F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel with a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. He challenges a judgment of conviction
entered against him on June 30, 2010, in the Sacramento
County Superior Court on three counts of lewd and lascivious
acts upon a minor under 14 years of age. He seeks federal
habeas relief on the grounds that the trial court violated
his right to due process in admitting expert testimony
regarding Child Sexual Abuse Accommodation Syndrome.
careful consideration of the record and the applicable law,
the court finds that petitioner's application for a writ
of habeas corpus must be denied.
unpublished memorandum and opinion affirming petitioner's
judgment of conviction on appeal, the California Court of
Appeal for the Third Appellate District provided the
following factual summary:
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 Limine Hearing
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
FN2. At the hearing on the motion in limine, the trial
court began its review with "the People's motions
in limine, " and referred to the motion seeking to
admit testimony regarding CSAAS as "[i]n limine
three." The prosecution's motions in limine are
not part of the record on appeal.
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
told the pastor, who called law enforcement.
Sheriff's deputies arranged a meeting at a parking lot,
where K. told a deputy what had happened. At some point,
defendant arrived at the parking lot. The mother told the
deputy that K. had made up stories in the past when she
felt defendant was ignoring her. K. saw the deputies take
defendant aside to talk to him, and this made her feel
"weird." She testified, "I didn't want
to tell but I had to." But after the deputies were
finished talking to defendant, K. told the deputy that
defendant did not do anything. K. testified that she
recanted because the deputies told her defendant did not do
anything and accused her of lying.
Later, K. told her mother she lied when she recanted, and
defendant really did what she first said. The mother took
K. to the emergency room. A deputy sheriff met them there
and took a statement from K., who said defendant made her
rub his penis; he pulled down her pants and panties; he
placed his finger inside her vagina; he climbed on top of
her; and he forced his penis into her vagina. K. told the
deputy that she had lied earlier when she said she made up
the story; she believed that was what the deputies wanted
to hear. K. admitted she had fabricated a claim of abuse
against defendant several years prior, but this time it was
K. also testified that defendant had removed her clothing
and put his mouth on her vagina a couple of years before
the 2006 abuse, when she and one of her sisters were riding
with defendant in his truck. She never previously told
anyone about that incident.
The defense used cross-examination of K. to attack her
credibility, eliciting that (1) she had the opportunity to
disclose the abuse to her mother or sisters as they were
getting ready to go to church, but she failed to do so; (2)
she changed her story and recanted when speaking with the
deputies; and (3) she lied about being abused in the past.
The defense similarly challenged Ki.
Dr. Anthony Urquiza, a psychologist, testified as a
prosecution expert in CSAAS. Immediately before he
testified, the trial court admonished the jury: "You
are about to hear testimony regarding the Child Sexual
Abuse Accommodation Syndrome. This testimony is not
evidence that the defendant committed any of the charged
offenses. You may consider this evidence only in deciding
whether or not [K.]B.'s and [Ki.]S.'s conduct was
not inconsistent with the conduct of someone who has been
molested and in evaluating the believability of each
Dr. Urquiza testified that the term CSAAS had been coined
by a psychiatrist, Dr. Roland Summit, who published an
article about it in 1983 "specifically to educate
people who would be treating sexually abused children, so
therapists, . . . would get rid of any misperceptions or
myths or misunderstandings that they had about sexual
abuse" so "they would then be able to do a better
job of treating that child and ideally a better job of
dealing both with the child and the child's
Dr. Urquiza testified that CSAAS has five components: (1)
secrecy, (2) helplessness, (3) entrapment and
accommodation, (4) delayed and unconvincing disclosure, and
(5) retraction. Secrecy deals with the abuser's efforts
to coerce the child into keeping quiet. Helplessness
addresses the misconception that people have that children
will run away if someone tries to abuse them. Research has
shown children are vulnerable and unable to protect
themselves, and even more so when they have a relationship
with an abuser who has some control over them. Entrapment
describes the victim's sense of being "stuck"
in the situation because s/he cannot tell anybody about the
abuse and cannot stop it from happening again. As a result
a victim accommodates by coping - managing one's
feelings - sometimes leading to disassociation. Delayed
disclosure addresses the misconception that an abuse victim
will report the abuse right away. Research shows that,
while some do report abuse right away or soon thereafter, a
significant number of victims do not report it right away,
and some may take months or even years before they are able
to tell someone. Dr. Urquiza opined that most children have
a delay in disclosure but some children disclose
"relatively soon" after the incident.
Unconvincing disclosure addresses the reporting
inconsistencies that are typical with children. Dr. Urquiza
testified that Dr. Summit had spoken of children disclosing
a little and then disclosing more if they felt safe doing
so, which could appear unconvincing. Dr. Urquiza said
inconsistencies are typical with children because they are
usually better at describing the big picture than the
details. The fifth behavior - retraction - addresses
children who disclose and then take it back. Although Dr.
Summit's 1983 article said retraction was
"common" in children, Dr. Urquiza opined from the
research that retraction occurs only with approximately
one-fourth of children who have been sexually abused.
However, a child is more likely to retract allegations when
the abuser is a family member and/or pressure is put on the
child to take back the allegation.
On cross-examination, Dr. Urquiza said CSAAS is "an
educational tool, not a diagnostic tool. So the purpose of
using it to diagnose or to say that a particular person is
abused because they meet certain criteria would be
improper." CSAAS does not purport to prove sexual
abuse, and the theories are irrelevant unless there is
first an assumption that abuse has occurred. When asked to
confirm that CSAAS should not be used to determine whether
a person is a perpetrator of a particular incident, Dr.
Urquiza responded, "Well, I would go even further by
saying it is not my place or the place of any mental health
provider to provide an opinion about whether a particular
person was abused or not, or whether a particular person
was the perpetrator or not. That would be an improper
opinion for me to have. That is a responsibility of people
who serve on the jury." Dr. Urquiza said he had never
met or spoken with K. or Ki. Dr. Urquiza acknowledged that
Dr. Summit had written a subsequent article, in which he
expressed concern that CSAAS was being misused, with
prosecutors trying to diagnose abuse, and defense attorneys
arguing that alleged victims who did not match all five
CSAAS factors had not been abused.
A pediatric nurse practitioner, who examined K. and
testified numerous times as an expert in child sexual
assault exams, said she examined K. on January 29, 2007,
and noticed irregularities on her hymen, but given her
stage of puberty, the nurse was unable to say whether or
not K. had been sexually abused.
Criminalists tested K.'s blanket and found semen, and
the profile from the sperm was consistent with
defendant's DNA profile. Epithelial cells consistent
with K.'s DNA profile were mixed with the sperm. The
profile from the sperm found in the blanket sample occurred
in one in 100 quintillion of the African-American
population, one in four quintillion of the Caucasian
population, and one in 640 quadrillion of the Hispanic
The defense called as a witness Deputy Dennis Peyton, who
took statements from K. and her mother at the hospital. He
recalled that the mother said K. came out of her bedroom on
the night of the incident and said "Daddy made my bed.
You can come sleep with me tonight." The mother also
said she saw K. and defendant talking in the living room
around 3:00 a.m., and K. did not say anything at that time
about being molested.
The defense called as a witness Margaret Taylor, the deputy
sheriff who responded to the parking lot and spoke with K.
She testified that the mother did not believe K. The mother
said K. had made up stories in the past for attention.
Deputy Taylor confronted K. with what her mother had said.
K. admitted she had made up stories in the past, but stated
that the current allegations were true. While defendant was
being interviewed by Deputy Taylor's partner, K. told
Deputy Taylor that defendant did not do anything. K. seemed
remorseful that she had wasted the deputies' time.
Taylor concluded a crime report was not warranted.
At the end of the trial, the court instructed the jury on
CSAAS for the second time: "You have heard testimony
from Dr. Anthony Urquiza regarding child sexual abuse
accommodation syndrome. [¶] Dr. Urquiza's
testimony about [CSAAS] is not evidence that the defendant
committed any of the crimes charged against him. [¶]
You may consider this evidence only in deciding whether or
not [K.] B.'s or [Ki.]S.'s conduct was not
inconsistent with the conduct of someone who has been
molested and in evaluating the believability of their
Verdict and Sentencing
The jury returned verdicts finding defendant guilty on
counts one, two, and three involving victim K. The jury was
unable to reach a verdict on counts four and five involving
On September 24, 2010, the trial court sentenced defendant
to the upper term of eight years on count one, with
consecutive two-year sentences - one-third the midterm - on
each of counts two and three, for a total of 12 years.
People v. Dutton, No. C066358, 2012 WL 3264554, at
**1-4 (Cal.App.3d Dist. Aug. 13, 2012).
the California Court of Appeal affirmed petitioner's
judgment of conviction, he filed a petition for review in
the California Supreme Court. Resp't's Lodg. Doc.
5. That petition was summarily denied. Id.
Standards of Review Applicable to Habeas Corpus
application for a writ of habeas corpus by a person in
custody under a judgment of a state court can be granted
only for violations of the Constitution or laws of the
United States. 28 U.S.C. § 2254(a). A federal writ is
not available for alleged error in the interpretation or
application of state law. See Wilson v. Corcoran,
562 U.S.__, __, 131 S.Ct. 13, 16 (2010); Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); Park v.
California, 202 F.3d 1146, 1149 (9th Cir. 2000).
28 U.S.C. § 2254(d) sets forth the following standards
for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim -
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
purposes of applying § 2254(d)(1), "clearly
established federal law" consists of holdings of the
United States Supreme Court at the time of the last
reasoned state court decision. Thompson v.
Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing
Greene v. Fisher, __U.S. __, 132 S.Ct. 38 (2011);
Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir.
2011) (citing Williams v. Taylor, 529 U.S. 362,
405-06 (2000)). Circuit court precedent "may be
persuasive in determining what law is clearly established
and whether a state court applied that law
unreasonably." Stanley, 633 F.3d at 859
(quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th
Cir. 2010)). However, circuit precedent may not be
"used to refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that
th[e] [Supreme] Court has not announced." Marshall
v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (citing
Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012)
(per curiam)). Nor may it be used to "determine
whether a particular rule of law is so widely accepted
among the Federal Circuits that it would, if presented to
th[e] [Supreme] Court, be accepted as correct. Id.
Further, where courts of appeals have diverged in their
treatment of an issue, it cannot be said that there is
"clearly established Federal law" governing that
issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).
state court decision is "contrary to" clearly
established federal law if it applies a rule contradicting
a holding of the Supreme Court or reaches a result
different from Supreme Court precedent on "materially
indistinguishable" facts. Price v. Vincent,
538 U.S. 634');">538 U.S. 634, 640 (2003). Under the "unreasonable
application" clause of § 2254(d)(1), a federal
habeas court may grant the writ if the state court
identifies the correct governing legal principle from the
Supreme Court's decisions, but unreasonably applies
that principle to the facts of the prisoner's
case.Lockyer v. Andrade, 538 U.S.
63, 75 (2003); Williams, 529 U.S. at 413; Chia
v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this
regard, a federal habeas court "may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable."
Williams, 529 U.S. at 412. See also Schriro v.
Landrigan, 550 U.S. 465, 473 (2007); Lockyer,
538 U.S. at 75 (it is "not enough that a federal
habeas court, in its independent review of the legal
question, is left with a ‘firm conviction' that
the state court was ‘erroneous.'"). "A
state court's determination that a claim lacks merit
precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision."
Harrington v. Richter, 562 U.S.__, __, 131 S.Ct.
770, 786 (2011) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). Accordingly, "[a]s a
condition for obtaining habeas corpus from a federal court,
a state prisoner must show that the state court's
ruling on the claim being presented in federal court was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement."
Richter, 131 S.Ct. at 786-87.
the state court's decision does not meet the criteria
set forth in § 2254(d), a reviewing court must conduct
a de novo review of a habeas petitioner's claims.
Delgadillo v. Woodford, 527 F.3d 919, 925 (9th
Cir. 2008); see also Frantz v. Hazey, 533 F.3d
724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear
both that we may not grant habeas relief simply because of
§ 2254(d)(1) error and that, if there is such error,
we must decide the habeas petition by considering de novo
the constitutional issues raised.").
court looks to the last reasoned state court decision as
the basis for the state court judgment. Stanley,
633 F.3d at 859; Robinson v. Ignacio, 360 F.3d
1044, 1055 (9th Cir. 2004). If the last reasoned state
court decision adopts or substantially incorporates the
reasoning from a previous state court decision, this court
may consider both decisions to ascertain the reasoning of
the last decision. Edwards v. Lamarque, 475 F.3d
1121, 1126 (9th Cir. 2007) (en banc). "When a federal
claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state
court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the
contrary." Richter, 131 S.Ct. at 784-85. This
presumption may be overcome by a showing "there is
reason to think some other explanation for the state
court's decision is more likely." Id. at
785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991)). Similarly, when a state court decision on a
petitioner's claims rejects some claims but does not
expressly address a federal claim, a federal habeas court
must presume, subject to rebuttal, that the federal claim
was adjudicated on the merits. Johnson v.
Williams, __ U.S. __, __, 133 S.Ct. 1088, 1091 (2013).
the state court reaches a decision on the merits but
provides no reasoning to support its conclusion, a federal
habeas court independently reviews the record to determine
whether habeas corpus relief is available under §
2254(d). Stanley, 633 F.3d at 860; Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
"Independent review of the record is not de novo
review of the constitutional issue, but rather, the only
method by which we can determine whether a silent state
court decision is objectively unreasonable."
Himes, 336 F.3d at 853. Where no reasoned decision
is available, the habeas petitioner still has the burden of
"showing there was no reasonable basis for the state
court to deny relief." Richter, 131 S.Ct. at
summary denial is presumed to be a denial on the merits of
the petitioner's claims. Stancle v. Clay, 692
F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal
court cannot analyze just what the state court did when it
issued a summary denial, the federal court must review the
state court record to determine whether there was any
"reasonable basis for the state court to deny
relief." Richter, 131 S.Ct. at 784. This
court "must determine what arguments or theories ...
could have supported, the state court's decision; and
then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the
Supreme] Court." Id. at 786. The petitioner
bears "the burden to demonstrate that ‘there was
no reasonable basis for the state court to deny
relief.'" Walker v. Martel, 709 F.3d 925,
939 (9th Cir. 2013) (quoting Richter, 131 S.Ct. at
it is clear, however, that a state court has not reached
the merits of a petitioner's claim, the deferential
standard set forth in 28 U.S.C. § 2254(d) does not
apply and a federal habeas court must review the claim de
novo. Stanley, 633 F.3d at 860; Reynoso v.
Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006);
Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir.
Petitioner's Due Process Claim
sole claim for relief is that the trial court's
admission of expert testimony on the topic of Child Sexual
Abuse Accommodation Syndrome rendered his trial
fundamentally unfair, in violation of his right to due
process. ECF No. 1 at 5, 27. Petitioner argues that
"the expert's testimony was not material to an
issue in the case and therefore not probative, but was
otherwise unduly prejudicial and violated
[petitioner's] rights to due process, a fair trial, and
to confront the witnesses against him." Id.
at 28. He also argues that the limiting instruction given
by the trial court, which informed the jurors how to
evaluate the CSAAS testimony, "would not have had the
desired effect" because the testimony was "so
prejudicial and suggestive."Id. at 39.
State Court Decision
California Court of Appeal denied this claim on direct
appeal. The court reasoned as follows:
Defendant argues the trial court improperly allowed expert
evidence on CSAAS, because (1) no foundation was laid that
any myths or misconceptions still remained in the general
public in 2010 when the trial was held, and (2) the
putative myths did not pertain to this case. We are not
It is well settled that while CSAAS testimony is
inadmissible to prove that a molestation occurred, it is
nevertheless admissible to rehabilitate a putative
victim's credibility when the defense suggests the
child's conduct after the incident is inconsistent with
the claim of abuse. (People v. McAlpin (1991) 53
Cal.3d 1289, 1300 (McAlpin); People v.
Patino (1994) 26 Cal.App.4th 1737, 1744
(Patino).) "‘Such expert testimony is
needed to disabuse jurors of commonly held misconceptions
about child sexual abuse, and to explain the emotional
antecedents of abused children's seemingly
self-impeaching behavior.'" (McAlpin,
supra, 53 Cal.3d at p. 1301.) "[I]t is the
People's burden to identify the myth or misconception
the evidence is designed to rebut." (People v.
Bowker (1988) 203 Cal.App.3d 385, 394.) However, this
does not mean the prosecutor must expressly state on the
record the evidence that is inconsistent with molestation.
(Patino, supra, 26 Cal.App.4th at p. 1744.)
Rather, it suffices that the victim's credibility is
placed in issue due to paradoxical behavior. (Id.
at pp. 1744-1745.) Even before cross-examination, the
victim's direct examination may place credibility in
issue for purposes of allowing CSAAS evidence. (People
v. Housley (1992) 6 Cal.App.4th 947, 956 [victim
directly placed her credibility in issue by retracting her
A trial court's decision to admit CSAAS evidence will
not be disturbed on appeal absent a manifest abuse of
discretion. (McAlpin, supra, 53 Cal.3d at p.
Defendant fails to show abuse of discretion. He argues no
foundation was laid that the general public in 2010 had any
myths or misconceptions about child sexual abuse. He quotes
a dissenting opinion in a 1973 case - which did not involve
CSAAS - that the average juror was sophisticated and
knowledgeable and in many cases as educated as law school
graduates. (People v. Johnson (1973) 32 Cal.App.3d
988, 1003 (dis. opn. of Gardner, P.J.) [dissenting with the
majority opinion, which reversed a murder conviction for
improper admission of confessions the defendant made after
taking a truth serum].)
However, a dissenting opinion has no controlling weight.
(See People v. Ceballos (1974) 12 Cal.3d 470,
483.) Moreover, the myths and misconceptions about child
sexual abuse are well-established in case law. (E.g.,
McAlpin, supra, 53 Cal.3d 1289.) Defendant cites
no evidence that the public has become so well informed
about child sexual abuse that CSAAS evidence is no longer
necessary. To the contrary, the Supreme Court in 2004
reiterated the admissibility of CSAAS evidence in
concluding by analogy that expert evidence of behavior of
domestic violence victims was admissible. (People v.
Brown (2004) 33 Cal.4th 892, 904-907, citing
McAlpin, supra, 53 Cal.3d 1289.) Expert testimony
is admissible on any subject "sufficiently beyond
common experience that the opinion of an expert would
assist the trier of fact." (Evid.Code, § 801,
subd. (a); Brown, supra, 33 Cal.4th at p. 905.)
Defendant's second point, that CSAAS was not pertinent
to this case, is based on two fallacies: (1) that delayed
disclosure is "generally, the only type of behavior to
which [CSAAS] evidence is relevant, " and (2) that
delayed disclosure was not at issue in this case. Defendant
is wrong on both counts.
Defendant cites the court's statement in
Patino that CSAAS evidence is admissible if
"the victim's credibility is placed in issue due
to the paradoxical behavior, including a delay in reporting
a molestation" (Patino, supra, 26 Cal.App.4th
at pp. 1744-1745), for the proposition that such evidence
is only admissible when there is delayed reporting. (AOB
23) Defendant ignores the word "including" and
cites no authority that delayed disclosure is a
prerequisite for CSAAS evidence.
In any event, delayed disclosure was at issue in this case.
K. did not tell anyone about the incident immediately after
it happened, nor did she tell anyone the next morning
before the family went to church. She delayed reporting the
incident until she got to Bible study. In closing argument,
defense counsel did raise the point that K. spoke with her
mother immediately after the incident but, according to the
mother, all that was said was something about head lice or
someone knocking at a window. In any event, regardless of
how much or little emphasis was given by the defense,
reasonable jurors could have viewed the short delay in
reporting as paradoxical behavior for an abuse victim.
Defendant cites cases involving longer delays, including a
case in which the witness said it was common for children
to delay reporting for years. (In re S.A. (2010)
182 Cal.App.4th 1128, 1148.) Defendant tries to extract a
rule that the delay must be a significant enough period of
time, in and of itself, to raise a doubt about the
witness's veracity. Defendant's extrapolation is
unavailing. Cases are not authority for propositions of law
not therein considered. (People v. Scheid (1997)
16 Cal.4th 1, 17.) Moreover, as we have noted, K. also
testified about a prior molestation that had taken place a
couple of years before the charged molest. She explained
that she had never previously told anyone about that
Defendant cites authority that CSAAS evidence must be
targeted and limited to specifically identified
misconceptions. (People v. Bergschneider (1989)
211 Cal.App.3d 144, 158-159 (Bergschneider),
overruled on another ground in People v.
Griffin (2004) 33 Cal.4th 1015, 1028.) However, this
does not require the prosecutor "to expressly state on
the record the evidence which is inconsistent with the
finding of molestation. It is sufficient if the
victim's credibility is placed in issue due to the
paradoxical behavior . . . ." (Patino, supra,
26 Cal.App.4th at p. 1744.) Here, the relevance of CSAAS
evidence was apparent because the victim did not
immediately report the incident and later recanted the
accusation. The expert briefly spoke of all five prongs of
CSAAS: (1) secrecy, (2) helplessness, (3) entrapment and
accommodation, (4) delayed and unconvincing disclosure, and
(5) retraction. Based on the evidence, all were present
here except for accommodation. There was evidence of
secrecy in K.'s testimony that she felt coerced not to
tell because defendant previously said he would kill her.
There was evidence of helplessness and entrapment in
K.'s testimony that she did not jump out of bed or
scream as soon as the molestation started, but instead
waited for defendant to go to the bathroom, and did not
resist when he stopped her from leaving. As we have noted,
there was evidence of delayed disclosure, in that K. did
not report the molestation that night or the next morning
until she got to Bible study, and she never previously
reported the prior molestation. There was evidence of
retraction, as K. later recanted the accusation while
defendant was standing nearby being interviewed by the
We conclude the trial court did not abuse its discretion in
admitting the evidence.
Even assuming for the sake of argument that delayed
disclosure was not at issue or that the expert's
testimony was overbroad in describing all five prongs of
CSAAS, any error was harmless because it is not reasonably
probable that a result more favorable to defendant would
have been reached in the absence of the CSAAS evidence.
(People v. Prieto (2003) 30 Cal.4th 226, 247.)
Defendant claims the evidence rendered the trial unfair in
violation of his due process rights, requiring a prejudice
analysis under the standard of Chapman v.
California (1967) 386 U.S. 18 [17 L.Ed.2d 705].
However, "introduction of CSAAS testimony does not by
itself deny appellant due process." (Patino,
supra, 26 Cal.App.4th at p. 1747.) And defendant fails
to show that the evidence rendered his trial unfair.
Here, although the expert generally described all five
prongs of CSAAS, he did not elaborate, and the expert's
testimony consumes only 40 pages of reporter's
transcript, more than half of which is cross-examination by
defense counsel. (Bergschneider, supra, 211
Cal.App.3d at pp. 159-160 [CSAAS evidence, though broader
than necessary, was harmless].) And the trial court
instructed the jury twice on the limited use of this
evidence. Moreover, while defendant describes this as a
close case that was essentially a credibility contest,
defendant's semen was found on K.'s blanket.
Defendant suggests prejudice is shown because the jury
deadlocked on the charges involving Ki., and he views the
CSAAS evidence as directed to K. despite the fact that her
name was not used. However, defense counsel did call Ki. a
liar in closing argument to the jury, based in part on her
earlier retraction of abuse accusations she made against
defendant and based on inconsistencies in her story.
Moreover, the fact that the jury deadlocked as to Ki. shows
the jury was not unduly swayed by the expert evidence.
We see no grounds for reversal.
Dutton, 2012 WL 3264554 at ** 4 -6.
Applicable Legal Standards
federal habeas petitioner "bears a heavy burden"
in showing a due process violation based on an evidentiary
decision by a state trial court. Boyde v. Brown,
404 F.3d 1159, 1172 (9th Cir. 2005). Evidence violates due
process only if "there are no permissible inferences
the jury may draw from the evidence" and it is of
"such quality as necessarily prevents a fair
trial." Jammal v. Van de Kamp, 926 F.2d 918,
920 (9th Cir. 1991) (quoting Kealohapauole v.
Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986)). A writ
of habeas corpus will be granted for an erroneous admission
of evidence "only where the ‘testimony is almost
entirely unreliable and . . . the factfinder and the
adversary system will not be competent to uncover,
recognize, and take due account of its
shortcomings.'" Mancuso v. Olivarez, 292
F.3d 939, 956 (9th Cir. 2002) (quoting Barefoot v.
Estelle, 463 U.S. 880, 899 (1983)). The Ninth Circuit
has also observed that:
The Supreme Court has made very few rulings regarding the
admission of evidence as a violation of due process.
Although the Court has been clear that a writ should be
issued when constitutional errors have rendered the trial
fundamentally unfair (citation omitted), it has not yet
made a clear ruling that admission of irrelevant or overtly
prejudicial evidence constitutes a due process violation
sufficient to warrant issuance of the writ.
Holley v. Yarborough, 568 F.3d 1091, 1101 (9th
Cir. 2009). Therefore, "under AEDPA, even clearly
erroneous admissions of evidence that render a trial
fundamentally unfair may not permit the grant of federal
habeas corpus relief if not ...