filed 5/24/21 P. v. Walker 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E073112
v. (Super.Ct.No. FVI18002016)
ROY LEE WALKER, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,
Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana
Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
Defendant and appellant Roy Lee Walker, Jr., was convicted by a jury of multiple
sex offenses involving three female victims, K.S., K.F., and D.R. With respect to K.S.,
defendant was convicted of one count of sexual intercourse with a child 10 years old or
CSAAS evidence “has been ruled to be properly admitted by the courts of this
state for decades” (Munch, supra, 52 Cal.App.5th at p. 472), and the California Supreme
Court has on more than one occasion referenced CSAAS evidence as an example of
expert testimony that may be helpful to a jury. (See McAlpin, supra, 53 Cal.3d at
pp. 1300-1301; People v. Brown (2004) 33 Cal.4th 892, 906-907.) Notably, even after
completion of defendant’s trial in this case, published opinions by the Court of Appeal
have continued to recognize that CSAAS remains a proper subject of expert testimony for
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the purpose of disabusing jurors of commonly held misconceptions about child sexual
abuse. (Julian, supra, 34 Cal.App.5th at p. 885; Munch, at p. 468.) Given these
authorities, we are not persuaded by defendant’s argument that CSAAS is no longer a
proper subject of expert testimony because it is not helpful to a jury.
2. Expert Opinions on CSAAS Are Not “Scientific Evidence” Subject to
Kelly/Frye2
Defendant also argues that the admission of expert testimony on CSAAS in this
case was erroneous because it lacked foundation absent a showing of reliability and
general acceptance under the Kelly/Frye rule of admissibility. Again, we disagree.
Under the Kelly/Frye rule of admissibility, evidence derived from a new scientific
technique is inadmissible unless the proponent first shows that the technique is generally
accepted in the relevant scientific community, the witness testifying to the technique is
properly qualified as an expert, and the person who performed the technique uses correct
scientific procedures. (People v. Jackson (2016) 1 Cal.5th 269, 315-316.) However,
“California distinguishes between expert medical opinion and scientific evidence; the
former is not subject to the special admissibility rule of Kelly-Frye. ” (People v. Ward
(1999) 71 Cal.App.4th 368, 373.) With respect to expert testimony, “ ‘Kelly/Frye only
applies to that limited class of expert testimony which is based, in whole or part, on a
technique, process, or theory which is new to science and, even more so, the law.’ ”
(Jackson, at p. 316.)
2People v. Kelly (1976) 17 Cal.3d 24 (Kelly); Frye v. United States (1923) 293 F.1013 (Frye).
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While defendant claims the California Supreme Court has never expressly
addressed whether expert opinions on CSAAS constitute scientific evidence subject to
Kelly/Frye, this court has addressed that very issue. In People v. Harlan (1990)
222 Cal.App.3d 439, this court expressly held that Kelly/Frye does not apply to a
psychologist’s opinions regarding the common reactions of child sexual abuse victims.
(Harlan, at pp. 448-449.) As we explained in that case, expert opinions that are based
upon the expert’s professional education, training and experience “ ‘meet traditional
standards for competent expert opinion, without need for additional screening procedures
applicable to new, novel, or experimental ‘scientific’ evidence not previously accepted in
court.’ ” (Id. at p. 449.) More recently, our colleagues in the Second District Court of
Appeal reemphasized that CSAAS evidence is “ ‘based on [the expert’s] clinical
experience with child sexual abuse victims and on [his or] her familiarity with
professional literature in the area’ [and] ‘[t]he Kelly/Frye rule does not apply to this type
of evidence.’ ” (Munch, supra, 52 Cal.App.5th at p. 473.) Thus, we disagree that the
CSAAS testimony in this case lacked foundation for any alleged failure to show its
reliability under Kelly/Frye, and we find no error on this ground.
3. The Trial Court Did Not Abuse its Discretion in Admitting CSAAS Testimony
Finally, defendant contends admission of CSAAS evidence was erroneous because
its probative value was substantially outweighed by the risk the jury would misuse the
evidence to infer guilt. Additionally, defendant contends his constitutional rights to due
process and a fair trial were violated because the CSAAS evidence in this case was, in
fact, misused as evidence of guilt. We do not believe the record supports these claims.
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Generally, “Evidence Code section 352 accords the trial court broad discretion to
exclude even relevant evidence ‘if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.’ ‘Evidence is substantially more
prejudicial than probative [citation] if, broadly stated, it poses an intolerable “risk to the
fairness of the proceedings or the reliability of the outcome.” ’ ” (People v. Clark (2011)
52 Cal.4th 856, 893.) We apply the abuse of discretion standard to review the trial
court’s decision to admit the testimony of an expert (People v. Prince (2007) 40 Cal.4th
1179, 1222), as well as to claims that evidence should have been excluded under
Evidence Code section 352. (Clark, at p. 893.)
Here, K.S., K.F., and D.R. were all questioned on cross-examination regarding
their delayed reporting, prior denials of abuse, as well as the seemingly inconsistent
statements they made when initially reporting the abuse to law enforcement. Further,
defense counsel elicited testimony from K.S. and K.F.’s mother regarding her training in
recognizing signs of abuse and her failure to observe any behavioral changes in her
daughters that would lead her to believe they were being abused. Where defense counsel
elicits testimony regarding the seemingly self-impeaching behavior of a victim in order to
challenge the victim’s credibility, CSAAS testimony is admissible for the purpose of
rehabilitating that witness. Thus, CSAAS evidence was unquestionably relevant to issues
presented in this case.
Nor was the testimony of the CSAAS expert particularly prejudicial. The
testimony was brief and generalized, consisting almost entirely of describing the five
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general behaviors commonly exhibited by child sexual abuse victims. The expert was not
asked about any facts specific to the case and gave no opinions specific to the case.
Additionally, the expert made clear that CSAAS cannot be used as a diagnostic tool to
determine, after the fact, whether a child has actually been abused. Finally, to the extent
the limited use of this testimony remained unclear, the trial court provided specific,
limiting instructions that the CSAAS testimony could not be relied upon to prove that
abuse had actually occurred.
Thus, defendant’s characterizations on appeal that the expert’s testimony (1) was
likely to be misused by the jury as a diagnostic tool to determine the victims were
molested; (2) was “inflammatory”; (3) encouraged jurors to find the fact of abuse based
upon the victim’s behaviors; or (4) was used to improperly corroborate any specific
victim’s testimony, are simply not supported by the record. Because the CSAAS
evidence in this case was relevant and not unduly prejudicial, we find no abuse of
discretion in the trial court’s decision to admit the testimony.
Additionally, because we conclude the trial court did not abuse its discretion in
admitting CSAAS evidence, we also conclude that defendant has failed to show that
admission of such evidence constituted a violation of his constitutional rights to a fair
trial or due process. (See People v. Fuiava (2012) 53 Cal.4th 622, 670 [“Because the trial
court did not abuse its discretion under state law in admitting . . . evidence over
defendant’s objections, [defendant’s] claim that the admission of this evidence violated
his constitutional right to a fair trial, to the extent it is preserved for appeal, also is
without merit.”]; People v. Jablonski (2006) 37 Cal.4th 774, 835 [where trial court did
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not abuse its discretion under Evid. Code, § 352, Supreme Court necessarily also rejects
“the edifice of constitutional violation” the defendant attempts to construct based on such
claim of error].)
B. The Trial Court Did Not Err in Using CALCRIM No. 1193 To Instruct the Jury
In addition to his claims that the trial court erred in admitting CSAAS evidence,
defendant contends the trial court erred in using the standard jury instruction on the
limited use of CSAAS. Specifically, the trial court instructed the jury using CALCRIM
No. 1193, which provides that an expert’s “testimony about child sexual abuse
accommodation syndrome is not evidence that the defendant committed any of the crimes
charged,” and that the jury “may consider this evidence only in deciding whether or not
[the victim’s] conduct was not inconsistent with the conduct of someone who has been
molested, and in evaluating the believability of [the victims’] testimony.” Defendant
contends this instruction is inadequate because it does not affirmatively state that CSAAS
evidence may not be used to determine whether abuse has occurred, and that the
instruction effectively reduces the prosecution’s burden of proof. We disagree.
“ ‘We determine whether a jury instruction correctly states the law under the
independent or de novo standard of review.’ ” (People v. Poroj (2010) 190 Cal.App.4th
165, 172.)
With respect to CALCRIM No. 1193, our colleagues in the Second District Court
of Appeal recently considered the adequacy of this very instruction in People v. Gonzales
(2017) 16 Cal.App.5th 494 (Gonzales). In that case, the defendant asserted a nearly
identical argument that “it is impossible to use the CSAAS testimony to evaluate the
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believability of [the victim’s] testimony without using it as proof that [defendant]
committed the charged crimes.” (Id. at p. 503.) In rejecting this argument, the Court of
Appeal explained, “The instruction must be understood in the context of [the CSAAS
expert’s] testimony. [The expert] testified that CSAAS is not a tool to help diagnose
whether a child has actually been abused. She said that if it is not known whether a child
has been abused, CSAAS is not helpful in determining whether a child has, in fact, been
abused. . . . [¶] A reasonable juror would understand CALCRIM No. 1193 to mean that
the jury can use [the expert’s] testimony to conclude that [the victim’s] behavior does not
mean she lied when she said she was abused. The jury also would understand it cannot
use [the expert’s] testimony to conclude [the victim] was, in fact, molested. The CSAAS
evidence simply neutralizes the victim’s apparently self-impeaching behavior. Thus,
under CALCRIM No. 1193, a juror who believes [the expert’s] testimony will find both
that [the victim’s] apparently self-impeaching behavior does not affect her believability
one way or the other, and that the CSAAS evidence does not show she had been
molested. There is no conflict in the instruction.” (Id. at pp. 503-504.)
During the pendency of this appeal, the Second District Court of Appeal issued
another decision again upholding the validity of CALCRIM No. 1193. (Munch, supra,
52 Cal.App.5th at p. 474.) This time, the Court of Appeal addressed the argument that
the instruction effectively lowers the prosecution’s burden of proof. (Ibid.) In rejecting
this argument, the Court of Appeal noted that CALCRIM No. 1193 must also be viewed
in the context of other instructions given by the trial court, and there was no error where
the combination of instructions “would not provide any reasonable juror grounds to
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believe CSAAS evidence could be used” to reduce the prosecution’s burden of proof.
(Munch, at p. 474.)
Defendant acknowledges the recent decision in Gonzales, supra, 16 Cal.App.5th
494, but he contends the case was wrongly decided and urges us to reach a different
conclusion. However, after consideration of these authorities, we agree with the
reasoning set forth in Gonzales and in Munch, supra, 52 Cal.App.5th 464. The adequacy
and alleged prejudicial impact of a jury instruction cannot be viewed in a vacuum.
Instead, any given instruction must be considered in the context of the evidence presented
in the case as well as other jury instructions bearing on the same issues.
Here, the prosecution’s CSAAS expert clearly testified that CSAAS cannot be
used as a diagnostic tool to determine if abuse actually occurred. Thus, in the context of
the actual evidence adduced at trial, we see no basis to conclude that the jury might have
been misled by CALCRIM No. 1193 to rely upon the CSAAS expert’s testimony for the
very purpose that the expert admitted it could not be used. Further, as the People point
out, the jury was instructed on the presumption of innocence and the prosecution’s
burden of proof, to consider evidence only for a specified limited purpose if instructed to
do so, and to consider all instructions together. Accordingly, when viewed in the context
of other relevant jury instructions, we disagree that CALCRIM No. 1193 could be
misinterpreted by the jury to lower the prosecution’s burden of proof. We are not
persuaded by defendant’s claims to the contrary and find no error in the trial court’s use
of CALCRIM No. 1193 to instruct the jury in this case.
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C. The Trial Court Did Not Abuse Its Discretion in Admitting Propensity Evidence
Under Evidence Code Section 1108
Defendant also contends that the admission of K.O.’s testimony regarding
uncharged sexual misconduct was erroneous. He does not contest that such evidence met
the general admissibility requirements for propensity evidence under Evidence Code
section 1108; but he argues that the trial court should have excluded the testimony as
more prejudicial than probative under Evidence Code section 352 or, alternatively, that
Evidence Code section 1108 is unconstitutional. We find no error in the admission of
K.O.’s testimony.
1. The Trial Court Did Not Abuse Its Discretion in Admitting K.O.’s Testimony
“When a defendant is accused of a sex offense, Evidence Code section 1108
permits the court to admit evidence of the defendant’s commission of other sex offenses,
thus allowing the jury to learn of the defendant’s possible disposition to commit sex
crimes. [Citation.] The court has discretion under Evidence Code section 352 to exclude
the evidence if it is unduly prejudicial.” (People v. Cordova (2015) 62 Cal.4th 104, 132
(Cordova).)
Five factors that “stand out as particularly significant in an Evidence Code section
1108 case” are: “(1) whether the propensity evidence has probative value, e.g., whether
the uncharged conduct is similar enough to the charged behavior to tend to show the
defendant did in fact commit the charged offense; (2) whether the propensity evidence is
stronger and more inflammatory than evidence of the defendant’s charged acts,
(3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence
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is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury
might be tempted to punish the defendant for his uncharged, unpunished conduct; and
(5) whether admission of the propensity evidence will require an undue consumption of
time.” (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1117.)3 However, “[t]he
evidence is presumed admissible and is to be excluded only if its prejudicial effect
substantially outweighs its probative value in showing the defendant’s disposition to
commit the charged sex offense or other relevant matters. [Citations.] The court’s ruling
admitting the evidence is reviewed for abuse of discretion.” (Cordova, supra, 62 Cal.4th
at p. 132.)
Here, defendant concedes that, of the five particularly significant factors, at least
three did not weigh in favor of exclusion, since the testimony of K.O. involved acts that
were not remote in time, were less inflammatory than the charged conduct, and consumed
a small amount of time at trial. Nevertheless, defendant argues that the propensity
evidence was not probative, and it risked confusing the jury because it was too dissimilar
3 We note the weighing process depends upon “ ‘the unique facts and issues of each case,’ ” and other factors may be relevant. (People v. Nguyen, supra, 184 Cal.App.4th at p. 1116.) The California Supreme Court has delineated a more complete list of factors such as the uncharged conduct’s “ ‘nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.’ ” (People v. Loy (2011) 52 Cal.4th 46, 61 (Loy).) However, not all of these factors will necessarily be relevant in each case, and defendant has only discussed the five particularly significant factors in his briefing on appeal.
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to the charged conduct involving sexual intercourse and oral copulation of defendant’s
step-daughters.
However, defendant’s argument overlooks the fact that in addition to being
charged with engaging in sexual intercourse and oral copulation of K.S. and K.F.,
defendant was also charged with lewd conduct involving D.R., who alleged that
defendant inappropriately touched her on multiple occasions during massages when she
was a teenager and testified that following one occasion, defendant paid her $40.
Clearly, these allegations bore some similarity to K.O.’s testimony that defendant made
sexually suggestive comments toward her, including the suggestion that he might be
willing to pay her for sex. Defendant’s statements to K.O., a 15-year-old child,
suggesting that he would pay her for sex are one form of sexual misconduct directed
towards a minor, which demonstrate defendant’s propensity for sexual misconduct with
minors. Defendant’s statements manifest a desire for the type of physical sexual
misconduct that occurred in this case.
The fact that K.O’s testimony did not precisely mirror the allegations made by
D.R. is not dispositive. As our Supreme Court has stated: “Although [dissimilarity] is
also a relevant factor for the court to consider in exercising its discretion [citation],
dissimilarity alone does not compel exclusion of the evidence. ‘ “[T]he charged and
uncharged crimes need not be sufficiently similar that evidence of the latter would be