The PEOPLE, Plaintiff and Respondent, v. Virgil Pete RENFRO, Defendant and Appellant.
A jury convicted defendant of multiple sex offenses involving two minors, Tani T. and Tara T. With regard to Tani, defendant was convicted of five counts of lewd and lascivious conduct. (Pen.Code, § 288, subd. (a); hereafter all statutory references to sections of an undesignated code are to the Penal Code.) The jury found untrue allegations that defendant occupied a position of special trust. (§ 1203.066, subd. (a)(9).) As to Tara, the jury convicted defendant of genital penetration with a foreign object (§ 289, subd. (a)), two counts of forcible rape (§ 261, subd. (2)), lewd and lascivious conduct with a child 10 years younger than he (§ 288, subd. (c)), and two counts of forcible oral copulation (§ 288a, subd. (c)). The trial court found defendant had served two separate prison terms (§ 667.5, subd. (b)) and suffered a prior serious felony conviction (§ 667, subd. (a)). Defendant was sentenced to a total unstayed prison term of sixty-three years and eight months.
Although defendant complains of a number of evidentiary rulings, it is necessary to consider only one: the trial court's admission of testimony relating to dysfunctional families as part of expert testimony more narrowly concerning the child sexual abuse accommodation syndrome (syndrome). We agree with defendant's claim the expert testimony exceeded the limited purposes for which such syndrome evidence may be received. We hold that in the absence of the improper expert testimony, there is a reasonable probability a result more favorable to defendant would have obtained. Accordingly, we shall reverse the judgment.
In the spring of 1989, Tani, age 13, and Tara, age 15, lived with their mother, Theresa, in a Sacramento apartment.
Theresa was a quotidian abuser of drugs and alcohol. When using drugs, Theresa related to the children in a threatening and occasionally violent manner.
Theresa met Frank Prothero in the summer of 1988. Theresa described Prothero as someone she “started running around with on the streets.” Prothero often provided Theresa with drugs.
In October 1988, Prothero introduced defendant to Theresa. Between December 1988 and May 1989, defendant was a frequent visitor at Theresa's apartment. He often arrived late in the evening and occasionally spent the night. Defendant also supplied Theresa with drugs.
Both Tani and Tara testified that between December 1988, the time defendant started frequenting their apartment, and May 1989, defendant forced them to engage in numerous sexual acts. It is unnecessary to describe in detail each of the many sex crimes of which defendant was convicted. It is sufficient generally to relate that Tani testified defendant engaged her in both vaginal and anal intercourse and oral copulation. Tara testified defendant subjected her to similar acts of sexual abuse.
Both Tani and Tara testified they informed their mother of the molestations but she did nothing. Tara once overheard defendant ask Theresa if he could take Tani to bed in return for providing Theresa with drugs. Defendant then gave drugs to Theresa. Theresa went into the bathroom, her usual location for taking drugs, and defendant took Tani into the bedroom.
Tani and Tara were afraid of defendant. Defendant occasionally brought a handgun to the apartment and displayed it in a menacing fashion.
In May 1989, Tani told Ellen Eddington, a resident of the apartment complex, that she had had intercourse with defendant. According to Eddington, “[t]ears were rolling down [Tani's] face.” Shortly thereafter, sheriff's deputies arrived to investigate a report of child molestation. Tani and Tara were removed from their home and taken to a receiving home.
Kathy Boyle, a pediatric nurse practitioner specializing in the treatment of sexually abused children, examined Tani and Tara after their removal from the home. Tani had lesions both outside and inside her genitalia, as well as a circular scar in the area of her anus. The scar was consistent with penile penetration. Tara also had a scar near her anus, which was likewise consistent with penile penetration. Additionally, both Tani and Tara had genital venereal warts, a sexually-transmitted disease. Both girls testified they first noticed the genital warts during the time defendant was molesting them.
On cross-examination, nurse Boyle testified Tani told her both defendant and Prothero had molested her. Although Tani complained mainly of defendant, Boyle did not elicit from Tani which molester was responsible for which acts.
Defendant denied the charged offenses. He testified he met Theresa and her daughters through Prothero in December 1988. Defendant admitted going to Theresa's apartment on a number of occasions, but claimed he was usually in the company of another person, such as his wife, his friend Maria Sanchez or his sons. Defendant claimed he stayed overnight at Theresa's residence on no more than three occasions and on each such occasion his wife or one of his sons was with him.
According to defendant, Theresa was under the influence of drugs most of the times he saw her. When under the influence, Theresa acted paranoid and depressed. Defendant denied he provided Theresa with drugs, possessed a gun or brought a gun to Theresa's residence, or that he ever had venereal warts.
Maria Sanchez, defendant's friend, testified she had known defendant for a number of years and accompanied him to Theresa's apartment on two occasions in 1989. Sanchez testified that in July 1989, while defendant was in custody awaiting trial, she received a recorded message on her telephone answering machine from a person identifying herself as “Tani, Theresa's daughter.” Sanchez testified she recognized the voice on the tape as that of Tani. In the message, according to Sanchez, Tani said “I've been lying,” and stated her uncle and grandmother made her lie about the “rape” and “he” had never raped her.
Tani was recalled and denied she ever left a message on Sanchez's phone answering machine.
Defendant argues the trial court erred in allowing prosecution witness Sandra Baker to testify concerning the dynamics of dysfunctional families and why children in such families accommodate to sexual abuse. Defendant argues Baker's testimony should have been confined to dispelling popular misconceptions about inferences which may be drawn from a child's failure to report or delay in reporting sexual abuse or inconsistencies in the child's account of the details of abuse. We believe defendant's argument is well-taken.
In People v. Bledsoe (1984) 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291, the Supreme Court held expert testimony on common stress reactions of rape victims (“rape trauma syndrome”), which may include a failure to report or a delay in reporting a sexual assault, is inadmissible when offered to prove the complaining witness has in fact been raped. (At pp. 248–251, 203 Cal.Rptr. 450, 681 P.2d 291.) Bledsoe further held, however, such testimony is admissible to rehabilitate the complaining witness when the defense impeaches her credibility by suggesting her conduct after the incident, such as a delay in reporting, is inconsistent with having been raped. “[I]n such a context expert testimony on rape trauma syndrome 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.” (At pp. 247–248, 203 Cal.Rptr. 450, 681 P.2d 291.)
Recently in People v. McAlpin (1991) 53 Cal.3d 1289, 283 Cal.Rptr. 382, 812 P.2d 563, the court commented: “An even more direct analogy may be drawn to expert testimony on common stress reactions of children who have been sexually molested (‘child sexual abuse accommodation syndrome’), which also may include the child's failure to report, or delay in reporting, the abuse. In a series of decisions the Courts of Appeal have extended to this context both the rule and the exception of People v. Bledsoe ․ i.e., expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it 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. [Citations.] ‘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.’ ” (Fn. omitted; 53 Cal.3d at pp. 1300–1301, 283 Cal.Rptr. 382, 812 P.2d 563.)
People v. Bowker (1988) 203 Cal.App.3d 385, 249 Cal.Rptr. 886, cited with approval in People v. McAlpin, supra, 53 Cal.3d at p. 1300, 283 Cal.Rptr. 382, 812 P.2d 563, sets forth the guidelines for the use of expert testimony in child sexual abuse cases. “[A]t a minimum the evidence must be targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence. [Citation.] For instance, where a child delays a significant period of time before reporting an incident or pattern of abuse, an expert could testify that such delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust. Where an alleged victim recants his story in whole or in part, a psychologist could testify on the basis of past research that such behavior is not an uncommon response for an abused child who is seeking to remove himself or herself from the pressure created by police investigations and subsequent court proceedings. In the typical criminal case, however, it is the People's burden to identify the myth or misconception the evidence is designed to rebut. Where there is no danger of jury confusion, there is simply no need for the expert testimony. [Citation.]
“Beyond the tailoring of the evidence itself, the jury must be instructed simply and directly that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claim is true․ The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested.” (Emphasis in original; 203 Cal.App.3d at pp. 393–394, 249 Cal.Rptr. 886.)
After Tani and Tara testified, the prosecutor proposed to call Sandra Baker as an expert on child abuse and dysfunctional families to testify how dysfunctional families, drug abuse and child molestation interrelate. Out of the presence of the jury, the People made an offer of proof:
“Specifically, Ms. Baker will testify as to what sort of family child molestation is often found, and that is dysfunctional families. She's going to testify as to how drug abuse and dysfunctional families and child molestation interrelate.
“She will also testify as to why children fail to disclose, given the family situation, that a molest is ongoing between them and another person. She will testify as to why children are sometimes unable to recall specific details, acts, and correlate them to time with respect to an ongoing molest.
“She will talk about, given the age of the child, how that affects their feelings in the family. Why they will sometimes protect their mothers and allow molestation to continue.
“She will not testify as to any of the specific details in this case. She will not testify that—she will testify that she has not interviewed either one of the children, Tani or Tara in this case. She will not be rendering an opinion that either one of these children was, in fact, molested.
“She will simply talk about some common characteristics and emotional symptoms that you see in families where molestation occurs and the [effects] on the victims after the molestation.”
When the trial court inquired what popular myths or misconceptions about child abuse would be explained by Baker's testimony, the prosecutor responded: “It is my hope, Your Honor, that [Baker's] testimony will rebutt [sic] the misconception that children will necessarily always disclose that a molest occurred to them immediately afterward; additionally, that children—the myth that children should be able to remember specific details and timeframes, what sexual acts occurred against them; those two things specifically.” 1
The defense raised numerous objections to the proposed testimony, stating that the People's offer “seem[s] rather broad, and ․ seem[s] to be directed towards whether or not the children are telling the truth․” Following a lengthy voir dire of the witness Baker, the trial court concluded Baker was qualified as an expert and overruled defendant's objections.2
Baker testified regarding the dynamics of dysfunctional families, focusing particularly on the relationship between such families and drug and sexual abuse. Baker testified the failure of family members to protect children or to provide them with a safe environment can be a manifestation of a dysfunctional family: “The term ‘dysfunctional family’ itself is a description that includes a whole variety of the types of behaviors that might exist within that dysfunction, and substance abuse, alcohol, drugs, is one of them. Sexual abuse is one of them, neglect, emotional abuse, they are all types of abuse that can occur within the context of a dysfunctional family system.” A dysfunctional family may include a stepparent, or a single parent, as well as other people the parent brings into the home.
According to Baker, children in a dysfunctional family might not complain of molestation because they learn to live with chaos and learn they cannot trust people. Such children regard the world as an unsafe place; thus, it is unusual for them to seek outside help. Moreover, these children do not ask for help because they do not expect to receive it.
Baker testified there are many reasons why children who are subjected to abuse over a period of several months might have a tendency to forget or an inability to recall details of those events and to specify the times that they occurred. Such children may develop a “collective memory”; they can recall what happened, but cannot say when or where.
Baker testified children who have been molested sometimes appear emotionless when questioned about the assaults. Often these children use repression, denial or a “splitting process” to deal with their situation. Baker explained the “splitting process” as a defense by which the child is one person at home and a different person in public. When a child's entire life is made up of trauma, the child may put up an “affective shield,” to mask her emotions.
Had Baker simply explained the unique vulnerability of children in dysfunctional families and related that to the reasons for delayed reporting or inconsistencies in recounting the details of a child molestation, defendant would have no cause for complaint. (See e.g., People v. Stark (1989) 213 Cal.App.3d 107, 115–117, 261 Cal.Rptr. 479.) Unfortunately, Baker's testimony went far beyond dispelling popular misconceptions concerning these phenomena. Baker testified the most common dynamic motivating children to tolerate sexual molestation in their homes is the child's desire to maintain the family unit intact. Such children often see themselves as a sort of family “savior” and feel they must accommodate to whatever indignities are inflicted upon them in order to keep the family together. Such children learn to accept physical, sexual or emotional abuse.
Baker continued: “[Sometimes these children] participate in a process in which they think they are achieving a higher goal or a better end by being the victim of sexual abuse․ Sometimes they think they are attaining something for that parent that that parent needs, such as drugs, alcohol, or keeping them from being committed to a mental institution.
“When the family is really dysfunctional or deteriorated, the kids get very basic of what they'll do to survive․ They'll do very basic things, including prostitution, stealing, meeting somebody's sexual needs, that will provide their parent with something that parent wants. It's not unusual at all.”
“[Children] learn to accommodate whoever is providing the mother with something else she needs, and that may just be—it could be money. It could be drugs. It could be alcohol. It could be a roof over her head. It could be just emotional support, because sometimes mothers, or fathers require another adult in their life to keep them together, and the child will learn to accommodate the demands of that person.”
“It could be the natural father. It could be a boyfriend. It could be a friend of the family, in order to keep that person in place in their lives, to stabilize things. So, they can learn to be accommodating sexually, physically, emotionally.”
“There's also an element that some children can be sexually involved because it's the only way that anybody ever showed them any affection. It's the only time that anybody ever holds them, that anybody ever shows them or pays any attention to them, so that can also be involved sexually just by virtue of the fact that they don't have anyone else in their lives that meet certain kinds of needs for attention, for warmth, security, protection, whatever. Children who have lost one parent, or another, through divorce or death are particularly vulnerable to this.”
In response to a question by the prosecutor whether the child of a drug-abusing parent might be particularly vulnerable to abuse, Baker testified: “In my experience, children that come from either severe—any kind of substance abuse that is severe, drug or alcohol, have lived under just incredibly difficult circumstances, many times for years, again, going through the litany of having no home, no food, not consistent people in their lives, surrounded by people who hurt them, exploit them, so they are particularly vulnerable to the kinds of things that you have described. They particularly have lived under difficult circumstances, are afraid of the world, are suspicious of anyone who offers help to them, and they are very vulnerable to someone who wants to exploit them, for whatever reason.”
People v. Jeff (1988) 204 Cal.App.3d 309, 251 Cal.Rptr. 135, is closely on point. There the defendant was charged with having committed various sex offenses with Gypsy, a child under age 14. Over defense objection, the trial court allowed Susan Holland, a licensed clinical social worker, to testify about symptoms exhibited by Gypsy, including nightmares, depression and feelings of anger towards those who did not believe her claims of molestation. The People were then permitted, again over defense objection, to call Dr. Myers, a clinical psychologist, who in response to the prosecutor's hypothetical questions testified it is not unusual for child abuse victims to have nightmares, depression and feelings of anger toward nonbelieving adults. (At pp. 335–336, 251 Cal.Rptr. 135.)
On appeal, defendant argued the trial court erred in allowing such expert testimony. The Jeff court agreed: “This is not a case in which expert testimony of ‘child molest syndrome’ was offered in rebuttal to rehabilitate a victim-witness. The two expert witnesses in question, clinical social worker Susan Holland and psychologist Mary Beth Meyers, were called as witnesses in the prosecution's case-in-chief, immediately following the testimony of Gypsy. The district attorney outlined his strategy in his opening statement—‘Susan Holland will describe [Gypsy's] symptoms․ Dr. Meyers will tell you what these symptoms mean.’ And, this is exactly what happened. The record reflects Ms. Holland, over objection, then was examined in substantial detail regarding her interview and evaluation of Gypsy—what Gypsy said, what emotions she exhibited, what fears she expressed about defendant, etc. Ms. Holland was followed by Dr. Meyers who, also over objection, responded to ‘hypothetical questions' incorporating the exact same facts and details as told by Gypsy to Ms. Holland. Dr. Meyers, in response to such questions, explained to the jury Gypsy's emotions, fears, and reactions to others are symptoms exhibited by a child molest victim. It is not significant the prosecutor told the jury Susan Holland would merely describe the symptoms she observed and ‘[a]ny conclusion that is to be drawn will be yours.’ In effect and result, the prosecutor, by what he apparently perceived as brilliant subterfuge, engaged in the exact conduct ․ proscribed by Bledsoe․ The challenged testimony was not offered to rehabilitate a wavering or equivocal Gypsy. Rather, it told the jury that they should accept Gypsy's version of these events as true, that she was a victim, molested over the three-year period by defendant, because here is how typical child molest victims act and Gypsy fits the mold perfectly.” (204 Cal.App.3d at pp. 337–338, 251 Cal.Rptr. 135.) The Jeff court concluded the error in receiving the testimony of Holland and Meyers was prejudicial, warranting reversal. (Id., at p. 339, 251 Cal.Rptr. 135.)
Here, to the extent Baker's testimony went beyond its accepted rehabilitative, myth-dispelling function, its effect was no less prejudicial than the combined testimony of the two experts in Jeff. The prosecutor first elicited testimony from Tani and Tara concerning the chaotic family situation: their mother abused drugs and alcohol on a daily basis; defendant, a frequent visitor to their apartment, was one of her drug suppliers; the victims were often left alone for extended periods of time.
Baker then testified that children in a family situation as described by the victims were at risk to be exploited by sexual abuse. As Baker testified, such children are “particularly” or “very vulnerable” to sexual exploitation. In fact, to maintain the integrity of the family unit, such children will accommodate to sexual abuse by someone who supplies a parent with basic needs such as drugs, be that person the mother's boyfriend or just a friend of the family. Moreover, such children are also inclined to submit to sexual exploitation as a way to compensate for lack of attention and affection. Thus Baker was permitted to describe a hypothetical, dysfunctional family in which the children are particularly vulnerable to sexual abuse. The description coincided in critical details with the actual circumstances of the victims' family. Although Baker did not express the impermissible conclusion that Tani and Tara in fact were victims of sexual abuse, the jury, in effect, was invited simply to reify the hypothetical children of Baker's dysfunctional family into Tani and Tara and, applying the predictive factors described by Baker, conclude that Tani and Tara were victims of sexual abuse at the hands of a family friend who satisfied their mother's need for drugs. (Cf. People v. Bowker, supra, 203 Cal.App.3d at pp. 394–395, 249 Cal.Rptr. 886.) The similitude between Baker's hypothesis and the evidence supporting the prosecution's theory of the case is striking and hardly coincidental. Not only did Baker's testimony violate the Bledsoe rule prohibiting expert syndrome testimony to prove the alleged victims were in fact molested, even more egregiously it drew a profile of the “hypothetical” molester that strikingly resembled defendant. To this extent, admission of the Baker testimony was error.
The People undertake to defend Baker's testimony in its entirety. The People first argue Baker's testimony was admissible because “it would assist the jury” in an area beyond their common experience. Expert testimony is often permitted where it is related to a subject sufficiently beyond common experience such that the opinion of the expert would assist the trier of fact. (People v. Stoll (1989) 49 Cal.3d 1136, 1154, 265 Cal.Rptr. 111, 783 P.2d 698.) However, the fact that expert testimony might assist the trier of fact in this way does not of itself render the testimony admissible. It is merely the first of several hurdles which must be cleared before expert testimony is properly admissible, not the least of which are whether the evidence is relevant to a material issue (Evid.Code, § 350; People v. McAlpin, supra, 53 Cal.3d at p. 1303, 283 Cal.Rptr. 382, 812 P.2d 563) and, if so, whether its probative value outweighs its prejudicial effect (Evid.Code, § 352).
Baker's testimony regarding the susceptibility of children in dysfunctional families to sexual exploitation is not relevant to dispel popular misconceptions about the conduct of victims of sexual abuse. Because the type of family Baker described in which sexual abuse is likely to occur fits precisely their own family as described by the victims, Baker's testimony tended to prove that Tani and Tara had in fact suffered such sexual abuse, a purpose for which expert testimony is not admissible (People v. Bledsoe, supra, 36 Cal.3d at pp. 248–251, 203 Cal.Rptr. 450, 681 P.2d 291). This testimony did nothing to rehabilitate Tani's or Tara's credibility in respect to their failure immediately to complain of the molestations or inconsistencies in their accounts of the incidents.
Nor is it significant that Baker's testimony related to dysfunctional families in general and did not speak directly to whether the children in this family were in fact molested. Baker's “general” testimony echoed the specifics of family circumstances to which the victims testified and neatly coincided with the instant facts. Baker testified to the chaotic state of dysfunctional families, a condition of her family as detailed by Tani and other witnesses and adverted to by the prosecutor in closing argument. Baker testified children in these families learn not to expect help from their dysfunctional parent. Tani and Tara testified they informed their mother of the molestations, but she did nothing to discourage defendant's behavior. Baker testified children in such families are reluctant to seek outside help because their greatest fear is the breakup of the family unit. Here, the victims were removed from their home and placed in a receiving home following an investigation by law enforcement officials. (Cf. People v. Bowker, supra, 203 Cal.App.3d at p. 394, 249 Cal.Rptr. 886.) Baker testified children who have lost a parent through divorce or death are unusually susceptible to seeking out affection, even if that affection is manifested by way of sexual abuse. Tani testified it had been a long time since she had seen her father. Finally, Baker claimed children in these families will often do anything to help a substance abusing parent, even to the point of having sex with one who could supply the parent with drugs or alcohol. The prosecutor's theory in this case was that defendant was supplying drugs to Theresa in return for having sex with her daughters.
Baker's testimony, albeit couched in general terms, improperly provided the jury an expert's “predictive index” which, when applied to the evidence, not only established the fact of child abuse but also pointed inescapably to the defendant as perpetrator. (Bowker, supra, 203 Cal.App.3d at p. 393, 249 Cal.Rptr. 886.)
The People next claim there was no specific objection to Baker's testimony on the interrelationship of dysfunctional families, drug abuse, and molestation. We disagree. The prosecutor's offer of proof made it clear he intended to explore these issues with Baker, at which point the defense objected the proposed testimony was too broad and seemed directed at whether the victims were telling the truth. Defense counsel further stated “[t]his sounds like a real bootstrap argument․ This is not a recognized area of expertise.” In our view, the objection was adequate and appropriate to inform counsel and the trial court of its basis. It thus was unnecessary that counsel reiterate such objection when Baker testified at trial. (Cf. People v. Jeff, supra, 204 Cal.App.3d at pp. 338–339, 251 Cal.Rptr. 135.)
Following Baker's testimony, the trial court gave the jurors the following instruction: “Ms. Baker's testimony may be considered only for whatever light, if any, it may shed on the question of whether the complaining witnesses' reactions were inconsistent with their having been molested.” The People claim this limiting instruction was sufficient to alleviate any harm resulting from Baker's testimony. We disagree.
The trial court's limiting instruction was taken directly from People v. Bowker, supra, wherein the court stated that in dealing with expert testimony related to dispelling popular misconceptions of child sexual abuse, the jury must be cautioned the evidence is admissible solely for the purpose of showing the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested. (203 Cal.App.3d at p. 394, 249 Cal.Rptr. 886.) In context, however, the Bowker court was referring to the victim's post-molestation reactions. (Ibid; see also People v. McAlpin, supra, 53 Cal.3d at p. 1300, 283 Cal.Rptr. 382, 812 P.2d 563 (“[E]xpert testimony on the common reactions of child molest victims ․ is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident ․ is inconsistent with his or her testimony claiming molestation.”) (Emphasis added.).) Baker's testimony addressed both pre- and post-molestation conduct. The limiting instruction did not inform the jury Baker's testimony was admissible solely to show Tani's or Tara's post-abuse conduct—i.e., their failure immediately to report or consistently to recount details—was not fatally inconsistent with their claims of molestation. Given the scope of Baker's testimony, the jury might reasonably have believed, as a direct result of the admonition, the reactions of the victims included their pre-molestation motivation to submit to sex with defendant.
Moreover, the trial court's limiting instruction did not constrain the prosecutor, who in closing argument to the jury stated: “I hope some of you took to heart some of the things that Sandra Baker was saying. Some of you may be skeptical about her opinions, and so on, and so forth, but take one thing to heart that I believe about kids; that is, they do love their parents, regardless of what their parents put them through. It can be horrendous. They can allow them to be sexually abused. The mother can be a drug addict and an alcoholic.”
The prosecutor thus confirmed Baker's erroneously received testimony that notwithstanding familial dysfunction, children love their parents; to keep the family intact they will engage in almost any conduct and accommodate to almost any abuse including sexual abuse, to which they are particularly susceptible.3
We are unpersuaded by the People's claim the error in allowing Baker's improper testimony is not prejudicial. While Tani and Tara testified defendant forced them to engage in acts of vaginal and anal intercourse and oral sex, defendant denied any such conduct. Boyle's medical examinations indicated both Tani and Tara had engaged in sexual conduct. However, the evidence also showed both victims had been molested several years earlier by their babysitter.4 With regard to more recent events, Tani informed Boyle that she [Tani] was molested by both Prothero and defendant, and Boyle did not elicit from Tani which man committed which sexual act or acts.5 Tani admitted having had intercourse voluntarily with defendant's son Richard.6 In short, the medical evidence fails to point conclusively to the defendant as the person responsible for all or some of the indicia of sexual conduct revealed by the medical examinations of the victims.
We conclude “ ‘after an examination of the entire cause’ including the evidence, ․ that it is reasonably probable that a result more favorable to the [defendant] would have been reached” absent the error in admitting Baker's improper testimony. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
Because the judgment must be reversed, it is necessary to consider only one of defendant's remaining claims of error. Defendant argues the evidence is insufficient to support his conviction of forcible oral copulation of Tara charged in count XI. (§ 288a, subd. (c).) The evidence on this count shows defendant placed his mouth on Tara's vagina. Defendant argues no evidence was presented to show the act was accomplished against Tara's will by means of force or fear.
Section 288a, subdivision (c) makes it unlawful for “[a]ny person [to] participate[ ] in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she, or when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person․”
Tara was 15 years old when the act was committed. Thus, it was the People's burden to show the act was committed against Tara's will by means of force, violence, duress, menace or fear of immediate bodily harm.
In our view, there is substantial evidence of duress sufficient to support defendant's conviction. People v. Pitmon (1985) 170 Cal.App.3d 38, 216 Cal.Rptr. 221, explains duress as “a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.” (At p. 50, 216 Cal.Rptr. 221.)
Tara testified she was afraid of defendant during the entire period in which he was molesting her. Her fear was occasioned in part by defendant's menacing display of a handgun when he came to the apartment. During one incident when defendant touched her vagina, Tara attempted to resist, but defendant persisted. Tara testified she did not call for help because she was “afraid of what [defendant] might do.” On another occasion when defendant had vaginal intercourse with Tara, she tried to push him off but was unable to do so because defendant held down her arms and legs. When asked why she didn't scream for help, Tara answered she “was afraid of what [defendant] might do.”
On the occasion of the crime charged in count XI, Tara was in the bedroom watching television when defendant entered and removed his clothes. He tried to put his penis in her vagina, but it “only went in a little bit that time.” Defendant then put his mouth on her vagina and orally copulated her for a few minutes.
Given Tara's age, the fact that she was afraid of defendant, and that defendant had on occasion displayed a weapon in a threatening way and further considering Tara's unsuccessful attempts to resist prior acts of molestation by defendant, we hold there is substantial evidence that defendant's conduct with regard to the crime charged in count XI was accomplished against Tara's will by means of duress.
The judgment is reversed.
1. On cross-examination, the defense attempted to impeach both victims with inconsistencies in their accounts of the molestations. The defense also questioned Tara as to why she had not earlier reported the molestations.
2. As to her qualifications, Baker's testimony showed the following: At the time of trial and for the 11 years preceding, Baker was the Executive Director of the Child and Family Institute in Sacramento, a child abuse treatment program. Baker has a masters degree in social work and is a licensed clinical social worker. She has worked for the Sacramento County Welfare Department in both the foster placement and Childrens' Protective Services departments, specializing in sexually abused children. She has been on the visiting faculty of the University of California, Davis, “the College of Juvenile Court Justices in Reno,” and the American Humane Association Childrens [sic] Division in Denver, Colorado. In these faculty positions, Baker worked in the area of sexually abused children and their families. She has authored numerous publications concerning child molestation, including a thesis that is in the Library of Congress and an article published in the Western Journal of Medicine. Baker has participated in over 100 advanced professional training seminars, both as a student and as an instructor. Additionally, she has testified in court between 30 and 50 times in the last 10 years.
3. Tani testified she still loved her mother.
4. Boyle was recalled to the stand to testify concerning the victims' medical records relating to earlier molestations. Boyle testified nothing in those records suggested either victim suffered anal trauma at that time. Tani was recalled and said the earlier molestation did not involve anal penetration. Tara was also recalled and testified the earlier molestation involved a single act of vaginal intercourse as well as oral copulation upon her and penetration of her vagina by the molester's fingers. Tara could not recall whether the earlier molestation involved penile or other penetration of her anus.
5. Tani was recalled and testified Prothero twice touched her vagina with his fingers. She denied that Prothero ever engaged her in anal or vaginal intercourse or that he forced her to commit acts of oral copulation. On the other hand, Baker testified the scars in Tani's and Tara's anal regions could have been caused by a fall or as a result of constipation.
6. The parties stipulated Richard never had venereal warts.
PUGLIA, Presiding Justice.
MARLER and SCOTLAND, JJ., concur.