Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CF2981, Carla Singer, Judge.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Scott Taylor and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted defendant Demetrio Elizarras Blanco of committing sexual intercourse or sodomy with a child 10 years or younger (Pen. Code, § 288.7, subd. (a) – count 1) and lewd act upon a child under the age of 14 (§ 288, subd. (a) — count 2). The court sentenced him to 25 years to life on count 1 (with a stayed, concurrent term of six years on count 2).
All statutory references are to the Penal Code unless otherwise stated.
As noted by the Attorney General, the abstract of judgment contains a clerical error in that it omits any reference to the conviction and sentence on count 2. We will remand the matter to the trial court for correction of this clerical error.
FACTS
When G.V. was six years old, he lived in the same apartment complex as defendant. Prior to the incident in question, G.V. had sometimes entered defendant’s apartment to see his Playstation 2 game console and racing games; he did so because defendant instructed him to.
On September 3, 2007, six-year-old G.V. was in an outdoor grassy area in his apartment complex playing with a friend named Daniel who lived in the same complex. After Daniel left to go buy some chips, G.V. was alone. Defendant came out of his apartment and told G.V. to come inside. Once inside defendant’s apartment, G.V. did not see anyone else. G.V. went upstairs to defendant’s bedroom because he thought defendant was going to show him something. Defendant closed the bedroom door and showed G.V. his compact disc (CD) player. G.V. asked if he could have the CD player, and defendant gave it to him.
Defendant pulled down G.V.’s pants and underwear and lay him face down on the bed, which was covered by a green blanket with a tiger on it. Defendant “hump[ed]” G.V.; in other words, defendant put “his private part in [G.V.’s ] back, ” into the spot a person uses to “poop.” It felt like defendant was “going up and down.” G.V. did not feel anything wet or sticky. G.V. did not see defendant’s penis but he felt it, and it felt “weird, ” “hard, ” “big, ” and “like if it was shaking.” G.V. told defendant to stop. Defendant stopped and went to the bathroom.
G.V. pulled up his pants, went outside, and told Daniel what happened. The two boys went to Daniel’s house and told Daniel’s mother what happened. The threesome went to G.V.’s house and told G.V.’s mother what happened. G.V. had not told his mother before, because he thought he would get in trouble for going into defendant’s apartment. G.V.’s mother phoned the police and then helped G.V. take a bath.
Police officers came to G.V.’s apartment and met with him, his mother, and his sister. G.V. told an officer that defendant held his hand while they went upstairs to defendant’s bedroom, that defendant’s blanket had a tiger and black stripes on it, and that defendant put his “weenie” in G.V.’s “butt, ” then turned G.V. over and did it again. While talking to the officer, G.V. was scared because he thought his mom would be mad at him for going inside defendant’s house. (His mother had told him not to go into other people’s apartments without her permission.) G.V. retrieved a CD player from behind the sofa where he had hidden it and showed it to the officer. The mother testified that after the police left, she threw the CD player away because she was angry about defendant’s intentions in giving it to her son.
The third person present might have been G.V.’s aunt (his mother’s sister), instead of G.V.’s sister.
The officer also interviewed Daniel, who confirmed that G.V. had told him he had been sexually assaulted. Daniel’s mother also confirmed to police that Daniel told her G.V. had been sexually assaulted.
After speaking to the officer, G.V. and his mother went to a hospital. There, a forensic nurse met with G.V., his mother, and an officer. The nurse examined G.V.’s body, including his “genital, anal, and oral” areas. G.V. shook and his arms trembled. G.V.’s anus looked “normal”; the nurse did not see any acute injuries. The nurse “could not confirm or deny that there was a sexual assault.” She explained that the skin in the anal area is elastic and can stretch. During her examination of G.V., she confirmed that his anus had the ability to dilate. In 90 percent of the exams she performs “there are no visible physical findings of sexual assault or abuse.” She explained that a “normal exam” could mean several things, including “anal penetration because the skin can stretch, ” or the penis may have touched only “the external anal area or even the folds of the buttocks.”
Tests conducted by forensic scientists uncovered no DNA evidence connecting G.V. and defendant. Police collected a “tiger pattern bedspread” from defendant’s bed. A forensic scientist determined that fibers collected from G.V. during his examination could not have originated from the bedspread.
A forensic scientist opined that, hypothetically, if a six-year-old boy said a grown man put his penis inside the child’s butt and the child did not feel wet or sticky, and if the child had bathed his buttocks area with soap and water within an hour of the penetration, and if (five to six hours later) samples were collected from the boy’s anal area, she would not expect to find foreign DNA on the boy’s external anal swab, especially if the man did not ejaculate during the incident. In the case of mere skin-to-skin contact, only a minute amount of DNA is likely to transfer, which may be masked by the recipient’s DNA. It is possible that DNA may not be left behind when there is skin-to-skin contact of a penis entering an anus.
In September 2007, G.V. was interviewed by a social worker at the Child Abuse Services Team (C.A.S.T.) facility. During a November 2008 interview with an investigator from the district attorney’s office, G.V. stated that when he was in the first grade, defendant put his penis in G.V.’s mouth “a lot of times” and on more than one day.
At trial, G.V. testified that once or during other times when he was in defendant’s room, defendant told G.V. to close his eyes and open his mouth, and then defendant put his penis in G.V.’s mouth. G.V. did not feel something go into his mouth. After defendant was done, he told G.V. that he had put his front private spot in G.V.’s mouth.
Defense
A neighbor, Marcelina Loera, testified she was standing by some benches in the apartment complex on September 3, 2007, and talking with defendant who had a “music thing” in his hand. A little boy came up to defendant and asked for the music thing; Loera told defendant, “Tell him no.” Loera did not see G.V. sit down on the bench, nor did she see defendant pick G.V. up and move him on the bench. Loera left to see a friend.
Testifying on his own behalf, defendant denied ever sodomizing G.V. or having sex with little boys. He denied ever asking G.V. to enter his bedroom.
Defendant testified that on September 3, 2007, he did not go to work because it was a holiday. Around 3:00 p.m., he sat on a bench in front of his apartment, listening to his CD player. Around 3:15 p.m., he talked with Loera. G.V. came and sat on the bench and hugged defendant. G.V. wanted to listen to music and pulled at defendant’s headphones. Defendant told G.V. “not to do it, ” but G.V. persisted, so defendant lent the boy part of the headphones so G.V. could listen to the music. But G.V. kept tugging at the headphones, wanting the other part. Defendant told G.V. to calm down, grabbed him by the waist, and moved him to the other side of the bench. G.V. kept asking for the CD player, so defendant loaned the player to him. Defendant lent it to G.V., so the boy would stop bothering him and defendant could continue talking with Loera. When Daniel returned from buying some Cheetos, defendant told G.V. to go with Daniel. Defendant removed his music CD’s from the player and told G.V. to ask his mother to lend him a CD. G.V. left with Daniel.
Defendant then phoned his boss from a pay phone by the “washing area” to ask for a loan. He returned to the bench to talk with Loera. Defendant made another phone call, then returned to his apartment. As defendant was opening his front door, G.V.’s mother called out to him, asking what he did to her son. Defendant replied he did not know what she was talking about. The mother said, “That’s not true, you pig. You did something to my son. What did you do?” G.V.’s aunt, Daniel, and Daniel’s mother were also present. The three women made accusations against defendant; for example, G.V.’s mother said she did not like people to give anything to her son. Defendant said he lent G.V. the CD player because he asked for it. G.V.’s aunt told G.V.’s mother, “Call the police on this mother fucker so they’ll take him away.” Defendant phoned the police because he did not want the problem to become bigger. He was still talking with 9-1-1 when the police arrived.
Francisca Fierros rented defendant a room in her apartment. Defendant shared the room with Fierros’s brother. Defendant gave a Playstation to one of Fierros’s sons as a gift. After that Playstation broke, Fierros’s children (with her permission) began playing on defendant’s own Playstation in defendant’s room when defendant was there. She could see them in the bedroom, because they would leave the door open. Fierros once saw G.V. in her apartment going upstairs alone. Two days after defendant’s arrest, Fierros returned from the laundry room to find G.V. sitting — uninvited — on her couch. She told him to leave and he did so.
DISCUSSION
Substantial Evidence Supports the Verdict
Defendant contends the evidence is inherently improbable and therefore constitutionally insufficient to support the verdict. He asserts G.V.’s statements were inconsistent, confusing, and contradictory. He argues G.V. gave inconsistent accounts about (1) whether oral copulation occurred, (2) whether defendant performed two separate acts of sodomy on him, and (3) how often G.V. had been in defendant’s apartment. He notes G.V.’s mother and Daniel testified G.V. was out of their sight for a short period of time (in G.V.’s mother’s case, a matter of “seconds, ” a few minutes, or “a short while, ” and with respect to Daniel, about five minutes). He asserts the alleged incident could not have occurred within such a short time period.
Daniel testified he and G.V. would play in the grassy area without either of their mothers watching them and that he did not see G.V.’s mother watching them play on the date in question. He also testified that he once went with defendant to defendant’s room to play Playstation, at defendant’s invitation.
Furthermore, defendant points out that G.V. gave inconsistent accounts of what happened before he entered defendant’s apartment and how he came to possess defendant’s CD player. G.V. testified on direct examination that defendant approached him outside in the grassy area, told him to go inside defendant’s apartment, and (inside defendant’s bedroom) showed him a CD player. (On the day of the incident, G.V. gave a similar account to the responding officer — saying that defendant approached G.V. when the boy was alone in the grassy area and pushed or escorted him toward the apartment.) But on cross-examination, G.V.’s story changed. G.V. said he approached defendant (who was sitting on a bench) and asked defendant about the headphones he was wearing. G.V. asked defendant for the CD player and defendant gave it to him, whereupon G.V. took the player to his apartment and left it in his living room. G.V. then took a shower. He went to Daniel’s house, where Daniel invited him to watch a movie. G.V. went home and obtained his mother’s permission to go into Daniel’s house, then started watching the movie. But G.V. was scared of “Chucky, the doll, ” so when Daniel said “that Chucky was in real life, ” G.V. said he did not want to watch the movie anymore and went outside. This was when defendant told G.V. to go into defendant’s apartment.
On appeal we consider “whether there is substantial evidence to support the conclusion of the trier of fact, ” “not whether guilt is established beyond a reasonable doubt.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) We review the whole record “in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 578.) To be substantial, evidence must be “reasonable, credible, and of solid value.” (Johnson, at p. 578) “Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
In People v. Friend (2009) 47 Cal.4th 1, as here, the defendant argued that a witness’s testimony was “inherently incredible”; the defendant “repeat[ed] at length the defense impeachment arguments made at trial that [the witness’s] testimony was unreliable because it differed in some details from [his] previous statements and prior testimony at other proceedings, and because [he] received food and lodging money as a protected prosecution witness.” (Id. at p. 41.) Our Supreme Court rejected the defendant’s challenge to the witness’s testimony: “The impeachment arguments that defendant repeats against [the witness] involve simple conflicts in the evidence that were for the jury to resolve. [Citation.] Of course, ‘it is not a proper appellate function to reassess the credibility of the witnesses.’ [Citation.] To the extent defendant also argues that [the witness’s] testimony was inherently incredible, we reject that claim too. ‘“‘To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.’”’ [Citation.] Defendant fails to make such a showing.” (Ibid.)
For the same reasons, we reject defendant’s contentions here. “California law does not require corroboration of the testimony of a child sexual abuse victim.” (People v. Harlan (1990) 222 Cal.App.3d 439, 454.) A contrary rule “would virtually insulate child molesters from prosecution. Generally, the victim and the perpetrator are the only witnesses, and molestation frequently leaves no physical evidence.” (Id. at p. 452; see also Evid. Code, § 700 [“every person, irrespective of age, is qualified to be a witness” ].) Here, the jury believed G.V.’s testimony. His account was not physically impossible or obviously false without resort to inferences or deductions. In sum, the evidence was sufficient to support the verdict.
The Court Did Not Abuse Its Discretion by Limiting Defense Counsel’s Cross-examination of Daniel’s Mother
Defendant contends the court relied on “legally wrong reasons” to exclude evidence of an extrajudicial statement made by G.V. to Daniel’s mother. He asserts the court failed to properly distinguish between the fresh complaint doctrine and “a defendant’s right to impeach the complaining witness with an earlier prior inconsistent statement.” He argues “cross-examination is peculiarly important in sexual assault cases involving a child victim where there is no evidence to corroborate the child’s testimony that a sexual offense occurred.” Some (unfortunately) lengthy history of the trial proceedings is helpful in assessing the merits of defendant’s argument.
Earlier Evidentiary Rulings
During the direct-examination of G.V. in the People’s case-in-chief, the prosecutor asked G.V. whether he had told Daniel and Daniel’s mother what “had happened to” him. G.V. answered “yes” to both inquiries. The prosecutor properly refrained from asking what G.V. had actually said in these communications. The testimony was offered under the fresh complaint doctrine, under which “proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose — namely, to establish the fact of, and the circumstances surrounding, the victim’s disclosure of the assault to others — whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact’s determination as to whether the offense occurred.” (People v. Brown (1994) 8 Cal.4th 746, 749-750.) Allowing evidence of the bare fact of a communication, and the circumstances under which it was made, does not implicate the hearsay rule, because the content of the communication is not permitted unless admissible under an exception to the hearsay rule. “[E]vidence of the victim’s report or disclosure of the alleged offense should be limited to the fact of the making of the complaint and other circumstances material to this limited purpose. Caution in this regard is particularly important because, if the details of the victim’s extrajudicial complaint are admitted into evidence, even with a proper limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault [citation], thereby converting the victim’s statement into a hearsay assertion [citation].” (Id. at p. 763.)
Later in the trial, but still during the People’s case-in-chief, the prosecutor called Daniel as a witness. The prosecutor asked Daniel, “What did [G.V.] tell you happened to him?” Defense counsel objected, citing the hearsay rule and People v. Brown, supra, 8 Cal.4th 746. The court called for a sidebar conference which was unreported. Following the unreported sidebar conference, the court sustained the objection.
During the next recess, the court and counsel went on the record to describe what had happened during the unreported sidebar. The prosecutor explained that she was offering the testimony as G.V.’s prior consistent statement (Evid. Code, §§ 791, 1236) on the theory there had been an implied claim of recent fabrication resulting from two days of cross-examination where “the witness’s credibility has been called into question.” (See Evid. Code, § 791, subd. (b).) Defense counsel argued that G.V. had never been asked what he told Daniel because the Brown case would allow only the fact of a fresh complaint, “but not the details of what was said.” Defense counsel did not directly address the theory of admissibility advanced by the prosecution. The court explained its ruling was based on its perception that G.V. had not given any inconsistent testimony “with respect to his description of the crimes with which the defendant is charged.... I see an exploration of inconsistency with respect to any number of other things, which strike me at this point as somewhat collateral....” The court further explained why it had called the sidebar: “I had some concerns based on [defense counsel’s] representation of preclusion by People v. Brown.” The court did not “remember [the Brown case] having come up to me. So I would need to take a look at the case.” But, the court continued, the court ruled as it did because the court “did not think the prior consistent statements were admissible at this point in time in the trial.”
The Challenged Ruling
With the above background, we address defendant’s argument regarding the court’s ruling during the cross-examination of Daniel’s mother. Shortly after the cross-examination commenced, defense counsel requested a sidebar conference. The conference was not reported, but, as was the court’s practice, it later made a record, with counsel, of what had transpired at sidebar. The court explained that defense counsel had informed the court and the prosecutor that he planned to cross-examine Daniel’s mother “as to what [G.V.] had said to her in what was apparently a fresh complaint. And the court was very confused because I thought that People v. Brown, which had previously been cited by [defense counsel], was still good law between three o’clock and four o’clock. And [defense counsel’s] position was that [the prosecutor’s] question of the witness to the effect of whether [G.V.] told her what happened to him opened the door for the content of [G.V.’s] statements. I was not persuaded and precluded [defense counsel] from asking any questions with respect to the content of the statements based on his prior argument that the fact of the fresh complaint may be received in testimony but not the content.”
Defense counsel took issue with the court’s rendition of what had transpired at side bar. Counsel told the court he “did not indicate at any time that I felt that the statements allegedly made to [Daniel’s mother] had anything to do with a fresh complaint.” Counsel continued: “[T]here should be no confusion about the fact that I never said that I agreed that anything that [G.V.] told Daniel was a fresh complaint. I never said that nor did I ever say that I believed any statements made to the mother of Daniel, that I believe that that was a fresh complaint. [¶] What I had said to the court was that I... wanted to cross-examine this particular witness regarding a prior inconsistent statement that was made by the victim. The victim claims that he told individuals, including the mother, that he was taken upstairs, spun around, sodomized twice in the defendant’s room. The mother indicated in their interview with the People on February 24th, 2010 that those statements were never made to her. She specifically indicates that it was her understanding that the one or both of the boys, she thought more specifically that it was [G.V.], was being spun around in the grass area. And during the spinning around, that somehow... the buttocks touched the penis or something. But she was completely unclear of what it was that they were saying. And, that when she went to talk to [G.V.’s] mother, ... about the incident, [G.V.] repeated the same thing to that mother as he had done to her. That was my theory of the admissibility, that it was a prior inconsistent statement by [G.V.] to the mother of Daniel.”
The court responded: “The statement that [defense counsel] just made was not made to me in the sidebar. Probably because I didn’t give him a chance. It appeared to me that he was seeking to introduce material that he had previously sought to exclude. It did appear to me that he was eliciting a hearsay statement that did not come within any exception that I could see. And he did argue strenuously that the door was opened to an inquiry about the content of the statement by your question, [Ms. Prosecutor], ‘Did [G.V.] tell you what happened?’ And I just didn’t think that that was sufficient to open the door. [¶] So here we are. I made the ruling I made. I still think it’s the correct ruling, despite the fact that I’m hearing new arguments at this point.”
Analysis
Thus, the court and defense counsel had differing recollections of the events at sidebar. Perhaps this was because, as the court acknowledged, “I didn’t give him a chance.” But assuming, for purposes of discussion, that defense counsel’s recollection was more nearly accurate, and the court was confused about the basis of the argument, an abuse of discretion is less than clear. As defense counsel acknowledged in his offer of proof, when Daniel’s mother was interviewed by an investigator, nearly two and one-half years after the incident, about what G.V. had said to her on the date of the incident, she “was completely unclear of what it was that [the boys] were saying.” “A trial court’s ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld unless the trial court ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’” (People v. Ledesma (2006) 39 Cal.4th 641, 705.) Here, the court could reasonably have concluded, i.e., without being arbitrary, capricious, or patently absurd, that Daniel’s mother had an insufficient recollection to offer an extrajudicial statement by G.V. that was truly inconsistent with his trial testimony.
Moreover, the ruling was nonprejudicial. At the conclusion of the limited testimony by Daniel’s mother, defense counsel requested that she not be excused as a witness, but that she remain subject to being recalled later in the trial. The court granted the request and ordered that the witness remain available to be recalled as a witness. If defense counsel believed it was possible to elicit an extrajudicial statement inconsistent with G.V.’s testimony, he could have simply recalled Daniel’s mother during the defense case with a more definitive offer of proof. That did not happen. We conclude the court did not abuse its discretion and the error, if any, did not prejudice defendant.
DISPOSITION
The judgment is affirmed. We hereby remand the matter to the trial court with directions to correct a clerical error in the abstract of judgment by adding defendant’s conviction of a violation of section 288, subdivision (a) (lewd act on child under the age of 14 – count 2) and sentenced to the midterm of six years for that offense (concurrent with the sentence on count 1), with execution of sentence on count 2 stayed pursuant to section 654. The corrected abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
WE CONCUR: MOORE, ACTING P.J., FYBEL, J.