Opinion
D057449 Super. Ct. No. J224246
08-23-2011
In re S.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.W., A MINOR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed.
S.W. appeals a juvenile court judgment based on true findings on seven counts that he lewdly and lasciviously touched a child under the age of 14 by means of force (Pen. Code, § 288, subd. (b)(1) ; counts 1-3, 6-7, 9-10). S.W. contends the court violated his Sixth Amendment right to confrontation in admitting a recorded interview of one of the victims, R.J., because she did not answer certain questions during cross-examination. In addition, S.W. contends that his trial counsel was ineffective for failing to move to strike R.J.'s testimony at trial. S.W. also argues that sufficient evidence does not support the true findings that he committed the lewd acts with force under section 288, subdivision (b)(1). In the alternative, S.W. argues that, at the very least, all but two counts must be reduced to true findings of a violation of section 288, subdivision (a).We affirm.
Statutory references are to the Penal Code unless otherwise specified.
S.W. withdrew his contention that the minute order of disposition must be corrected.
FACTS
In 2008 and early 2009, R.J. and her older sister D.J. stayed at M.B.'s house. M.B. was a friend of R.J. and D.J.'s father. M.B. is the mother of S.W. and J.
S.W., J., R.J., and D.J. sometimes played a game called "Mr. Wong." While playing Mr. Wong, S.W., who was 15 years old at the time, would take either R.J. or D.J. into his bedroom, close the door, turn on music, and then molest the girls.
R.J. was nine years old at the time of the trial, but believes she first started playing Mr. Wong with S.W. when she was seven or eight. S.W. would take off R.J.'s pants although she would tell him to stop. S.W. inserted his finger into R.J.'s vagina and anus. S.W. also had both vaginal and anal intercourse with R.J. S.W. would not let R.J. leave his bedroom. When she struggled to leave the bedroom, S.W. would grab R.J.'s arm so she could not get away. Both the vaginal and anal intercourse occurred more than once.
D.J. was 10 years old at the time of trial. Except for the first time they played Mr. Wong, S.W. molested D.J. every time they played the game. S.W. took off D.J.'s pants "a lot" of times even though D.J. told him to stop. D.J. tried to push S.W. away from her when he was taking off her pants, but she could not keep S.W. away. After taking off D.J.'s pants, S.W. would flip her over on her back. S.W. had vaginal intercourse with D.J. multiple times and anal intercourse with D.J. once. While having anal intercourse, S.W. "put [D.J.] up and down" while he was sitting or lying on the ground with D.J. on top of him. S.W. also inserted his finger into D.J.'s vagina. At times, S.W. would grab D.J.'s leg so she could not get away.
DISCUSSION
I
SIXTH AMENDMENT RIGHT TO CROSS-EXAMINE
A. R.J.'s Testimony at Trial
R.J. testified during trial and was subject to direct, cross, redirect, and recross examinations. Understandably, R.J. had difficulty testifying at trial during both her direct and cross-examinations. She was nine years old and was testifying about a difficult, traumatic subject. R.J. had a "strong emotional reaction" during one portion of her cross-examination and "shut-down" during another portion, causing the court to provide her with two breaks during her testimony. While she failed to answer multiple questions on direct examination, she was able to testify consistent with the facts about her interactions with S.W. we previously set forth.
On cross-examination, R.J. also struggled to answer questions. She often did not understand the question posed. Further confusing the record, R.J. answered many questions nonverbally, with a nod or a shake of the head. While at times there were follow up questions to clarify the response for the record, often there were not.
While R.J.'s testimony during cross-examination might have involved some forgetfulness, confusion, or evasiveness, S.W.'s attorney was able to obtain important testimony from her. For example, R.J. did not answer questions regarding how the Mr. Wong game was to be played and whose idea it was to play Mr. Wong. However, she did testify on cross-examination that J. and S.W. made up the game.
R.J. did not initially respond to questions about whether she ever had lied to her father or was mad at him when she told him about what S.W. had done to her. But later during the cross-examination, R.J. testified that she did not lie to her father about what S.W. did to her. She also provided nonverbal responses to several questions regarding when she first told her father about what S.W. had done to her. In addition, R.J. did respond to questions about lying to her father in general. Further, in response to the question, "It [S.W. molestation of her] never happened, did it," she responded, "It did happen."
R.J. also failed to respond to several questions about how she knew S.W.'s bedroom door was locked while she was in the room. Even when the court intervened to help clarify the questions, R.J. did not answer the questions. S.W., however, was able to obtain testimony from another witness that S.W.'s bedroom door could not be locked.
B. Analysis
At trial, over S.W.'s relevancy objection, the court admitted a video tape of a social worker's interview of R.J. The video tape was played after R.J. testified at trial. S.W. now contends the video tape should have been excluded under Crawford v. Washington (2004) 541 U.S. 36 (Crawford)because he did not have the opportunity to effectively cross-examination R.J. We disagree.
Crawford reaffirms federal and state constitutional guarantees that a criminal defendant has the right to confront and cross-examine witnesses against him or her. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) In Crawford, the Supreme Court held: "Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." (Crawford, supra, 541 U.S. at p. 59.) However, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." (Id. at p. 59, fn. 9.)
There is no dispute that the video tape of R.J.'s interview is testimonial. Thus, Crawford would prohibit the admission of the recorded interview if R.J. was unavailable at trial and S.W. did not have a prior opportunity to cross-examine her. (Crawford, supra, 541 U.S. at p. 59.)
S.W. argues, and the People concede, the video tape is testimonial. As such, we assume, for purposes of our review, the video tape is testimonial.
Conceding that R.J. appeared at trial as a witness, S.W. argues that R.J.'s refusal to answer numerous questions during her cross-examination denied him his constitutional right to cross-examine her. " 'The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony.' [Citation.]" (United States v. Owens (1988) 484 U.S. 554, 558-559 (Owens); see People v. Cudjo (1993) 6 Cal.4th 585, 622 ["[T]he right of confrontation . . . does not protect against testimony that is ' "marred by forgetfulness, confusion, or evasion" ' [citations]."; People v. Cummings (1993) 4 Cal.4th 1233, 1292, fn. 32 [applying the rationale in Owens to the confrontation clause in the California Constitution].)
In People v. Perez (2000) 82 Cal.App.4th 760 (Perez ), albeit before Crawford, supra, 541 U.S. 36, the court concluded the defendant was not denied his right to cross-examination even though the witness was extremely evasive. At the defendants' trial for a gang-related drive-by murder, a witness to the murder who had previously identified the defendants as the shooter and driver answered "I don't remember" or "I don't recall" to virtually all questions asked of her about the incident. (Perez, supra, at p. 763.) The witness's prior statements to an officer describing the crime and identifying the defendants were admitted into evidence as prior inconsistent statements under Evidence Code section 1235. (Perez, supra, at p. 763.)
One of the defendants in Perez thus argued that the witness's claimed inability to remember the incident deprived him of his right to confront the witness. The court concluded the admission of the prior statements did not violate the Confrontation Clause. Rather, " ' "the Confrontation Clause guarantees only 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " ' [Citation.]" (Perez, supra, 82 Cal.App.4th at p. 765, citing Owens, supra, 484 U.S. at p. 559; italics added by the Owens court.) "When the declarant 'is present at trial and subject to unrestricted cross-examination,' 'the traditional protections of the oath, cross-examination, and the opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements.' [Citation.]" (Perez, supra, at pp. 765-766.)
The reasoning in Perez is applicable here. R.J. appeared at trial, testified, and was subject to unrestricted cross-examination. Further, the fact finder was able to observe R.J.'s demeanor and determine her credibility while she testified. (Perez, supra, 82 Cal.App.4th at pp. 765-766.) Her failure to answer certain questions did not deny S.W. his opportunity for effective cross-examination. Indeed, her responses to questions on cross-examination were much more substantive and helpful than the witness in Perez, supra, 82 Cal.App.4th 760.
S.W.'s reliance on Smith v. Illinois (1968) 390 U.S. 129 does not warrant a different conclusion. In Smith, the Supreme Court reversed the defendant's conviction after concluding he had been denied his right of cross-examination when the trial court sustained the prosecution's objections to the defendant asking the witness his real name and where he lived. (Id. at pp. 130-131.) Here, no analogous facts exist. R.J. did not refuse to testify as to her real name or where she lived. To the contrary, R.J. answered numerous questions on cross-examination. S.W. simply has not shown R.J.'s failure to answer certain questions during her cross-examination "effectively . . . emasculate[d] the right of cross-examination itself." (Id. at p. 131.)
We are satisfied that the admission of the video tape of R.J.'s interview did not violate Crawford, supra, 541 U.S. 36. R.J. appeared at trial and S.W. had the opportunity to effectively cross-examine her.
II
INEFFECTIVE ASSISTANCE OF COUNSEL
S.W.'s trial counsel did not move to strike R.J.'s testimony on the grounds that S.W. did not have the opportunity to effectively cross-examine her. On appeal, S.W. contends this failure resulted in his denial of effective assistance of counsel under the Sixth Amendment. We disagree.
To show that trial counsel's performance was constitutionally defective, an appellant must prove: (1) counsel's performance fell below the standard of reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel's choice. (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
Because we conclude that S.W. had the opportunity to effectively cross-examine R.J., there were no grounds on which S.W.'s trial counsel could have moved to strike R.J.'s testimony. (See, e.g., People v. Daggett (1990) 225 Cal.App.3d 751, 760.) Because this is the only basis on which S.W. argues his trial counsel was ineffective, his ineffective assistance of counsel claim fails.
III
USE OF FORCE
S.W. contends that sufficient evidence did not support the true findings that he committed the lewd acts with force under section 288, subdivision (b), but instead, committed the lewd acts without substantially greater force than that inherent in the lewd acts themselves. In the alternative, S.W. argues that, at the very least, all but two counts must be reduced to true findings of a violation of section 288, subdivision (a) because of a lack of substantial evidence. We reject both contentions.
We apply a substantial evidence standard of review to assess the sufficiency of the evidence. "In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence --evidence that 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. Kraft (2000) 23 Cal.4th 978, 1053.) The same standard of review applies to juvenile court proceedings. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.)
The elements of an offense under section 288, subdivisions (b) are: (1) physical touching of a child under age 14; (2) for the present and immediate purpose of sexually arousing or gratifying the defendant or the victim; and (3) the touching was accomplished by use of force, violence, duress, menace, or fear of injury. (People v. Alvarez (2002) 27 Cal.4th 1161, 1171.) Force, in this context, means physical force that is " 'substantially different from or substantially greater than that necessary to accomplish the lewd act itself.' [Citation.]" (People v. Cochran (2002) 103 Cal.App.4th 8, 13.)
Section 288, subdivision (b) incorporates by reference subdivision (a).
Citing People v. Schulz (1992) 2 Cal.App.4th 999 (Schulz), S.W. contends the evidence was not sufficient to prove he used force within the meaning of section 288, subdivision (b). In Schulz, the Sixth District concluded, in dicta, the defendant's grabbing of the victim's arm and holding her while fondling her was not sufficient force under section 288, subdivision (b). (Schultz, supra, at p. 1004.) The court reasoned, "[s]ince ordinary lewd touching often involves some additional physical contact, a modicum of holding and even restraining cannot be regarded as substantially different or excessive 'force.' " (Ibid.)
However, the Sixth District and other courts of appeal have rejected this analysis in Schulz. (See People v. Alvarez (2009) 178 Cal.App.4th 999, 1004 (Alvarez); People v. Bolander (1994) 23 Cal.App.4th 155, 160-161 (Bolander); People v. Neel (1993) 19 Cal.App.4th 1784, 1790; People v. Babcock (1993) 14 Cal.App.4th 383, 388.) We agree with this line of cases and also reject Schulz, supra, 2 Cal.App.4th 999, on this issue.
Evidence of force is abundant in this case as to both R.J. and D.J. For example, over R.J.'s protests, S.W. pulled down R.J.'s pants. S.W. prevented R.J. from leaving his bedroom. S.W. also held onto R.J.'s hand to prevent her from getting away.
S.W. also took off D.J.'s pants multiple times even though she told him to stop. Although D.J. tried to push S.W. away, S.W. successfully resisted. After taking off D.J.'s pants, S.W. would flip D.J. over on her back. While having anal intercourse with D.J., S.W. "put [her] up and down" while he was lying or sitting down and she was on top of him. At times, S.W. would grab D.J.'s leg so she could not get away.
Accordingly, we determine sufficient evidence of force supports the true findings. (See, e.g., Alvarez, supra, 178 Cal.App.4th at p. 1005 [defendant's resistance of victim's attempts to push him away and holding the victim "hard" and "tight" sufficient evidence of force]; Bolander, supra, 23 Cal.App.4th at p. 161 ["defendant's acts of overcoming the victim's resistance to having his pants pulled down, bending the victim over, and pulling the victim's waist towards him" constituted forcible lewd conduct].)
S.W. argues in the alternative that if sufficient evidence of force exists, it only supports the use of force on two occasions: (1) S.W. held onto R.J.'s hand when she tried to get away; and (2) S.W. grabbed D.J.'s leg when she tried to leave. We disagree. As we previously discussed, there was sufficient evidence of S.W.'s use of force in multiple ways on different occasions. As such, we determine that sufficient evidence exists to support true findings on counts 1 through 3, 6, 7, 9 and 10.
DISPOSITION
The judgment is affirmed.
____________
HUFFMAN, J.
WE CONCUR:
________
BENKE, Acting P. J.
____________
HALLER, J.