Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCS209923, William H. Kennedy, Judge.
AARON, J.
I.
INTRODUCTION
A jury found Robert Samuel Kircher guilty of four counts of aggravated sexual assault (Pen. Code, § 269) (counts 1, 3, 5, 7), and four counts of lewd conduct upon a child (§ 288, subd. (a)) (counts 2, 4, 6, 8), involving victim Brenna S. (Brenna). In addition, the jury found Kircher guilty of one count of aggravated sexual assault (§ 269) (count 9), and six counts of lewd conduct upon a child (§ 288, subd. (a)) (counts 10, 11, 12, 13, 14, 15), involving victim J.J. (J.). The jury found that Kircher committed several of the offenses against Brenna and J. under circumstances specified in the One Strike law (§ 667.61), including that Kircher tied or bound his victim and committed an offense against more than one victim (§ 667.61, subds. (b), (c), (e)). The jury also found Kircher guilty of possessing child pornography (§ 311.11, subd. (a)) (count 16). The trial court sentenced Kircher to a total aggregate term of 148 years eight months to life in prison.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Kircher contends that the trial court erred in denying his motion to sever the counts involving Brenna from those involving J. In addition, Kircher raises several claims concerning expert testimony that the People presented at trial regarding child sexual abuse accommodation syndrome (CSAAS). Kircher also contends that the record contains insufficient evidence to support any of the jury's guilty verdicts. Finally, Kircher contends that the trial court erred by relying on his alleged commission of an uncharged offense involving the sexual assault of an animal (§ 286.5) in imposing sentence. We affirm the judgment.
"CSAAS cases involve expert testimony regarding the responses of a child molestation victim.... CSAAS testimony 'is admissible to rehabilitate [the molestation victim's] credibility when the defendant suggests that the child's conduct after the incident ─ e.g., a delay in reporting ─ is inconsistent with his or her testimony claiming molestation. [Citations.]' [Citation.]" (People v. Sandoval (2008) 164 Cal.App.4th 994, 1001.)
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's evidence
1. Evidence pertaining to Kircher's molestations of J.
In approximately 1999 or 2000, Angelique J. began dating Kircher. Angelique J. and her daughter, J., who was eight or nine years old at the time, and her son Seth, who was approximately six years old at the time, would frequently spend the night with Kircher and Kircher's 12 or 13-year-old son Jacob Kircher (Jacob), at Kircher's home in Imperial Beach. J., who was 15 years old at the time of the trial, testified that Kircher would often molest her during the nights that she stayed overnight at his house. J. said that during the first incident, Kircher put his fingers in her vagina, and that he did this several times over a month-long period. Later, Kircher began to have sexual intercourse with J. on the couch while her mother slept in Kircher's bedroom and Seth slept in Jacob's room.
J. provided these age estimates at trial.
J. testified that on one occasion, Kircher had sexual intercourse with her while the two were at Angelique J.'s house. J. also testified about another occasion on which she and Kircher had sexual intercourse in Kircher's bed. During this incident, J. said that Kircher also had sexual intercourse with her on a weight bench in his bedroom, after binding her with rope to the bench. At some point during this incident, Kircher also placed his penis in J.'s mouth.
In 2006, J. disclosed to her grandmother's boyfriend that Kircher had raped her. Shortly thereafter, Jeanne's grandmother notified police about J.'s allegations.
Dr. Joyce Adams testified that she examined J. on January 11, 2007. Dr. Adams testified that she observed "two deep notches" in J.'s hymen. One of the notches led Dr. Adams to be concerned that "there might have been some penetration." Dr. Adams testified that she observed nothing unusual about J.'s anus. Dr. Adams also testified regarding a study that she had conducted in which she found that sexual abuse victims often did not present signs of injury in genital examinations conducted after the abuse.
2. Evidence pertaining to Kircher's molestations of Brenna
In October of 2001, Cari S. and her six-year old daughter, Brenna, moved from Georgia to live with Kircher in his home in Imperial Beach. Cari S., Brenna, Kircher, and Jacob lived in the home. Brenna, who was 11 years old at the time of trial, testified that approximately two weeks after she moved into Kircher's home, he began molesting her.
During the first incident, Kircher put his hands down Brenna's pants and touched her vagina while Brenna was sitting on the living room couch and Cari S. was asleep in another room. Brenna said that another incident occurred in Jacob's bedroom. Kircher put duct tape on Brenna's hands, legs, and mouth and inserted his penis into her vagina and anus. Brenna also stated that Kircher had molested her on numerous other occasions in the bathroom of Kircher's house. During the molestations that occurred in the bathroom, Kircher would sodomize Brenna, rape her, kiss her vaginal area and require her to orally copulate him. Kircher used duct tape to bind Brenna's mouth, wrists, and ankles during portions of the molestations.
Brenna testified that Kircher had also molested her on "a few times" in a "barn" or "garage" on Kircher's property. During these molestations, Kircher bound Brenna with duct tape and placed her on a weight bench. Kircher would then place his penis in Brenna's anus. Kircher told Brenna that the sexual activity was "good" for her.
By June 2002, Cari S. and Brenna had moved back to Georgia. After moving back to Georgia, Brenna told her grandmother that Kircher had been "hurting" her. Douglas County Sheriff Investigator James Harrell testified that on June 9, 2002, Brenna told him that Kircher had "put his private part inside her." Brenna also told Investigator Harrell that Kircher had bound her and placed his penis in her anus. On June 11, 2002, Brenna provided a similar disclosure to another Georgia investigator.
Diana Chase, a nurse practitioner at Rady Children's Hospital in San Diego, testified that she examined Brenna on May 22, 2007. During the examination, Chase observed a "V or U-shaped cleft" on Brenna's hymen, which was consistent with a healed injury or scar. Chase explained that such an injury "is consistent with an injury caused from penetration." She did not observe any injuries in Brenna's anus.
3. Other evidence
The People also presented expert testimony related to CSAAS (see part III.B, post) and evidence that Kircher had possessed child pornography (see part III.D, post).
B. The defense
Manda Sutton, Jacob's mother, testified that between 1999-2001 she lived in Imperial Beach. Sutton said that Jacob lived primarily with Kircher during this period.
Jacob, who was 19 years old at the time of trial, testified that when J. stayed in Kircher's house, she generally slept on a couch in the living room, and that her younger brother Seth slept on another couch in the same room. Jacob testified that Kircher owned a weight bench, but that the bench was kept outside, by the garage. According to Jacob, the bench was too large to fit in Kircher's bedroom. Jacob never saw Kircher alone with Brenna.
Dr. Phillip Young testified that he had reviewed photographs of J.'s and Brenna's hymens. Young testified that it did not appear from the photographs that Brenna's hymen had been penetrated by a penis. Dr. Young stated that J.'s hymen had "a tension, a bridge that's connected," and said that he had not "ever seen such a thing in a sexually-active woman."
Kircher testified that he owned a weight bench, but that he never kept the bench inside his house. Kircher stated that he worked outside of his home on weekdays from 8:00 a.m. until 6:00 p.m., and that he occasionally worked on weekends.
C. Procedural background
In August 2007, the People filed a second amended information charging Kircher with four counts of aggravated sexual assault (§ 269) (counts 1, 3, 5, 7), and four counts of lewd conduct upon a child (§ 288, subd. (a)) (counts 2, 4, 6, 8, 17), involving Brenna. The second amended information charged Kircher with one count of aggravated sexual assault (§ 269) (count 9), and six counts of lewd conduct upon a child (§ 288, subd. (a)) (counts 10, 11, 12, 13, 14, 15), involving J. The second amended information also charged Kircher with possessing child pornography (§ 311.11, subd. (a)) (count 16).
The People also alleged that Kircher committed counts 1 through 15 under circumstances defined in the One Strike law. With respect to counts 2, 4, 6, 8 and 10, the People alleged: (1) that Kircher engaged in tying and binding of the victim or another person in the commission of the offense, and that Kircher committed an offense described in section 667.61, subdivision (c) against more than one victim within the meaning of section 667.61, subdivisions (a), (c), and (e); (2) that he committed an offense described in section 667.61, subdivision (c) against more than one victim, within the meaning of section 667.61, subdivisions (b), (c), and (e); and (3) that Kircher engaged in tying or binding of the victim or another person in the commission of the offense within the meaning of section 667.61, subdivisions (b), (c), and (e). With respect to counts 11 through 15, the People alleged that Kircher committed an offense described in section 667.61, subdivision (c) against more than one victim, within the meaning of section 667.61, subdivisions (b), (c), and (e).
Section 667.61, subdivision (a) specifies a sentence of 25 years to life where a defendant is convicted of an offense specified in section 667.61, subdivision (c) and the defendant commits the offense under two or more of the circumstances in section 667.61, subdivision (e). Section 667.61, subdivision (b) specifies a sentence of 15 years to life where a defendant is convicted of an offense specified in section 667.61, subdivision (c) and the defendant commits the offense under one or more of the circumstances in section 667.61, subdivision (e).
A jury found Kircher guilty on counts 1 through 16. With respect to count 4 and counts 10 through 15, the jury found that Kircher committed the offenses under circumstances defined in the One Strike law, as alleged in the second amended information.
As discussed in part III.E., post, the trial court ordered count 17 to be bifurcated from the remainder of the charges, to be tried upon completion of the trial on counts 1 through 16.
With respect to counts 2 and 8, the jury found that Kircher did not commit the offenses within the meaning of section 667.61, subdivision (a), and that Kircher did not commit the offenses against multiple victims within the meaning of section 667.61, subdivisions (b), (c), and (e). However, also with respect to counts 2 and 8, the jury found that Kircher did engage in tying or binding of the victim within the meaning of section 667.61, subdivisions (b), (c), and (e).
With respect to count 6, the jury found that Kircher did not commit the offenses within the meaning of section 667.61, subdivision (a). However, the jury found that Kircher did commit count 6 against multiple victims within the meaning of section 667.61, subdivisions (b), (c), and (e) and that Kircher did engage in tying or binding of the victim within the meaning of section 667.61, subdivisions (b), (c), and (e).
The trial court sentenced Kircher to a total aggregate sentence of 148 years eight months to life in prison. The court sentenced Kircher to 25 years to life on counts 4 and 10, and 15 years to life on counts 1, 5, 7, 11, 12, and 14. The court also sentenced Kircher to six years on count 13, two years on count 15, and 8 months on count 16. The court ordered all terms to be served consecutively. The trial court stayed execution of the sentences imposed on the remainder of the counts, pursuant to section 654.
Kircher timely appeals.
III.
DISCUSSION
A. The trial court did not err in denying Kircher's motion to sever the counts involving Brenna from those involving J.
Kircher claims that the trial court abused its discretion in denying his motion to sever the counts involving Brenna from those involving J. Kircher also claims that even assuming the court did not abuse its discretion in denying his motion to sever, the consolidation of the cases resulted in gross unfairness that denied him a fair trial and due process.
1. Factual and Procedural background
On August 6, 2007, the People filed a first amended 17-count information. Counts 1 through 8 related to Kircher's alleged molestations of Brenna. Count 9 also alleged that Kircher committed a lewd act upon Brenna (§ 288, subd. (a)) by sexually assaulting an animal (§ 286.5). Counts 10 through 16 pertained to Kircher's alleged molestations of J. That same day, Kircher filed a motion to sever the charges pertaining to Brenna from those pertaining to J. In his motion, Kircher conceded that that offenses were of the same class and were therefore properly subject to joinder. Kircher further conceded that he could not show prejudice from such joinder to the extent that the evidence pertaining to each of the counts was cross-admissible. However, Kircher claimed that Evidence Code section 352 would preclude the cross-admissibility of the evidence pertaining to each victim, in separate cases. Kircher further argued that the charges involved inflammatory conduct, that the prosecution was attempting to join two weak cases to make one strong case, and that he would suffer extreme prejudice if the court were to deny his motion to sever because, "trials alleging molest by more than one victim are nearly impossible to defend against."
The court held a hearing on the motion the following day. At the hearing, the prosecutor stated that she agreed with the court's suggestion to sever count 9 from the case. With respect to the remainder of the charges, the prosecutor argued, "The evidence of child molest against each of the victims is cross-admissible in the case of the other, and would be pursuant to [Evidence Code section] 1108. And it would, even had it not been charged separately, have been admissible in the other case. Therefore we're vehemently opposed to any severance...."
Defense counsel argued that there were not "substantial similarities" with respect to the charges involving the two victims. Defense counsel acknowledged that both cases involved young victims, but noted that with respect to Brenna, the People claimed that Kircher had committed forcible sexual assaults, while with respect to J., defense counsel claimed that the alleged sexual conduct included "touching... loving... holding."
The prosecutor responded by noting the numerous similarities in the two sets of offenses, including the victims' ages, the manner by which Kircher became acquainted with the victims, the length of the time period over which the molestations occurred, the manner by which Kircher molested the victims (including Kircher's use of a weight bench during the molestations), the types of sexual conduct Kircher engaged in with each victim, and the locations where the molestations took place.
In considering whether to sever the cases, the trial court remarked:
"There are substantial similarities between the two cases involving the two victims: First, the nature of the assaults.... It's the same rooms. It's the same conduct. It's the same tying up and binding of the victims. It's attacking them systematically with all kinds of sexual assaults known to mankind. So there is a great deal of similarity between these things and a great deal of similarity in effect between the children and their involvement in this thing.
"There is also similarity as to how they came about.... [T]his defendant became involved with the single mothers of these children and apparently wooed them successfully, and then moved them into his home with their children, and he assumed a male role, something like a husband/father, and took advantage of that trust to accomplish the allegations that are before this court. [¶] To me, these acts would be cross-admissible even if separately tried."
The trial court further stated, "I see no prejudice, even looking at [Evidence Code section] 352, in having them tried together, which is what I believe the law encourages and would dictate in this situation." The court denied the motion to sever.
2. Governing law
a. The law pertaining to joinder of criminal charges
Section 954 provides the statutory authorization for joinder of criminal charges. That section provides in relevant part:
"An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated."
Even where criminal charges are properly joined pursuant to section 954, a trial court may exercise its discretion to order separate trials in the interests of justice. "[A] determination as to whether separation [of the trial of offenses] is required in the interests of justice is assessed for abuse of discretion." (People v. Alvarez (1996) 14 Cal.4th 155, 188.) "Denial of a severance may be an abuse of discretion where (1) evidence related to the crimes to be tried jointly would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case'; and (4) any one of the charges carries the death penalty. [Citations.] The first criterion is the most significant because if evidence on each of the joined charges would have been admissible in a separate trial on the other, "'any inference of prejudice is dispelled."' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 985 (Cunningham).)
b. Relevant provisions of the Evidence Code governing cross-admissibility
Evidence Code section 1108, subdivision (a) provides, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the Supreme Court described the factors a court should consider in determining whether to admit evidence under Evidence Code section 352 that would be admissible under Evidence Code section 1108:
"[T]rial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, supra, 21 Cal.4th at p. 917.)
c. Joinder of criminal charges that results in gross unfairness amounts to a violation of due process
In determining whether the trial court abused its discretion in denying a motion to sever, an appellate court must examine the record that was before the trial court at the time of its ruling. (People v. Mendoza (2000) 24 Cal.4th 130, 161.) However, "[e]ven if a trial court's severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the 'defendant shows that joinder actually resulted in "gross unfairness" amounting to a denial of due process.'" [Citation.]" (Id. at p. 162.) For example, in Mendoza the court considered whether evidence and the prosecutor's argument pertaining to the defendant's gang membership in relation to various counts, which was introduced at trial but was not before the trial court when it ruled on whether to consolidate the counts, resulted in a fundamentally unfair trial. (Id. at pp. 162-163.) The Mendoza court rejected the defendant's argument, noting that the prosecutor's "comments and those by the witnesses were fleeting and minor; they therefore did not result in gross unfairness so as to amount to a denial of defendant's constitutional right to due process." (Id. at p. 163.)
3. The trial court did not abuse its discretion in denying Kircher's motion to sever
Kircher claims that the trial court abused its discretion in denying his motion to sever. We disagree.
In both the trial court and this court, Kircher concedes that all of the charged offenses as to Brenna and J. were of the same class. Accordingly, the statutory criteria for joinder were met. (§ 954.) Kircher also does not dispute that all of the evidence as to each count would be admissible as to all other counts pursuant to Evidence Code section 1108, unless the evidence was inadmissible pursuant to Evidence Code section 352. Kircher fails to present any argument on appeal as to the cross-admissibility of the evidence under Evidence Code sections 1108 and 352. In any event, even assuming that Kircher had provided such analysis, any such argument would fail in light of the substantial similarities between the two sets offenses, as outlined by the prosecutor and the trial court. Because all of the evidence was cross-admissible as to each count, any "any inference of prejudice [in joining all the counts] is dispelled."'" (Cunningham, supra, 25 Cal.4th at p. 985.)
4. Joinder of the charges did not violate Kircher's right to due process
Kircher contends that joinder of the charges violated his right to due process. However, his only argument on this score is that, "The evidence of all the counts, the jury instructions that combined all the counts, and the closing argument by the prosecutor allowed the jury to improperly use the evidence pertaining to Brenna to prove the counts relating to J." (Italics added.) However, Kircher fails to make any argument as to why it was legally improper for the jury to use the evidence in this manner. As noted above (see part III.A.3, ante), the trial court did not abuse its discretion in concluding that the evidence pertaining to the molestations of Brenna would have been admissible in a trial involving the molestations of J., and vice versa. Thus, even assuming that the jury did use the evidence of the molestations of each girl to prove the molestations of the other, Kircher has failed to demonstrate that such use of the evidence was improper.
We assume for the sake of argument that the de novo standard of review applies to this aspect of Kircher's claim. (See People v. Seijas (2005) 36 Cal.4th 291, 304 [stating that independent review standard of review "'comports with this court's usual practice for review of mixed question determinations affecting constitutional rights'"], quoting People v. Cromer (2001) 24 Cal.4th 889, 901.)
B. The trial court did not err in admitting expert testimony regarding CSAAS, and any error in failing to instruct the jury regarding the limited purpose for which it could consider the testimony was harmless
Kircher raises several claims concerning the expert testimony that the People presented at trial regarding CSAAS. Specifically, Kircher contends that the trial court erred in concluding that the expert was qualified to provide such testimony. Kircher further contends that the trial court erred in allowing the expert to testify regarding the cognitive abilities of young children. Finally, Kircher contends that the trial court erred in failing to instruct the jury, sua sponte, that the jury could not rely on the expert's testimony in determining the truth of the victims' accusations.
1. Applicable standards of review
With respect to Kircher's claim pertaining to the expert's qualifications, "'We are required to uphold the trial judge's ruling... absent an abuse of discretion. [Citation.] Such abuse of discretion will be found only where "'the evidence shows that a witness clearly lacks qualification as an expert....'" [Citation.]' [Citation.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063.) The abuse of discretion standard of review also applies to Kircher's claim that the expert provided testimony that was not properly admissible. (See, e.g., People v. Williams (2009) 170 Cal.App.4th 587, 618 ["We review the trial court's ruling on the admissibility of expert opinion testimony for abuse of discretion"].) Finally, we review Kircher's jury instruction claim under the de novo standard of review. (People v. Guiuan (1998) 18 Cal.4th 558, 569 [determination of whether the trial court has a duty to give a particular jury instruction sua sponte is reviewed de novo].)
2. Factual and procedural background
On August 6, 2007, Kircher filed a motion in limine seeking to preclude the People from introducing expert testimony regarding CSAAS from social worker Catherine McLennan. In his motion, Kircher acknowledged the existence of case law authorizing the admission of CSAAS testimony. However, Kircher noted that the rationale underling these cases was that testimony regarding the behavior of sexually abused children was necessary because it is a subject about which jurors lack sufficient knowledge. Kircher contended that this rationale was no longer sound in light of an increased awareness on the part of the general public concerning the issue of the sexual abuse of children. Kircher also questioned whether McLennan possessed sufficient qualifications to provide the proposed testimony, noting that "[I]f Ms. McLennan attempts to testify about child molest 'myths' based simply on her work as a child abuse social worker, an objection to her qualifications in this field should be sustained." Kircher stated in his motion in limine, "[P]lease note that the defense requests an Evidence Code [section] 402 hearing regarding both the foundation of M[s]. McLennan's 'expert' testimony, as well as what exactly she plans to say if called as an expert in this trial." Kircher further contended that McLennan's testimony, if admitted, should be limited in its scope, and that the People should be allowed to offer the evidence only to "rebut a defendant's attack on the credibility of the alleged victim based on a specific 'myth' or 'misconception' suggested by the evidence." Elsewhere in his motion, Kircher acknowledged that he intended to attack the credibility of the complaining witnesses by cross-examining them regarding their delayed reporting of the alleged sexual misconduct.
Kircher indicated in his motion that the prosecutor had provided defense counsel with McLennan's curriculum vitae.
Evidence Code section 402 authorizes a trial court to hold a hearing outside the presence of the jury for the purpose of determining the admissibility of evidence.
The following day, the court held a hearing on Kircher's motion in limine. The court began its remarks by stating that the admissibility of McLennan's testimony had also been raised in "one of the People's motions." The court noted that the prosecutor was seeking to offer "expert testimony regarding certain aspects of child molestation or misconceptions, as she puts it, although she did inform us yesterday, and I assume it's still her position today that there would be no reference to child sexual abuse accommodation syndrome." The prosecutor responded in the affirmative to the court's statement.
Although it appears that the People filed a written motion on the issue, no such motion is contained in the record on appeal. There is also no reporter's transcript of the proceeding at which the prosecutor apparently informed the court that the expert would not refer to CSAAS in her testimony.
The court continued, noting that the prosecutor "concedes in her papers," that there would be no "reference to any material in this case," but rather only "general statements... based upon [the expert's] experience in investigating and testifying in these cases." The prosecutor again responded in the affirmative, and informed the court that McLennan was "the head of the child abuse unit at Palomar Hospital." The prosecutor also stated that McLennan had testified as an expert in a number of "these types of trials." The court asked the prosecutor to provide an "offer of proof as to what you would be asking her." The prosecutor responded in part by stating:
"That she would be able to testify to how children ─ she's conducted thousands of interviews, and she's published on the subject as well ─ how children disclose child molest, what their affect is when they disclose it, how they describe it, that there's a variety of ways children react... it would be just very general evidence regarding child molest victims as a class, which helps explain some of the behaviors."
After the prosecutor provided her offer of proof, defense counsel reiterated his argument, outlined in the motion in limine, that "[t]his is not an area required for expertise."
During his remarks, defense counsel did not mention his request that the court hold an Evidence Code section 402 hearing before ruling on the admissibility of the testimony.
After hearing further argument from both counsel concerning the need for the proposed expert testimony in this case, the court stated, "I'm going to grant the motion to use the expert."
In its ruling, the trial court again referred to the "People's brief," which, as noted above (see fn. 9, ante), is not contained in the record on appeal.
At trial, McLennan testified further regarding her qualifications. McLennan testified that she holds a master's degree in social work, and that she has taken numerous courses in child abuse, child interviewing, and child development. McLennan explained that she was a supervisor of the child abuse program at Palomar Pomerado Health Systems. In that capacity, McLennan performs clinical supervision of persons who conduct forensic interviews of children in cases involving suspected child abuse. In addition, McLennan testified that she had personally performed in excess of 2,000 such interviews over the course of her career, and that she continues to conduct four to five such interviews a week. McLennan also testified that she belongs to the American Professional Society on the Abuse of Children, that she has taught several courses on the subject of interviewing children, and that she has testified as an expert witness regarding child sexual abuse and delayed disclosure issues on approximately 15 different occasions, including in courts in San Diego County.
As to the substance of her testimony, McLennan testified that most children "who ultimately find their way into some kind of investigation for child abuse," have delayed their disclosure of such abuse. McLennan referred to various studies that have found that between 70 and 80 percent of children who ultimately make a disclosure of sexual abuse did not immediately tell someone about the abuse. McLennan also discussed research concerning the reasons why children do not immediately disclose abuse, including loyalty to the abuser, and shame. McLennan also explained that the children whom she had interviewed regarding sexual abuse allegations frequently did not appear to be outwardly emotionally upset during the interviews. McLennan noted that the lack of emotional affect is often attributable to the fact that the children have previously disclosed the abuse to others, often many times, and/or have developed coping mechanisms to deal with the abuse. McLennan also testified that there are "a number of... things," that can cause children to disclose abuse, including that the child develops an awareness of the significance of the abuse, or that the child is no longer living with the abuser.
3. The law regarding the admissibility of expert testimony concerning CSAAS
In People v. Bowker (1988) 203 Cal.App.3d 385, 391 (Bowker), this court considered whether the People may introduce expert testimony regarding CSAAS in cases in which a defendant is accused of sexually abusing a child. The Bowker court noted that in People v. Bledsoe (1984) 36 Cal.3d 236 (Bledsoe), the Supreme Court had concluded that the People may not introduce similar evidence pertaining to "rape-trauma syndrome" for the purpose of proving that a rape had actually taken place, "because the syndrome was developed as a 'therapeutic tool' and not to determine the ' "truth" or "accuracy" of a particular past event.'" (Bowker, supra, 203 Cal.App.3d at p. 391, quoting Bledsoe, supra, 36 Cal.3d at p. 249.) However, "Bledsoe suggested that... evidence related to the syndrome could be admissible to 'disabus[e] the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.'" (Bowker, supra, 203 Cal.App.3d at p. 391, quoting Bledsoe, supra, 36 Cal.3d at pp. 247-248.)
Noting the similarities between rape trauma syndrome and CSAAS, the Bowker court followed Bledsoe, and concluded that testimony pertaining to CSAAS is admissible for "the limited purpose of disabusing the jury of misconceptions as to how child victims react to abuse." (Bowker, supra, 203 Cal.App.3d at p. 392.) For example, such testimony may be admissible to "explain [a victim']s delay in reporting the abuse and her last-minute recantation of the charges...." (People v. Housley (1992)6 Cal.App.4th 947, 955 (Housley).) However, '[i]t is beyond dispute that CSAAS testimony is inadmissible to prove that a molestation actually occurred.' [Citation.]" (People v. Wells (2004) 118 Cal.App.4th 179, 188.)
4. The trial court did not abuse its discretion in concluding that McLennan was qualified to provide expert testimony on the issue of CSAAS
Kircher claims that the trial court erred in failing to grant his request to hold a hearing pursuant to Evidence Code section 402 to determine whether McLennan was qualified to provide expert testimony in this case. Kircher contends that "presumably" no such hearing was granted because "the prosecutor withdrew her request to qualify McLennan as a CSAAS expert."
We disagree with Kircher's assertion that the prosecutor withdrew her request to qualify McLennan as a CSAAS expert. Rather, it appears that the prosecutor merely agreed with the court that neither the expert nor the prosecutor would directly refer to the term "child sexual abuse accommodation syndrome" during McLennan's testimony. In any event, the prosecutor made clear at the hearing on Kircher's motion in limine that she intended to offer McLennan's expert testimony regarding the behavior of victims of child sexual abuse. Further, while Kircher claims that the court erred by failing to hold a Evidence Code section 402 hearing, he presents no argument on appeal as to what such a hearing would have revealed, or how the trial court erred in determining that McLennan was qualified to render an expert opinion regarding child sexual abuse, in the absence of such a hearing.
Evidence Code section 402 authorizes, but does not require a trial court to hold a hearing regarding an expert's qualifications. (See Evid. Code, § 402, subd. (b) ["The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury," italics added]; People v. Hoyos (2007) 41 Cal.4th 872, 911 ["Defendant contends the court should have held an evidentiary hearing before [the expert] was allowed to testify. The claim has no merit. [The expert's] resume sufficiently established his qualifications"].) Moreover, it is clear from the record that McLennan had sufficient educational and professional expertise (see part III.B.2, ante), to provide expert testimony concerning the behavior of child sexual abuse victims. [Evid. Code, § 720, subd. (a) ["A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates"].)
Accordingly, we conclude that the trial court did not abuse its discretion in finding that McLennan was qualified to provide expert testimony in this case.
5. Kircher did not preserve his claims that the court erred in admitting McLennan's expert testimony regarding the manner by which the cognitive abilities of young children can affect their ability to disclose sexual abuse
Kircher claims that the trial court improperly allowed McLennan to testify regarding matters beyond the scope of admissible CSAAS testimony. Specifically, Kircher claims that the court erred in allowing McLennan to testify that it is uncommon for children to make up sexual stories, and that a six or eight-year-old child would not be able to be specific as to the number of times the child was molested or when the molestations occurred. Kircher claims that this testimony exceeded the scope of permissible CSAAS testimony because the testimony was not related to "commonly-held misconceptions regarding the behavior of abuse victims," but instead, went "directly into the area of corroborating the victims' credibility."
Kircher claims that the court erred in allowing McLennan to testify regarding the cognitive ability of a six-year-old or an eight-year-old to testify as to the location where a molestation occurred, but fails to identify any such testimony in the record.
a. Additional factual and procedural background
With respect to the cognitive abilities of children, Kircher notes that McLennan testified as follows on direct examination:
"[Prosecutor]:... Do you have experience with the cognitive abilities of children in the age range of between six and eight?
"[McLennan]: Yes.
"[Prosecutor]: Is there a difference between those two ages?
"[McLennan]: Yes, between six and eight.
"[Defense counsel]: I'm going to object. Foundation.
"The Court: Sustained. Lay the foundation first.
"[Prosecutor]: Thank you, Your Honor.
"[Prosecutor]: First of all what's your experience that would give you the ability to know the cognitive abilities of children in this age range.
"[McLennan]: Well, I have formal education in it, in college, with regard to child development. Moreover, having seen so many children ─ we don't do a formal developmental assessment during the interviews. We do some brief developmental things; do they know their colors, can they write their name; are they where other children are. Most of it comes from my experience with so many kids that age, that you get an understanding of what a child of a certain age can provide."
McLennan proceeded to provide additional testimony regarding the cognitive abilities of children at various ages. For example, with respect to six-year-olds, McLennan testified, without objection, that "What they can't tell us much about is how many times something like that [i.e. sexual abuse] has happened or when it was."
During cross-examination, defense counsel attempted to ask McLennan whether there was any research that suggested that certain types of events leading up to a child's disclosure of alleged sexual abuse were likely to be associated with false disclosures. After various attempts at formulating a question in a manner that McLennan could understand, defense counsel stated, "The reasons that a child would provide a false disclosure, could that be the same thing as providing a true disclosure?" McLennan responded in the affirmative.
During redirect examination, the following colloquy occurred:
"[Prosecutor]:... I also wanted to ask you about the false allegation idea that the defense was questioning you about. The first was fabricating stories. What kind of an ability does a six-year-old have to fabricate stories?
"[McLennan]: Well, it would depend on what the story is about. A six-year-old ─
"[Defense counsel]: Objection. Foundation.
"The court: Sustained.
"[Prosecutor]: Do you have any experience in the way the cognitive ability of kids would affect the ability to fabricate stories?
"[McLennan]: Well, again, children at a very young age can fabricate stories around things that are familiar to them, or typically kids will fabricate stories to get out of trouble about something if they feel like something can get them into trouble. But usually kids will fabricate around things they're familiar with, experiences that they know or have done or experienced.
"[Defense counsel]: I'm going to object to also lack of foundation on the part about their fabrication at the end [sic].
"The court: Overruled. It goes to the weight, not to the admissibility.
"[McLennan]: One of the things that you always worry about with a child as young as six who is providing sexual information is that it's out of the range of what they should have acquired developmentally, and so the need exists to explore where the child acquired that kind of information if it involves adult sexual activity."
McLennan subsequently responded in the affirmative to the prosecutor's question, "In your experience is it uncommon for children to make up sexual stories?" Defense counsel raised no objection to either the question or the answer.
b. Kircher did not preserve in the trial court the evidentiary objections that he raises on appeal
With respect to the prosecutor's direct examination, defense counsel raised a foundation objection to McLennan's testimony regarding the cognitive abilities of six-year-old and eight-year-old children. After the trial court sustained the objection, the prosecutor laid a foundation for the testimony, and defense counsel raised no further objections to McLennan's testimony. McLennan then testified that the cognitive abilities of six-year-olds would preclude them from being able to provide information regarding the number of times that they were sexually assaulted or when such assaults occurred. Kircher did not object to this testimony, and thus failed to preserve the objection that the court erred in allowing McLennan to testify regarding the ability of a six-year-old to provide information regarding the frequency and timing of alleged sexual abuse. (Evid. Code, § 353, subd. (a) [judgment may not be reversed on the basis of a trial court's admission of evidence unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion"].)
Similarly, during McLennan's redirect examination, the trial court sustained defense counsel's foundationobjection to McLennan's testimony regarding the cognitive ability of a six-year-old to fabricate a story. Kircher's appellate claim thus cannot be based on this ruling. The only other potentially relevant objection defense counsel made during the prosecutor's redirect examination of McLennan that Kircher cites on appeal is the trial court's overruling of defense counsel's foundationobjection to McLennan's testimony that children "will fabricate around things they're familiar with, experiences that they know or have done or experiences that they know or have done or experienced." However, even assuming for the sake of argument the trial court erred in overruling this objection, defense counsel failed to raise any objection in the trial court as to the specific testimony as to which he objects on appeal, namely, McLennan's testimony regarding the likelihood that a young child would make up a sexual story. Under these circumstances, Kircher did not preserve his objection to McLennan's testimony that, in her experience, it is uncommon for children to make up sexual stories. (Evid. Code, § 353.)
In his reply brief, Kircher also cites a portion of the transcript in which the prosecutor asked McLennan the following question: "And when you have a delayed disclosure from the age range, six to eight to later adolescent, does that impact their ability to estimate time, duration, frequency?" In the trial court, defense counsel objected to this question as leading. The trial court overruled this objection. Kircher does not raise any contention on appeal regarding his objection that the prosecutor improperly asked a leading question.
It was defense counsel who first raised the topic of the truth or falsity or a victim's sexual abuse disclosures during his cross-examination of McLennan.
Kircher's motion in limine did not preserve his claims on appeal. "Generally when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal." (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3; accord People v. Brown (2003) 31 Cal.4th 518, 547.) "The reason for this rule is that until the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility." (People v. Jennings, supra, 46 Cal.3d at p. 975, fn. 3.) In this case, Kircher's claim that McLennan's testimony regarding the cognitive abilities of six to eight year-olds exceeded the scope of permissible CSAAS testimony is precisely the type of evidentiary objection that must be contemporaneously made so as to afford the trial court the opportunity to intelligently rule regarding the admissibility of the evidence.
Although a motion in limine may adequately preserve an evidentiary objection under certain limited circumstances (see, e.g., People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.), Kircher presents no argument in this regard on appeal.
We conclude that Kircher forfeited his claim that the trial court improperly admitted expert testimony that was beyond the scope of permissible CSAAS testimony.
6. Any error that the trial court committed in failing to instruct the jury, sua sponte, that it could not rely on McLennan's testimony in determining the truth of the victims' accusations was harmless
Kircher claims that the trial court erred in failing to instruct the jury pursuant to CALCRIM No. 1193 that the jury could not rely on McLennan's testimony to determine whether the victims' molestation claims were true, and that the testimony was relevant only to establish that the victims' conduct was not inconsistent with having been abused. We conclude that any error that the trial court may have committed in failing to give the instruction was harmless.
Kircher claims both that the trial court failed to provide the instruction "sua sponte," and that the court failed to give the instruction "upon request." However, he provides no citation to the record as to where his counsel made such a request. In light of our conclusion that any error that the trial court may have committed in failing to provide the instruction was harmless, we need not determine whether defense counsel in fact requested the instruction in the trial court.
a. Additional factual and procedural background
The trial court instructed the jury pursuant to CALCRIM No. 303 that, "During the trial certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other." The trial court also instructed the jury pursuant to CALCRIM No. 332 regarding the jury's consideration of expert witness testimony in general. However, the court did not provide the jury with any specific instructions regarding its consideration of McLennan's testimony.
Specifically, the court instructed the jury: "Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [¶] An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in evaluating the expert's opinion. [¶] If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the experts' qualifications."
b. We assume for purposes of this decision that the trial court erred in failing to instruct the jury pursuant to CALCRIM No. 1193
There is a conflict among Courts of Appeal regarding whether a trial court must instruct a jury sua sponte regarding the limited purposes for which a jury may use CSAAS testimony, or whether the court need give such an instruction only upon request. (Compare Housley, supra, 6 Cal.App.4th at pp. 957-959["because of the potential for misuse of CSAAS evidence, and the potential for great prejudice to the defendant in the event such evidence is misused, it is appropriate to impose upon the courts a duty to render a sua sponte instruction limiting the use of such evidence"] with People v. Stark (1989) 213 Cal.App.3d 107, 116; People v. Sanchez (1989) 208 Cal.App.3d 721, 735; and People v. Bothuel (1988) 205 Cal.App.3d 581, 587-588, disapproved on other grounds in People v. Scott (1994) 9 Cal.4th 331, 347-348 [all stating that defendant is entitled to such an instruction upon request].)
CALCRIM No. 1193 is a standard jury instruction that outlines the purposes for which a jury may consider CSAAS testimony:
"You have heard testimony from _______________ regarding child sexual abuse accommodation syndrome. [¶] _________'s testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her). [¶] You may consider this evidence only in deciding whether or not ______________ conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony."
Notwithstanding the conflict in the case law discussed above, the People concede that the trial court had a duty to provide such an instruction. In light of this concession, and our conclusion that the trial court's failure to provide such an instruction was harmless (see part III.B.6.c., post), we assume for purposes of this decision that the trial court erred in failing to instruct the jury sua sponte pursuant to CALCRIM No. 1193.
c. Any error that the trial court may have committed in failing to instruct the jury pursuant to CALCRIM No. 1193 was harmless
CALCRIM No. 1193 is a cautionary instruction, in that its purpose is to inform a jury how the jury should regard a witness' testimony. Where the omission of a cautionary instruction is at issue, the People v. Watson (1956) 46 Cal.2d 818 standard of prejudice applies. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224.) Under that standard, a judgment may not be reversed unless it is "reasonably probable that a result more favorable to defendant would have been reached in the absence of the error." (People v. Bunyard, supra, 45 Cal.3d at p. 1224.)
Expert testimony concerning CSAAS is potentially unduly prejudicial to a defendant where the expert testifies that a particular victim's report of abuse is credible because the victim manifests characteristics that sexually abused children generally exhibit. (Bowker, supra, 203 Cal.App.3d at p. 391.) The Bowker court explained:
"Fundamentally, Bledsoe must be read to reject the use of CSAAS evidence as a predictor of child abuse. It is one thing to say that child abuse victims often exhibit a certain characteristic or that a particular behavior is not inconsistent with a child having been molested. It is quite another to conclude that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused. The former may be appropriate in some circumstances; the latter ─ given the current state of scientific knowledge ─ clearly is not." (Id. at p. 393.)
On the other hand, if the expert's testimony is properly couched in general terms, describes the behavior of molestation victims as a class, and does not include any testimony concerning the behavior of the victim in the charged offense, the failure to provide the jury with a limiting instruction regarding its consideration of the evidence is generally harmless. (Housley, supra, 6 Cal.App.4th at p. 959.)
In Housley, supra, 6 Cal.App.4th at page 959, the court concluded that a trial court's failure to instruct the jury regarding the limited purposes for which the jury could consider expert testimony concerning CSAAS "was clearly harmless...." In support of its conclusion, the Housley court noted that the expert had stated in her testimony before the jury that she had not met the victim and that she had no knowledge of the case. (Ibid.) Further, the expert's testimony "was couched in general terms, and described behavior common to abused victims as a class, rather than any individual victim." (Ibid.) In addition, while the victim recanted her allegations of sexual abuse at trial, several other witnesses "offered testimony that explained [the victim's] retraction of her claims...." (Ibid.)
As was true with the expert testimony at issue in Housley, McLennan couched her testimony in general terms and discussed the behavior of victims as a class. At no time during her testimony did McLennan inform the jury that she had met the victims in this case or suggest that she had any knowledge of their particular allegations. Nor did the prosecutor suggest as much. For example, the prosecutor began her substantive examination of McLennan by stating, "Now, the reason I called you here today would be to address some common misconceptions about the way children disclose sexual abuse."
We acknowledge that McLennan's testimony that in her experience, it was uncommon for children to make up sexual stories, had the potential to be misused by the jury as evidence offered "for the purpose of demonstrating abuse," rather than "disabusing the jury of misconceptions as to how child victims react to abuse." (Bowker, supra, 203 Cal.App.3d at p. 392.) However, this testimony was brief and did not constitute the principal thrust of McLennan's testimony. Further, any potential prejudice that might have occurred due to the absence of a limiting instruction was reduced by McLennan's agreement with defense counsel's statement during cross-examination that, "It's not your job to determine whether or not these statements [given by children during forensic interviews] are true or not."
As noted in part III.B.5, ante, defense counsel did not object to McLennan's testimony in this regard. The only theory of admissibility that the People offer on appeal is that this testimony constituted expert testimony concerning CSAAS.
Further, the evidence of Kircher's commission of the offenses was compelling. Brenna and J. each provided detailed testimony regarding various molestations perpetrated on them by Kircher. The molestations of J. and Brenna shared a number of similarities, including that Kircher sexually assaulted each girl after binding them to a weight bench. Further, there is no evidence that the two victims had ever met, or that they had ever talked with each other. The People also presented evidence that Kircher possessed child pornography, which, as the prosecutor argued during closing argument, the jury could consider in determining whether Kircher committed the offenses against Brenna and J.
J. testified that she had never met a girl named Brenna. When asked whether she knew a girl named J., Brenna testified that there was a girl in her school in Georgia named J. Brenna did not suggest that she knew the J. in this case.
Under these circumstances, we conclude that it is not reasonably probable that Kircher would have received a more favorable verdict if the trial court had instructed the jury pursuant to CALCRIM No. 1193.
C. There is sufficient evidence to support the jury's verdict finding Kircher guilty of counts 1 through 15 involving his sexual abuse of Brenna and J.
Kircher contends that the record contains insufficient evidence to support the jury's verdict finding him guilty of counts 1 through 15, involving his sexual abuse of Brenna and J.
1. Standard of review
In determining the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
2. Application
Kircher does not address the specific elements of the crimes of which the jury found him guilty. Rather, he restricts his analysis to global claims regarding the insufficiency of the evidence pertaining to all of the counts related to his sexual abuse of Brenna and J. We will address the sufficiency of the evidence in these terms, as well.
With respect to Brenna, Kircher does not dispute that Brenna testified that Kircher put his penis inside her vagina and her anus, and that he had her perform oral copulation upon him. Brenna's testimony provided sufficient evidence to support his convictions. "'In California conviction of a sex crime may be sustained upon the uncorroborated testimony of the [alleged victim].' [Citation.]" (People v. Gammage (1992) 2 Cal.4th 693, 700; see also CALCRIM No. 1190 ["Conviction of a sexual assault crime may be based on the testimony of a complaining witness alone"].)
We also reject Kircher's claim that "other evidence introduced at trial makes these claims improbable to impossible to have occurred." In support of this claim, Kircher notes that Dr. Young provided expert testimony for the defense to the effect that that it did not appear to him that Brenna's hymen had been penetrated by a penis. The jury was not required to accept Dr. Young's testimony. (People v. Ledesma (2006) 39 Cal.4th 641, 722 ["the jury was not required to accept the testimony of the defense experts"].) Further, Dr. Young himself testified that, "the whole notion that the hymen is some magic clue to whether somebody's had intercourse or not is not, in my opinion, terribly reliable."
Kircher also contends that Brenna's testimony was "incredible and lacking veracity." Specifically, Kircher notes that Brenna responded in the affirmative when defense counsel asked her whether she remembered having testified at the preliminary hearing that she had spoken with members of the district attorney's office regarding "how to answer questions." We do not read this testimony as suggesting that Brenna was conceding that her testimony was false. Elsewhere during her testimony, defense counsel asked Brenna, "Who told you how to testify?" Brenna responded, "Claudine [the prosecutor] told me to tell the truth." Kircher also notes that Brenna testified that Kircher molested her during both mornings and afternoons, but that Brenna's mother testified that Kircher worked outside of the home from 8:00 am to 5:00 p.m. Even assuming that Brenna's mother's testimony is correct, such testimony would not render all of Brenna's testimony regarding the sexual assaults "inherently improbable," as would be required for this court to reverse the jury's verdicts. (People v. Duncan (2008) 160 Cal.App.4th 1014, 1018.)
Kircher further contends that the record contains insufficient evidence to support the jury's findings under the One-Strike law that he engaged in the tying and binding of Brenna. This finding was based on Brenna's testimony that Kircher used duct tape to bind her. Kircher claims that there was no evidence of "residual marking or bruising" and notes that Brenna's mother "never observed anything unusual." We are aware of no authority that would require such corroborative evidence, and the lack of such evidence does not render Brenna's testimony on this score improbable. Finally, we reject Kircher's suggestion that the "improbability of being able to insert an adult penis into a six year old whose ankles were bound with duct tape," requires reversal of any of the jury's verdicts. We cannot conclude that such an act is physically impossible, as would be required to reject Brenna's testimony supporting these verdicts on this ground. (People v. Rabanales (2008) 168 Cal.App.4th 494, 509-510 ["'[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]' [Citation.]"].)
In short, none of the purported inconsistencies, conflicts, or lack of corroboration of Brenna's testimony that Kircher discusses in his brief comes close to rendering Brenna's testimony insufficient to support the jury's verdicts. (See People v. Zamudio (2008) 43 Cal.4th 327, 357 ["'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] [Citation.]"].)
With respect to J., Kircher does not dispute that J. testified that he committed various sexual assaults upon her. Kircher notes, however, that J. testified that Kircher tied her to a weight bench and had sexual intercourse with her, that he had sexual intercourse with her on a routine basis on his living room couch, that he had sexual intercourse with in her mother's bed on one occasion, and that he had sexual intercourse with her in his bed on another occasion. Kircher contends that the record contains insufficient evidence as to these counts because the "medical testimony does not corroborate these claims." As noted above, such corroboration was not required. (People v. Gammage, supra, 2 Cal.4th at p. 700.) We also reject Kircher's claim that the record contains insufficient evidence to support the charges because "according to the defense expert [Dr. Young], it was impossible to have occurred as reported [by J.] based on the condition of the hymen." As noted above, the jury was not required to accept Dr. Young's testimony. (People v. Ledesma, supra, 39 Cal.4th at p. 722.) In any event, Dr. Young testified that the condition of a female's hymen is not necessarily determinative regarding whether she has had sexual intercourse.
Accordingly, we conclude that Kircher has failed to demonstrate that that the record contains insufficient evidence to support the jury's verdicts finding him guilty of counts 9 through 15 involving his sexual abuse of J.
D. There is sufficient evidence to support the jury's verdict finding Kircher guilty of possessing child pornography
Kircher contends that the record contains insufficient evidence to support the jury's verdict finding him guilty of possessing child pornography (§ 311.11, subd. (a)). We apply the well established standard of review applicable to sufficiency claims as described in part III.C.1, ante.
1. Factual background
Marion Lowe, a senior forensic chemist for the Drug Enforcement Administration serving a temporary assignment to the San Diego Regional Computer Forensics Laboratory, testified regarding a forensic examination that he performed on Kircher's laptop computer. Lowe explained that he found a number of images on the laptop that he believed potentially constituted child pornography. Lowe identified 35 such images taken from Kircher's laptop, which the People offered in evidence at trial. Lowe stated that he found the 35 images in two locations on the hard drive of the laptop. Lowe referred to the locations as the "lost files" and "temporary internet files" portion of the hard drive. Lowe further described these locations as follows:
The exhibit containing the images has not been transmitted to this court pursuant to California Rules of Court, rules 8.320(e), 8.224.
"Temporary internet files are files that the computer will keep if you've gone to the internet and looked at things, you found an image you might like, or even just having gone to that site to look at the image it would save an image on that hard drive in a temporary internet file area.
"In the lost files, these files have basically for the lack of a better term, lost the information from where they came. The images are there. Where they came from and their titles are missing because... these images had been deleted. It's just that the information from the file itself is now gone, but the image is still there."
During cross-examination, defense counsel asked Lowe, "So the temporary internet files, if I understood your testimony correctly, is if somebody goes ─ let's use, for an example, to an adult pornography site, and if he pulls up one image, will other photographs or other images automatically download on the temporary internet files if it's also appearing as a small little icon?" Lowe responded, "If they were there in association with another image it's possible, yes."
During redirect examination, the prosecutor asked Lowe, "When you're talking about images of children, how ─ how prevalent are they on the internet, according to your experience? Lowe responded, "I would say that to the casual user, unless you're specifically looking for that, you're not going to find them very easily. You may have information that would seem to include, say, a 17-year-old, and you don't know, when you go there, whether that person is or is not. For anything younger than that or actually graphically young, I would think that you would have to know specifically where to go."
Francisco Villa testified that he was a former friend of Kircher's. Villa stated that he had worked on a desktop computer that Kircher owned, on three different occasions, after Kircher reported "that his children got onto porn sites and he couldn't get it off." Villa stated that on two of the three occasions on which he was working on Kircher's desktop computer, he saw images depicting nude children. Villa testified that one of the images of child pornography that he saw depicted oral copulation.
No images from this desktop computer were offered at trial.
2. Governing law
Section 311.11, subdivision (a) provides:
"(a) Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, as defined in subdivision (d) of Section 311.4, is guilty of a felony and shall be punished by imprisonment in the state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment."
In Tecklenburg v. Appellate Div. of Superior Court (2009) 169 Cal.App.4th 1402, 1412 (Tecklenburg), the court considered whether the record contained sufficient evidence to establish the defendant's personal possession of child pornography files that were found on his family's computer. In concluding that the evidence was sufficient, the Tecklenburg court observed that "the child pornography found on the home computer did not appear to be the result of accidental or mistaken Internet use or involuntary computer pop-ups." (Id. at p. 1413.) In support of this conclusion, the Tecklenburg court noted that the record contained the following evidence:
"Numerous images of child pornography, graphics, and Web site addresses were found on the home computer. Some of the images were found both in thumbnail and normal size. The size and format did not match that of a pop-up. Some of the images were found multiple times on the hard drive, indicating the images had been accessed multiple times. A number of the images appeared to be part of a series or collection of related child pornography. Some of the images matched images found on a site tour of a child pornography Web site; other images matched images found on another child pornography site after going past the home page. Evidence was found of multiple Internet word searches for terms commonly connected with child pornography. Some of the word searches matched the names on the recovered images from the Web site." (Ibid.)
In addition, files with search terms related to child pornography connected to the defendant's e-mail provider were discovered on the computer. (Tecklenburg, supra, 169 Cal.App.4th at p. 1413.) Child pornography similar to that found on the defendant's home computer was also found on computers at the defendant's work place. (Ibid.) In light of this evidence, the Tecklenburg court concluded that there was sufficient evidence to support the jury's verdict that the defendant had possession or control of child pornography. (Ibid.)
The Tecklenburg court also considered whether a defendant "[m]ay... be convicted of possessing child pornography stored in a computer's cache files absent some evidence that he was aware those files existed." (Tecklenburg, supra, 169 Cal.App.4th at pp. 1414-1415.) The Tecklenburg court concluded that a defendant need only have knowledge of his possession of images containing child pornography and that the record need not contain evidence that the defendant was aware that he possessed the actual underlying data or computer files containing the child pornography.
The Tecknlenburg court explained that temporary internet files are stored in a computer's cache. (Tecklenburg, supra, 169 Cal.App.4th at p. 1497, fn. 7.)
"By its plain language section 311.11, subdivision (a), prohibits either possession or control of any child pornography 'matter, representation of information, data, or image.' (§ 311.11, subd. (a), italics added.) The nonexclusive language then broadly describes numerous forms and methods by which such child pornography may be distributed, including not just physical storage devices, but any 'computer-generated image [.]' (Ibid., italics added.) The statutory language reflects a far-reaching intent by the Legislature to cover both traditional means of displaying child pornography and the new era of Internet use in an effort to reduce the exploitation of children. By its plain terms, section 311.11 includes an image of child pornography as it is displayed on a computer screen as an object that may be knowingly possessed or controlled. Section 311.11, subdivision (a), is not limited to the knowing possession or control of the computer's underlying data or files." (Id. at p. 1418.)
3. Application
The precise basis for Kircher's sufficiency claim is unclear, since he merely summarizes Lowe's testimony in his brief. However, it appears that Kircher is claiming that there is not sufficient evidence that he knowingly possessed child pornography because none of the relevant images that were found on his computer "were saved in a file named by the owner."
Kircher does not contend that the images were not child pornography.
The People presented evidence that authorities found child pornography on Kircher's laptop computer, a witness saw child pornography on Kircher's desktop computer on two separate occasions, and Kircher had on three occasions requested technical assistance to remove pornography from his desktop computer. Lowe testified, in substance, that a person would be unlikely to inadvertently discover the types of child pornography that were found on Kircher's computer. In addition, evidence of Kircher's commission of other sexual offenses against Brenna and J. was admissible to prove his commission of the count charging possession of child pornography. (See Evid. Code § 1108, subds. (a), (d)(1)(A) [providing that "[I]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352," and listing as sexual offenses sections 269, 288, and 311.11].)
Lowe referred to the unlikelihood that a person would unintentionally view child pornography involving children who are "graphically young." We presume that the images contained on Kircher's computer involved the "graphically young." Kircher has not argued otherwise and has not transferred the trial exhibit containing the images to this court. (See fn. 20, ante.)
The evidence of the sexual offenses Kircher committed against Brenna and J. tended to demonstrate that the child pornography found on Kircher's computer "did not appear to be the result of accidental or mistaken Internet use or involuntary computer pop-ups." (Tecklenburg, supra, 169 Cal.App.4th at p. 1413.) Further, evidence that child pornography was found on two different computers that Kircher owned strengthened the inference that he knowingly possessed child pornography. (See id. at pp. 1413-1414.) Evidence that Kircher had previously sought to remove pornography from the hard drive of his desktop computer tended to demonstrate that he was aware of his ability to possess and control images from the Internet. (See id. at pp. 1414-1415.) Finally, this same evidence tended to demonstrate that Kircher knew that he possessed images containing child pornography. Finally, to the extent Kircher's sufficiency claim is premised on the fact that authorities discovered the child pornography on the "lost files" and "temporary internet files" locations in his laptop computer, we agree with the Tecklenburg court that the People are not required to present evidence that the defendant was aware that he possessed the actual underlying data or computer files containing the child pornography in order to prove a violation of section 311.11, subdivision (a).
Accordingly, we conclude that the record contains sufficient evidence to support the jury's verdict finding Kircher guilty of possessing child pornography (§ 311.11, subd. (a)).
E. The trial court did not commit error by referring to Kircher's commission of the sexual assault of an animal in imposing sentence
Kircher claims that the trial court erred in refusing to exercise its authority under section 1385 to strike various One-Strike law findings and in sentencing him to consecutive sentences. Specifically, Kircher contends that in imposing sentence, the court improperly relied on unsubstantiated facts pertaining to a charge of sexual assault of an animal (§ 286.5) that were detailed in Kircher's probation report. The probation report states that in February 2005, Kircher's former girlfriend, Sonya Kidd, took her dog to the veterinarian because the dog was bleeding from its vaginal area after being alone in Kircher's care. The veterinarian told Kidd that it appeared that something had been inserted inside the dog's vagina. Kircher claims that the trial court's reference to this charge at sentencing was fundamentally unfair because, among other reasons, Kircher had no opportunity to cross-examine witnesses to this charge.
1. Factual and procedural background
At the preliminary hearing, Brenna testified that Kircher digitally penetrated a dog in her presence, and that he forced her do so as well. On June 7, 2007, the People filed an information in which they alleged, among other charges, that Kircher had committed a lewd act upon Brenna "(to wit: finger / [section] 286.5 sexually assaulting an animal)" in violation of section 288, subdivision (a). The People alleged that this conduct occurred between January 1, 2001 and December 31, 2002. On August 6, 2007, the People brought this same charge against Kircher in count 9 of a first amended information.
Kircher filed a motion in limine to exclude any evidence pertaining to his commission of "animal abuse with a dog owned by Sonya Kidd." In his motion, Kircher asserted that the alleged conduct did not "result[] in convictions or even an investigation," and that "[n]o complaint was ever filed with the police...."
The next day, pursuant to the court's suggestion, the People agreed to sever count 9 of the first amended information from the remaining charges in this case. The prosecutor noted that she had "brought a motion to admit separate evidence of beastiality, which went towards count 9." The court granted Kircher's motion to exclude evidence pertaining to the incident involving Kidd's dog, in light of the severance of count 9 from this case.
Although the prosecutor's motion is not in the record, it is clear that the prosecutor intended to offer evidence of Kircher's commission of the uncharged offense involving Kidd's dog for the purpose of proving Kircher's commission of count 9 involving Kircher's digital penetration of a dog with Brenna.
On August 13, 2007, the People filed a second amended information in which they alleged, as a new count 17, that Kircher had committed a lewd act upon Brenna "(to wit: finger / [section] 286.5 sexually assaulting an animal)" in violation of section 288, subdivision (a). The trial court explained that its previously ruling "concerning Count 9 should be deemed as applying to Count 17. In other words, [Count 17] should be severed from the 16 other counts and trail them for trial either by Court of by jury, upon completion of the trial on the 16."
After the jury rendered verdicts on counts 1 through 16 of the second amended information, the court granted the People's motion to dismiss count 17.
During Kircher's sentencing hearing, the trial court stated:
"[Brenna and J.] claim they were tied up by the wrists and by the feet on that weight machine, and they were put though what I would say was a living hell for several months, and as the probation officer opines, and I think correctly, months of complete and utter horror, including being sodomized, raped, digitally penetrated, forced to orally copulate you. [¶] It's this exposure to your repeated and rampant depravity involving these minor females that shows the extent of your illness, and that's also been made manifest by another incident which was tried in this court because it was separated from the case at trial because of its prejudicial effect, and that has to do with the dog situation." (Italics added.)
2. In sentencing Kircher, the trial court did not rely on the incident involving Kidd's dog
Kircher has failed to demonstrate that the trial court's statement at Kircher's sentencing hearing was a reference to the uncharged February 2005 incident with Kidd's dog. The record recited above makes clear that in referring to incident that was "separated from the case at trial," the trial court was referring to count 17 involving Kircher's commission of a sexual assault of a dog in Brenna's presence. Further, the trial court's statement at Kircher's sentencing hearing that the incident to which it was referring "was tried in this court," strengthens the conclusion that the trial court was not referring to the uncharged incident involving Kidd's dog. We therefore reject Kircher's argument that the trial court improperly relied on allegedly "unsubstantiated" conduct involving Kidd's dog in sentencing him in this case.
It appears that the trial court misspoke in stating that this count "was tried" to the court. Rather, the record indicates that the court dismissed count 17 on the People's motion after the jury returned its verdicts on counts 1 through 16. However, as noted above, Brenna testified to the conduct that formed the basis of count 17 at the preliminary hearing in this case.
In light of our conclusion, we need not consider the People's argument that the sentence "imposed by the court was completely based on the fact that [Kircher] repeatedly raped two little girls and had absolutely nothing to do with a dog."
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.