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Filed 11 /24/15 P. v. Ruel a s CA3 NOT TO BE PUBLISHED

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). Thi s opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
MIGUEL ANG EL RUELAS ,

Defendant and Appellant. C077651
(Super. Ct. No. SF124267A)

A jury found defendant Miguel Angel Ruelas guilty of one count of a sex crime
with a child 10 years or younger (Pen. Code , 1 § 288.7, subd. (a)) and one count of
continuous se xual abuse of a child ( § 288.5, subd. (a)). On appeal, defendant contends
that the trial court prejudicially er red by instructing the jury with CALCRIM No. 1193 relating to c hild sexual abuse accommodation syndrome . We disagree and affirm.

1 Unless otherwise specified, all further statutory references are to the Penal Code.2 FACTUAL AND PR OCEDURAL BACKGROUND
A Procedural History Defendant was tried twice on these charges. The first trial ended on March 20,
2014 , with the trial court declaring a mistrial after determining the jury was unable to
reach a verdict.
A second trial commenced on Au gust 25, 2014. On September 10, 2014, the jury
found defendant guilty of both counts

. On October 27, 2014, the trial court sentenced
defendant to 37 years to life

. Defendant filed a timely notice of appeal

. B
The Trial Evidence
In or around 2002, V

. M

. began a relat ionship with defendant

. At that time, M

. had

a son Ma. and a daughter M. , who w ere around two years old

. V. M

. and defendant
married in or around 2005 and their relationship ended in April 2008

. During their relationship, V. M

. gave birth to two children, Jasmine and Julian. From around June 2008 to May 7, 2013, Ma. , M. , Jasmine, and Julian stay ed with defendant on the
weekends. At trial, M. identified defendant as her former stepfather and testified defendant

“ stuck his penis in [her] but t” when she was eight years old. She further testified
defendant threatened to kil l her if she told anybody about what had happened

. M. also
testified defendant put his penis in her butt on several other occasions when she was between the ages of 9 and 1 2

. According to M. , defendant continued to threaten to kill
her if she tol d anybody about the abuse

. On May 7, 2013, M. approached a yard duty supervisor at her elementary school
and told her she had been abused. Later that same day, M. met with one o f the school’s
vice principals and told her she had been repeatedly molested by defendant

. The vice principal subsequently contacted law enforcement officials

.3

On May 8, 2013, Detective Clarence Yates of the Stockton Police Department investiga t ed M. ’s allegations . As part of th e investigation, Detective Yates arranged for
M. to place a p retext phone call to defendant for the purpose of obtaining an admission, apology, and/or explanat ion from defendant

. During a recorded call at 6:20 p.m. on May 8, 20 13 , 2 M. informed defendant she t hought she was pregnant because she had missed her period after he had “put [his] thingy in [her] butt on Sunday.” Defendant responded : “ I t can not happen that way

. . . you’re alright mama.” In response to M. ’s

statement “you promised that you [wouldn’t] do it again,” defendant replied: “Yah, that’s it. Done. Over . [¶] . . . [¶] Finished.” On May 13, 2 013, Jeff

r e y Thompson , a physician ’s assistant, performed a

non acute forensic medical examination 3 on M. Thompson testified the purpose of the
examination was to determine whether an y signs or symptoms of sexual abuse were present, e.g., bruising, abrasions , scars, infection, swelling. Thompson found no physical signs suggesting an y penetra ting trauma to M. ’s anogeni tal area, i.e., the area relating to
M. ’s anus and genitalia. Thompson , however, noted that such a finding is not uncommon given the timing between the most recent alleged sexual assault and the examination. According to Thompson, in a nonacute “setting, ” it is “not unusual and it’s most likely” a person will have a normal physical exam, i.e., no physical findings of sexual assault

. In his experience of performing over 2,000 forensic medical examinations, Thompson estimated he had only found evidence of trauma consistent with sex ual assault during a

non acute forensic examination approximately 3 percent of the time. He testified the lack

2 A digital recording of this conversation was played for the jury. A transcript of the recording was prepared by Detective Yates and admitted into evidence

.
3 A non acute forensic sexual assault examination occurs more than 72 hours after an assault while an acute forensic sexual assault examination occurs within 72 hours of the assault.4

of medical findings relating to penetrating trauma d id not negate the fact anal penetration
could have occurred. He st ated the most important way to determine whether a sexual assault has occurred is “[u]sually the history provided by the victim.” He further stated his medical findings are not in consistent with someone reporting he or she ha d been
sod omized over a period of time.
David Love , a licensed marriage and family therapist, testified as an expert for the prosecution regarding c hild sexual abuse accommodation syndrome

. 4 Love testified child sexual abuse accommodation syndrome is a description of certain sympt oms or signs common in child sexual assault victims. He explained the elements of the syndrome include secrecy ; helplessness ; entrapment and accommodation ; delayed, conflicting or unconvincing disclo sure ; and retraction. He testified for someone to

succe ssfully molest a child , he or she go through a process called “grooming,” which
includes befriending the child, getting to know the child , and finding out whether he or
she is in a position of power and c ontrol such that the child will not tell anyone abou t the
molestation . According to Love, the strategies molesters use to control a child range from threat and fear to seduction. He further testified most children (94 percent ) are sexually abused by a person they have a preexis ting relationship with, and it is a myth

4 During the prosecutor’s direct examination of Love, defendant requested the court instruct the jury about the syndrome . The trial court grante d defendant’s request and instructed the jury with CALCRIM No. 1193 as follows: “You are hearing testimony from David Love regarding [ the syndrome]. Mr. Love’s testimony about [ the syndrome ] 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 M. ’s conduct was not inconsistent with the conduct of someone who has been molested[,] and [in] evaluating the believability of her testimony.” The same instruction was g iven at the close of trial.5

that sexually abused children will run away, yell, s cream, or fight off the molester . He
also testified children are often reluctant t o report sexual abuse out of conce rn nobody
will believe them

. He explained children who are sexually ab used experience overwhelming fears which immobilize them from taking action for their safety; they just try to survive and make the best out of the situation , including repeated cont act with the
molester and disassociation, i.e., mental detachment from rea lity

. Finally , Love testified
it is not uncommon for a victim to delay in disclosing sexual abuse and to have an inability to recall events , including the number of times the abuse has occurred . He also
noted some victims will retract their allegations o f sexual abuse for reasons unrelated to
whether the abuse actually occurred.
On cross

- examination, Love clarified that his testimony regarding the syndrome
was not meant to be u sed as a formula or diagnostic tool to determine whether an individual child such as M. was telling the truth about being molested

. Rather, h e stated his testimony was meant to provide an overview of the “generic” things acade mics have taught about childre n who have been sexually abused . He explained the purpose of h is testimony was to educate jurors about how sexually abused children act so the jurors
could draw their own conclusions as to whether M. was telling the truth. For instance, h e explained he did not want the jurors to conclude M. was not molested because it makes

“ no sense ” that a child would delay in disclosing abuse . He also explained it would be improper for a juror to conclude a child such as M. was molested because one or more of
the syndrome factors (e.g., delay in disclo sure) were present. Love concluded his

t estimony by telling the jury he did not speak with M. prior to testifying and was not provided with any information about this case

.6

The defense called two witnesses at trial: Ma. and defendant

. Ma. ( M. ’s brother)
testified he never saw any inappropri ate behavior between M. and defendant

. For his part, defendant testified he never put his penis in M. ’s anus or touched her in a sexual
way. With respect to the pretext call, defendant testified the conversation was not clear
and when he received the cal l he was getting high on drugs wit h a friend . He further testified he thought M. was talking about her boyfriend when she told him she might be pregnant because “ [y] ou put your thingy in my butt on Sunday.” According to defendant , he did not hear M. say the word “you.” Defendant also testified he th ought M. was referring to the inc ident where he punched her in the face 5 when he told her: “Y ah, that’s
it. Done. Over . [¶] . . . [¶] Finished , ” in response to M. ’s request for defendant to promise not to “do it again.”
DISCUSSION
Defendant contends the trial court erred by instructing the jury with CALCRIM
No. 1193 beca use the instruction improperly invite s jurors to use expert testimony regarding the syndrome to eval uat e the believability of a complain ing witness

. According to defendant , CALCRIM No. 1193 is “erroneous” because it improperly

“ endorsed ” the jury’s use of Love’ s syndrome testimony to bolster M. ’s c redibility, thereby assist ing the prosecution in proving the ch arges against him

. Defendant argues that by invitin g the jury to find M. more credible based on the expert testimony,
CALCRIM No. 1193 led the jury to convict defendant on a lesser showing than due process requires. We disagree.
Numerous courts have fo und expert testimony concernin g c hild sexual abuse accommodation syndrome properly admitted in sexual abuse cases. ( See , e.g., People v.

5 Defendant admitted to punching M. in the face a couple of weeks before she disclosed the abuse. Defendant testified he punched M. out of anger after discovering she had used a cell phone to take pictures of herself in a br a and panties for her boyfriend.7

Wells (2004) 118 Cal. App.4th 179, 188; People v. Yovanov (1999) 69 Cal. App.4th 392,
406

- 407.) In People v. McAlpin (1991) 53 Cal. 3d 1289 , our Supre me Court explained
that “expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness’s credibility when the de fendant suggests that the child’s conduct after the incident

— e.g., a delay in reporting

— is inconsistent with his or her testimony claiming molestation. [Citations.] ‘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.’ ” ( Id. at pp. 1300

- 1301, fn

. omitted.) Generally, absent a request by the defendant, a trial court has no sua sponte duty to give a l imiting instruction. ( People v. Smith (2007) 40 Cal. 4th 483, 516.) However, in People v. Housley (1992) 6 Cal. App.4th 947 , the appellate court concluded that because of the potential misuse of syndrome evidence and the potential for great prejudice to th e defendant if such evidence is misu s ed, trial courts have a sua sponte duty to instruct the jury on the use of evidence of the syndrome as follows : “ (1) such evidence is admiss ible solely for the purpose of showing the victim’ s reactions as demonstrated by the evidence are not inconsistent with having be en molested; and (2) the expert’ s testimony is not
intended and should not be used to determine whether the victim’ s molestation claim is

true. ” ( Id . at pp. 958

- 959.) The court reasoned it is appropriate to impose such a duty on trial courts because expert testimony regarding the syndrome “ easily could be misconstrued by the jury as corroboration for the victim’ s claims ” ; noting “ where the case boils down to the victim’s word against the word of the accus ed, such evidence could unfairly tip the balance in favor of the prosecution. ” ( Id. at p. 958 [explaining that an instruction clearly defining the proper u se of syndrome evidence will prevent the jury from accepting the expert’s testimony as proof of the claimed molestation].)8

Appellate courts independently determine whether a jury instruction correctly
states the law. ( People v. Riley (2010) 185 Cal. App.4th 754, 767.) Review of the adequacy of an instruction is ba sed on whether the trial court fully and fairly inst ructed on the applicable law. ( Ibid. ) When reviewing a purportedly erroneous instruction, we inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. ( Peop le v. Richardson (2008)
43 Cal. 4th 959, 1028.) In determining whether error has been committed in giving a jury
instruction , courts must consider t he instruction as a whole and assume that the jurors are intelligent persons and capable of under standing an d correlating all the instructions which are given. ( Riley , at p. 767.) A jury instruction should be interpreted, if possible, so as to support the judgment rather than defeat it if it is reasonably suscep tible to such interpretation. ( Ibid .) Here, the jury was instructed with the standard version of CALCRIM No. 1193 as follows: “You are hearing testimony from David Love regarding [ the syndrome ]. [¶] Mr. Love’s testimony about [ the syndrome ] is not evidence that the defendant committed any of the crim es charged against him. [¶] You may consider this evidence only in deciding whether or not M. ’s conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony.” The trial
court also i nstructed the jury on the reasonable doubt standard set forth in CALCRIM No.
220. Defendant did not object to CALCRIM No. 1193 in the trial court. 6
T he trial court did not err in instructing the jury with CALCRIM No

. 1193. The
instruction comports with McAlpin and Housley

. E vi dence regarding the syndrome is

6 Generally, a party’s failure to object to a jury instruction in the trial court results in a forfeiture of a challenge to the instruction on appeal. ( People v. Hudson (2006) 38 Cal.4th 1002, 1011

- 1012.) However, that rule does not apply when, as here, a party complains that the trial court gave “an instruction that is an incorrect statement of the law.” ( Id. at p. 1012.)9

relevant and admissible in this case because defendant challenged the credibility of M. ’s
molestation claim . ( P eople v. P atino (1994) 26 Cal. App.4th 1737, 1745.) Further,
CA LCRIM No. 1193 properly instructed the jury on the appropriate use of such
evidence. C ontrary to defendant ’s contention , the instruction did not “endorse” the jury’s
use of such evidence to bolster M. ’s credibility

. The instruction did not explicitly state or imply that jurors may use evidence of the syndrome to corroborate M. ’s molestation
claim

. Rather , c onsistent with Housley , the instruction expressly informed the jury that Love’s testimony “ is not evidence that the defendant committed any of the crimes charged against him ,” and that they may consider the syndrome evidence only for the limited pu rpose of deciding whether M. ’s behavior was not in consistent with having been
molested. ( I talics added

. ) This is a correct statement of the law. Love did not improperly render a n opinion on M. ’s credibility. (See People v. Housley , supra , 6 Cal.App.4th at p. 954.) He testified he had never met M. and was unfamiliar with the facts of this case. He also testified he was merely explaining
behavior common to sexual abuse victims i n general and was not offering an opinion on
M. ’s credibility.
Nor do we find the instruction improper because it allowed jurors to consider Love’s testimony in evaluating the believability of M. ’s testimony. M. ’s credibility was a central issue in this case. M. delayed in reporting the abuse for a substantial period of time. At trial, d efendant denie d molesting M. and attac ked her credibility by suggesting her behavior (i.e., delay in reporting the abuse) w as inconsistent with he r testimony claiming a buse

. Defendant theorized M. fabricated her molestation claim because she
was mad at defendant for punching her in the face. The People , therefore, w ere entitled
to offer syndrome evidence as relevant to M. ’s credibilit y

. Expert testimony regarding
the syndrome “is admissible to rehabilitate the complaining witness when the defendant impeaches her credibility .” ( People v. McAlpin , supra , 53 Cal. 3d at p. 1300, italics10

added ; see also P eople v. P atino , supra , 26 Cal. App.4th at p. 1747; People v. Housley , supra , 6 Cal. App.4th at p. 956.)
DISPOSITION The judgment is affirmed.

/s/ Robie, J.

We concur:

/s/
Blease, Acting P. J.

/s/ Nicholson, J.