Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County.No. RIJ114094 & Orange Super.Ct.No. DL025287 Robert J. McIntyre, Judge.
Transferred from the Superior Court of Orange County for disposition.
Robert Van Hoy and Mark S. Devore for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
D.A. (minor) contends: (1) that the trial court prejudicially erred by admitting evidence of the victim’s prior inconsistent statements, and (2) that there was insufficient evidence to support the court’s findings that he committed two violations of Penal Code section 288, subdivision (a). We will affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
Between January 2003 and May 5, 2006, M.A. and J.N. lived together in Orange County. Their three children from previous relationships—M.A.’s son (minor) and J.N.’s daughter Jane Doe (Doe) and son J.—lived with them. When they began sharing a house, Doe was four years old; J. was nine years old; and minor was 11 years old. The family lived in Silverado Canyon until about January 2004, when they moved to Villa Park. During their last year together, they lived in Modjeska Canyon. In each home, Doe, J., and minor had separate bedrooms.
M.A. and J.N. separated on May 5, 2006, and J.N. and her two children moved out of the home. Four days later, J.N. took Doe, by then just eight years old, to an emergency room for an examination. When emergency room physician, Dr. Timothy Korber, tried to question Doe, she would not talk directly to him but whispered all her answers to her mother. Because there was an allegation of sexual assault with possible penetration, Dr. Korber examined the child’s vaginal area. His findings—that the vaginal ring was enlarged and lax—were consistent with possible sexual abuse but could also have been normal for her age. Because of this uncertainty, Dr. Korber referred her for further examination by Child Abuse Services Team (CAST).
On May 31, 2006, Vianey Castro, an investigative assistant with the Orange County Sheriff’s Office sex crimes and domestic violence unit, watched Doe’s CAST interview through a one-way mirror. Castro observed that Doe appeared unable to verbalize certain words, like “nonnie,” “pecker,” and “white goo.” Instead, she wrote them down or pointed to a diagram to name them. She identified “nonnie” on drawings as referring to the vaginal area. During the CAST interview, Doe whispered or wrote her answers to questions. Doe told the interviewer that minor had touched her “nonnie” with his hands and with another part of his body and that the touching occurred in her bedroom, at night when she was trying to sleep. The activities stopped after the families moved away from each other.
This word is variously spelt “nonnie,” “nonie,” “nonny,” and “nonni” in the record. For consistency, we will use “nonnie.”
A Welfare and Institutions Code section 602 petition filed in Orange County on August 29, 2006, charged minor with continuous sexual abuse of a minor. (Pen. Code, § 288.5, subd. (a) (count 1).) Later, the petition was amended to include two allegations of the lesser included offense of lewd and lascivious acts upon a child. (Pen. Code, § 288, subd. (a) (counts 2 & 3).)
At a jurisdictional hearing on March 12 and 13, 2007, Dr. Korber, J.N., M.A., and Castro testified to the facts as recited above. Following Castro’s testimony about Doe’s CAST interview, which had been admitted subject to a motion to strike, the prosecutor argued that it should be admitted under Evidence Code sections 1235 and 770 as a prior inconsistent statement. Defense counsel objected. The court admitted the testimony for impeachment purposes and for the truth of the matter asserted.
Doe and minor also testified at the hearing. Throughout her testimony, Doe appeared frightened and embarrassed. She clutched her stuffed giraffe and at one point appeared to be “tearing up.” Court and counsel had difficulty hearing her. The proceedings had to be stopped twice for the witness to recover her composure. She frequently just nodded or shook her head in answer to questions. She said only “Yes,” or “No,” or “I don’t know,” or “I don’t remember” to most queries from the prosecutor and to virtually all questions from defense counsel.
Asked whether minor had ever touched her, Doe said “Yes.” But she would not say where because, “I’m embarrassed.” However, she was able to make “X” marks on drawings of a girl and a boy to show where on her body and with what part of his body minor had touched her. Doe did not know or could not remember when or where the touching incidents had begun or how many times they had occurred. She remembered that it happened more than two times, but did not know if it was “at least three times.” She remembered talking to a doctor, a nurse, and a police officer about the incidents and said she had told them the truth. Asked if she liked minor, Doe shrugged her shoulders. Asked what her mother had told her before the hearing, she said, “My mom just told me I had to tell the truth.” Defense counsel finally stopped questioning her because she appeared so uncomfortable. At the end of her testimony, the court excused Doe, subject to recall.
Minor, who was 15 years old at the time, testified on direct examination that his relationship with Doe was that of a brother to a sister. He admitted that he had sometimes babysat Doe and had gone into her room occasionally to make sure it was clean or that she had put on her pajamas or had gone to bed. But he maintained that he had never gone into Doe’s bedroom at night or touched her inappropriately. On cross-examination, minor said that he was not mad at Doe because he believed her mother had made up the story about the molestation in revenge over the breakup with his father. Minor thought J.N. was also angry with him because he had reported her to “ATF” for having illegal firearms. Minor said he had once had a girlfriend but had never done anything “sexually active” with her. He had never looked at, or tried to look at, pornography. He had never been attracted to a woman.
M.A. testified as to the locations of the children’s bedrooms to each other and to his and J.N.’s room in each of the three houses they had shared. He said there were baby monitors in each child’s bedroom and that the monitors were on all the time. He had never seen or heard minor entering Doe’s room at night and had never seen minor touch Doe inappropriately. M.A. believed Doe had said that minor did these things because “[h]er mother has coaxed her into it.” Minor did babysit Doe and J. from time to time when M.A. and J.N. went out in the evening, but there was a live-in maid who was always home at the same time. M.A. had never seen minor looking at pornography, at women in magazines, or at sexually charged television shows. He had never heard minor talking about sex or about the private parts of a woman or about girls in his class. M.A. was very close to minor and would have known if he had done any of these things.
On March 19, 2007, the court found counts 2 and 3 of the amended Welfare and Institutions Code section 602 petition true and count 1 not true. In announcing its findings, the court explained why it believed Doe’s testimony: she knew the difference between the truth and a lie and understood the questions she was asked; her mother had told her to tell the truth; the court did not buy into the suggestion that the victim had been “put up to lying” by her mother because of a dispute with M.A. Doe appeared to have been traumatized and was very fearful during the hearing, but she displayed no hatred toward minor or dislike for his father. The court could not find count 1 true beyond a reasonable doubt because Doe answered “no” to so many of the questions as to time and location of the alleged acts.
The matter was transferred to Riverside County, minor’s current county of residence, for disposition.
DISCUSSION
Minor first contends that the trial court erred in admitting any of Castro’s testimony about Doe’s CAST interview. The admission, he argues, was prejudicial because otherwise the evidence in the case was “underwhelming” and the outcome for him would have been more favorable absent the testimony.
Waiver:
The People argue first that minor’s claim of evidentiary error is not cognizable here because minor did not object with sufficient specificity.
To support their waiver argument, the People cite Evidence Code section 353, subdivision (a), and various cases interpreting that section, making the point that a defendant’s objection must be both timely and specific. We agree. But there can be little doubt that defendant’s objection was timely. Defense counsel objected the moment the prosecutor first attempted to elicit testimony from witness Castro about what she had heard the victim say during the CAST interview: “Objection, your honor, hearsay. Motion to strike.” The court replied, “No, overruled,” and indicated that the prosecutor could respond to the objection—“make a record”—after the testimony was completed. Defense counsel then requested that her objection be made a “continuing objection” and the court agreed, “Yes. And the objections would be continuous on behalf of minor.”
The dispute turns on whether the continuing hearsay objection was specific enough to preserve it for our review. It is a close question. As the People note, quoting People v. Partida (2005) 37 Cal.4th 428 (Partida), the purpose for requiring that an objection be specific is to “fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.” (Id. at p. 435.)
Here, the goal described in Partida was met; the court appeared to be fully informed about the parties’ positions. The hearsay objection had been made before Castro testified. After the testimony, the party offering the evidence had made its arguments for admission. The prosecutor moved under Evidence Code sections 1235 and 770, both of which deal with prior inconsistent statements and which together constitute an exception to the hearsay rule. The prosecution had ample time to inform the court about why it believed that the victim’s prior statements and current testimony were inconsistent and explain why it believed it had met the confrontation requirements of Evidence Code section 770.
It is true that defense counsel did not repeat the grounds on which she was objecting to the admission of the testimony, responding only, “And I would just object to the statements coming in, Your Honor, and with that, submit.” However, the fact that there was a continuing hearsay objection, combined with the prosecutor’s seeking to get the testimony in under an exception to the hearsay rule and the court’s ruling it admissible under the offered exception, supports the conclusion that all parties understood the basis for the objection and that the basis was hearsay.
The problem seems to be that defense counsel did not further argue either that the victim’s prior statements and current testimony were not really inconsistent or that the prior statements were not as credible as her current testimony. In either case, they might well have been treated as mere hearsay and excluded—the more precise arguments being made here. We might ordinarily be inclined to agree with the People that defense counsel should have elaborated further in order to avoid a waiver argument. As we shall explain, however, the issue is unimportant because the decision to admit the testimony under the prior-inconsistent-statement exception to the hearsay rule was well supported by the accumulated evidence before the court at that point in the proceedings. And, at that point, there was no abuse of discretion by the trial court in making that ruling. In the interest of judicial economy however, we will address the merits.
Prior Inconsistent Statements and the Standard of Review:
“Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code s]ection 770.” (Evid. Code, § 1235.) “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.” (Evid. Code, § 770; see also People v. Avila (2006) 38 Cal.4th 491, 579.) Inconsistent statements are admissible because the dangers against which the hearsay rule protects generally do not exist. The witness is in court and available for cross-examination. Moreover, the prior statement may be more likely to be true than is the testimony at the hearing both because it was made nearer in time to the event in question and because it is less likely to be affected by the controversy that has generated the litigation. In addition, the trier of fact has the witness before it and can observe and judge her demeanor as she tries to explain or deny the earlier statement. (Cal. Law Revision Com. com., 29B, pt. 4 West’s Ann. Evid. Code (1995 ed.) foll. § 1235, pp. 224-225. ) Testimony of a witness that she does not remember an event is not normally inconsistent with prior statements describing that event, but when her claim of lack of memory amounts to a deliberate evasion, a court will imply inconsistency. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 78.)
We review a trial court’s decision to admit or exclude hearsay evidence for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.) It is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts upon which the determination depends. (People v. Hovarter (2008) 44 Cal.4th 983, 996.)
There is little question that Doe’s statements in the CAST interview and her statements at the jurisdictional hearing were inconsistent in the sense that her later testimony appeared to be a blanket evasion to avoid discussing facts with which she was uncomfortable. In the CAST interview, she remembered and gave details of minor’s repeated sexual touchings; at the hearing, she remembered or claimed verbally to remember almost nothing about them. As the hearing progressed, the court had the opportunity to observe Doe’s demeanor and to determine the reliability of her claim of nonrecollection. There were a number of aspects of her demeanor tending to show that her testimony was evasive because she was so emotionally strained. During questioning by counsel for both the prosecution and the defense, Doe appeared frightened and said she was embarrassed. She spoke so quietly that court and counsel had trouble hearing her. She was unable to articulate the same anatomically related words she had been unable to say during the CAST interview. She was apparently brought to the point of tears at least once and the proceedings had to be stopped twice for her to recover her composure. She answered only “Yes,” or “No,” or “I don’t know,” or “I don’t remember” to most of the questions.
In addition, there were factors that indicated her prior statements were a more accurate picture of the events than her current claims of ignorance and memory failure. The statements were made closer in time to the events, which apparently ceased only when the families separated a few days before the interview. At several points, given the opportunity to explain or deny the earlier statements to the doctor, the nurse, and the “police officer,” Doe confirmed in court—with a simple “yes”—that she had told all of those people the truth about what had happened to her. At the CAST interview Doe indicated that minor had touched her “nonnie” with his hand and had put another part of his body (presumably the “pecker” she could not bring herself to name but could point out on diagrams) inside her. She said that the touchings occurred “every time she was asleep in her bed,” that the other parts of his body were “soft,” and that when he put it inside her, his boxers were “off.” At the hearing, she still could not bring herself to name the body parts involved and verbally denied remembering virtually everything else. However—most significantly—she was able to mark genital areas on anatomically correct diagrams of a girl and a boy as representing the part of her body (the vaginal area) minor had touched with a part of his (the penis). And she was able to write the word “inside” when asked to explain precisely where minor had put his penis. Thus, despite her verbal denials, Doe obviously remembered the essentials of what minor had done to her.
It is not absolutely clear from the record whether the “police officer” referred to was Castro or the CAST interviewer or another officer, but it appears that the only conversation Doe herself had was with a sheriff’s interview specialist, which took place at the CAST facility on May 31, 2006. The details of the interview were recorded by Castro in a report of the events of that date.
It was not unreasonable for the court to consider specific information elicited from a child in a confidential environment shortly after the activities ceased more credible than general denials made in an open courtroom almost a year later. The fact that Doe remembered speaking to several people and said she had told them the truth—while at the same time insisting she could now recall almost nothing about the matter while being able to mark essential information on diagrams—called the credibility of her claims of memory lapse into serious question. It was not an abuse of discretion for the court to conclude that her in-court denials were evasive and less than fully truthful, and that her prior statements were more credible, and admissible even though they were “hearsay.”
Because we conclude that the court properly admitted Doe’s prior inconsistent statements, we do not address minor’s arguments regarding their supposed prejudicial effect.
Sufficiency of the Evidence and Section 288 :
Minor’s second claim is that there was insufficient evidence to support the court’s findings that the allegations in counts 2 and 3 of the petition were true.
When the sufficiency of the evidence to support a verdict is challenged, an appellate court reviews the entire record to determine if any rational trier of fact could have found the elements of the charged crime true beyond a reasonable doubt. We conduct this review in the light most favorable to the judgment below to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value—supporting the judgment. (People v. Welch (1999) 20 Cal.4th 701, 758.) It is the trier of fact, not the appellate court, which must be convinced of the defendant’s guilt. (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
“Any person who... commits any lewd or lascivious act... upon or with the body... of a child... is guilty of a felony.” (§ 288, subd. (a).) A lewd and lascivious act includes any touching intended to sexually arouse either the actor or the victim. (People v. Levesque (1995) 35 Cal.App.4th 530, 543.)
The court here believed the victim’s testimony about the acts minor had done and that he had done them more than once. We cannot say that it was less than rational in so doing. Doe’s hearing testimony and demeanor, along with the properly-admitted evidence about what she said and how she acted during the CAST interview, plus her diagram identification in court, supported the judgment. When asked at the CAST interview if minor had touched her, Doe said that he had and that the touching had occurred “every time when she was asleep in her bed.” When asked at the hearing if minor had touched her and if the touching occurred more than once, she again said, “Yes.” Although the court noted that Doe was fearful and appeared to have been “traumatized” by her experience, it also noted that she understood the questions she was asked and did not harbor hatred against minor or his father. The court was not convinced by minor’s argument that the victim’s mother had put her up to lying because of a dispute with his father. The only reason it did not find the continuous sexual abuse of a child (§ 288.5, subd. (a)) true was because it felt the victim was not specific enough as to time.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., GAUT, J.