PEOPLE v. LEON

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Court of Appeal, Second District, Division 7, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ramiro Villa LEON, Defendant and Appellant.

No. B030562.

Decided: October 13, 1989

Fischer & Multhaup and Eric S. Multhaup, San Francisco, and Dennis A. Fischer, Santa Monica, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steven White, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., John R. Gorey, Supervising Deputy Atty. Gen. and Stephen M. Kaufman, Deputy Atty. Gen., for plaintiff and respondent.

FACTS

Defendant was charged in an information with three counts of sexual child molestation.   Count I alleged a violation of section 288 of the Penal Code (lewd conduct with a child);  Count II charged a violation of section 289 of the Penal Code (sodomy) and Count III charged a violation of section 288a (oral copulation) all upon Cynthia R. (hereinafter sometimes referred to as the child) an 11 year old person and next door neighbor of the defendant.   All charged offenses allegedly occurred between May 1, 1985 and June 1, 1985.   The child was 13 years of age at the time of the trial.

The defendant was sentenced to the high term of 8 years on Count I;  2 years consecutive on Count II and 6 years concurrent on Count III.   A timely notice of appeal followed.

The court permitted over objection many instances of sexual child abuse commencing when Cynthia was 6 years of age after she had moved next door to the defendant and terminating after the child's family moved from the neighborhood in August of 1985.

During the time that Cynthia's family and the defendant's family were neighbors, the two families formed a close relationship and on occasion defendant's wife, Irene, babysat with the child.   Cynthia often went next door to visit and was quite close to the defendant.   In fact she testified that he was “like her best friend.”

In support of Counts I and II Cynthia testified that one day during the month of May 1985 she went to the defendant's house around noon for the purpose of accompanying the defendant's wife, Irene, on a shopping trip to the market or the feed store or the bank.   On this occasion Irene for some reason told Cynthia that she was not to go, but instead should stay with the defendant and that Irene was going by herself.   After Irene left, the child testified she wanted leave to go home, but as she walked towards the door the defendant stopped her, grabbed her around the waist.   She repeatedly told the defendant she wanted to go but he kept grabbing her.   This went on for a minute or so.   The defendant was able to get the child into his bedroom where she had been very many times previously.   Defendant removed his pants leaving his top on.   She removed all of her own clothes because she didn't like defendant to touch her any more than necessary.   The defendant bent her over the bed and proceeded to sodomize her.   Thereafter the defendant while on the bed performed sexual intercourse with Cynthia with only slight penetration of the vagina and ejaculated on her person.   Thereafter, they went into the bathroom where he washed her and she dressed and went home.   Cynthia testified on this occasion she remembered this particular May 1985 incident because she was real scared and had not been forced before;  because it was real hot she was wearing her favorite blue shorts with her blue and white striped shirt.   It was a warm month and nothing was going on.   The defense produced evidence that in comparison to April and June, May was a particularly cold month.   Also near that day Cynthia testified that her father was working on the house preparing it for appraisal and she did not get to spend time with her father.   She did not like to bother her father when he was working on that kind of stuff because he got mad if he was interrupted.

The prosecution contended that the incident above-described furnished specific evidence of Counts I and II in the information.   We agree.

The prosecutor developed from testimony of Cynthia that sexual conduct occurred over the course of six years and did not only take place when she was alone in the house with the defendant but also while Irene was in the house.

On occasions when Irene was present defendant and the child could not remove their clothes.   On these occasions the defendant would put the child on top of him while they were watching T.V. and moved back and forth until he ejaculated in his pants.   She called this the “dry” thing.   It happened often in the six years and was partially corroborated by the child's mother's testimony wherein she had one time discovered defendant and Cynthia under suspicious circumstances.

The defense objected to generic descriptions of sexual conduct over the six years prior to the charged counts as being unspecific and uncorroborated.   The court ruled outside the jury's presence as follows:

“THE COURT:  I'm about to give you some assistance in this regard.   I think what I will have to do is I'll have to make a ruling, give an instruction that unless the witness can testify that the event took place within the days alleged within the information, that they must assume that the event took place outside of those dates in order to give Mr. Hogg [defendant's attorney] some protection in that regard.”

The prosecution accepted said ruling.   No where in the record does it appear that the jury was ever given such ruling.

In added support for the allegations of Count I in violation of Penal Code section 288 (lewd conduct), the child testified that defendant would engage in sexual conduct in the garage at back of the house wherein the defendant would sit on a chair with the child on top of him and remove his penis from his pants, take the victim's pants off, spread her legs open, move his penis up and down rubbing between the lips of her vagina until he ejaculated.   This conduct occurred about three times a week during the last year the victim lived next to the defendant.   This testimony was uncorroborated.

She testified that during the month of May, other sexual activity between the victim and the defendant occurred in the defendant's bedroom, in the garage and in the front room of defendant's house.   On a specific occasion she remembered that some specific charged event must have occurred in May because during that same month she was asked by a school friend to keep his report card for him.

There was medical evidence that the victim was examined by Dr. Giese, a medical doctor, in November 1985 and that he found that Cynthia had an intact hymen with “three healed transactions [tears] and two scars in the anus, one anterior and one posterior.”   The doctor testified that such observations were consistent with sexual activity.   The defense developed that such symptoms were also not inconsistent with the admitted use of vaginal and rectal suppositories during the period of May.

In support of Count III (oral copulation) Cynthia testified that on one occasion in May 1985 while defendant and she were in the garage with the door closed, she heard her mother call just after the defendant had finished licking her vagina.   She testified her mother walked up outside the garage door and called for her.   She could hear her mother's voice and Cynthia told her mother to “wait, wait, wait”.   She kept her mother waiting while she got dressed and then came out.   Cynthia's mother testified that on one occasion when Cynthia was 7 or 8 years of age.   She had called for her daughter and after a time she and defendant came out of the closed garage door.

The child also testified without corroboration that the defendant on many occasions during the six years licked her vagina in the garage, the bedroom, the bathroom or the building house behind the main house.

Cynthia further testified, to an early attempt by defendant to have her orally copulate his penis but she got very sick.   This only happened one time.   This conduct was not corroborated in any manner.   Defendant did not object to this testimony except in a general attempt to limit the testimony to charged offenses to which the court ruled outside the jury that such offenses may be received as corroboration of the charged counts.   The child also testified to French kissing which made her ill.

The child also related various unspecified instances of sodomy that occurred during the month of May.   Cynthia's credibility was seriously challenged in cross-examination by the defense wherein the testimony in reference to instances of sodomy varied from one time only, or two times or three times, or three or more times in May 1985.   At the preliminary hearing she only testified to one time.

The defendant denied any improper sexual conduct with the child and testified as to his incapacity to perform a sex act.   His impotency was corroborated by defendant's wife.

DEFENDANT'S CONTENTIONS

I. The failure of prosecution to elect a specific act of criminal conduct and to allow uncorroborated and generalized testimony of criminal acts by the child constitutes a due process violation and cannot be cured by an unanimity instruction.

II. That the defendant was precluded from cross-examination of the child and in the presentation of relevant defense evidence.

III. The admission into evidence of the testimony of a child abuse expert was error.

IV. The admission over objection of other uncharged offenses without corroboration was error.

V. The errors both individually and cumulatively violated defendant's right to due process.

DISCUSSION

The defense relies heavily on the cases of People v. Van Hoek (1988) 200 Cal.App.3d 811, 246 Cal.Rptr. 352 and People v. Atkins (1988) 203 Cal.App.3d 15, 249 Cal.Rptr. 863 which reversed convictions of child abuse charges because of the failure to provide specific acts as to time, place or other factor which could be linked to the charged offense and thus violated the due process rights of defendant.   In People v. Van Hoek, supra, 200 Cal.App.3d at p. 816, 246 Cal.Rptr. 352, the fifth district stated as follows:

“ ‘Emerging from recent cases dealing with the problems arising when a crime is charged and the evidence describes several acts, any one of which could constitute the crime charged, “is the so-called ‘either/or’ rule:  ․ either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.  [Citations.]”  [Citation.]'  (People v. Callan (1985) 174 Cal.App.3d 1101, 1111, fn. omitted [220 Cal.Rptr. 339].)”

People v. Van Hoek went on to state at page 816 as follows:

“While the ‘either/or’ rule as stated above will cure a failure of election by the prosecution in the usual case where evidence of several specific acts is presented, any one of which could constitute the crime charged, the rule can have no application in a case such as the present one where there is a failure to present evidence of any specific act to support the charged crime.   Where, as here, the evidence is that many of such acts were committed over an extended period of time, it would be impossible for the prosecution to ‘select the specific act relied upon to prove the charge’ and equally impossible for the jury to ‘unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.’   As stated in People v. Williams, supra, [1901], 133 Cal. 165, 168 [65 P. 323], ‘Such a trial, upon a charge so indefinite as to circumstance of time or place, or any particular, except by the general designation, would be a judicial farce, if it were not something a great deal worse.’

“Thus, the problem is not one of jury unanimity or election by the prosecution.   It is instead a due process problem which cannot be cured by an election or a unanimity instruction.   Again, quoting from Williams:  ‘In this case, as well as in any other, the prosecution must charge a specific offense, and the conviction, if one is had, must depend upon the proof of that offense alone.   Other incidents are important only as tending to prove the one specific offense for the alleged commission of which defendant is on trial.

“ ‘․ A defendant ․ has a right to demand that the charge against him shall be stated in ordinary and concise language, that he may know upon what specific charge he is to be tried, so that he may prepare his defense.   Practically, that is not done in these few anomalous cases, where any number of separate offenses may be proven, although the defendant is being tried for the commission of only one.’ ”  (People v. Williams, supra, 133 Cal. at pp. 168–169 [65 P. 323].)

“A serious problem with the vague charges and the testimony upon which they are based is that the defendant's ability to defend is severely hampered.   A ‘resident child molester’ would virtually be precluded from presenting an alibi defense to the acts unless he could account for every time he was in the presence of the victim.   In the instant case, defendant, because he was the victim's father and lived in the household, has no idea what specific time or specific act he has to defend against.   The defendant would virtually have to account for every day of the last five years during which he had contact with C. to enable him to present any kind of alibi defense.

“Also, the defendant is precluded from attacking the victim's testimony in any way other than a general attack.   The defendant is unable to attack specifics of the act to undermine the victim's credibility as to certain details which might convince the jury that the particular act did not occur as testified to by the victim.”  (People v. Van Hoek, supra, 200 Cal.App.3d 811 at pp. 816–817, 246 Cal.Rptr. 352.)

In the instant case the jury was in instructed in CALJIC 17.01 and 4.71.5 and the court advised the defense at the outset of the child's testimony that it would be giving the said instructions.1

We do not have the record in Van Hoek so we must rely on the opinion in that case that the victim “could not link the molestations to any specific times such as a holiday, birthday or other significant event.”   However in Van Hoek the court found that the “victim's unspecific testimony is uncorroborated ”.  (Ibid., p. 818, 246 Cal.Rptr. 352, emphasis added.)

 We believe that in this case the charged criminal conduct of Counts I and II as testified to by Cynthia concerning the May 1985 events which took place when Irene went to town leaving the child and defendant alone;  where she was “scared”;  that he forced her to remain;  that she had on her favorite blue shorts and white striped shirt;  that it was hot;  that the defendant sodomized her in the bedroom and then partially penetrated her vagina with his penis all are sufficiently specific instances and provide time, place and significant event (he had never scared her before) to satisfy the due process requirements of Van Hoek.

By giving CALJIC 17.01 and 4.71.5 instructions the court further satisfied the “either/or rule”.   Indeed no such instruction may have been necessary since that specific occasion was sufficient alone to sustain a conviction of both Counts I and II.   Furthermore, the testimony of the physician, Dr. Geise, provides ample corroboration of sexual conduct.

The evidence to sustain Count III is not sufficient to overcome the due process requirements in the absence of corroboration.

 Since the charged offense Count III allegedly took place in May 1985, there must be specific conduct to date, time, place or a link to some specific significant event to sustain the conviction.   However the garage instance with the door closed when the mother called to Cynthia, provides at least corroboration so that a specific time and place is satisfied.   The problem with this is that the child and the mother testified as to different time frames almost three years apart.   The trial court overruled defendant's objection to the garage testimony and held it admissible and would be taken care of in the unanimity instruction hereinabove discussed.   We find that with the corroboration provided by the garage door incident there was sufficient specific conduct proved to convict in Count III.

In a recent case in the Second Appellate District People v. Coulter (1989) 209 Cal.App.3d 506, 257 Cal.Rptr. 391, conviction of 10 counts of child molestation was affirmed.   The court criticized a number of cases in which reversals had been ordered by the Fifth District, to wit:  People v. Luna (1988) 204 Cal.App.3d 726, 250 Cal.Rptr. 878, and Atkins and Van Hoek, supra;  People v. Vargas (1988) 206 Cal.App.3d 831, 253 Cal.Rptr. 894 and declined to follow those cases.

We believe that a correct application of the facts to the law as announced in Luna, Atkins, Van Hoek and Vargas reversing convictions may be reconciled with the opposite conclusions affirming convictions in Coulter, supra;  People v. Obremski (1989) 207 Cal.App.3d 1346, 255 Cal.Rptr. 715, and People v. Winkle (1988) 206 Cal.App.3d 822, 253 Cal.Rptr. 726.   In the former cases the appellate court determined that there was not sufficient specificity or corroboration to allow convictions to stand;  whereas in the latter cases the reviewing court clearly set out in some detail the specific conduct or detailed corroboration of the victim's testimony.   Thus the law as cited in the conflicting opinions is correctly announced but applied differently in different factual context.

We need not here engage in a philosophical discussion of weighing the desirable need to insulate egregious child molesters from society by prosecution and the constitutional rights to due process of notice, opportunity to prepare an adequate defense by persons charged with sexual child abuse.   We conclude that the defendant had such notice and opportunity by reason of the specific acts of May 1985.

The defenses raised by his own testimony of denial and inability to perform sexual acts were fully developed.   His credibility and the child's credibility were ably presented to the jury and the jury convicted.

 Other alleged errors

Having determined that the evidence of the specific acts were sufficiently clear and reasonably corroborated that defendant's due process rights were not violated here, we turn now to the other alleged errors at the trial to determine whether in view of the circumstances as a whole reversal is necessary because of such other alleged errors.

 The Expert Testimony of Dr. Summit

It is contended by the defendant that it was error to allow the prosecution to call as an expert witness, Dr. Ronald Summit, M.D., a psychiatrist, as part of the prosecution's case-in-chief.   The court citing People v. Gray (1986) 187 Cal.App.3d 213, 231 Cal.Rptr. 658, allowed the doctor to testify.   Indeed the doctor was permitted to testify out of turn interrupting the testimony of the first witness, the child even before she had completed her testimony.

Dr. Summit practices in the field of sexual child abuse and is the originator and advocate of “The Child Sexual Abuse Accommodation Syndrome.”  (Hereinafter referred to as CSAAS.) 2  Dr. Summit's qualifications as an expert in the field of sexual child abuse in a clinical sense are not here in question.

Dr. Summit testified before the jury concerning his theories and his development of this syndrome.   The syndrome arises when an alleged sexually abused child did not immediately complain of such abuse or kept the abuse secret and is then accused by society of enjoying such abuse or society blames the child or concludes that the child may have made up a story or was lying, when in fact all he was doing was subconsciously accommodating his fears and anxieties.

Dr. Summit testified that within the framework of the syndrome there existed certain myths society held concerning molested children as a class which myths may be summarized as follows:

1. Sexual abuse is a very rare occurrence which one would not expect to find in one's community or family.

2. That the parent would naturally be aware that a child had been molested even without being told he was molested.

3. That if sexual abuse were harmful to children and prevalent, doctors and psychiatrists would know about it and would be giving routine treatment of such abuse.

4. That child abusers are strangers, and

5. That there is a misconception of a pedophile and that the myth of the “dirty old man” who as his own potency diminishes turns to fondling of children for satisfaction.

The doctor testified that in his opinion these myths were generally held in society and that in his experience all of these were misconceptions which generally had no foundation in fact.   Coincidentally, Dr. Summit does not at the present time treat patients, but devotes full time to consultation with counselors in advising them to accept as true the reports of alleged sexually abused children in order to gain their confidence to treat them.

The doctor further testified that there are five attributes of Child Sexual Abuse Accommodation Syndrome, to wit:

Secrecy, helplessness, compartmentalized accommodation (or denial), delayed disclosure and retraction.

 In a recent law review article the admissibility of CSAAS expert testimony under Kelly–Frye is discussed at length.3  This article suggests that there are no studies in the field demonstrating a general acceptance of CSAAS as a proper subject for expert testimony.   Before expert testimony such as the testimony of Dr. Summit is admitted the proponent must lay a foundation.   This foundation requires evidence that the witness qualifies as an expert and that the subject matter is generally accepted in the scientific community.   The requirement of general acceptance in the scientific community has been referred to as the Kelly–Frye test.  (See People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240.)   One witness's testimony is unlikely to satisfy the burden of establishing general acceptance.  (See Kelly, supra, p. 37, 130 Cal.Rptr. 144, 549 P.2d 1240.)   As in Kelly there is but one witness in this case, Dr. Summit and he did not give evidence of the general acceptance in the community of his thesis CSAAS.   Nor did he offer any evidence of the general acceptance of his theories regarding sexual child abuse myths.

In People v. Bledsoe (1984) 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291, the rape trauma syndrome was identified as a therapeutic aid to “help identify, predict, and treat emotional problems experienced by counsellors' clients or patients” and not to identify and establish that rape occurred.   Hence the expert testimony was held inadmissible.   CSAAS, likewise was developed as a treatment tool and expert testimony on the subject is subject to the same judicial scrutiny as in Bledsoe.

 In making an offer of proof as to the scope and subject matter of Dr. Summit's testimony the prosecutor assured the court and counsel that the doctor would only be addressing the myth that if a child abuse happened, a child would tell and to discuss the reason that an abused child would continue in such a relationship.   Also the prosecutor said that the doctor would not discuss the specifics of this case but said it may appear by his testimony the victim in this case may fit the classic mold of a CSAAS victim.   The prosecutor in her offer of proof alluded to the older person as a child molester.   This was the limit to which the prosecutor placed upon the proposed testimony of Dr. Summit.   In actual fact it went far beyond such offer of proof.

The expert was nevertheless allowed to develop a profile of a child abuser by testifying without Kelly–Frye tests being applied, regarding the “Typical Child Molester” and the “Aged Child Molester” which was in the trial court's view admissible to dispel the myths that molesters are obviously aberrant individuals easily identifiable by their bizarre behavior and have an inability to have normal sexual relations.

In this case the defendant was both aged and impotent, and clearly fit the profile that the expert presented in his testimony.   Under Kelly–Frye the creation of such a profile must be rejected because the People failed to prove to the court the requisite consensus of relevant opinion accepting the existence of such a profile.

The defense argues that the jury having received this testimony from the doctor in substantially expanded form could not have done anything but to compare each item of testimony during the course of the trial which fit within the myths and phases which Dr. Summit described and could only lead to an acceptance of the child's testimony as opposed to defendant's.

The defense timely objected to Dr. Summit's testimony on several grounds, to wit:  the narrow issue of late reporting of abuse was irrelevant here because late reporting was not an issue;  that use of such expert testimony in this case is reversible error;  or in any event that such CSAAS testimony was only permitted in rebuttal and that the testimony was not beyond the jury's common knowledge and that the testimony was highly prejudicial on Evidence Code section 352 grounds and that such testimony was an unconstrained array of other topics not relevant to this case and under the circumstances highly prejudicial.   The trial court overruled these objections and the doctor was permitted to testify.

Dr. Summit proceeded to testify for approximately two hours covering 80 pages of transcript.   Admittedly Dr. Summit had no knowledge of the facts of this case.   As stated above he testified that there are numerous myths which the general public holds concerning the subject of sexual child abuse.   This testimony was extensive and far reaching, and in many respects dove-tailed with the then testimony of Cynthia and other witnesses who testified thereafter.   At the request of the defense the court did promise to make an order limiting the doctor's testimony to general topics and specifically not to discuss Cynthia's case.   The record is silent as to whether such limiting instruction was ever given to the jury.

The testimony was in narrative form often going on for several pages without objection.   It was during these narrative orations by Dr. Summit that many characteristics of the testimony that ultimately developed in this case began to appear.   The testimony of Dr. Summit of the alleged myths was given without any Kelly–Frye foundation.   No scientific evidence has been received anywhere to date that there is a general scientific acceptance of these so called “myths”.

As above stated the defendant objected on the grounds that the defendant was not going to contest the issue of the late reporting of abuse.   Such failure to report abuse is one of the prime reasons that the CSAAS was developed to aid in therapy and to aid in the treatment by using the symptoms to make early detection easier.

Several recent cases have discussed the propriety of the use of CSAAS expert testimony with varying results.   In some cases it was criticized but allowed as harmless.   In People v. Bowker (1988) 203 Cal.App.3d 385, 249 Cal.Rptr. 886, the court held that CSAAS testimony must be rejected as a predictor of child abuse.   In Bowker, supra, and People v. Bothuel (1988) 205 Cal.App.3d 581, 252 Cal.Rptr. 596, there was strong corroborating evidence on which the jury could convict and although criticizing the use of expert testimony held the testimony harmless;  see also In re Christine C. (1987) 191 Cal.App.3d 676, 236 Cal.Rptr. 630.

In some cases the use of expert testimony on the “child molest syndrome” was held reversible error.  (See People v. Jeff (1988) 204 Cal.App.3d 309, 251 Cal.Rptr. 135 and In re Sara M. (1988) 194 Cal.App.3d 585, 239 Cal.Rptr. 605.)   In Sara M., it is stated:  “If the syndrome was not developed as a truth-seeking procedure but as a therapeutic aid, it cannot be used for a different purpose i.e., to prove molestation occurred.”  (See also People v. Roscoe (1985) 168 Cal.App.3d 1093, 215 Cal.Rptr. 45 [inadmissible under Bledsoe ] and In re Amber B. (1987) 191 Cal.App.3d 682, 236 Cal.Rptr. 623 [reversed because use of anatomically correct dolls was a new scientific method and no Kelly–Frye foundation].)

In a recent case reversing some counts and affirming others involving sexual child abuse, People v. Luna (1988) 204 Cal.App.3d 726, 250 Cal.Rptr. 878, the court there permitted the CSAAS testimony in reference to all counts including the counts where there was reversal;  in Seering v. California Department of Social Services (1987) 194 Cal.App.3d 298, 239 Cal.Rptr. 422, there was testimony based on the experts personal opinion and not CSAAS although conceding that Kelly–Frye governed CSAAS and in People v. Gray (1986) 187 Cal.App.3d 213, 231 Cal.Rptr. 658, where contrary to this case the CSAAS was used in rebuttal and admitted for such purpose.

The use of CSAAS in treatment of abused children may be a very important therapeutic tool in counseling to assist the child who has reported sexual abuse or is suspected of having been abused in order to open up and fully explore the alleged experience.   Thus the premise that such abuse did occur would aid in treatment whether or not the child was fantasizing or telling the truth about an incident or incidents.   According to Dr. Summit the syndrome as a therapeutic tool presumes that abuse did in fact occur.

On the other hand in the criminal context the presumption is that no abuse occurred or if it did occur that defendant is presumed innocent of the crime until it is established beyond a reasonable doubt.   Thus there is very substantial conflict between two important goals of society.   On the one hand is the need to care and treat an abused child and the need as a treatment device to accept as true his report whether truthful or not;  and on the other hand the preservation of the constitutional right to presumption of innocence in a criminal case.

By allowing the prosecution to introduce the expert testimony even before the complaining witness had concluded her testimony and the prosecution had completed her case-in-chief, the court ignored the cases in which such expert testimony was limited to rebuttal in an attack of the defense denial and support of the credibility of the complaining witnesses.  (See People v. Bledsoe (1984) 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291 [where the testimony was on the rape syndrome];  People v. Roscoe (1985) 168 Cal.App.3d 1093, 215 Cal.Rptr. 45 [where the expert testified in rebuttal] and the Jeff and Sara M. cases, supra.)

Dr. Summit's testimony was given during the prosecutions case in chief, even before the victim had completed her testimony.   No other witness had then been called.   No issues of credibility had been developed by the evidence.   No rehabilitative purpose of the expert testimony then, if ever, existed.   Thus, the then use of expert testimony could only have been offered for the impermissible purpose, i.e. that the charged offenses had occurred.  (People v. Bledsoe, supra.)

The Kelly–Frye error here is in the admission of extensive testimony of the alleged myths in the sexual child abuse context.   No foundation whatsoever was offered as to the general acceptance in the community that these are indeed “myth”.   As was stated in Bothuel, supra, 205 Cal.App.3d at pages 587–588, 252 Cal.Rptr. 596, citing Bowker, supra:  “First the expert's testimony must be narrowly tailored to the purpose for which it is admissible.   In other words, the prosecution is obliged to ‘identify the myth or misconception the evidence is designed to rebut’ and the testimony must be limited to exposing the misconception by explaining why the child's behavior is not inconsistent with his or her having been abused.”

In this case the expert testimony clearly violated the Bowker–Bothuel requirement that the prosecutor identify the myths before testimony was given.   Indeed the doctor, often without a question having been asked volunteered throughout his testimony alleged myths that had no relevance whatsoever to this case.   The court may have had a duty to interrupt when the doctor was so far afield from the offer of proof.   This is especially true where the court indicated that he would limit the testimony and admonish the jury, which was never done.

As was set out in People v. Bowker, supra, 203 Cal.App.3d at page 395, 249 Cal.Rptr. 886, Dr. Summit by delineating each stage of CSAAS theory, he constructed a “scientific” framework into which the jury could pigeonhole the facts of this case.  “Thus, even though he was precluded from using CSAAS as a predictor of child abuse, the jury was free to superimpose ․ [this child] ․ on the same theory and conclude abuse had occurred.”   In Bothuel, supra, 205 Cal.App.3d at page 587, 252 Cal.Rptr. 596, the court stated, “[E]xpansive ‘educational’ testimony on CSAAS by a psychology professional ․ has the potential of being used by an untrained jury as a construct within which to pigeonhole the facts of the case and draw the conclusion that the child must have been molested.”  (Citing, Bowker, 203 Cal.App.3d at p. 393, 249 Cal.Rptr. 886.)

We are unconvinced that errors in this case can be dismissed as harmless.   It may be an entirely proper function of Dr. Summit to hold opinions that sexual child abuse is far from rare and that society must be alerted to this serious social problem so we can recognize and deal with it and to publicly lecture to whomever would listen so that when reported sexual abuse occurs the public will accept it and deal with it.   But on the other hand, the criminal court of law should not be the forum for such advocacy where due process rights are of a more immediate concern.   The testimony of Dr. Summit should have been excluded and reversal is required.

The remaining discussion will develop other error occurring at the trial which also resulted in a “miscarriage of justice” requiring reversal.   (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

 Testimony of other uncharged acts as error

 Over objection, Cynthia testified to numerous acts of uncorroborated uncharged sexual misconduct committed by defendant during the six years preceding the month of May 1985.   In general such evidence has been held inadmissible.  (See People v. Dunnahoo (1984) 152 Cal.App.3d 561, 574, 199 Cal.Rptr. 796, citing People v. Stanley (1967) 67 Cal.2d 812, 817, 63 Cal.Rptr. 825, 433 P.2d 913.)

Where uncharged prior conduct has been admitted it has been on the grounds that the complaining witness' testimony was in some manner corroborated.   Here the prosecution introduced over objection the testimony of a teenage friend of Cynthia's, one Samantha.   She testified that Cynthia had told her that she, Cynthia, had had an affair with the defendant, but later in the same conversation stated “I was just joking”.   The court ruled that although this was hearsay it was admitted for the nonhearsay purpose of establishing that Cynthia said the words.   Indeed Cynthia did testify that she had told this friend about the alleged “affair” with the defendant and admitted she then said she was just “joking”.

The prosecution contends that the testimony of Samantha was allegedly corroboration of the uncharged offenses and was thus not error.   On the contrary it is merely further evidence of Cynthia's uncorroborated testimony.   In effect, by allowing Cynthia's own statement to pass into evidence through the vehicle of Samantha, Cynthia was allowed to corroborate herself.   Therefore when there is no extrinsic evidence to corroborate the prosecuting witness's testimony regarding uncharged acts, her testimony as to other acts does not make the defendant's purpose or intent any more probable than does her testimony as to the charged acts themselves.   Such testimony is relevant only to the victim's own credibility;  but in this regard it is of no more assistance to the jury than her testimony on the charged acts.   In People v. Stanley, supra, the Supreme Court explained the rationale for excluding uncorroborated testimony of prior sexual acts this way:

“[W]here the only evidence of the other offenses is the testimony given by the prosecutrix herself, her testimony in that regard is only an attempt to corroborate her own testimony, and [ ] the testimony as to the other offenses in such circumstances could not be said to in any way render the guilt of the defendant more probable than if she had testified [to the offenses charged in the information].”  (67 Cal.2d at p. 817, 63 Cal.Rptr. 825, 433 P.2d 913.)

Accordingly, under Stanley, “that uncorroborated testimony as to other offenses by the same witness is of no substantial aid to the trier of fact, and may result in great prejudice to the accused.”  (Ibid.)

We hold that the admission of the testimony of Dr. Summit prior to the conclusion of Cynthia's testimony and before any other prosecution witness had been called in the prosecution's case-in-chief coupled with admission into evidence of generic descriptions of various other uncorroborated acts of child abuse outside the charged counts is not harmless error.   Of particular harm was the uncorroborated and revolting testimony of Cynthia concerning her having become very ill by the attempts of the defendant to force her to oral copulate his penis or to “French” kiss.

CONCLUSION

As we are instructed in People v. Watson, supra, (1956) 46 Cal.2d 818, 836, 299 P.2d 243, the duty of a reviewing court is to determine whether the court is of the opinion “that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error.”

Although a defendant is not entitled to a perfect trial, he is entitled to a fair trial.   In the instant case, the defendant did not receive a fair trial.  (People v. Jeff, supra, 204 Cal.App.3d at p. 339, 251 Cal.Rptr. 135.)   There is no question a reasonable probability exists that had the testimony of either Dr. Summit or the uncharged conduct been excluded, a different result would have been obtained.   The cumulative effect is overwhelming.   We reverse.

Because the case must be reversed, other alleged errors need not be addressed.   However, in retrial it is observed that the alleged errors in restriction of cross-examination of the child and denial of the defense presentation of “moral fiber” testimony or presentation of testimony of charges by the child of nonsexual abuse by her parents would not appear to be error.

The judgment of conviction is reversed as to all counts and the case is remanded for a new trial.

I agree wholeheartedly with the majority opinion, but concur separately in order to explain why an earlier opinion I authored, In re Cheryl H. (1984) 153 Cal.App.3d 1098, 200 Cal.Rptr. 789, does not call for a different result.

Cheryl H. was a dependency case in which a father was found to have abused his very young daughter, a child so young she could not qualify to testify.   The juvenile court had declared the girl a ward of the court and prohibited the father from any contact with his child.   It had not sent the father to prison for several years as the court did to the defendant in this case.

In our opinion in that case, we addressed a number of complex evidentiary issues.   Among these issues, we ruled the psychiatric expert who had examined both the child and the father could offer her opinion that the child's vaginal injuries had been caused by sexual abuse.  (In re Cheryl H., supra, 153 Cal.App.3d 1098, 1116–1117, 200 Cal.Rptr. 789.)   However, we ruled the expert could not testify to her opinion that the father was the abuser (153 Cal.App.3d at pp. 1118–1126, 200 Cal.Rptr. 789).   And we ruled the psychiatrist could not testify the father possessed the same personality type as 85 per cent of the fathers found to have abused their children (153 Cal.App.3d at pp. 1123–1125, 200 Cal.Rptr. 789).

In the Cheryl H. opinion we did not rule the Kelly–Frye test was satisfied even as to the expert's narrowly focused testimony that the behavior and statements of this particular child led the expert to conclude the girl had been molested.   The Kelly–Frye issue simply was not raised nor was it considered by the court.   Subsequent cases have honed in on that issue, at least as to certain observations which were important to the psychiatrist's opinion in Cheryl H.—the child's behavior with anatomical dolls, in particular—and found insufficient evidence to satisfy Kelly–Frye.  (See, e.g., In re Amber B. (1987) 191 Cal.App.3d 682, 236 Cal.Rptr. 623.)   Had the parties raised or our court otherwise considered the Kelly–Frye issue in Cheryl H. we might well have remanded the case for further foundational evidence regarding the scientific acceptance of anatomical dolls and other tests and interpretations on which the psychiatrist in that case relied.

Still, assuming we had addressed the Kelly–Frye issue in Cheryl H. and concluded the psychiatrist's testimony in that case satisfied the test, that would not mean we had put the “Kelly–Frye stamp of approval” on the kind of free-ranging testimony Dr. Summit gave in the instant case.   It is one thing to allow a psychiatrist who has spent hours talking to a child and observing the child's behavior to render an opinion on the narrow issue of whether the child's vaginal injuries resulted from the result of sexual abuse by some person or another.   It is quite another to allow an expert who has never seen the child or the alleged abuser to meander on for 80 transcript pages—give or take a page or two—about a theory he recently conceived, “The Child Sexual Abuse Accommodation Syndrome.”

As described in Dr. Summit's testimony, this “syndrome” purports to explain how those who are abused are likely to behave and what they are likely to say or not say.   It also purports to explain what types of people are likely to be abusers and how they are likely to behave.  (Disregarding Kelly–Frye, this latter testimony is kindred to the “exotic variety of character evidence” specifically disapproved in Cheryl H. whereby people who commit offenses are described as possessing certain traits which traits the defendant likewise happens to possess.  (153 Cal.App.3d at pp. 1124–1125, 200 Cal.Rptr. 789.))

It may be the several elements of Dr. Summit's “Child Abuse Accommodation Syndrome” indeed are scientifically valid and have been accepted as such in the scientific community.   If so, however, there was no evidence introduced at the trial level to establish this essential foundation.

A vast distance separates the precisely targeted expert testimony we accepted in Cheryl H. from the grand theorizing we reject in the instant case.   True, a journey of a thousand miles begins with but a single step.   This does not mean, however, that by taking a first step one necessarily is committed to complete the full journey.   Nor did this court endorse Dr. Summit's full-fledged “Child Abuse Accommodation Syndrome” when in Cheryl H. it allowed a psychiatrist who had personally examined a little girl to express an opinion the girl had been sexually abused.

The dissent characterizes the majority opinion as aberrant and expresses sympathy for the alleged victim because of the trauma she will suffer should this case indeed be retried.   We in the majority have an equal concern for victims and witnesses who must endure the ordeal of a criminal trial, especially one of this nature.   So we did not come to our decision lightly.   However, we also were concerned about the trauma appellant might suffer during his years in prison after being convicted in an unfair trial.   Far from being an “aberration”, our rejection of the “theorizing without benefit of scientific validation” which occurred in this trial is consistent with the majority view.   Dr. Summit's testimony, especially when coupled with the uncharged crime evidence, created such an unfair contest the most innocent of men could have been convicted in this proceeding.   We know not whether the appellant is guilty or innocent.   By reversing this tainted conviction, however, we have restored his presumption of innocence and insisted that if he is to be convicted it is at a trial which satisfies fundamental notions of fair play.

Justice Johnson, only five years ago, in a scholarly, closely reasoned opinion expressed the views of this court that expert psychiatric testimony was properly admitted to prove child sexual abuse.  (In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1116, 200 Cal.Rptr. 789.)   Today, by his joinder in the majority opinion, Justice Johnson repudiates those views.   He seemingly abandons his former, sound view that the admissibility of expert testimony is governed by Evidence Code section 801 1 (id. at p. 1116, fns. 17 and 18, 200 Cal.Rptr. 789) and concurs in an opinion which ignores section 801 yet bars such testimony.   Then insightful of the similarity between “battered child syndrome” and child sexual abuse (id. at p. 1116, 200 Cal.Rptr. 789), he now allies himself with a view that sees no such similarity.   Once sensitive that “a more stringent quantum of proof” (id. at p. at 1114, 200 Cal.Rptr. 789) would weaken child protection, Justice Johnson now apparently agrees that expert opinion is inadmissible to puncture the myth that “sexual abuse is a very rare occurrence.” 2

I believe the principles so ably enunciated by Justice Johnson in In re Cheryl H. are correct 3 and I dissent from the contrary majority views.

SUMMARY OF DISSENT

I agree with the majority that appellant was afforded due process by the prosecution's pleading and proof but disagree that admitting Dr. Summit's testimony and evidence of uncharged acts of molestation were error.   I would affirm the judgment.

DR. SUMMIT'S TESTIMONY:  KELLY–FRYE TEST

Evidence Code section 801 governs expert opinion testimony.   It provides:

“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

“(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact;  and

“(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”

Thus, the first requirement for the admissibility of expert opinion testimony relates to subject matter.   It must be “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact;”  (§ 801, subd. (a)).   But as People v. McDonald instructs, the key word is “sufficiently.”

“The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission;  if that were the test, little expert opinion testimony would ever be heard.   Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would ‘assist’ the jury.   It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when the ‘subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness'.”   (People v. McDonald (1984) 37 Cal.3d 351, 367, 208 Cal.Rptr. 236, 690 P.2d 709.)

The majority impliedly concede that this subject matter requirement is satisfied.   Not only does the majority believe that the relevant facets of child sexual abuse are beyond common experience but the majority believe they are even beyond “general scientific acceptance.”

The second requirement is that the witness must be an expert.   I.e., the witness must have some “special knowledge, skill, experience, training and education.”  (§ 801, subd. (b).)  It is not contended that Dr. Summit, a psychiatrist for 21 years, a specialist in child sexual abuse, a consultant to child sexual abuse therapists, a treating doctor to victims of sexual abuse, an author of numerous articles on child sexual abuse, and one who is familiar with thousands of child sexual abuse cases, was not an expert in child sexual abuse.

The final requirement is that the “matter”, upon which the expert relies, “is of a type that reasonably may be relied upon.”  (§ 801, subd. (b).)  It is this requirement, although not in section 801 terms, that the majority finds not satisfied.   The majority holds that Dr. Summit's testimony, without exception, should have been excluded because the Kelly–Frye 4 test applied to his testimony and his testimony failed that test.   The majority states:  “The Kelly–Frye error here is in the admission of extensive testimony of the alleged myths in the sexual child abuse context.”

This Kelly–Frye objection is not urged on appeal 5 and was not made at trial.   To the contrary, trial counsel urged that one such “myth”, viz., if a child was sexually abused she would immediately report it, was so universally accepted by lay persons as a myth that no expert should be allowed to testify it was a myth.   Therefore, no timely, specific objection having been made, appellant is not entitled to relief.  (§ 353;  People v. Harris (1981) 28 Cal.3d 935, 962, 171 Cal.Rptr. 679, 623 P.2d 240;  People v. Rogers (1978) 21 Cal.3d 542, 547–548, 146 Cal.Rptr. 732, 579 P.2d 1048.)

But even if appellant had objected to Dr. Summit's testimony on Kelly–Frye grounds the objection would have been ill taken.

Kelly–Frye does not apply to mere expert opinion testimony.   It applies only when such testimony involves the application of a “new scientific technique.”   (People v. Kelly, supra, 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240.)   When a new technique, “a novel method of proof” (ibid.), a device, or a machine is offered into evidence its reliability must be established, usually by a qualified expert (ibid.), and the underlying principle must “have gained general acceptance in the particular field.”  (Ibid.)

Kelly–Frye has thus been applied to such techniques and devices as polygraph tests (Frye v. United States, supra ), voiceprints (People v. Kelly, supra ), blood grouping (Huntington v. Crowley (1966) 64 Cal.2d 647, 51 Cal.Rptr. 254, 414 P.2d 382), rape trauma syndrome (People v. Bledsoe (1984) 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291), “[n]alline testing ․ identification by human bite marks, microscopic analysis of gunshot residue, and hypnosis․”  (People v. McDonald (1984) 37 Cal.3d 351, 373, 208 Cal.Rptr. 236, 690 P.2d 709.)

When, however, an expert opinion does not involve a “new scientific technique” Kelly–Frye is inapplicable.

Thus our Supreme Court has held that Kelly–Frye does not apply to expert testimony on eyewitness identification.  (People v. McDonald, supra, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709.)   In this leading case, Justice Mosk wrote for a unanimous court:  “It is important to distinguish in this regard between expert testimony and scientific evidence.   When a witness gives his personal opinion on the stand—even if he qualifies as an expert—the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge that all human beings are fallible.   But the opposite may be true when the evidence is produced by a machine:  like many laypersons, jurors tend to ascribe an inordinately high degree of certainty to proof derived from an apparently ‘scientific’ mechanism, instrument, or procedure.   Yet the aura of infallibility that often surrounds such evidence may well conceal the fact that it remains experimental and tentative.”  (Id. at pp. 372–373, 208 Cal.Rptr. 236, 690 P.2d 709.)   And, with special pertinence to the instant case, Justice Mosk continued:  “Here, by contrast, no such methods are in issue.   We have never applied the Kelly–Frye rule to expert medical testimony, even when the witness is a psychiatrist and the subject matter is as esoteric as the reconstitution of a past state of mind or the prediction of future dangerousness, or even the diagnosis of an unusual form of mental illness not listed in the diagnostic manual of the American Psychiatric Association (People v. Phillips (1981) 122 Cal.App.3d 69, 86–87 [175 Cal.Rptr. 703] (‘Munchausen's syndrome by proxy’)).   We see no reason to require a greater foundation when the witness is a qualified psychologist who will simply explain to the jury how certain aspects of everyday experience shown by the record can affect human perception and memory, and through them, the accuracy of eyewitness identification testimony.”  (Id. at p. 373, 208 Cal.Rptr. 236, 690 P.2d 709.)

The majority, in applying Kelly–Frye to Dr. Summit's testimony, fail to distinguish between expert testimony and scientific evidence, fail to note that “[w]e have never applied the Kelly–Frye rule to expert medical testimony”, and even fail to cite or consider People v. McDonald.

These failings are particularly egregious when measured against the modestness and ordinariness of Dr. Summit's testimony.

Dr. Summit did not examine, talk to, or even see the victim.   None of his testimony bore on whether or not she had been molested.   He made clear that the Child Sexual Abuse Accommodation Syndrome (CSAAS) which he had developed was not a scientific study but rather a clinical observation and one which merely identified factors common to child sex victims.   He testified explicitly that CSAAS is not a “guide to determining whether allegations are true or false.”

All he did testify to, based upon over 20 years experience and thousands of child sexual abuse cases, was the falsity of some common notions.   Notions which, if uncorrected, cause juror rejection of all child sex victim testimony.   E.g., he testified victims commonly delay reporting.   Delayed reporting does not, of course, indicate truthfulness.   But, and this was the pertinence of Dr. Summit's testimony, it also does not indicate untruthfulness.   Thus, the import of his testimony was that jurors should not peremptorily reject a child's delayed claim of sex abuse but instead should consider whether such a particular claim was true or false.

An additional failing is the majority's naked assertion that Kelly–Frye applies to an expert's opinion that certain sexual myths are false.   The authorities, I believe, establish the falsity of the majority's assertion.

In Bledsoe, after holding Kelly–Frye applicable to the rape trauma syndrome and concluding that “expert testimony that a complaining witness suffers from rape trauma syndrome is not admissible to prove that the witness was raped” (People v. Bledsoe, supra, 36 Cal.3d 236, 251, 203 Cal.Rptr. 450, 681 P.2d 291), the Supreme Court made clear that Kelly–Frye did not apply to sexual myths and misconceptions.   The court stated, “[a]s a number of decisions have recognized, in 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.”  (Id. at pp. 247–248, 203 Cal.Rptr. 450, 681 P.2d 291.)   The court cited delay in reporting the sexual assault as one such myth.  (Id. at p. 247, 203 Cal.Rptr. 450, 681 P.2d 291.)

People v. Roscoe (1985) 168 Cal.App.3d 1093, 215 Cal.Rptr. 45, a leading Court of Appeal decision, so construes Bledsoe:  “Bledsoe, as we have seen, allows expert testimony for certain purposes other than to establish defendant's guilt, such as to support the victim's credibility.”  (Id. at p. 1099, 215 Cal.Rptr. 45.)  Roscoe makes clear that, when relevant, an expert, without having to pass a Kelly–Frye test, may testify, e.g., that “denials are more likely than not in molestation cases.   The testimony would not be that this particular child was a victim of molestation, causing him to react in a certain way, but rather that as a class victims of molestation typically make poor witnesses, and are reluctant to disclose or discuss the sordid episodes.”  (Ibid.)

People v. Bowker (1988) 203 Cal.App.3d 385, 249 Cal.Rptr. 886 and People v. Bothuel (1988) 205 Cal.App.3d 581, 252 Cal.Rptr. 596, 4th District cases relied on by the majority, restrict the admissibility of expert testimony in child sex abuse cases but do not subject that restricted testimony to a Kelly–Frye test.   More recent 4th District cases such as People v. Sanchez (1989) 208 Cal.App.3d 721, 256 Cal.Rptr. 446 and People v. Bergschneider (1989) 211 Cal.App.3d 144, 259 Cal.Rptr. 219, not only eschew Kelly–Frye but expand admissibility.

Although the majority cite In re Amber B. (1987) 191 Cal.App.3d 682, 236 Cal.Rptr. 623, In re Christine C. (1987) 191 Cal.App.3d 676, 236 Cal.Rptr. 630, and Seering v. Calif. Dept. of Social Services (1987) 194 Cal.App.3d 298, 239 Cal.Rptr. 422, for what purpose is not clear, the majority do not mention this instructive passage from Seering:

“Although the court in Amber B. and Christine C., supra, 191 Cal.App.3d 676 [236 Cal.Rptr. 630], spoke broadly in terms of subjecting psychological or psychiatric analyses of a child's reports of sexual abuse to the Kelly–Frye test of admissibility, it appears to us from a reading of those cases, including the distinction made between an expert's own personal opinion and an opinion based on scientific method of proof, that the court intended to subject expert opinion testimony to the Kelly–Frye rule only when the opinion was based upon a new method of proof of fact rather than being a personal opinion based upon the expert's own experience.   We thus view our holding here as consistent with the views expressed in Amber B. and Christine C.   To subject all expert testimony based upon analyses of reports of child sexual abuse to the Kelly–Frye test would severely limit the ability to present the personal opinion of a qualified expert in this field, since most such opinions are undoubtedly based, at least in part, upon such reports and in many, if not most, cases it would not be possible to demonstrate that the expert's own personal opinion would be generally accepted in the relevant scientific community.”  (Id. at p. 314, 239 Cal.Rptr. 422.)  (Original emphasis.)

Other cases, e.g., People v. Gray (1986) 187 Cal.App.3d 213, 231 Cal.Rptr. 658, hold Kelly–Frye inapplicable to CSAAS testimony and a fortiori to sexual myths.

DR. SUMMIT'S TESTIMONY:  CASE IN CHIEF

In addition to its Kelly–Frye objection, the majority raise two other objections to Dr. Summit's testimony.   First, that the credibility of the victim was not impaired and therefore Dr. Summit's rehabilitative testimony was improper.   Second, that rehabilitative evidence is only properly admitted in rebuttal and hence it was error to admit Dr. Summit's testimony in the prosecution's case in chief.

The majority is wrong on both accounts.

The attack on the victim's credibility began on voir dire and persevered during the defense's opening statement, delivered before the prosecution's case in chief.

In his opening statement defense counsel stated:

“And I also am going to be asking you to examine her testimony very, very carefully and watch her.   The testimony during the preliminary hearing was one of the more frustrating experiences of my life.   Trying to get this young lady to give you a straight answer or to answer a question that she doesn't want to answer is a task that's been․”

“The facts are going to show you, Ladies and gentlemen, that she is not telling you the truth․”

“․

“We will show you during this trial that she is not a truthteller, that when her purposes are served, she lies.”

After the trial court sustained objections to defense counsel's attempt to describe specific instances of victim falsehoods and told counsel at the bench that “the specifics are not to be brought to the jury at this time in the opening statement”, defense counsel resumed his opening statement this way, implying that the trial court believed the victim had told lies:

“Ladies and gentlemen, the judge has asked that we not give you the specifics of the lies that this young woman has told or the pattern of what we will do during testimony;  only suffice it to say that she has told her lies that are very significant, that they have involved adults, that there have been allegations of conduct that is very serious, and we will bring that testimony, we hope, in from either the mother of the child or from Mrs. Leon [appellant's wife].”

“Additionally, we are going to show you that this is not the first time that she had made an allegation of molestation․”

“․ you'll see when we get young Miss R[ ] [the victim] on the stand that she will not be pinned down.   She just—she's a will-o-the-wisp.”

“․

“․ this case is more than likely going to come down to your observations of the testimony of Miss R[ ], and as I expect now, I am going to put Mr. Leon [appellant] on the stand to tell you that he didn't do it, and you are going to have to look at him and decide who is telling the truth.”

This pre-case-in-chief siege upon the truthfulness of the victim is not the sole reason her credibility was in issue before the commencement of the defense case.   The victim on direct examination testified that the defendant began molesting her when she was 5 or 6 years old yet she continued to return to his house, where the molestations occurred, until she and her family moved away, when she was 11 years old.   During that entire 5–6 year period she made no report, except to her older friend Samantha but even then she instantly retracted the report by saying she was only joking.   It was not until several months after moving away from appellant that the victim finally made a report to her father.

Thus, like an iceberg, below the surface of her accusations of sexual abuse by appellant, loomed the impeaching questions:  If she was molested why didn't she tell her parents?   If she was molested why did she continue going to appellant's house?   If she was molested why did she retract her report to Samantha?

In order for the prosecution to prove appellant's guilt and do so beyond a reasonable doubt, it had to answer these impeaching questions.   Waiting until rebuttal might have been too late.   Not only might appellant have chosen not to present a defense, thus preventing any rebuttal evidence, but even if a defense was presented the trial court might well have ruled such answering evidence, provoked by the prosecution's own witness, improper rebuttal (Pen.Code, § 1093, subd. (d);  People v. Carter (1957) 48 Cal.2d 737, 754, 312 P.2d 665.)

It is the power of these submerged questions which justify the fresh complaint doctrine, allowing a victim's out of court, not under oath report of a sexual assault to be admitted into evidence.   As our Supreme Court has noted, “It is natural to expect that the victim of such a crime would complain of it, and the prosecution can show the fact of complaint to forestall the assumption that none was made and that therefore the offense did not occur.”  (People v. Burton (1961) 55 Cal.2d 328, 351, 11 Cal.Rptr. 65, 359 P.2d 433.)

It was precisely that assumption, that no complaint “was made and that therefore the offense did not occur”, that the prosecutor in her case-in-chief sought to refute.   The trial court did not err in permitting Dr. Summit, during the prosecutor's case in chief, to testify about these submerged questions.  (People v. Dunnahoo, supra, 152 Cal.App.3d 561, 199 Cal.Rptr. 796;  People v. Bledsoe, supra, 36 Cal.3d 236, 247, 203 Cal.Rptr. 450, 681 P.2d 291;  People v. Roscoe, supra, 168 Cal.App.3d 1093, 215 Cal.Rptr. 45;  People v. Gray, supra, 187 Cal.App.3d 213, 231 Cal.Rptr. 658;  People v. Bowker, supra, 203 Cal.App.3d 385, 249 Cal.Rptr. 886;  People v. Luna (1988) 204 Cal.App.3d 726, 250 Cal.Rptr. 878;  People v. Bothuel, supra, 205 Cal.App.3d 581, 252 Cal.Rptr. 596;  People v. Sanchez, supra, 208 Cal.App.3d 721, 735, 256 Cal.Rptr. 446;  People v. Bergschneider, supra, 211 Cal.App.3d 144, 159–160, 259 Cal.Rptr. 219;  People v. Stark (1989) 213 Cal.App.3d 107, 261 Cal.Rptr. 479.)

Five years ago Justice Johnson agreed.   He said then:  “the fact a complaint was lodged tends to support the credibility of the victim's in court testimony” (In re Cheryl H., supra, 153 Cal.App.3d 1098, 1129, 200 Cal.Rptr. 789) and “the primary rationale of California's ‘fresh complaint’ doctrine is that these statements are not being admitted to prove the truth of the matter stated but merely to rebut any inferences that might be drawn from the failure to complain.”  (Ibid.)  (Emphasis added.)

Thus, Justice Johnson acutely recognized that absent evidence of a fresh complaint a jury could disbelieve the victim.   The instant case is stronger.   The victim herself testified that despite being sexually abused by appellant since she was 5 years old she made no effective complaint until she was 11 years old, a delay of six years.

There was thus an exigent need “to rebut any inferences that might be drawn from the [victim's] failure to complain” (ibid.) for six years.   Section 785 permits such rehabilitation.   It provides:  “The credibility of a witness may be attacked or supported by any party, including the party calling him.”

Supporting the credibility of the victim, under the circumstances of the instant case, was properly done during the prosecutor's case in chief.6  But even assuming the contrary, it was within the trial court's discretion to regulate the order of proof.  (§ 320;  Pen.Code, §§ 1093, 1094;  6 Wigmore, Evidence (Chadbourn ed. 1976) § 1867, p. 656.)   In the words of no less an authority than Wigmore, “it is a cardinal doctrine, ․ that they [the rules regarding order of proof] are not invariable, that they are directory rather than mandatory, and that an alteration of the prescribed customary order is always allowable in the discretion of the trial court.”   (Ibid.)  (Original emphasis.)

Even assuming that it may have been error to admit a part of Dr. Summit's testimony, the error was harmless.  (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)   Unlike Bledsoe where the expert improperly testified the victim was raped or In re Cheryl H. where the expert improperly testified the defendant sexually assaulted the victim or People v. Roscoe where the expert improperly testified the child was sexually molested, all found to be harmless errors, Dr. Summit expressed no opinion about the victim.   Moreover, the prosecution's case was unusually strong with corroborating physical evidence and the defense unusually weak, failing to suggest any reason for the victim to falsely accuse appellant.   We also note that although the jury requested that the testimony of three witnesses (the victim, Dr. Giese who physically examined the victim, and appellant's wife) be read to them, they did not ask that Dr. Summit's testimony be read.   The jury apparently had little difficulty reaching a verdict, spending scarcely over a day in their deliberations.7

ADMISSIBILITY OF UNCHARGED SEX ACTS

Evidence of uncharged sex acts upon the victim are admissible unless “the only evidence of the uncharged offenses is the uncorroborated testimony of the prosecuting witness.”  (People v. Stewart (1986) 181 Cal.App.3d 300, 304–307, 226 Cal.Rptr. 252;  People v. Moon (1985) 165 Cal.App.3d 1074, 212 Cal.Rptr. 101.)

Here the victim testified not only that appellant molested her during the alleged May 1, 1985—June 1, 1985 period but with regularity during the preceding five or six years.   The question is, does any evidence corroborate her testimony.   I find the following corroborative evidence:

1. Dr. Herbert Giese, a pediatrician for 20 years, who specialized in child sexual abuse and had evaluated over 2,000 children for possible sex abuse, examined the victim in November 1985.   He found three healed transections, i.e. tears, through the hymenal membrane and two anal scars, one anterior, one posterior.   The anterior one was triangular and extended to the perianal skin.   The victim's vaginal opening was abnormally large, by one measure two and one-half times normal.   The victim's injuries were consistent with having been caused by sexual abuse and inconsistent with having been caused by vaginal suppositories, infection, or masturbation.   Dr. Giese also testified that if the victim had merely come in for a routine physical examination and had provided no history he would have made a report of child sexual abuse to the authorities.

2. Samantha testified that during the summer of 1984, a year before the alleged offenses, she and the victim were discussing Samantha's imminent entry into the Navy.   They were in the bedroom they shared.   The conversation then turned to Samantha's boyfriend and whether or not she should break-off the relationship.   The victim then told Samantha she, the victim, “was having or she had had an affair”.   When Samantha was unable to guess with whom the victim was having the affair, the victim stated “Ramiro” [appellant's first name].   After Samantha gave the victim a disbelieving look the victim said “No, I'm just joking.”

3. The victim's mother testified that when the victim was 7 or 8 years old she went looking for the victim, calling out her name.   When she got to appellant's closed garage the victim yelled out that they were in the garage and not to come in.   After about five minutes appellant lifted open the garage door and [the victim], acting nervous and excited, exited.   Appellant left the garage by the far side, kept his back to the victim's mother, and without greeting her, kept walking away until she said “Romero [sic] aren't you even going to say Hi?”   Appellant stopped, looked over his shoulder, said “Hi”, and walked toward the goats.

4. The victim's mother testified that when the victim was 6 or 7 years old she was in appellant's house looking for the victim.   Appellant's bedroom door was closed.   When she opened it she saw appellant and the victim lying on the bed “and he had her—he was lying on his back.   He had her on her side up against his side.  [¶] His arm was under her neck and wrapped around her.   He jumped to the other side of the bed, the far side from where I was, and sat down on the floor, just sunk to the floor.   And he stayed down there.”

5. The victim's mother testified that she and appellant's wife frequently went on errands together.   Appellant never went.   He remained at home.   Usually the victim also remained at home.

6. Both the victim's mother and father testified that for years the victim suffered from chronic stomachaches and headaches.

7. The victim testified, without contradiction, that appellant's penis was ugly and deformed.

8. Appellant's wife testified that in 1983 the victim told her appellant had molested her.   When pressed by appellant's wife, the victim retracted her accusation.

9. Dr. Summit testified that children who have been sexually molested commonly make an unconvincing disclosure.  “․ if a kid is going to talk about being molested it will always be too late and said in a way that doesn't meet our sense of what's believable.”   He said that “whatever forces the child to tell at that time is working against a heavy pressure for secrecy and a heavy fear of retaliation․”   He also testified that sexually molested children retract their accusations.

I would hold that this evidence corroborated the victim's testimony of uncharged acts of molestation by appellant.   The trial court properly admitted it.

CONSEQUENCES OF MAJORITY OPINION

The sad consequences of the majority opinion will not be juridical.   There will be none.   Unpersuasive and aberrant it will suffer instantaneous appellate oblivion.

Its consequences will be human.   At the sentencing hearing the victim told the judge:

“I just want to say that he tore up my whole childhood.   I didn't have a childhood life, and that I feel that he should be put away so that any other kid—what happened to me won't happen to any other kid, because if he stays home the same thing is going to happen to more kids, what he did to me, and I don't want to see that happen.

“He ruined my whole life.   I didn't have a childhood life, and he would do that again to other kids, and he'd keep doing it, and that's basically what I feel.”

The majority opinion by reversing the judgment, utterly without cause, will continue to tear up the life of this child.   She will either have to relive her 6–year–long nightmare by testifying at a retrial, or if there is not a retrial, try to comprehend why her convicted molester has been set free.

I would affirm the judgment of conviction.

FOOTNOTES

FOOTNOTE.  

1.     “As read to the jury, CALJIC No. 17.01 provided:“The defendant is charged with the offenses set forth in Counts 1, 2, and 3.   He may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts, but in order to find the defendant guilty, all the jurors must agree that he committed the same act or acts.   It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.”“As read to the jury, CALJIC No. 4.71.5 provided:“Defendant is charged in Counts 1, 2, and 3 of the information with the commission of the crimes as set forth in the information within a period between May 1, 1985 and June 1, 1985.“In order to find the defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of a specific act or acts constituting said crime within the period alleged.“And, in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act or acts constituting said crime within the period alleged.“It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.”

2.   The theory of child sexual abuse accommodation syndrome was first propounded by Dr. Summit in a paper, The Child Sexual Abuse Accommodation Syndrome (1983) 7 Int'l. J. of Child Abuse & Neglect 177.   See also Comment, The Admissibility of “Child Sexual Abuse Accommodation Syndrome” in California Criminal Courts (1986) 17 Pacific L.J. 1361.

3.   Loyola of Los Angeles Law Review, Vol. 22, June 1989, No. 4.  “Admissibility of Expert Testimony In Child Sexual Abuse Cases in California, Retire Kelly–Frye and Return to Traditional Analysis” by Linda Carter, Professor of Law, McGeorge School of Law.

1.   Unless otherwise noted all statutory references are to the Evidence Code.

2.   The majority opinion would require proof “that there is a general scientific acceptance” that this proposition is a myth before admitting such expert testimony.

3.   Those principles allow a psychiatrist to testify that child molestation victims commonly behave in certain ways.   Thus in Cheryl H. Justice Johnson approved of the psychiatrist's testimony that such victims commonly invent names for genitalia, commonly play with anatomically correct dolls in a certain way, and commonly lack deductive reasoning skills.  (In re Cheryl H., supra, 153 Cal.App.3d 1098, 1110, 1116–1118, 200 Cal.Rptr. 789.)Today, in an about face, Justice Johnson disallows a psychiatrist's testimony that child molestation victims commonly delay reporting, commonly retract their report, and commonly make inconsistent statements about their molestation.

4.   People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240;  Frye v. United States (D.C.Cir.1923) 293 F. 1013.

5.   Experienced appellate counsel contends it was error to admit Dr. Summit's testimony on only these three grounds:  it was irrelevant;  it was improperly admitted in the prosecution's case in chief;  section 352.

6.   Cf. People v. Blakesley (1972) 26 Cal.App.3d 723, 102 Cal.Rptr. 885 where, during his case in chief, and while the victim was still under cross-examination the prosecutor properly called a psychiatrist in order to rehabilitate the victim's credibility.

7.   They began deliberations at 4:00 p.m. on August 18, 1987, and reached verdicts by 9:00 a.m. August 20, 1987.

WALKER, Associate Justice.** FN** Assigned by the Chairperson of the Judicial Council.