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THE PEOPLE, Plaintiff and Respondent, v. CHARLES ANTHONY SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
* * * * * *
Appellant Charles Anthony Smith was convicted by a jury of one count of misdemeanor assault and five counts of sexual battery by restraint. The court found that appellant had been previously convicted of two serious or violent felonies but struck one for purposes of sentencing. Appellant was sentenced to 32 years imprisonment and was assessed various fines and fees. We affirm the conviction.
FACTS
The two contentions that appellant makes in this appeal do not implicate the facts of the offenses of which he was convicted. That is, he does not challenge the sufficiency of the evidence to support the verdict. Accordingly, we limit ourselves to a summary recital of the salient facts.
Appellant was convicted of sexual battery; we set forth the relevant portion of Penal Code section 243.4 in the margin.1 The victim was his natural daughter Mandy, born in May 1988. Mandy's mother is Monique L.
Monique and appellant were living together in 2001 when the first sexual encounter took place between Mandy and appellant. It was witnessed by Mandy's younger sister Moore, who brought the matter to the attention of school authorities the next day. When confronted by an investigator from the Los Angeles County Department of Children and Family Services, appellant admitted in part what had happened and told the investigator he would like to see a psychiatrist for help. Appellant moved out of the house after this incident. Charged as a lewd act with a child under 14, the count alleging this offense was dismissed on the People's motion.
The offenses of which appellant was convicted all occurred between October 2005 and March 2006; appellant and Monique had reconciled and appellant moved back with Monique in September 2005. The acts that appellant forced upon Mandy varied but all were sexual in nature and involved touching and exposure of genitals and attempts at copulation. Mandy attempted to resist and did so successfully a number of times but unfortunately appellant kept forcing himself on her.
Early on, appellant told Mandy that if she told anyone about what was happening, he would kill the family. The threat had its intended effect. Justin, a friend that Mandy had started dating, noticed that something was bothering Mandy. Justin was alert to trouble because appellant had told him that if he continued to see Mandy, appellant would kill him. Mandy finally told Justin about what appellant was doing to her and she asked him not to tell anyone because appellant would kill her and her family. Justin concluded that Mandy was very afraid and he complied with her request to keep this to himself.
In January 2006, appellant's behavior became more aggressive and sexually unrestrained. When Mandy resisted, he now began hitting her, threw her around and pulled her hair. Matters escalated until March 5, 2006, when appellant told Mandy he loved her, partially undressed and engaged in sexual activity.
The next day, Mandy told a female school friend she had known for some years about the abuse, who eventually told a teacher, even though Mandy asked her not to do so. A school nurse interviewed Mandy who now told her dreadful story. The nurse noted that Mandy's affect was flat and very quiet, which indicated that the abuse had been going on for a long time.
Appellant was arrested and interviewed in jail on March 8, 2006. In substance, appellant admitted that there had been sexual activity between him and Mandy, although he also tried to blame her as originating the activity.
An expert testified about child abuse. This testimony is the subject of one of appellant's contentions and we will take up this testimony when we address that contention.
DISCUSSION
1. Monique's Statement That Appellant Went to Prison Did Not Violate Appellant's Right to Due Process
Monique was on the witness stand and under examination by the district attorney when she was asked when Mandy was born. She gave the date, and the district attorney asked whether she and appellant broke up sometime after that. The reply was: “No. [Appellant] went to prison.[2 ] [¶] [District attorney]: Your Honor, may we approach? [¶] THE COURT: The answer is stricken. Let's pose another question. Let's approach later. Fair enough.” The court then recessed the trial.
Appellant contends that the admission of Monique's testimony that appellant had gone to prison violated appellant's right to due process.
The matter of appellant's prior convictions was discussed by the trial court and counsel prior to the commencement of testimony. The court stated that it had never presided over a trial during which there hadn't been what the court characterized as a “blurtout.” The court asked the district attorney to have Detective Reece tell the witnesses to answer only the questions that were asked.
After Monique's statement about prison that we have quoted above, court and counsel adjourned to chambers. The district attorney led off by stating that he had told Reece to tell the witnesses not to mention prison and that he double-checked with Reece who informed him that he, Reece, had told Monique not to mention prison.
The trial court stated that it would “entertain a curative instruction.” Defense counsel said that he did not blame the district attorney because Monique had not been cooperative with anyone, the defense included. Defense counsel requested that the court admonish Monique outside the presence of the jury but if Monique took the stand again and “continues to go along those lines, then, of course, I will be asking the court for a mistrial.” The trial court replied that it would instruct Monique not to talk about prior misconduct, including prison. This effectively ended the conference.
As matters stood at this point, the defense had not made a formal objection, had not requested a curative instruction and had not moved for a mistrial.
The court did admonish Monique as requested and this concluded the matter, at least in the trial court.
Appellant contends that “despite the earlier discussions that aimed to safeguard against such [inadmissible] information infecting the jury, the prosecutor in this case failed to ensure there would be no such prejudicial information volunteered by the mother.”
We do not agree that Monique's statement about prison can be blamed on the prosecution. We have no reason to doubt the district attorney's statement that Reece, acting on his instructions, had told Monique not to mention prison. Neither trial defense counsel nor the trial court questioned this representation and both accepted that the matter was not the district attorney's fault. We fail to see what else the district attorney could have done to forestall what the trial court called Monique's “blurtout.”
While appellant states that the “erroneous admission of evidence [of] a defendant's criminal history not only is error under California law, but also constitutes a violation of a defendant's federal due process rights,” Monique's statement about appellant going to prison was not admitted into evidence. On the contrary, the trial court immediately ordered that the answer was to be stricken from the record.
This leaves two possibilities. (1) A curative instruction should have been given. (2) A mistrial should have been granted.
Defense counsel did not request a curative instruction and he did not move for a mistrial.
In contending that the issue of Monique's reference to prison is “cognizable” in this appeal, appellant states in his opening brief that a mistrial motion and a curative instruction would have been futile.
This means that appellant's actual contention is that we should hold that Monique's reference to prison (which was stricken from the record) was an error of such proportions that his conviction must be reversed. In other words, the only course open to the trial court was to grant a mistrial. Appellant does not expressly advance such a contention, but this is what his claim about Monique's testimony comes down to.
There is no authority or precedent for the proposition that a witness's testimony that the defendant went to prison, which was stricken from the record by the court, requires a mistrial. This would be the same as saying that Monique's statement that appellant went to prison was reversible error per se. Given that, with the exception of coerced confessions, the admission and exclusion of evidence is usually not reversible error per se (see generally 6 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Reversible Error, § 26, p. 480), evidence that has been excluded surely does not constitute reversible error per se.
A sensible rendition of what happened here is that it was defense counsel's opinion that Monique's statement about prison, while by no means welcome, was not so damaging, especially in light of the court's quick ruling, as to require any further action. Because, at least on this record, defense counsel appears to have had a reasonable tactical basis for not requesting a mistrial or curative instruction, defendant's related ineffective assistance of counsel argument also fails. (People v. Pope (1979) 23 Cal.3d 412, 425.)
We see no violation of appellant's rights.
2. It Was Not Error to Admit Expert Testimony
Michael Hertica is a marriage and family therapist and has expertise in the field of sexually abused children. He testified that there are five stages in the sexual abuse of children. At first, the perpetrator threatens the child to keep the abuse secret. Next is a feeling of helplessness in the child. The third step is that the child accommodates herself to the abuse. The fourth stage is delay in disclosing the abuse since a child will rarely come forward voluntarily. Finally, the child may retract the accusation of abuse. This is called the child sexual abuse accommodation syndrome or “CSAAS.”
Appellant contends for various reasons that CSAAS evidence should not be admitted. Appellant relies on three decisions from other jurisdictions, which we need not cite in this opinion, that have rejected CSAAS expert testimony. But we are bound to follow the holding of the California Supreme Court in People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1303, that CSAAS evidence is admissible. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) According to People v. McAlpin, the great majority of courts in the United States have approved the admission of CSAAS testimony. (People v. McAlpin, supra, at p. 1301.) 3 In any event, we are not free to ignore McAlpin. (Auto Equity Sales v. Superior Court, supra, 57 Cal.2d at p. 455.)
We therefore reject appellant's extended argument about CSAAS, which should be addressed to the California Supreme Court and not the Court of Appeal.
DISPOSITION
The judgment is affirmed.
We concur:
FOOTNOTES
FN1. “Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.” (Pen.Code., § 243.4, subd. (a).). FN1. “Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.” (Pen.Code., § 243.4, subd. (a).)
FN2. Appellant was convicted of first degree burglary in 1984 and of robbery on July 20, 1988.. FN2. Appellant was convicted of first degree burglary in 1984 and of robbery on July 20, 1988.
FN3. CSAAS testimony is not admissible to prove the charge (as the jury was instructed in this case) but rather to explain the delay on the part of the victim to report the crime.. FN3. CSAAS testimony is not admissible to prove the charge (as the jury was instructed in this case) but rather to explain the delay on the part of the victim to report the crime.
RUBIN, Acting P. J. GRIMES, J.
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Docket No: B216198
Decided: December 15, 2010
Court: Court of Appeal, Second District, California.
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