Case 8:21-cv-02019-CAS-JDE Document 24 Filed 08/17/22 Page 1 of 5 Page ID #:3291

O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE MANUEL GALAN, ) Case No. 8:21-cv-02019-CAS (JDE) ) 12 ) Petitioner, ) ORDER ACCEPTING FINDINGS 13 ) AND RECOMMENDATIONS OF ) v. ) UNITED STATES MAGISTRATE 14 ) JUDGE ) 15 KATHLEEN ALLISON, ) 16 ) ) Respondent. ) 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the records and files 19 herein, including the Petition (Dkt. 1, “Petition”), Respondent’s Answer to the 20 Petition (Dkt. 8) and supporting records, Petitioner’s Reply (Dkt. 15) and 21 supporting Memorandum (Dkt. 15), the Report and Recommendation of the United 22 23 States Magistrate Judge (Dkt. 17, “Report”), and Petitioner’s Objections to the 24 Report (Dkt. 20, “Objection”). Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. 25 Civ. P. 72(b), the Court has conducted a de novo review of the matters to which 26 objections have been stated. Petitioner’s assertions and arguments have been 27 reviewed carefully. The Court, however, concludes that nothing set forth in the 28 Objection or otherwise in the record for this case affects, alters, or calls into Case 8:21-cv-02019-CAS-JDE Document 24 Filed 08/17/22 Page 2 of 5 Page ID #:3292

1 question the findings and analysis set forth in the Report. Therefore, the Court 2 concurs with and accepts the findings and recommendations of the Magistrate 3 Judge. 4 Petitioner’s Objection raises two grounds: (1) that the admission of expert 5 testimony regarding Child Sexual Abuse Accommodation Syndrome (“CSAAS”) 6 violated his due process rights and (2) that the trial court violated the Ex Post Facto 7 Clause of the U.S. Constitution by providing a jury instruction based on the current 8 version of Cal. Penal Code § 288.2, rather than the version in effect at the time the 9 acts occurred. Objection at 10-12. The Court finds and concludes that all of 10 Petitioner’s objections are without merit. 11 First, Petitioner argues that the admission of expert testimony regarding 12 CSAAS violated his due process rights because such evidence (1) improperly 13 supplanted the jury’s decision on whether the victim’s testimony was credible and 14 (2) has not received general acceptance in the scientific community. Id. at 11-12. 15 The Court addresses each of these arguments in turn. 16 With respect to Petitioner’s claim that the CSAAS testimony supplanted the 17 jury’s decision on whether the victim’s testimony was credible, the Court, like the 18 Magistrate Judge, finds that “the court of appeal reasonably rejected Petitioner’s 19 assertion that [the expert’s] testimony improperly bolstered [the victim’s] 20 testimony and was likely used improperly by the jury as evidence that [she] was 21 abused because her behavior was consistent with that abuse.” Report at 23. The 22 Ninth Circuit has held that CSAAS testimony is admissible when it addresses 23 24 “general characteristics of victims and is not used to opine that a specific child is 25 telling the truth.” Brodit v. Cambra, 350 F.3d 985, 991 (9th Cir. 2003). Here, the 26 CSAAS testimony was relevant because Petitioner suggested that the victim’s 27 behavior indicated that she was lying about being abused, and the jury could infer 28 from the CSAAS testimony that her behavior did not mean that she was lying. 2 Case 8:21-cv-02019-CAS-JDE Document 24 Filed 08/17/22 Page 3 of 5 Page ID #:3293

1 Report at 24. The jury was instructed that the testimony was offered for the 2 limited purpose of deciding whether the victim’s conduct was inconsistent with the 3 conduct of someone who had been abused. Id. at 23. And the expert testified that 4 she did not have personal knowledge regarding the details of this case or whether 5 the victim was telling the truth. Id. at 24. 6 Because the expert’s “testimony discussed the circumstances in which child 7 sexual abuse victim’s reactions may not be inconsistent with abuse but left the 8 question of whether [the victim] was abused for the jury to decide,” Petition at 71, 9 it “assisted the trier of fact in understanding the evidence; it did not improperly 10 bolster the particular testimony of the child victim.” United States v. Antone, 981 11 F.2d 1059, 1062 (9th Cir. 1992). Accordingly, the Court finds that the court of 12 appeal reasonably determined the CSAAS evidence was admissible. 13 With respect to Petitioner’s claim that the admission of CSAAS testimony 14 violated his due process rights because CSAAS evidence has not received general 15 acceptance in the scientific community, the Court finds that the admission of the 16 CSAAS testimony was not objectively unreasonable. Petitioner asserts that 17 CSAAS testimony is subject to the Kelly-Frye rule for admissibility of scientific 18 evidence and is inadmissible under the rule because CSAAS “has not gained 19 general acceptance in the scientific community.” Report at 19. Contrary to 20 Petitioner’s argument, California courts have consistently held that the Kelly-Frye 21 rule does not apply to CSAAS evidence admitted to rehabilitate a victim’s 22 credibility through discussion of victim behavior generally. See People v. Gray, 23 24 187 Cal. App. 3d 213, 217-20 (1986); People v. Harlan, 222 Cal. App. 3d 429, 25 448-49 (1990). Because the CSAAS testimony was not offered to prove the fact of 26 abuse but, rather, to rehabilitate the victim’s credibility, it was not subject to the 27 Kelly-Frye rule. See People v. Munch, 52 Cal. App. 5th 464, 472-73 (2020) 28 (finding that CSAAS testimony was not subject to Kelly-Frye where it “was not 3 Case 8:21-cv-02019-CAS-JDE Document 24 Filed 08/17/22 Page 4 of 5 Page ID #:3294

1 being used as scientific proof that a child had, in fact, been abused.”). Therefore, 2 the court of appeal’s rejection of Petitioner’s Kelly-Frye claim was not objectively 3 unreasonable. 4 Petitioner’s second ground for objection to the Report is that the trial court 5 violated the Ex Post Facto Clause of the U.S. Constitution by providing a jury 6 instruction based on the current version of Cal. Penal Code § 288.2, rather than the 7 version in effect at the time Petitioner allegedly committed the crime, and, in doing 8 so, violated Petitioner’s due process rights because the current version of the 9 statute is broader than the former version. Report at 26. 10 The Court, like the Magistrate Judge, finds that any error the trial court made 11 in instructing the jury on Cal. Penal Code § 288.2 was harmless and therefore is 12 not a ground for habeas relief. See Brecht v. Abrahamson, 507 U.S. 619, 638 13 (1993) (holding that “harmless-error standard applies in determining whether 14 habeas relief must be granted because of constitutional error of the trial type”). 15 The version of the statute that was in effect at the time that Petitioner allegedly 16 violated it required one to act “with the intent or for the purpose of seducing a 17 minor.” Cal. Penal Code § 288.2 (2012), amended by § 288.2 (Stats., 2013 ch. 77 18 § 2). The court of appeal determined that the evidence established that Petitioner 19 “was grooming [the victim] with the intention of enticing her to engage in sexual 20 intercourse and other sexual acts with him and showing her pornography was part 21 of that process.” Report at 35. Accordingly, the evidence was sufficient to show 22 that Petitioner seduced the victim, as required by the version of the statute in effect 23 24 when the acts allegedly occurred. Id. The Court finds that the court of appeal’s 25 interpretation of the evidence was not objectively unreasonable because the 26 evidence suggested that Petitioner made comments to the victim indicating that he 27 desired to have sexual intercourse with her, including while showing her 28 pornography, and engaged in sexual acts with the victim. Id. Thus, the court of 4 se 8:21-cv-02019-CAS-JDE Document 24 Filed 08/17/22 Page5of5 Page ID #:329

1 || appeal reasonably determined that the trial court’s instructional error was harmless, 2 || and the Court concludes that the error did not violate Petitioner’s constitutional 3 rights. 4 Having completed its review, the Court accepts the findings and 5 || recommendations set forth in the Report. In accordance with the foregoing, the 6 || Court DENIES the Petition, and concludes that Judgment should be entered 7 || DISMISSING this action WITH PREJUDICE. 8 |! Dated: August 17, 2022 Ahruopus A. Angde__ '0 CHRISTINA A.SNYDER I United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28