The opinion
POLLAK, J., Concurring.
I join in the decision of the majority, but on a much narrower basis than set out in part I of the Discussion in the majority opinion.
Defendant’s expert, Dr. Diane Sullivan Eversteine, was prohibited from testifying that victims of child sexual abuse usually display certain signs of trauma that defendant argued were not apparent in the videotaped interview of the alleged victim, J., and which therefore tended to show that J. had not been molested as the prosecution claimed.* 1 Although the trial court initially *192 indicated that such testimony would be permitted, the court reconsidered and would not allow the defense to ask the expert how trauma is usually manifested. According to the trial judge, “What’s usual? There’s nothing usual. Everybody acts differently.” The judge permitted the expert to testify to “what manifestations occur . . . but not usual. I don’t see that as relevant. I don’t see the probative value.” From People v. Bledsoe (1984) 36 Cal.3d 236 [ 203 Cal.Rptr. 450 , 681 P.2d 291 ] (Bledsoe), the trial court drew the conclusion, as does the majority, that since “common themes and theories of the average rape victim” cannot be used to establish that the alleged victim was in fact molested, the situation could not be “tum[ed] around” to show that the alleged victim was not molested.
With all respect, I do not believe any of this reasoning follows. In the first place, whether or not individuals who have been traumatized normally display certain behavior is a question of fact, not one of law. Dr. Eversteine is a respected clinical psychologist, an expert in “the areas of rape trauma and child abuse,” and no one disputed her qualifications as such, nor did the prosecutor question the foundation on which she relied to form her expert opinion.* 2 Based on her training and her experience with countless trauma victims, she was in a position to describe how such victims usually react. (People v. McDonald (1984) 37 Cal.3d 351, 373 [ 208 Cal.Rptr. 236 , 690 P.2d 709 ], overruled on other grounds by People v. Mendoza (2000) 23 Cal.4th 896, 914 [ 98 Cal.Rptr.2d 431 , 4 P.3d 265 ].) The trial judge may have believed that, as he put it, “there ain’t no average rape victim,” but a qualified expert nonetheless may testify to behavior that is normal under various conditions. Dr. Eversteine made clear that it was not her opinion, and she would not testify, that one would expect to see a particular reaction in any trauma victim, but she would have testified that “there is a range. . . . [Y]ou usually see some kind of a reaction, they shut down, they shake, there’s some nonverbal [clues].” The court was in no position to say as a matter of law that the expert was wrong in this respect.
*193 Nor could the court properly conclude that this evidence was irrelevant. The judge undoubtedly was correct that even if “99 out of 100 people usually react this way,” that does not prove that the one person who does not was not in fact molested. But certainty is not the test of relevancy or admissibility. (Evid. Code, §§210, 351; 1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 26, pp. 351-353.) If individuals who have been traumatized generally react in a certain manner, and the alleged victim does not manifest that behavior, that is a fact that tends to show that the person was not traumatized. While the weight of such evidence will depend on numerous additional factors (which of course may be explored on cross-examination), the mere fact that this evidence is not conclusive does not mean that it is not relevant.
Most importantly, the reason for which evidence of rape trauma syndrome or of child sexual abuse accommodation syndrome (CSAAS) may not be used to prove that the alleged victim was in fact raped or molested does not apply in the converse situation. Evidence that the alleged victim displays behavior consistent with either of those syndromes may not be used to prove that the individual was raped or molested because the syndromes were identified and are used solely for the purpose of treatment, not for historical factfinding, and many persons display such behavior for other reasons. (Bledsoe, supra, 36 Cal.3d at p. 250 ; see State v. McQuillen (1984) 236 Kan. 161, 111 [ 689 P.2d 822, 833 ] (dis. opn. of Schroeder, C. J.) [“The symptoms of rape trauma syndrome, which is a type of post-traumatic stress syndrome, may be caused by any psychologically traumatic or stressful event.” (Italics omitted.)].) It does not follow from the fact that one exhibits the elements of the syndrome that one was raped or molested. “The particular aspects of CSAAS are as consistent with false testimony [of the alleged victim] as with tme testimony.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744 [ 32 Cal.Rptr.2d 345 ]; cf. People v. Bowker (1988) 203 Cal.App.3d 385, 393 [ 249 Cal.Rptr. 886 ] [explaining flawed syllogism underlying profile evidence].) As a matter of simple logic, it does not follow from the premise that some people who display certain behavior have been raped or molested, that a particular individual displaying that behavior has been raped or molested. That is the reason for which evidence of the particular syndrome may be used to negate the inference (i.e., to dispel the “misconceptions” discussed in Bledsoe) that an individual who acts in conformity with the syndrome has not been raped or molested, while such evidence may not be used to prove the person was raped or molested.
The logic is entirely different in proving the negative. “In most instances, presence and absence are not equally probative evidence.” (Lyon & Koehler, The Relevance Ratio: Evaluating the Probative Value of Expert Testimony in *194 Child Sexual Abuse Cases (1996) 82 Cornell L.Rev. 43, 70.) It follows that if individuals who have been traumatized display certain behavior and a particular individual does not display that behavior, the individual was not traumatized. 3 Since the premise is that a traumatized person normally—not always-—displays such behavior, the conclusion that follows is not that the person necessarily was not traumatized, but that the absence of that behavior tends to show that she was not. The reasoning of Bledsoe tells us that if the particular signs of trauma may be produced by causes other than rape or molestation, one cannot infer rape or molestation from the presence of those signs. However, if those signs normally accompany a traumatic event such as a rape or sexual molestation and the person in question does not display those signs, it is entirely logical to consider that absence in determining whether such an event occurred.
The reason for which I concur in the disposition of this case, despite my view that the trial court erred in prohibiting defense counsel from asking Dr. Eversteine about the usual manifestations of trauma, is that Dr. Eversteine nonetheless conveyed that information in her testimony. While the point likely would have been made more clearly and more emphatically in the absence of the court’s ruling, Dr. Eversteine did describe what she regards as manifestations of trauma. And, towards the end of her direct examination, she was asked whether a trauma victim can turn these manifestations “off or turn it on at will.” To this question she responded in part; “And most of the research now will show that, you know, it’s a little bit like being cut. If you [are] cut, you bleed. If you go through a certain type of symptom, you’re going to be traumatized. And it has nothing [to do] with . . . being tough or weak, it has to do with just what human beings do.” In telling the jury that the signs of trauma are “a little bit like being cut. If you are cut, you bleed,” Dr. Eversteine told the jury that the manifestations she had described usually, if not always, can be observed following a traumatic episode. Thus, the court’s ruling resulted in no prejudice. I am confident that the outcome of the trial was not affected by the limitation that the court placed on Dr. Eversteine’s testimony.
A petition for a rehearing was denied May 26, 2004. Poliak, J., was of the opinion that the petition should be granted. Appellant’s petition for review by the Supreme Court was denied August 11, 2004.
Defendant’s initial proffer was that Dr. Eversteine would testify as to what the usual signs of such trauma are, and that after viewing the videotape it was her opinion that J’s demeanor was inconsistent with having suffered such trauma. I do not presently quarrel with the trial court’s ruling that Dr. Eversteine could not express the latter opinion because the jury was capable of viewing the videotape and judging for itself whether J.’s behavior reflected signs of trauma. Even this conclusion, however, I believe is questionable, since a trained expert like Dr. Eversteine undoubtedly is more qualified than a layperson to identify behavior that reflects or is inconsistent with trauma. “ ‘The jury need not be wholly ignorant of the subject matter of *192 the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would “assist” the jury.’ ” (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300 [ 283 Cal.Rptr. 382 , 812 P.2d 563 ], quoting People v. McDonald (1984) 37 Cal.3d 351, 367 [ 208 Cal.Rptr. 236 , 690 P.2d 709 ].) Nonetheless, defendant does not pursue this issue on appeal but does press the contention that Dr. Eversteine at least should have been permitted to testify to behavior that normally is characteristic of an individual who has experienced the trauma of forcible sexual abuse.
Were the evidence to show that the expert based her opinion on insufficient data or on other matter on which an expert may not reasonably rely (Evid. Code, § 801, subd. (b)), the testimony might properly be excluded on that ground. However, the trial court’s ruling was not based upon an evaluation of the sufficiency of the foundational evidence on which Dr. Eversteine based her opinion.
It bears emphasis that the behavior to which Dr. Eversteine was referring was not the symptomatology of CSAAS but the manifestations of trauma.