California Court of Appeals, Second District, Third Division
CERTIFIED FOR PARTIAL PUBLICATION[*]
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA064769, Beverly O’Connell, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Colleen M. Tiedemann and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
In this case of first impression in California, we hold the trial court did not err by ruling a prosecution expert was qualified to testify a sexual assault victim could have experienced an orgasm during non-consensual oral copulation.
C.L., the 14-year-old victim in this case, was defendant and appellant James Austin’s step-daughter. While Austin’s wife was out of the country, Austin asked C.L. to sleep in his bed because he was lonely. Mutual massage eventually turned sexual as Austin began touching C.L.’s breasts, buttocks and vagina. He showed her pornographic videos. On four different occasions, he orally copulated her. C.L. testified she did not want Austin to be doing these things to her, but that she was afraid he would get angry if she refused. Austin had a bad temper, he kept guns in the house, and he warned C.L. if she revealed what he was doing she would be sent back to China, where she had been born. C.L. also testified that although she experienced orgasms when Austin orally copulated her, she did not enjoy it.
Austin was charged with a series of forcible and non-forcible sexual offenses, including oral copulation with a person under 16, forcible oral copulation, lewd act on a child, and attempted unlawful sexual intercourse (Pen. Code, §§ 288a, subd. (b) & (c)(2), 288, subd. (c)(2), 664, 261.5). During opening statement, defense counsel told the jury Austin was guilty of all the non-forcible charges, but he was innocent of the forcible oral copulation charges. The prosecution theory was duress; the defense theory was reasonable belief in C.L.’s consent to the oral copulation.
Although the trial court initially ruled, reasonably in our view, that C.L.’s orgasms were not probative on the issue of her consent, the court later allowed this evidence on the ground the prosecution had opened the door. After C.L. testified she experienced an orgasm each of the four times Austin had orally copulated her, a prosecution expert testified an orgasm was merely a physiological reaction to physical stimulation. Asked if this meant a child could experience an orgasm while being sexually abused, the expert answered yes.
On appeal, Austin contends the expert was not qualified to give this testimony. We disagree. The expert, a Licensed Marriage and Family Therapist, was the clinical supervisor of a university-affiliated sexual assault treatment center and a specialist in the treatment of adolescent female sexual assault victims. As part of her education, the expert had received training in the biology and physiology of human sexual response. We hold the trial court did not err by ruling the expert was qualified to offer this testimony.
The judgment is affirmed.
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
C.L. was born in China in 1994, and defendant Austin is her step-father. After Austin married C.L.’s mother, they brought C.L. to the United States in 2005 when she was 11 years old. Before that, Austin lived with C.L. and her mother in China for about a year while they waited for C.L.’s visa application to be approved.
Starting in China, C.L.’s relationship with Austin was that of father-daughter. He taught her English and, when she came to the United States, he helped her with her homework and cooked for her and her mother. C.L. loved Austin as a father.
When they first moved to the United States, C.L. had her own bedroom. But her parents later rented out some of the rooms in their house, so C.L. moved into their bedroom. She had her own bed on one side of the room, located behind a partition.
At the beginning of 2009,  C.L.’s mother went on a trip to China. While she was away, Austin asked C.L. to sleep in his bed with him because he felt lonely. C.L. testified she complied “[b]ecause he would get really angry when I don’t, and then he will start saying like ‘Oh, my goodness, like I feel so lonely. Your mom’s not here.’ ” In the mornings, they gave each other massages. C.L. was afraid to refuse the massages because Austin “gets really angry and he gets really loud and the neighbors complain, and he carries a knife around. [¶] Also he has guns in the house, two huge ones under the bed, and he knows how to fire them....” C.L. testified, “[W]e have [a] house that’s in Lancaster that we also rent out, and one time he was going to Lancaster carrying his gun. [¶] So I was like ‘Why are you carrying your gun?’ [¶] And he’s like ‘Just in case that guy gets all crazy and I will just shoot him for self-defense.’ ”
Initially these were nothing more than routine massages. “The first few times it was just massage, but the time that really made me feel uncomfortable was the time that he asked me to take my shirt off so he can massage my whole back. [¶] So I thought to myself this is kind of weird, but... at the time I didn’t really think... anything was wrong. Like in China, they give you massage. When you go [to] a massage place, you don’t have your shirt on.” Eventually, Austin started touching C.L.’s breasts, her buttocks and her vagina. He kissed her using his tongue. He showed her pornographic videos a few times. On four different occasions he orally copulated her. These acts occurred during two different trips C.L.’s mother made to China that year, one in January and one in April. C.L. testified she did not want Austin to be doing these things to her. She also testified she experienced orgasms when Austin orally copulated her, but she did not enjoy it.
C.L. did not tell her mother or anyone else about what Austin was doing. Asked why, C.L. testified: “Well, he was telling me – well, he wasn’t like threatening me – I know that he is, but at the time I didn’t think it was, because he put it in a different way.”
On May 2, 2009, the last time Austin orally copulated her, he had come to bed naked the night before. When C.L. awoke the next morning, Austin was “touching” and “cuddling with” her. He touched her breasts and her vagina, and “he licked [her] vagina.” After doing that, Austin stood up. Over her parents’ bed there was a mirror on the ceiling. In the mirror, C.L. saw that Austin had his penis in his hand. He was “coming closer... and he was trying to put his penis in [her] vagina.” C.L. told him to stop and Austin replied, “ ‘Oh, okay. I just wanted to feel you.’ ”
“A. I got up and I told him that I don’t want to do this anymore, and I don’t feel comfortable and I don’t think it’s right. [¶] And then he said ‘Yeah, I’ll stop and we’ll just go back to a father/daughter relationship.’
“Q. Was that hard for you to do?
“A. Yes, it was very hard. I couldn’t get my courage together to tell him.
“Q. Before that?
“A. Yeah. I knew it was wrong, but I was just so scared, and I... wasn’t very confident, and I didn’t know what was going to happen because I didn’t have any family in America, and it’s not possible if I go back to China. [¶] And... I didn’t know the law, and like I didn’t know that he could get into so much trouble, like what if he’s not in jail....”
Asked why she waited so long to tell anyone what had been going on, C.L. testified Austin told her: “[D]o not ever tell your mom, because if you have to tell your mom she is going to kill me and you’re going to end up in China. Do you want to go back to China?” Austin also said, “[Your mom] can’t survive here. Like her English is not good enough, like she could never survive in America by herself. It’s not possible. She can’t even get gas.”
The following colloquy occurred:
“Q. And were there any particular times where you were afraid of the defendant?
“A. When he – yes. He gets really, really angry and he gets really loud.
“Q. And is this something that happened only when you turned 14, or is this the way he’s kind of been since you’ve known him?
“A. Well, he’s gotten worse when I turned 14, but before that he was still very, very loud, and when him and my mom would get into an argument it’s really, really loud and he will like scream and yell and his face gets all red.”
On cross-examination, the following colloquy occurred:
“Q. He never physically forced you – he never restrained you physically or opened your legs physically, did he?
“A. Yes, he did.
“Q. He never... physically pried your legs open, did he?
“A. Yes, he did.
“Q. You never testified to that, did you?
“A. They never asked me.”
The colloquy further continued:
“Q. You testified that you didn’t know the law and you thought you had to comply?
“Q. And you never told him to stop until the last time, correct?
“Q. That’s the only time you told him to stop; is that true?
On May 9, C.L. told her martial arts instructor, Chad Moore, that Austin had been orally copulating her. She said it had happened four times over a six-month period, that things had not gone beyond oral sex, but Austin tried to have intercourse with her and she stopped him. She told Moore she was depressed and had thought about killing herself. Moore testified C.L. did not want Austin to find out she had talked about it. She told Moore, “... I don’t want him to know. I am afraid. He has a bad temper. He has guns. I don’t want him to shoot me.” The authorities were notified and C.L. was placed in foster care.
Detective Rich Simmons spoke with Austin on May 12. Simmons falsely suggested the police had recovered DNA evidence that could prove sexual contact between Austin and C.L. Austin denied watching pornographic videos with C.L., but said there were adult videos in the house which she might have watched on her own. He denied there had been any inappropriate touching. He said C.L. occasionally fell asleep in his bed while they were watching movies, but he would make her move to her own bed when she woke up. When Simmons said C.L. had accused him of asking her to sleep in his bed when her mother was away, Austin said that was “a fabrication, pretty much.” According to Austin, C.L. “fell asleep a couple of times in the bed. When we’re watching movies, she fell asleep.” Sometimes he, too, fell asleep and it’s possible he could have touched her “if I turned over and put my arm around her, or something like that... in my sleep.” He denied having ever never kissed C.L. in a “suggestive” way.
Simmons spoke to C.L. on May 13. Subsequently, he arranged for her to make two “pretext” telephone calls to Austin, who was out of custody by that time. During the first call, C.L. told Austin her mother had asked her to lie in order to protect him, “but... before I lie for you, I want to know why you did this to me.” Austin responded: “I thought I was doing what you wanted, ” “I didn’t want to hurt you, ” “I didn’t know I was making you so unhappy, ” and “I’m so sorry.” When C.L. asked why he wanted to have a sexual relationship with her, Austin replied: “Well, I was confused. I thought you wanted to.”
During the second phone call, C.L. asked what she should say to help him and Austin told her: “[Y]ou just have to say that you exaggerated, and you made it up... because you were really unhappy ‘cause your mom was in China, and you wanted your mom to come home, and you were mad at me.” Austin also said: “[J]ust say you exaggerated, and... stuff that you were dreaming, you were telling it like it was real.” “[Y]ou don’t have to say much. You... just say, ‘I made it up. I made it up. Uh, it’s not true. Wasn’t true. I wanted my mom to come home from China.’ And then stop. Don’t say anything more than that....” “The less you say, the better, and then you shut up, after that.” “That’s all I can tell you. And don’t tell them you talked to me.”
Joyce Medley, a marriage and family therapist, testified about Child Sexual Abuse Accommodation Syndrome (CSAAS). She said children often delay reporting sexual abuse due to feelings of helplessness and entrapment; that children can be afraid of how the report will affect their families. Medley testified it was possible for a sexually abused child to experience an orgasm even if the sexual contact was unwanted: “It is a purely physiological reaction, and if the clitoris gets enough stimulation, there will be an orgasm.” One of the coping mechanisms utilized by abused children is dissociation: “Frequently during sexual activity there can be a dissociation. The brain can go elsewhere, but the clitoris is right there.”
2. Defense evidence.
Austin’s biological daughter, Tamara, testified she had never experienced anything inappropriate while living with him.
1. The trial court erred by relieving defense counsel without giving Austin the choice of waiving a potential conflict of interest.
2. The trial court erred by admitting evidence of C.L.’s pretext phone calls to Austin.
3. The trial court did not properly respond to a jury question during deliberations.
4. CALCRIM No. 1193 incorrectly advised jurors they could consider the expert’s testimony about CSAAS in determining C.L.’s credibility.
5. The CSAAS expert’s testimony was improper because it went beyond the scope of her expertise.
6. The prosecutor committed misconduct by disparaging Austin during closing argument.
7. The prosecutor committed misconduct by vouching for C.L.’s honesty during closing argument.
8. There was cumulative error.
9. A request for juror identifying information should have been granted.
10. Austin’s post-trial Faretta motion for self-representation was improperly denied.
[[Begin nonpublished portion.]]
1. Trial court did not err by relieving defense counsel.
Austin contends the trial court erred by relieving defense counsel without giving Austin the choice of waiving a potential conflict of interest. This claim is meritless.
On May 6, 2010, prior to trial, the prosecutor informed trial judge Shari Silver and defense counsel Peter Swarth that she had just been given the recording of a jailhouse telephone call between Austin and his brother. During this call, Austin made statements suggesting Swarth had encouraged him to persuade Tamara, his biological daughter, to try to talk C.L. and/or her mother about not testifying against him.
As the prosecutor described the recording: “The defendant made numerous statements that his attorney, Peter Swarth, said that Tamara... could be helpful in explaining to the victim’s mom that the victim’s mom has a right to refuse to allow her daughter to testify. [¶] That, and I quote: Peter told me to tell Tamara the total exposure of the case... is approximately 40 years... which the defendant explained that that’s the rest of his life; that his life and death are in the hands of Tamara and/or the victim and the mother. The defendant also said that the judge is an ex-prosecutor and a female, the prosecutor is a female, and that the deck is stacked against him. [¶] And again, it said later on in the conversation that Peter suggested a serious talk with Tamara... about the case and what she can do to help.”
The prosecutor told the trial court she was not seeking Swarth’s removal from the case because, if anything, she was worried that additional delay would give Austin more time to influence the witnesses: “[P]erhaps Tamara Austin has, in fact, been contacted and has, in fact, agreed to make attempts to try to dissuade the victim and/or the mother from testifying. [¶] And so... I would, at a minimum, ask... that you admonish [Austin] to cease and desist, and that his phone privileges be revoked.”
On May 7, Swarth filed a motion to continue the trial, in which he stated: “Although I have worked diligently on preparing the Defendant’s case, I will not be ready to proceed with the trial for the following reasons: [¶] There exists a conflict of interests [sic] between the Defendant and his counsel which requires that he obtain new representation, in order to proceed to trial. [¶] Based on the foregoing, I request a continuance to a date when new counsel can appear which is convenient for the court and counsel.”
At the outset of the hearing on this motion to continue the trial, heard by Judge Robert Shuit, the following colloquy occurred:
“The Court:... Tell me why we’re here. I read the [motion to continue]. It’s a little light. So maybe you can just tell me what’s going on.
“Mr. Swarth: I’ll be happy to discuss my reasons for conflicting, Your Honor.
“The Court: Probably have to, because in order to rule on it, I’ve got to know.”
The prosecutor then described the contents of the first jailhouse recording, and also announced the police had just given her a second jailhouse recording. The second recording was of a phone call on May 3 between Austin and Tamara: “The defendant said to the daughter, and I quote as best I can, ‘There are ethical reasons why Peter [i.e., Swarth] can’t say some things that I can talk to you about, and I don’t know if Peter explained that to you, ’ because apparently the daughter has had a phone conversation with Mr. Swarth. [¶] The defendant says, ‘I’m begging you to come see me. I was hoping that this could all be avoided, and I really need you to come see me so I can talk to you. There are things that we can’t talk about on the phone.’ ”
Swarth responded to the prosecutor’s comments by saying: “I would disagree with many parts of counsel’s characterization of things, but I’m not disagreeing with her characterization, which she has not articulated specifically but which I believe is the undercurrent here, which is to suggest that I advised my client to do things... [t]hat essentially amount, in the prosecution’s view, to witness tampering.” The prosecutor reiterated her reluctance to ask for Swarth’s removal: “I understand that there may be a conflict here, but I ask that it be looked at closely. Because if there is another continuance, that just gives Mr. Austin more time and more opportunity to try and dissuade the witness in this case.” Swarth rejoined, “I would simply note that I’m not spending time arguing or countering counsel’s characterization of what she thinks the tape shows in terms of criminal conduct. I would strongly disagree with her that there is any criminal conduct on the tape.”
After listening to the first jailhouse recording, the judge met with Swarth outside the presence of both the prosecutor and Austin. At the outset of ...