Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside CountySuper.Ct.No. RIF086273, Robert George Spitzer, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.
King, J.
I. INTRODUCTION
Defendant was charged with 21 counts of committing lewd acts on two girls under age 14 (Pen. Code, § 288, subd. (a); counts 1-21) and one count of attempting to dissuade a witness, his girlfriend, from testifying (§ 136.1, subd. (a); count 22). The alleged victims, Jane Does 1 and 2, were daughters of defendant’s girlfriend. It was further alleged that the offenses were committed against more than one victim within the meaning of section 667.61, subdivision (e)(5).
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found defendant guilty of 11 of the 21 lewd act charges (counts 1-10 & 21) and the witness dissuasion charge (count 22). It also found the multiple-victim enhancement allegation true. Defendant was found not guilty of the remaining charges. He was sentenced to a single term of 15 years to life (§ 667.61, subd. (e)(5)) and appeals.
Only one of the lewd act convictions, namely, count 21, involved Jane Doe 2; the rest involved Jane Doe 1. Defendant’s multiple-victim enhancement and resulting life term are therefore dependent on count 21. At trial in 2006, when Jane Doe 2 was 13 years old, she denied that defendant had molested her. But during a videotaped police interview in 1999, when Jane Doe 2 was six years old, she said defendant had molested her by touching her vagina and inserting his finger into her vagina. Over defense objections, the videotaped interview was played at trial.
Defendant contends the trial court prejudicially erred in admitting the 1999 videotaped statement of Jane Doe 2. He argues the statement was hearsay and did not qualify under any exception to the hearsay rule. He also claims the prior statement was inadmissible because Jane Doe 2 was incompetent as a witness at the time she made the statement. Finally, he claims his defense counsel rendered ineffective assistance in failing to move to exclude the statement before trial rather than during trial.
We affirm. As we explain, the 1999 statement was properly admitted as a prior inconsistent statement, and the trial court properly ruled that Jane Doe 2 was competent when she made the statement. Finally, defendant has not demonstrated a reasonable probability that the result would have been different had his counsel moved to exclude the statement before trial.
II. FACTS AND PROCEDURAL HISTORY
Because defendant’s claim is directed solely to the prior videotaped statement of Jane Doe 2, a detailed discussion of the evidence involving Jane Doe 1 is unnecessary. Instead, we focus on the evidence concerning Jane Doe 2. First, however, we discuss the background of the case, including how the claims involving both girls arose.
A. Background
From November 1998 through May or June 1999, defendant, his girlfriend T.M., and her three children, Jane Does 1 and 2 and their older brother J., lived together in one room of a two-bedroom apartment in Corona. The children slept in bunk beds, and defendant and T.M. shared a bed. T.M.’s brother and his wife, Christyna, shared the second bedroom.
Sometime before May 1999, T.M. told Christyna that she suspected defendant was molesting then eight-year-old Jane Doe 1. Christyna, herself a molest victim, thought it was unusual that defendant always took the two girls, but not their older brother J., on long car trips to visit defendant’s mother.
On one occasion in 1998 or 1999, Christyna saw defendant and then six-year-old Jane Doe 2 watching television together, and thought it was unusual that they covered themselves with a blanket and that Jane Doe 2 had her head in defendant’s lap.
B. Jane Doe 2’s Trial Testimony and 1999 Prior Statement
At trial in 2006, when Jane Doe 2 was 13 years old, she denied that defendant touched her inappropriately or put his finger into her vagina in 1998 or 1999, when she was six years old. She admitted, however, telling police and her aunt Christyna that defendant touched her vagina during that time frame. She specifically admitted telling Detective Scott Currie, during the 1999 videotaped interview, that defendant touched her “private part” and inserted his finger into her “private part.” She told Christyna the same thing before the interview, but she did not recall telling her mother or a school counselor.
At this point, the prosecutor played the videotape of the 1999 interview. The interview was conducted in Spanish, and English-translation transcripts of the interview were distributed to the jury. The videotape showed Jane Doe 2 telling Detective Currie and the translator that defendant placed his finger into her vagina once. When asked during the interview where she was when it happened, Jane Doe 2 said she was on the sofa and had gone to get her blanket.
When asked why she was now testifying that defendant did not touch her when during the 1999 interview she said he did, Jane Doe 2 repeatedly said, “I don’t know.” She also denied that Christyna, her mother, or anyone else told her what to say during the 1999 interview or at trial. She said her recantation of her prior statement was not motivated by fear she would be deported and claimed she did not know what deportation meant. Later, however, she said she knew what deportation meant, and she was concerned that coming to court meant she would be deported.
The videotape also showed Jane Doe 2 telling Detective Currie and the translator that she had told her mother that defendant had touched her. After the prosecutor confronted Jane Doe 2 with that statement, she admitted telling her mother, before the interview, that defendant had molested her, and that that was the reason her mother took her to the police.
C. Defense Counsel’s Objection and the Trial Court’s Ruling
During Jane Doe 2’s testimony, defense counsel objected to the playing of the videotaped interview on the grounds Jane Doe 2 did not qualify as a witness at the time of the interview. During a break in the testimony, the trial court explained it was overruling the objection without prejudice to a subsequent defense motion to strike the statement as incompetent. The court indicated the motion could be brought “in the context of [a section] 1118.1 motion,” to dismiss count 21 based on insufficient evidence, depending upon whether the statement would be corroborated by additional evidence, including, for example, “contemporaneous reports from other individuals or corroborating physical evidence.”
Regarding Jane Doe 2’s competency, the court observed that the videotape showed Detective Currie asking Jane Doe 2 a “litany of questions and procedures to establish” her competency as a witness, and that her responses to questions concerning colors were problematic. Specifically, in response to Detective Currie’s question whether he would be telling the truth if he said a crayon was white when in fact it was black, Jane Doe 2 nodded her head, indicating he would be telling the truth. She gave the same answer when the detective asked whether he would be telling the truth if he said her clothing was black when in fact it was light blue.
The court also noted that the “apparent age of the individual in the videotape is around six years. Her comfort level is in Spanish, and there is a woman interpreter seated close to her.” The court also said it had no information on Jane Doe 2’s “level of schooling” at the time the videotape was made, and that Jane Doe 2’s videotaped statement was made “in the context of” Jane Doe 1’s report that defendant had molested her.
At the outset, the court noted that defense counsel had not made a motion in limine to exclude the videotape and had not offered a “satisfactory answer” for having failed to do so. Still, the court invited defense counsel to brief the issue whether a statement made when the witness was “somehow incompetent” can be admitted at a later date as substantive evidence of the contents of the statement.
Later, the defense filed a memorandum of points and authorities in support of a motion to strike the videotaped statement, arguing that Jane Doe 2 was incompetent when she made the statement because she did not understand her duty to tell the truth as evidenced by her incorrect responses to the detective’s crayon-color and clothing-color questions. Concurrently, the defense made a section 1118.1 motion to dismiss count 21 for the same reason, and because no other evidence supported the 1999 statement, both motions were denied.
D. Other Relevant Evidence
Defendant was arrested in 1999, fled to Mexico, and was rearrested in 2005. After he was rearrested, Jane Doe 2 acknowledged she went to the office of defendant’s attorney more than once. Each time, defendant’s mother accompanied her. She told defendant’s attorney that the molestation did not occur. She did not recall going to counseling for sexual abuse, but may have done so.
III. DISCUSSION
A. The 1999 Statement Was Admissible as a Prior Inconsistent Statement
Defendant first argues that the 1999 statement was hearsay and inadmissible as a prior inconsistent statement. When a witness has made a prior statement that is inconsistent with his or her trial testimony, the prior statement is admissible—provided the witness is given an opportunity to explain or deny it. (People v. Ledesma (2006) 39 Cal.4th 641, 710; Evid. Code, §§ 1235, 770.) Jane Doe 2 was given this opportunity. At trial, she recalled telling Detective Currie during the 1999 interview that defendant touched and inserted his finger into her vagina, but she denied that her 1999 statement was true. When asked why she was recanting her prior statement and claiming that defendant had not molested her, she simply said she did not know. This was sufficient foundation to admit the 1999 statement as a prior inconsistent statement.
Evidence Code section 1235 states: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770.” Evidence Code section 770 requires that the witness be given the opportunity to explain or deny the statement.
Defendant maintains that Jane Doe 2’s 1999 statement was not inconsistent with her trial testimony. Instead, he argues, she simply “did not remember some facts” when testifying at trial, and he relies on the rule that, “[i]n normal circumstances, the testimony of a witness that he does not remember an event is not ‘inconsistent’ with a prior statement by him describing that event.” (People v. Green (1971) 3 Cal.3d 981, 988.) This rule has no application here. At trial, Jane Doe 2 did not forget making her 1999 statement. To the contrary, she recalled making the prior statement, denied that it was true, and said she did not know why she was now denying it.
B. The Trial Court Properly Ruled That Jane Doe 2 Was Competent in 1999
Defendant next argues that, even if the 1999 statement qualified as an inconsistent statement, it “failed the foundational test for admission.” He argues that Jane Doe 2 was not qualified as a witness at the time she made the statement because she was not capable of understanding a witness’s duty to tell the truth, as indicated by her incorrect responses to Detective Currie’s questions about the color of the crayons he was holding and the color of the clothing she was wearing.
We agree with defendant that “‘[t]he admission of hearsay statements, by way of exception to the rule, . . . presupposes that the assertor [or declarant] possessed the qualifications of a witness . . . .’” (In re Basilio T. (1992) 4 Cal.App.4th 155, 166.) Any person may be disqualified as a witness if he or she is incapable of understanding the duty to tell the truth. (Evid. Code, § 701, subd. (a); People v. Dennis (1998) 17 Cal.4th 468, 525.) A person’s capacity to understand the duty to tell the truth is a preliminary fact to his or her competency to testify as a witness, and must be determined by the trial court under Evidence Code section 405. (People v . Farley (1979) 90 Cal.App.3d 851, 869; see also People v. Anderson (2001) 25 Cal.4th 543, 573 [distinguishing issue of competency from capacity to perceive and recollect events].)
Cf. People v. Daily (1996) 49 Cal.App.4th 543, 551 (Evidence Code provisions relating to competency only relate to witness testifying in court, not to hearsay declarant).
The party challenging a witness’s competency bears the burden of proving his or her disqualification, and the trial court’s determination of the witness’s competency will not be disturbed on appeal absent a clear abuse of discretion. (People v. Dennis, supra, 17 Cal.4th at p. 525.) Questions of credibility are separate from the determination of competency, and are to be determined by the trier of fact. (People v. Mincey (1992) 2 Cal.4th 408, 444, citing People v. McCaughan (1957) 49 Cal.2d 409, 420; Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 945.)
Here, the trial court implicitly determined that Jane Doe 2 was competent in 1999 when it denied defense counsel’s motion to strike the statement or dismiss count 21 based on insufficient evidence. This was not an abuse of discretion. Indeed, although we agree with the trial court’s initial observation that Jane Doe 2’s incorrect responses to the detective’s crayon-color and clothing-color questions “appeared problematic,” we also agree with the court’s later ruling that there was no “compelling” reason to exclude the statement. As the trial court said, there were several reasons to believe Jane Doe 2 understood the duty to tell the truth, and to allow the jury to evaluate her credibility.
First, the jurors had the benefit of both a videotape and an audiotape of the prior statement, and were therefore able to observe Jane Doe 2’s words and actions when she made the statement. As the trial court also said, Jane Doe 2’s responses during the 1999 interview were age-appropriate. She was not particularly verbal and tended to “act or point.” She also did not appear to exaggerate the extent of the touching or the number of times it occurred. Nor did she say that anyone else who lived in the household had touched her inappropriately. She also said she told her mother what had happened, and that was why she was being interviewed.
Defendant argues that the statement was unreliable for many reasons: it was uncorroborated by any other testimony or physical evidence; Jane Doe 2 did not volunteer any information about what had happened; the videotape was prepared for prosecutorial use; and the interpreter provided responses where Jane Doe 2’s responses were inaudible. But as the trial court indicated, these arguments concerned the weight, not the admissibility, of the statement.
In short, the videotape showed there were many reasons to believe Jane Doe 2 understood her duty to tell the truth and was telling the truth when she said during the 1999 interview that defendant had molested her—notwithstanding her incorrect responses to the detective’s crayon- and clothing-color questions. Indeed, she shook her head “no” when asked whether the black crayon was white, but appeared to be too shy to tell the detective he would not be telling the truth if he said the black crayon was white. The trial court therefore did not abuse its discretion in implicitly ruling that Jane Doe 2 was not disqualified as a witness at the time the statement was made.
C. Defendant’s Ineffective Assistance Claim is Without Merit
Finally, defendant argues that his trial counsel rendered ineffective assistance in failing to move before trial to exclude the 1999 videotaped interview. To prove this claim, defendant must show that his trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and a reasonable probability that defendant would have realized a more favorable result had the motion been made before trial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
Defendant has not met the second part of this two-prong test. He has not shown a reasonable probability that he would have realized a more favorable result—specifically, that he would have been acquitted on count 21 or that count 21 would have been dismissed—had his counsel moved before trial to exclude the 1999 videotape. Defense counsel fully briefed and argued the issue on the motions to strike the videotape evidence and dismiss count 21 for insufficient evidence. The trial court thoroughly considered the matter, and defendant does not point to any new case citations, evidence, or argument that his trial counsel failed to raise on these motions.
Instead, defendant argues it is likely the motion would have been granted if it had been made before trial, because at that time the court had not heard any evidence from Jane Doe 1 or Jane Doe 2. We disagree. For the reasons discussed, the 1999 statement was admissible as a prior inconsistent statement and Jane Doe 2 was competent to testify in 1999—independent of Jane Doe 1’s testimony that defendant molested her, or Jane Doe 2’s trial testimony.
IV. DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Richli, J.