(Super. Ct. No. 07F03387)
The opinion of the court was delivered by: Murray , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant David Dutton appeals following a jury trial and conviction on three counts of lewd and lascivious acts upon a minor under 14 years old (Pen. Code, § 288, subd. (a)),*fn1 who is defendant's biological daughter. Other counts against another victim were dismissed after the jury was unable to reach a verdict. Defendant contends the trial court erred in admitting expert testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS). We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
An information filed in June 2008 charged defendant in counts one, two, and three of lewd and lascivious acts upon his daughter, K.B., a minor under 14 years of age. The pleading also charged defendant in counts four, five, and six of the same offense against a different victim, his stepdaughter, Ki.S., but count six was dismissed before trial, and the jury deadlocked on the other counts involving Ki. The pleading also alleged a sentencing enhancement for multiple victims. (§ 667.61, former subd. (e)(5) (now subd. (e)(4)).)
In opposing in limine motions, defendant sought to preclude the prosecutor from introducing expert testimony on CSAAS and the prosecutor sought to introduce CSAAS testimony.*fn2 The defense moved to exclude the evidence on the grounds it was inapplicable, irrelevant, more prejudicial than probative (Evid. Code, § 352), speculative, misleading, confusing, and in violation of defendant's constitutional rights. The defense argued CSAAS applies only in cases of delayed disclosure. He argued that in the case of K., there was no delayed disclosure, and in the case of Ki., he did not plan to make an issue of delayed disclosure. The prosecutor responded that delayed disclosure was merely one of five independent prongs of CSAAS, and was not weighted more heavily than the other four prongs.
The trial court stated that, even in the absence of a defense attack on a point, expert testimony on CSAAS is appropriate "to dispel myths that exist in this world of child molestation." The trial court ruled it would allow the testimony subject to conditions that the witness qualify as an expert; that he not testify that the victims in this case actually suffered from or exhibited characteristics of CSAAS; that the evidence be admissible to rehabilitate victim credibility only if and when the defense claimed the victims delayed disclosure or recanted; and that the court would admonish the jury on the limited use of the expert testimony, both before the testimony and in the concluding instructions.
K. was born to defendant and G.B. in May 1995. At the time of the events involving K., she lived with her mother, her brother, and three sisters in a mobile home. They rarely saw defendant, who was a truck driver.
Two days before Christmas 2006, when K. was 11 years old, defendant came to visit. K. was to sleep on the couch while defendant slept in her bed. However, K. joined defendant in the bed to "cuddle." Defendant rubbed K.'s vagina and touched her breasts over her clothes. Defendant then put his fingers in her vagina. He forced her to rub his penis and said, "You fuck like me." When defendant got up to use the bathroom, K. tried to go to her mother's room, but defendant stopped her and took her back to bed. He got on top of her and "started putting his fingers inside" her again. He then put his penis "halfway inside" her vagina. K. did not scream because defendant had threatened her in the past that he would "kill me if I told." Defendant got up to go to the bathroom again. K. ran and woke up her mother but was afraid to tell her mother what happened, so she said she had lice. The mother told K. to go lie on the couch.
The next morning, K. went to church with her mother and other family members. K. told her Bible study teacher what defendant had done. The teacher told K.'s mother, who ...