PEOPLE v. PAYAN (1985)

Lorenzo Hernandez Payan appeals from a jury conviction of sexual molestation of three children (two counts of lewd and lascivious conduct (Pen.Code, § 288, subd. (a));  two counts of oral copulation (Pen.Code, § 288a, subd. (c));  one count of sodomy (Pen.Code, § 286, subd. (c));  one count of incest (Pen.Code, § 285);  and one count of unlawful sexual intercourse (Pen.Code, § 261.5)).   The trial court sentence was seventeen years in prison.   He appeals.   We affirm.

Appellant asserts as error:  (1) admission of expert medical testimony on the issue of sexual molestation;  (2) admission of victims' out-of-court statements;  (3) limitation of cross-examination on one victim's knowledge of sexual intercourse;  (4) improper instructions;  and (5) denial of presentence credits.

FACTS

Trial evidence established that appellant's ex-wife Rachel baby-sat for Marlene during September, 1980.   Marlene, age seven at time of trial, testified that when she was four years old, appellant showed her his “front” and placed it in her mouth.¹  When she attempted to spit out the ejaculate, he told her to “eat it.”   Marlene volunteered this information to her mother for the first time in September 1983, when she overheard her mother and younger sister, Jessica, discussing appellant.

Jessica, age four, testified that one night (August 1983) while sleeping in her mother's room, appellant entered and placed his penis in her vagina.   When she began to cry, he put his penis on her face and in her rectum.²  On another occasion (September 1983), appellant entered her room while she was sleeping and put his finger or penis in her vagina.   When she cried, he told her not to tell her mother but, nonetheless she did so the next morning.   Later in the trial, she appeared to recant her testimony on cross-examination.

Adriana, appellant's seven-year old daughter, testified that one evening (early September 1983) her father took her to his motel room, engaged in sexual intercourse with her, had her perform oral copulation on him, and sodomized her.   She told her mother several weeks later.

Laura Slaughter, M.D., testified, over defense objection,³ as an expert on child sexual abuse that from a review of police and medical reports and preliminary hearing transcripts, she opined the three children had been sexually molested.

Appellant's ex-wife, Marlene and Jessica's mother, Detective Swanson, and Nurse Moulds all related statements told them by the victims.   Jessica's mother said she saw appellant in Jessica's room the night of the first episode.   He was sitting on Jessica's bed and when she entered, jumped up and ran to the bathroom.   When asked whether anything had happened, Jessica answered in the negative.   Doctor Giuffre stated he noted irregularities in Jessica's and Adriana's hymens, no physical damage to the anus in either girl but said this finding was not inconsistent with “slow and gentle” sodomy.

DISCUSSION

IEXPERT TESTIMONY RE CHILD MOLESTATION

 Appellant objected to Doctor Slaughter's testimony on grounds that the child-abuse accommodation syndrome or child sexual assault syndrome is not generally accepted by the medical community, the doctor's expertise did not qualify her to testify on matters essentially psychological and psychiatric, and she never physically examined the children.

Doctor Slaughter testified that she is a licensed physician and a board-certified rheumatologist, a founding member and past director of the sexual assault response team, participated in formulating the protocol for rape and sexually abused victims at U.S.C. Women's Hospital during her three years in the family-planning department there, and attended seminars on long-term effects of child abuse and molestation and the sexual abuse syndrome.   Seminars included importance of historical as well as physical examination, and analysis of data involving the child.

She testified that the syndrome was a widely recognized and accepted medical diagnosis having evolved from the first definition of battered child syndrome discussed in Kempe and Helfer's “Battered Child Syndrome” (1962) and that the most recent edition of that work now included a section on sexual abuse in children.   She had examined over 200 allegedly molested children and had testified in court as an expert on the subject many times.

The trial court ruled there was sufficient basis for her testimony, that her testimony was relevant and admissible, and instructed the jury that Doctor Slaughter did not personally interview the children, that her opinion was based solely on the records she reviewed, and that the jury must ultimately determine whether the assumed facts were actually supported by the evidence.

Doctor Slaughter told the jury that the child-abuse accommodation syndrome consists of some or all of five elements:  secrecy, helplessness, entrapment and accommodation, delayed disclosure and retraction.⁴  She stated that the medical procedure followed with the three children, i.e., initial interview with use of anatomically correct dolls and subsequent physical examination, was a proper method to establish whether the child had been sexually molested.   She explained factors to be considered in examining a child's explanation, such as difficulty in discussing the incident, reluctance to complain, feelings of helplessness when faced with authority, inability to give a specific time sequence when describing the acts, importance of the specific descriptive words and short attention span.   She drew a diagram indicating location of hymenal injuries consistent with abuse.   In her judgment, children of the complainants' ages were unable to describe such experiences the way they did without first-hand knowledge, and that, based upon her review of the records, she opined all three girls had been molested.

Appellant contends the child-abuse accommodation syndrome fails to meet the Frye test of admissibility applied recently to reject admissibility of rape trauma syndrome in People v. Bledsoe (1984) 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291.⁵  In Bledsoe, the California Supreme Court distinguished rape trauma syndrome from battered child syndrome, expert testimony on which has been held admissible.  (See People v. Jackson (1971) 18 Cal.App.3d 504, 95 Cal.Rptr. 999;  Landeros v. Flood (1976) 17 Cal.3d 399, 131 Cal.Rptr. 69, 551 P.2d 389.) ⁶  The Supreme Court stated:  “There is, however, a fundamental difference between rape trauma syndrome and both the battered child syndrome and the other scientific methods of proof that have in the past been evaluated against the Frye standard of reliability.   Unlike fingerprints, blood tests, lie detector tests, voiceprints or the battered child syndrome, rape trauma syndrome was not devised to determine the ‘truth’ or ‘accuracy’ of a particular past event—i.e., whether, in fact, a rape in the legal sense occurred—but rather was developed by professional rape counselors as a therapeutic tool, to help identify, predict and treat emotional problems experienced by the counselors' clients or patients.”  (36 Cal.3d 236, 250, fn. omitted, 203 Cal.Rptr. 450.)

The Supreme Court concluded that, given the history, purpose and nature of the rape trauma syndrome concept, expert testimony that a complaining witness suffers from rape trauma syndrome is not admissible to prove that the witness was raped.  (Id., at p. 251, 203 Cal.Rptr. 450.)

Initially, we note that Doctor Slaughter described a method of clinically diagnosing sexually abused children, as opposed to its being a therapeutic tool, and that the concept of child abuse has been expanded to include sexual abuse.  (See Pen.Code, § 11165, subd. (g);  The Battered Child, Third Edition, Kempe & Helfer, 1980 U. of Chicago Press.)   We further note that Kempe's seminal work, “The Battered Child”, recognized the importance of psychiatric factors in the pathogenesis of the disorder, but indicated that knowledge of those factors at that time was limited.  “The frustration of the hospital staff and the law enforcement officers at their inability to protect the child appeared to arise from a variety of factors:  the inability of the child to communicate, the unwillingness of the adults to admit any abuse on their own part or on the part of others in the family, the absence of reliable witnesses, and the inability of probation officers to protect the child if returned to the custody of the parents.”  (The Battered Child and Other Assaults Upon the Family:  Part One (1965) 50 Minn.L.Rev. 1, 8, citing Kempe.)   Additionally, the third edition of The Battered Child (Kempe & Helfer, 1980 U. of Chicago Press) is not limited to physical abuse, but as Doctor Slaughter testified to, has been expanded to include “the vast array of manifestations of abuse and neglect of children.”  (Preface to the Third Edition, p. XIII, e.g., see Kempe's article therein on “Incest and Other Forms of Sexual Abuse.”)   Moreover, reporting laws now include sexual as well as physical abuse.  (See Pen.Code, § 11165 et seq.)

A recent appellate opinion, In re Cheryl H. (1984) 153 Cal.App.3d 1098, 200 Cal.Rptr. 789 found admissible in a Welfare and Institutions code section 300 proceeding psychiatric opinion that a child had been sexually abused.   The court had no difficulty in concluding that the topic was a proper subject for expert testimony:  “Expert opinion testimony about whether a child has been sexually abused is similar to the ‘battered child syndrome’ testimony already approved by California courts․  [¶] Child beating and sexual molestation of a child differ primarily in the location and cause of the injuries.   If expert opinion testimony is admissible to establish that the facial and bodily injuries exhibited by a child are the result of an ongoing pattern of child beating, then that same sort of testimony should be available to assist a trier of fact who is attempting to determine whether certain vaginal injuries were caused by sexual abuse rather than some innocent accident.  [¶] Here, of course, it is not medical testimony about the physical characteristics of the injury which supports the diagnosis.   Rather it is psychiatric testimony about the victim's postinjury behavior which leads to the conclusion she was sexually abused.   But that behavior appears to be unique to children subjected to child abuse and as valid an indicia of such abuse as the physical characteristics used to diagnose ‘battered child syndrome.’ ”  (153 Cal.App.3d at p. 1117, 200 Cal.Rptr. 789.)

 Generally, prerequisites to admissibility of expert testimony based upon application of new scientific techniques are:  (1) established method reliability (2) a witness properly qualified as an expert to render an opinion, and (3) demonstration that correct scientific procedures were used in the particular case.  (People v. Kelly (1976) 17 Cal.3d 24, 30, 130 Cal.Rptr. 144.)   As stated in Frye, “while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”  (Frye v. United States, supra, 293 F. 1013, 1014.)

The California Supreme Court recently pointed out, however, that courts have involved the Kelly-Frye rule primarily in cases involving novel devices or processes such as lie detectors, and truth serum.  “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,․”  (People v. McDonald, (1984) 37 Cal.3d 351, 373, 208 Cal.Rptr. 236, 690 P.2d 720.)

In People v. Roscoe (1985) 168 Cal.App.3d 1093, 215 Cal.Rptr. 45, defendant was convicted of violation of Penal Code sections 288a, subdivision (b)(2) (oral copulation with a person under 16) and 286, subdivision (b)(2) (sodomy with a person under 16).   The question presented was “whether or not the trial court violated the rule of People v. Bledsoe, supra, 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291, in permitting the jury to hear Doctor Cotton, a clinical psychologist, give his diagnosis of the complaining witness as a victim of child molestation.”   The court held that it did, stating that the psychologist, like the counselor in Bledsoe, had a professional duty to help the victim and had spent some 15 or more sessions with him.   The critical contention in Roscoe was “ ‘(a)lthough he did discuss some problems common to child molest victims, the essence of Doctor Cotton's testimony was that this particular victim could be believed because he was particularly vulnerable due to his background ․’ ” (p. 1098, emphasis added.)

The appellate court held that “expert testimony authorized by Bledsoe to permit rehabilitation of a complainant's credibility is limited to a discussion of victims as a class, supported by reference to literature and experience (such as an expert normally relies upon) and does not extend to discussion and diagnosis of the witness in the case at hand.”  (p. 1100, fn. omitted.)

Here, unlike in Roscoe, the expert was not a therapist under a “professional duty to help the victim.”   Doctor Slaughter did refer to the victim as a class in order to reach her final conclusion as to these particular victims whom she had not personally interviewed.

Moreover, courts in this as well as in other states have allowed expert testimony on traits and characteristics typically described in sexually abused children.⁷  In People v. Dunnahoo, (1984) 152 Cal.App.3d 561, 199 Cal.Rptr. 796, appellant alleged his counsel incompetent for failing to object to testimony of two officers, qualified as experts, that a sexually molested child finds it difficult to talk about sexual activities with an adult.   The reviewing court, in affirming, stated:  “The officers' testimony was admissible as opinion testimony by an expert witness pursuant to Evidence Code section 801 because the subject of child molestation and more particularly, the sensitivities of the victims, is knowledge sufficiently beyond common experience such that the opinion of an expert would be of assistance to the trier of fact.”  (152 Cal.App.3d at 577, 199 Cal.Rptr. 796.)

We believe there are important factors in favor of admitting expert testimony on the issue of sexual abuse in children.   As indicated by Doctor Slaughter, children do not react to sexual situations as adults would, and their responses, may therefore appear inappropriate, and even untrue.⁸  “They have been conditioned to comply with authority;  they are in subordinate positions and are fearful of threats;  they are intensely curious;  they are susceptible to bribes, and the promise of reward.   In addition, children are often naive with regard to social norms and values, and ․ may respond willingly to intimate and gentle contact which they may associate with feelings of being loved․  Thus, the use of physical violence is rare because it isn't necessary;  children by their very nature make ideal victims of sexual exploitation.”  (A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases (1983) 83 Col.L.Rev. 1745, 1750, fn. 46.)   Moreover, even where physical injury occurs, many parents and physicians are unwilling to entertain the possibility that a child has been sexually molested, an unwillingness provocatively reminiscent of the early physically battered children literature.  (Ibid.;  see also The Responsibility and Role of the Physician, Helfer, The Battered Child (2d ed. 1974) Kempe & Helfer.)

As cogently explained by Justice Roberts in his concurring opinion of State v. Middleton, supra, 657 P.2d 1215, 1222, when the Oregon Supreme Court found admissible an expert's explanation of the child's behavior in running away and recanting her earlier statements, “․ I am further persuaded that this information is not known to the average juror.   Unlike the problem of rape of an adult in a nonfamilial setting, little popular recognition exists of the magnitude of or the motivations for familial sexual abuse․  While jurors may be capable of personalizing the emotions of victims of physical assault generally, and of assessing witness credibility accordingly, tensions unique to the trauma experienced by a child sexually abused by a family member have remained largely unknown to the public.   As the expert's testimony demonstrates the routine indicia of witness reliability—consistency, willingness to aid the prosecution, straightforward rendition of the facts—may for good reason, be lacking.   As a result jurors may impose standards of normalcy on child victim/witnesses who consistently respond in distinctly abnormal fashion.”

This observation was confirmed by Roland C. Summit, M.D., in The Child Sexual Abuse Accommodation Syndrome (Child Abuse & Neglect, Vol. 7, pp. 177–193, 1983): ⁹  “Any attempts by the child to illuminate the secret will be countered by an adult conspiracy of silence and disbelief․  [¶] The average child never asks and never tells.   Contrary to the general expectation that the victim would normally seek help, the majority of the victims in retrospective surveys had never told anyone during their childhood [ ].  Respondents expressed fear that they would be blamed for what happened or that a parent would not be able to protect them from retaliation․ (p. 181.)  [¶] Yet adult expectation dominates the judgment applied to disclosures for sexual abuse.   When the child does not immediately complain, it is painfully apparent to any child that there is no second chance.  ‘Why didn't you tell me?’  ‘How could you keep such a thing secret?’  ‘What are you trying to hide?’  ‘Why did you wait until now if it really happened so long ago?’ ․”  (p. 182.)

As Summit indicated, unless specifically trained and sensitized, average adults, including parents and professionals, cannot believe that a normal child would tolerate incest without immediately reporting or that “an apparently normal father could be capable of repeated, unchallenged sexual molestation of his own daughter.”  (p. 186.)

Thus, it is not inconsistent to exclude expert testimony on rape trauma syndrome in the People's case-in-chief but to allow it in child molestation cases.   In State v. Saldana (1982) 324 N.W.2d 227, cited in Bledsoe, the Minnesota Supreme Court held just that;  the court found rape trauma syndrome not the type of scientific constellation that “accurately and reliably determines whether a rape has occurred” and stated that expert testimony concerning the credibility of a witness should be received only in unusual cases, such as “a sexual assault case where the alleged victim is a child or mentally retarded.”  (324 N.W.2d at p. 231.)

Appellant contends that Doctor Slaughter was not qualified to render an opinion because she is not a psychiatrist and did not personally interview the children.   Not so.   The trial court has considerable latitude in determining the qualifications of an expert, and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown.  (People v. Kelly, supra, 17 Cal.3d 24, 39, 130 Cal.Rptr. 144, 549 P.2d 1240.)   Moreover, the degree of expert knowledge goes more to weight of evidence than to its admissibility.   (Pfingsten v. Westenhaver (1952) 39 Cal.2d 12, 20, 244 P.2d 395.)   The trial court's determination that Doctor Slaughter possesses sufficient credentials, education and experience to testify as an expert is supported by substantial evidence in the record.

Similarly, his claim that Doctor Slaughter's opinion was based on improper matters is meritless.  Evidence Code section 801, subdivision (b) specifically declares that expert opinion may be based upon hearsay.   (People v. Beach (1968) 263 Cal.App.2d 476, 487, 69 Cal.Rptr. 394;  see also People v. Conley (1968) 268 Cal.App.2d 47, 59, 73 Cal.Rptr. 673.)   A physician may rely on reports and opinions of other physicians.  (People v. Piper (1980) 103 Cal.App.3d 102, 112, 162 Cal.Rptr. 833;  Kelley v. Bailey (1961) 189 Cal.App.2d 728, 737, 11 Cal.Rptr. 448.)   We further note that the persons whose opinions formed the bases of Doctor Slaughter's opinion all testified as witnesses.  (See People v. Beach, supra, 263 Cal.App.2d 476, 487, 69 Cal.Rptr. 394.)

Finally, appellant argues that Doctor Slaughter's opinion was tantamount to testifying that the victims' testimony was trustworthy, a practice which he contends the reviewing court in In re Cheryl H. disapproved.   We disagree.   The court in Cheryl H. stated:  “The law allows opinion testimony about the credibility of hearsay declarants whose out-of-court statements have been admitted under some specific exception to the hearsay rule.  [Citations.]  However, this does not mean an expert's opinion a given declarant is believable creates a new hearsay exception by providing an independent grounds for initially admitting that declarant's out-of-court statement.”  (153 Cal.App.3d 1098, 1122, 200 Cal.Rptr. 789, emphasis in original.)

In Cheryl H., three-year-old Cheryl did not testify.   Here, all three children testified before Doctor Slaughter took the stand.   To the extent her testimony inferred that the children's statements were believable, “ ‘in this State we have followed the modern tendency and have refused to hold that expert opinion is inadmissible merely because it coincides with an ultimate issue of fact.’ ”  (People v. McDonald, supra, 37 Cal.3d 351, 371, 208 Cal.Rptr. 236, 690 P.2d 709.)   Moreover, the trial court specifically admonished the jury that the expert was not being asked whether the children were telling the truth.

Consequently, we find the trial court did not abuse its discretion in admitting expert testimony on the issue of sexual molestation in children.   The factors the expert discussed more closely resemble those affecting eyewitness identification, expert testimony which the California Supreme Court held admissible in People v. McDonald, supra, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709, rather than those found inadmissible in People v. Bledsoe, supra, 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291.

 As stated supra, Doctor Slaughter discussed the correct medical procedure used to diagnose sexual molestation, i.e., use of anatomically correct dolls, and detection of abnormal hymenal injuries, as well as explaining factors to be considered in examining a child's explanation.   Her testimony was far afield of an opinion based upon a noncritical therapeutic setting discussed in Bledsoe and Roscoe.   A trial court might well find that a proposed expert witness whose only contact with an alleged victim was in a therapeutic setting was not qualified to testify and refuse to admit it.   Although the better practice might be to restrict the expert's testimony to references to victims as a class and forbid opinion on whether the prosecuting witness was in fact molested, we find no error in the instant case because of the careful admonishments given by the trial court.

By our holding, we do not imply that “child sexual abuse accommodation syndrome” under that nomenclature is generally accepted under the Frye standards (if applicable) or is necessarily always admissible in child sexual abuse prosecutions.   We do hold that, as presented in the instant case, the subject of sexual abuse in children, especially children of the age herein, is a proper subject for expert testimony to aid the jury's understanding of factors which influence a child's behavior as well as in explaining the significance of particular medical findings or lack thereof.

II

ADMISSIBILITY OF VICTIMS' OUT-OF-COURT STATEMENTS

 Four witnesses over defense objections testified to the victims' out-of-court statements.   Generally, a child's out-of-court accusation of sexual abuse is admitted either as a “fresh complaint” introduced not for the truth of the matter but to show a complaint was made and, therefore, rebut inferences that might be drawn from failure to complain, or under the “spontaneous exclamation” exception to the hearsay rule.  (In re Cheryl H., supra, 153 Cal.App.3d 1098, 1128, 200 Cal.Rptr. 789;  Evid.Code, § 1240.)

The non-statutory “complaint doctrine” is bottomed on the theory that it is reasonable to expect a victim to complain of such crimes and the prosecution can show the fact of the complaint to forestall the assumption that none was made.  (People v. Burton (1961) 55 Cal.2d 328, 351, 11 Cal.Rptr. 65, 359 P.2d 433.)   The complaint may contain the alleged victim's statement of the nature of the offense and the identity of the asserted offender without details.  (Ibid.)  Although Burton does not discuss “freshness”, courts have interpreted the doctrine to include that element.

The “spontaneous exclamation” or “excited utterance” hearsay exception requires that the statement “(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant;  and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”  (Evid.Code, § 1240.)

A. Marlene's Statements

 Marlene volunteered her statements to her mother almost three years after the event, hardly “fresh” in the temporal sense, but arguably so in that she might not have had the impetus before hearing of her sister's experiences.   We agree with People v. Brown (1973) 35 Cal.App.3d 317, 323, 110 Cal.Rptr. 854, that the “complaint doctrine” in sex cases is distinct from the “spontaneous exclamation” exception to the hearsay rule, and that delay should affect weight rather than admissibility.   However, if, in fact, “freshness” of the complaint is a required element, Marlene's statements repeated by her mother, Detective Swanson and Nurse Moulds were attempts to rehabilitate her testimony and rebut inferences that she was merely copying her sister's story and that her testimony had been coached.   The statements also illustrated the type of vocabulary she used to describe the act as opposed to more sophisticated words which might have been suggested by adult interrogators.   Any error in their admission was harmless since Marlene testified and was subject to cross-examination.  (California v. Green (1965) 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

B. Jessica's Statements

 Jessica told her mother of the two sexual experiences the morning after the second episode and approximately three weeks after the first.   Two days later she related the events to Detective Swanson and to Nurse Moulds.

We find the relatively short delay in Jessica's statements to her mother does not preclude their admission under the complaint doctrine.  (See People v. Meacham (1984) 152 Cal.App.3d 142, 158, 199 Cal.Rptr. 586, where the court found a one month delay an acceptably short duration.)   Her statements to Detective Swanson, although introduced into evidence before she made inconsistent statements, would have been admissible in rebuttal after she testified for the second time.  “The only error, that it might have been presented before it was needed (if tested under Evid.Code, § 791, subd. (a)) was cured by later testimony of [Jessica].”  (People v. Alfaro (1976) 61 Cal.App.3d 414, 428, 132 Cal.Rptr. 356.)   Nurse Moulds did testify after Jessica testified inconsistently and thus her prior consistent statements were proper rehabilitation.

C. Adriana's Statements

 Even assuming admission of Adriana's out-of-court statements was error because they were in response to questioning, we find appellant was not prejudiced because Adriana testified and was subject to cross-examination.   At most, the evidence was cumulative.¹⁰  Any error was harmless.   (People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243.)

III

OTHER TRIAL ISSUESA. Limitation On Cross-Examination

 The record fails to support appellant's contention of preclusion from cross-examining Adriana's mother concerning Adriana's knowledge of sexual matters.   Appellant's counsel asked Adriana's mother whether she was unfaithful to her husband and whether she brought men to her house while married to appellant.   The trial court ruled the questions irrelevant and indicated that if defense counsel was trying to establish bias, the questions should be rephrased.   Counsel agreed with the court's analysis of his purpose and stated he would rephrase the question.   If counsel's purpose was to cross-examine on whether Adriana could have gained sexual knowledge from other sources, he failed to preserve the point in the record.

B. Instructional Errors

 Shortly after juror deliberations commenced, the jury requested instruction on the crime of incest.   The trial court realized it had neglected to give that instruction, and thereupon instructed the jury over defense objection.   The trial court had a duty to instruct on the applicable law.   (Pen.Code, § 1093.)   It was not error to do so.

 Additionally, appellant contends the trial court instructed the jury outside of his presence.   The record reveals that during the trial, after an in camera hearing, defense counsel apparently left the courtroom as the jury returned.   While awaiting counsel's return, the trial court explained to the jury why attorneys make hearsay objections and the purpose of the hearsay rule.   Since the court also gave various explanations and limiting instructions on different aspects of the hearsay rule in defense counsel's presence throughout the trial, we find that error, if any, was harmless.

IV

PRESENTENCE CUSTODY CREDITS

 Appellant claims he is entitled to presentence custody credits in this case which were given on case number SM 41876 since, says he, consecutive sentences were not imposed.   The record belies this contention.   When the trial court recalculated appellant's prior sentence pursuant to Penal Code section 1170.1, subdivision (a), it ordered that the sentence in SM 41876 be served consecutive to the sentence in the instant case since it was a separate offense occurring at a separate time, and stayed all sentences in excess of the five-year statutory maximum.   Credit against presentence custody may be “given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.”  (Pen.Code, § 2900.5, subd. (b);  see In re Atiles (1983) 33 Cal.3d 805, 811, fn. 6, 191 Cal.Rptr. 452, 662 P.2d 910.)   The Legislature giveth and the Legislature taketh away.

The judgment is affirmed.

FOOTNOTES

1.   All three children used anatomically correct dolls to indicate parts of the body to which they referred.

2.   In her various statements, she used the terms “front” or “banana” for penis, “bootie” for vagina, and “apple” for rectum.

3.   Defense counsel objected on grounds of relevance, hearsay and that the subject was not generally accepted.   There was no objection on grounds of Evidence Code section 352.

4.   See The Child Abuse Accommodation Syndrome, Roland C. Summit, M.D., Child Abuse & Neglect, Vol. 7, pp. 177–193, (1983), which describes the syndrome to which she referred.

5.   Frye v. United States (1923) 293 F. 1013.

6.   The landmark article was published in 1962 in the Journal of the American Medical Association.  (Kempe et al, The Battered-Child Syndrome (1962) 181 J.A.M.A. 17.)   Elements discussed in Jackson are (1) age of the victim, usually under three years;  (2) evidence of bone fractures of different ages;  (3) subdural hematomas with or without skull fractures;  (4) serious injuries without appropriate history of accident explaining physical findings;  (5) soft tissue injuries;  and (6) evidence of neglect.  (18 Cal.App.3d at 506, 95 Cal.Rptr. 999.)

7.   See People v. Dunnahoo, supra, 152 Cal.App.3d 561, 577, 199 Cal.Rptr. 796;  State v. Myers (Minn.1984) 359 N.W.2d 604;  Smith v. State (Nev.1984) 688 P.2d 326;  State v. Middleton (1982), 294 Or. 427, 657 P.2d 1215;  State v. Harwood (1980) 45 Or.App. 931, 609 P.2d 1312;  Commonwealth v. Stago (1979) 267 Pa.Super. 90, 406 A.2d 533;  State v. Kim (1982) 64 Hawaii 598, 645 P.2d 1330.

8.   “It is sad to hear children attacked by attorneys and discredited by juries because they claimed to be molested yet admitted they had made no protest or outcry․  Children are easily ashamed and intimidated both by their helplessness and by their inability to communicate their feelings to uncomprehending adults.   They need an adult clinical advocate to translate the child's world into an adult-acceptable language.”   Summit, The Child Sexual Abuse Accommodation Syndrome, supra, p. 181.

9.   Although Doctor Slaughter did not refer to this article by name, she discussed the elements of the syndrome described by him in the above cited work.The trial court had ample evidence to support the admissibility of Doctor Slaughter's testimony.   We refer to Doctor Summit's work simply as a cogent analysis of the subject.

10.   Adriana testified her father told her not to tell anyone or he would go to jail.   We note that the state of Washington has obviated the problem of attempting to fashion a child victim's statements into rules better suited to adult testimony by enacting a special statutory exception for statements of children under age ten describing any act of sexual contact if the court finds that [1] “the time, content, and circumstances of the statement provide sufficient indicia of reliability;  and (2) The child either:  (a) Testifies at the proceedings;  or (b) Is unavailable as a witness:  Provided, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act․”  (1982 Wash.Legis.Serv. ch. 129, § 2 (West);  83 Col.L.Rev. 1745, 1764.)

STONE, Presiding Justice.

GILBERT and ABBE, JJ., concur.