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Name: People v. Rouse
Case #: H034647
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 02/28/2012
Subsequent History: 5/23/12 Review Granted (S201479)

The convictions of forcible lewd acts, violations of Penal Code section 288, subdivision (b)(1), were supported by evidence of duress. Duress involves the use of direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to do, or submit to, something that she would not otherwise do, or submit to. The circumstances, including the age of the child and relationship to the defendant may be considered. Here one of the victims, age 10, was left with the defendant for an additional two weeks after a visit to his house, and he told her she would like it as he either straddled her body or pinned her down.

There was no abuse of discretion in a denial of a motion to sever charges. The defense sought severance of charges relating to Penal Code section 311.11, subdivision (a) which involved sexually-explicit photos of the defendant and his 11-month-old granddaughter. The offenses were all sex offenses involving young girls and had common factual elements. The other two victims were shown pornography and their sexually oriented images would be cross-admissible with other pornography that appellant possessed or produced.

The jury was properly instructed that they could consider charged as well as uncharged sex offenses pursuant to Evidence Code section 1108 as propensity evidence in considering guilt on certain counts. People v. Wilson (2008) 166 Cal.App.4th 11034, 1044-1053 approved language which modifies CALCRIM No. 1991 to allow consideration of evidence of charged offenses. This decision rejects People v. Quintanilla (2005) 132 Cal.App.4th 572 which holds that the propensity evidence should be limited to uncharged acts.

Child Sexual Abuse Accommodation Sydrome evidence was admissible in light of evidence that some child witnesses delayed reporting and one gave inconsistent statements. The trial court reserved ruling on the CSAAS testimony until after the child witnesses had testified. It was admissible to rehabilitate the child witnesses’ credibility. CALCRIM No. 1193 which instructs that CSAAS evidence is to be used for evaluating the witnesses’ credibility did not tell the jury to believe the victims and it did not raise any presumption of guilt. Further, any error with respect to CSAAS was harmless.