Opinion
C087480
09-19-2019
THE PEOPLE, Plaintiff and Respondent, v. EDWIN PINEDA BARRIENTOS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE010035)
A jury found defendant Edwin Pineda Barrientos guilty of two counts of violating Penal Code section 288.7, subdivision (a), sexual intercourse and sodomy of a child under 10 years of age. The trial court sentenced him to concurrent terms of 25 years to life in prison. On appeal, defendant contends (1) there is insufficient evidence to sustain the convictions; (2) it was error to admit a hearsay statement by the two-year-old victim, either as a spontaneous statement (Evid. Code, § 1240) or a statement for medical diagnosis or treatment (§ 1253), and admission of the statement violated his confrontation rights; and (3) the prosecutor committed prejudicial misconduct in misstating the evidence. Although we find error in admitting the victim's statement, we find no prejudice and affirm.
The jury acquitted defendant on the two alternate counts of subdivision (b) of Penal Code section 288.7, penetration with a foreign object.
Further undesignated statutory references are to the Evidence Code.
FACTS
In 2016, the time of crimes, Y.P. (the mother) had four children: a daughter A., age 13; a son D., age, 10; a younger son; and a two-year eight-month old daughter, the victim. The mother was single and had come from Mexico in 2005; she was undocumented. She worked in the butcher department of a grocery store and cleaning an office and a gym.
When the mother first came to Sacramento, defendant's brother William rented her a room. After about four months, she moved to a different house and William moved to an apartment with defendant. The mother cleaned William and defendant's apartment. She had a brief sexual relationship with defendant. She told a defense investigator they had sex on the sofa in defendant's apartment a day or two before the incident with the victim. On a Friday in March 2006, the mother went to clean defendant's apartment and brought her children. They stayed there all day and night. The next morning, she went to work and left the children there. She went out with William that night. When she returned after midnight, the children were asleep and they all stayed there that night. The next morning, Sunday, the mother again went to work, returning during lunch and after work. She and her children returned to their home between 7:00 and 8:00 that night.
While undressing the victim for a bath, the mother noticed blood on the child's underwear and pants. She asked the victim if someone had touched her. The victim said it was defendant; he had touched her with his finger. The mother checked the victim's body and found scratches in her rectum. The victim was scared and became more frightened as the mother asked questions and checked her body. The mother put the victim's underwear in a bag as "evidence for my child." She later gave the bag to a sheriff's deputy.
The mother asked A. and D. what had happened. At first they said nothing, but then they told her the same basic account of events they told at trial. At defendant and William's apartment D. was playing video games with his brother when he heard a loud noise and the victim crying. He went to defendant's bedroom and knocked on the door. He told defendant to open the door, but it was locked. D. banged on the door several times. Defendant said the door was unlocked, but it wasn't. A. also heard the loud bump from defendant's room; it sounded like something fell. She joined D. in banging on defendant's door. She was mad and threatened to break the door down.
There were discrepancies in the children's testimony and statements they made earlier, especially as to how long they were at defendant and William's apartment, when actually the locked door incident occurred, and where William was at this time. The basic story of the crying victim with defendant behind a locked door remained consistent.
A. heard defendant tell the victim to be quiet; his voice "did not sound like a normal voice." Defendant finally opened the door. The victim was crying and went to A. A. asked defendant what had happened and he said the victim fell. He "looked nervous." The victim would not tell A. what happened but cried as she does when she is hurt and would not calm down. Neither A. nor D. told their mother about this incident when she returned to the apartment.
The mother did not call the police because she was afraid her children would be taken away as she had left them with a man. The next afternoon she took the victim to the hospital. There the police were called and a sheriff's deputy escorted them to the BEAR (Bridging Evidence Assessment and Resources) clinic for a sexual assault exam.
A physician's assistant conducted the forensic exam of the victim. The victim had a bruise on her cheek. Her genital exam appeared normal but it was hard to visualize the shape of the hymen because she was squirming. There were lacerations in the rectal area that were consistent with sexual assault. The physician's assistant collected swabs from inside the victim's mouth, her vulva, two from the vestibule (immediately beyond the labia majora and below the labia minora), and two from the anal area. She also collected the underwear the victim was wearing.
A criminalist analyzed the swabs and cuttings from both pairs of the victim's underwear (worn the day of the incident and the day of the exam). There was no evidence of acid phosphatase, an enzyme in high concentration in semen, on any of the samples. But a small amount of sperm was found on the vulva swab, both vestibule swabs, and one anal swab. The DNA profile of the sperm on the vestibule swabs was consistent with defendant's profile. The sperm found on the cuttings from the underwear the victim wore the day of the incident was also consistent with defendant's profile. The criminalist could not develop a full DNA profile for the sperm on the anal swab.
Dr. Angela Vickers, a pediatrician specializing in child abuse and neglect, testified as an expert. She testified there are usually no injuries to a child when the penetration does not enter the vaginal canal. Most sexually abused children have normal exams. She explained, "When children are sexually abused and describe in their -- you know, simple words, developmentally appropriate, that something touched their genitals, whether it was a penis or a finger, even if they are to describe it, it may not go all the way into the vaginal canal. It may actually be within the labia minora or perhaps just touching up against the hymen, and none of those structures would really be injured significantly by pushing up against or touching." She also explained that young children are poor historians and do not distinguish between genitals and anus but use one word for "everything down in that area."
Dr. Vickers found the anal lacerations, which were fresh, having been made within a few days, were consistent with penile penetration. The vestibule swabs with sperm were indicative of penile penetration.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends there is insufficient evidence to sustain the convictions because there is no evidence of penile penetration. He contends the prosecution's case was based on inferences that are not supported by the evidence and suggests alternative explanations for the evidence at trial. He contends the small amount of sperm found does not prove penile penetration because sperm is hardy, the mother had sexual relations with defendant on the sofa shortly before the alleged incident, and the sperm could have transferred from her to the victim. He discounts Dr. Vickers's testimony as biased because she always found examinations consistent with allegations of sexual abuse regardless of whether there were any injuries.
" 'The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] " '[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder.' " [Citation.] "The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 'Although it is the duty of the [finder of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [finder of fact], not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.' " ' [Citation.]
" 'An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.' [Citation.] 'Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].' [Citation.]" (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572.)
The jury heard evidence that defendant and the victim were in his bedroom behind a locked door, and he took some time to open the door despite the victim's siblings pounding on it and demanding that he open it. Defendant told the victim to be quiet in an abnormal voice. When defendant did open the door, the victim was crying and ran to her big sister for comfort. Defendant looked nervous and said he did not do anything. The reasonable inference from these suspicious circumstances is that something happened to the victim other than defendant's explanation of a fall.
Further, there was substantial evidence that what happened was sexual intercourse and sodomy.
"The elements of sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a)) are: (1) The defendant engaged in a act of sexual intercourse or sodomy with the victim; (2) when the defendant did so, the victim was 10 years of age or younger; and (3) at the time of the act, the defendant was at least 18 years old." (People v. Mendoza (2015) 240 Cal.App.4th 72, 79.) Sexual intercourse under section 288.7 requires penetration of only the labia majora, not the vagina. (People v. Dunn (2012) 205 Cal.App.4th 1086, 1097.) Similarly, sodomy requires only slight penetration. (Mendoza, at p. 79.)
The jury heard that sperm, matching defendant's DNA profile, was found on the vulva swab and both vestibule swabs from the victim, as well as on her underwear. The vestibule is located behind the labia majora, indicating the sufficient penetration. Dr. Vickers, the expert, opined this presence of sperm was consistent with penile penetration. Although there was no evidence of any injury to the victim's genitalia, Vickers testified there is usually no injury if the penetration is not into the vaginal canal. In fact, she testified, the majority of sexually abused children have no physical findings of injury and their injuries heal quickly. Defendant contends an inference of genital penetration is not reasonable because the victim did not report any contact with her genitalia. Vickers explained that young children do not distinguish between their genitalia and anus, often using the same word to describe both. This was substantial evidence of sexual intercourse.
Defendant attacks Vickers's testimony as biased. Whether her testimony was credible was a decision for the jury. "Conflicts and even testimony which 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.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 403.)
Defendant's contention that the sperm may have been transferred from the mother to the victim is only speculation. The jury heard no evidence on the likelihood of transfer. Although there was some evidence that the mother had sex with defendant on a sofa one to two days before the locked door incident, there was no evidence that any sperm was left on the sofa or as to how it possibly could have been transferred to the victim's underwear and genitalia.
There was also substantial evidence of sodomy. The victim was two and had sperm in her anus. While the source of the sperm on the anal swab could not be identified, the reasonable inference is that its source was the same as the other sperm found on the victim and her underwear. Further, the victim had lacerations in the rectal area that were consistent with sexual assault and penile penetration. The lacerations were made within a few days of the examination.
Defendant points out that the victim described assault by only a finger and contends "It is not reasonable to assume that what she was describing as a finger was in fact his penis . . . ." We disagree. First, there was no evidence the young victim knew what a penis was. Further, the lack of precision by a very young child in describing events during a sexual assault is understandable and was confirmed by the expert testimony. Finally, the nature of the act of molestation was a question for the jury and substantial evidence supports the jury's conclusion that it was sodomy.
II
Admission of the Victim's Statement
Defendant contends the trial court erred in admitting the victim's statement that defendant hurt her with his finger. He contends it was inadmissible under section 1240 as a spontaneous declaration because there was no basis for finding the victim was still experiencing nervous excitement due to the occurrence so as to make it spontaneous. He further contends the statement was inadmissible under section 1253 as a statement made for purpose of medical diagnosis or treatment because the victim made the statement to her a mother, a person not able to make a medical diagnosis or render medical treatment. Finally, he contends admission of the statement violated his confrontation rights.
As noted ante, the mother testified the victim said defendant touched her with his finger, not that he hurt her. In closing argument, the prosecutor quoted the statement both ways.
A. Background
The People moved to admit the victim's statement to her mother "Edwin hurt me with his finger" on several grounds. They first sought to admit it as a fresh complaint. Second, they sought admission under section 1253 as a statement for purposes of medical diagnosis or treatment by a minor under age 12. Finally, the People asserted the statement was admissible as a spontaneous statement under section 1240.
Defendant objected. He argued the statement was not volunteered and if admitted as a fresh complaint, only the fact that a complaint was made, not its content, was admissible. He contended it was not admissible under section 1253 because there was no diagnosis being made. Noting the delay between the occurrence and the statement, he argued there was no evidence the victim was still under stress at the time she made the statement such that it would qualify as a spontaneous statement. In an in limine motion, defendant objected to the admission of any statement by the victim as a violation of his confrontation rights unless she testified.
The trial court ruled the statement was admissible. It found it was made under circumstances that rendered it trustworthy and was therefore admissible per section 1253. The court further found "it appears" the statement would be admissible under section 1240, but an additional proffer as to whether the victim was still under the stress of excitement should be made. The court agreed with the defense that the contents of a fresh complaint are inadmissible.
B. Section 1240
Section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
Contrary to the parties' assertions, the court did not admit the statement under section 1240, noting the need for further evidence of the second prong. The People did not offer any further evidence before trial. At trial, the mother testified when she was undressing the victim for a bath she noticed blood on her underwear and her pants. She asked her if someone had touched her and the victim said Edwin had touched her with his finger. The mother offered no evidence that the victim was still under stress when the statement was made. Instead, the mother testified she had not noticed any change in the victim's behavior after they left defendant's apartment. At dinner that night the children were normal, although she had noticed that the victim had been crying.
The People contend the victim was scared and "uncharacteristically quiet until prompted." The mother testified the victim was scared once she asked about the touching and became more scared as the mother checked her and asked more questions. The next day the victim was quieter and the mother noticed she walked differently. She had not noticed any difference in the victim's walking the day before. The evidence indicates the victim's change in behavior was due to the disclosure of the molestation. There was insufficient evidence that when the statement was made the victim was still under the "stress of excitement" of the molestation itself. The statement was not admissible under section 1240.
C. Section 1253
Section 1253 provides in part: "Subject to Section 1252, evidence of a statement is not made inadmissible by the hearsay rule if the statement was made for purposes of medical diagnosis or treatment and describes medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. This section applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect."
Section 1252 provides: "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness." The trial court admitted the victim's statement under section 1253, finding it was trustworthy.
Section 1253 "is patterned after rule 803(4) of the Federal Rules of Evidence (28 U.S.C.), which applies to all statements made for the purpose of medical diagnosis or treatment." (People v. Brodit (1998) 61 Cal.App.4th 1312, 1331.) Under the federal rule, "the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included." (Advisory Com. note to para. 4 of Fed. Rules Evid., rule 803, 28 U.S.C.) "To be admissible under Rule 803(4), a statement must meet two criteria. First, the declarant's motive in making the statement must be for 'purposes of medical diagnosis or treatment.' [Citation.] Second, the content of the statement must be 'pertinent' such that it is the kind of statement reasonably relied upon by health care providers in treatment or diagnosis. [Citation.]" (U.S. v. Wright (8th Cir. 2003) 340 F.3d 724, 732, fn. omitted.) The rationale for the exception is that "a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility . . . ." (White v. Illinois (1992) 502 U.S. 346, 356.)
Defendant contends the trial court erred in admitting the statement under section 1253 because the mother was not qualified to offer a medical diagnosis and her question of who touched the victim was not a medical inquiry. We agree the statement was not admissible under section1253, not because it was made to the mother but because it was not made "for purposes of medical diagnosis or treatment."
In Brodit, supra, 61 Cal.App.4th at p. 1331, the statement admitted under section 1253 was made to a nurse during a sexual assault exam. (See also In re Daniel W. (2003) 106 Cal.App.4th 159, 164-165 [statement made to examining doctor].) Here, in contrast, the victim made the statement in response to a question from her mother. The victim was not complaining of pain or otherwise seeking treatment. The mother's question was aimed at determining the cause of blood in the victim's underwear. She wanted to know what had happened and who did it, questioning her other children to get the full story. It was not until the next afternoon that she sought medical treatment for the victim.
As defendant notes, these cases were decided before Crawford v. Washington (2004) 541 U.S. 36, and thus the question of whether admission of the statement violated the confrontation clause was not decided under current law. In many cases, statements made to a medical professional during a sexual assault exam will be testimonial where, as here, the forensic exam is intended in part to collect evidence of a possible crime. Thus, after Crawford, section 1253 has limited utility.
Because the statement was not made "for purposes of medical treatment or diagnosis," the trial court erred in admitting it.
D. Confrontation
Defendant contends admission of the victim's hearsay statement violated his confrontation rights because the victim did not testify. He contends the statement was testimonial because the mother was conducting an investigation as to who had abused her daughter, keeping her underwear as "evidence for my child." Because the error was of constitutional magnitude, the test for prejudice is the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18.
In Crawford, the United States Supreme Court explained, "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." (Crawford v. Washington, supra, 541 U.S. at p. 50.) With this focus in mind, the court held that the Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Id. at pp. 53-54.) Testimonial statements include testimony at a preliminary hearing or grand jury, statements during police interrogations, and other statements that a reasonable person would believe could be used at a future trial. (Id. at p. 52.) To be testimonial, a statement must be made in purpose and form similar to testimony at trial, under circumstances with a degree of formality and solemnity characteristic of testimony, and be given and taken to establish or prove some past fact for possible use in a criminal trial. (People v. Cage (2007) 40 Cal.4th 965, 984.) The key question is whether the statement is "procured with a primary purpose of creating an out-of-court substitute for trial testimony." (Michigan v. Bryant (2011) 562 U.S. 344, 358.)
The victim's statement to her mother was not testimonial. It was not taken for the primary purpose to establish a fact for use at trial. Instead, the mother sought an explanation for the blood on her child's underwear. The statement was not comparable to those in a court hearing or structured police interview because there was no formality or solemnity. It was a casual conversation while a mother was undressing a young child for a bath. Tellingly, the mother did not then call the police. Instead, she waited until the next afternoon to take the victim to the hospital. It was only then that the police were contacted.
Because there was no violation of defendant's confrontation rights, the Chapman harmless error test does not apply.
E. Prejudice
An erroneous admission of evidence does not result in a reversal unless the error resulted in a miscarriage of justice. (§ 353.) The erroneous admission of evidence is tested under the standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836. Under the Watson standard, the erroneous admission of evidence warrants reversal only if we conclude that it is reasonably probable that the jury would have reached a different result had the challenged evidence been excluded. (People v. Scheid (1997) 16 Cal.4th 1, 21.)
Although the prosecutor relied heavily on the victim's statement, repeating it several times in closing argument, the case against defendant was quite strong without it. The victim's statement was unnecessary either to identify defendant as the assailant or provide evidence of the assault. The victim stayed at defendant's apartment a few days. She was crying and locked inside his bedroom with him, and he would not open door despite the victim's siblings pounding on the door and demanding he open it. He told the victim to be quiet and looked nervous when he finally opened the door. He was very quiet that evening and would not eat dinner with the victim and her family. There was blood on the victim's underwear. Defendant's sperm was on her genitals and her underwear. There were sperm and fresh lacerations on her anus. This physical evidence was consistent with and indicated penile penetration. It is not reasonably probable the jury would have reached a different result without the evidence of the victim's statement.
III
Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct by misstating the evidence. He notes the prosecutor argued Dr. Vickers testified a child of the victim's age would not be able to distinguish between a finger and a penis, when the doctor actually testified a young child would not distinguish between her genitals and her anus and could not tell how deep the penetration was and whether by a finger or penis. Defendant contends this contention should not be forfeited despite the failure to object because such failure was ineffective assistance of counsel. He argues the prosecutor's error, providing unsworn expert testimony, violated his constitutional rights by usurping the function of the jury and requires reversal.
During closing argument, the prosecutor said Dr. Vickers "told you that children of [the victim's] age really don't know the difference between their anus and their genitals. It's all kind of one position. They don't know the difference between a finger and a penis." "Dr. Vickers says age-appropriate conduct [sic] is she would not necessarily know the difference between a finger and a penis." Defendant contends this argument was a prejudicial misstatement of Vickers' actual testimony. "When children are sexually abused and describe in their -- you know, simple words, developmentally appropriate, that something touched their genitals, whether it was a penis or a finger, even if they are to describe it, it may not go all the way into the vaginal canal."
" 'It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' " (People v. Wharton (1991) 53 Cal.3d 522, 567.)
We find no misconduct. The prosecutor's argument was a fair comment on Dr. Vickers's testimony that very young children are poor historians and cannot accurately describe sexual assault because their simple language fails to make certain distinctions. Although the prosecutor did briefly note in argument that there was no evidence that the victim knew the difference between a penis and a finger, rather than qualifying that the expert had said children could not necessarily distinguish between a penis and finger touching their genital and anal areas, this deviation was minor. Even if the prosecutor did misstate the evidence, the error was not " ' "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process" ' " and so violate the federal constitution. (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Nor was it misconduct under state law because it did not involve " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " (People v. Espinoza (1992) 3 Cal.4th 806, 820.)
Counsel's failure to object to this argument reflects the benign nature of it, rather than any incompetence. Moreover, "a mere failure to object to evidence or argument seldom establishes counsel's incompetence." (People v. Ghent (1987) 43 Cal.3d 739, 772.) Here, there would clearly be a tactical purpose in defense counsel declining to object, as objecting would have emphasized unfavorable testimony for defendant. Further, it is not reasonably probable that any error by the prosecutor in describing the testimony of Dr. Vickers affected the jury's evaluation of the evidence or the rendering of its verdict. (People v. Strickland (1974) 11 Cal.3d 946, 955; People v. Watson, supra, 46 Cal.2d at p. 836.) As discussed, the evidence establishing the act and nature of the sexual assault came not from the victim's statement but from the forensic evidence and the expert interpretation of such evidence. We find no ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Robie, J.