Opinion
E051094
10-05-2011
THE PEOPLE, Plaintiff and Respondent, v. HECTOR CASTANEDA, Defendant and Appellant.
Charles M. Sevilla for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Woods and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF145128)
OPINION
APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge. Affirmed.
Charles M. Sevilla for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Woods and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Hector Castaneda, of committing lewd and lascivious acts on a minor (Pen. Code, § 288, subd. (a)). He was sentenced to prison for three years and appeals, claiming reversal of his conviction is required because the jury was erroneously instructed and evidence was improperly admitted. We reject his contentions and affirm.
In a petition for writ of habeas corpus, defendant attacks the sentencing court's rejection of probation based on its conclusions that defendant was not amenable to treatment pursuant to Penal Code section 1203.066 and that the results of a Static 99 report indicated that defendant posed a risk of reoffending and its rejection of the claim that defendant committed this crime due to alcohol consumption.
The writ of habeas corpus on this issue (case No. E051965) was ordered considered with this appeal. We will resolve that petition by separate order.
FACTS
On July 12, 2008, the almost 10-year-old victim and her parents and sister attended a very large outdoor family party at the rural home of a relative. The victim testified that while she, in the company of her father's 10-and-a-half-year-old stepnephew, were feeding goats on the property, defendant approached and began to speak to her in Spanish, which she did not understand. She asked him if he was her uncle and he said he was. He took her to a dark green van where he touched her on her hips with both hands. He then took her under a canopy on the property where he hugged her, put her on his lap and touched her vagina and breasts under her clothes, after which time her father's stepnephew left the area. As defendant was kissing her neck and lips and licking her neck and left wrist, her father, who had been looking for her, appeared. The father asked the victim who defendant was, the victim asked her father if defendant was her uncle and her father said he was not. The victim's father said something to defendant in Spanish, then began to beat defendant.
The victim's father testified that he grabbed the victim off defendant's lap as defendant had his arms around the victim, trying to kiss her neck. The victim's father began beating defendant. When others pulled the father off defendant, the father asked the victim if defendant had touched her and she said yes, telling him where. The father attacked defendant again. Another man, whom the father told what defendant had done, helped the father hold defendant down on the ground until the father's brother arrived and they began to stomp on defendant's head. Others again pulled the father off defendant and the latter was dragged out from under the canopy and to defendant's wife's vehicle.
The father's stepnephew testified that defendant spoke to the victim near the goats, identifying himself as her uncle. After defendant told the victim to come with him, the stepnephew saw them on top of a vehicle. Then the two went under a canopy, where the victim sat on defendant's lap before the stepnephew left. He was later approached by the victim's father, who asked him where the victim was.
A sexual assault examination showed redness on the victim's vaginal wall which could have been caused by digital penetration, or by irritation caused by chemicals in bubble bath or vigorous cleansing.
ISSUES AND DISCUSSION
1. Jury Instruction
a. "Motive" Instruction
The jury was instructed, in part, "The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent or mental state. The instruction for the crime explains the intent or mental state required. An intent or mental state may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state. [¶] . . . [¶] The crime charged in this case requires the proof of the union or joint operation of act and wrongful intent. For you to find a person guilty of the crime in this case, that person must not only intentionally commit the prohibited act, but must do so with a specific intent. The act and the specific intent required are explained in the instruction for that crime.
Regarding the charged lewd and lascivious act on a minor, the jury was instructed, as is pertinent here, "To prove the defendant is guilty of this crime, the People must prove that: . . . defendant willfully touched any part of a child's body . . . [and] [¶] . . . defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of himself or the child."
The jury was also instructed, "The People are not required to prove that the defendant had a motive to commit the crime charged. In reaching your verdict, you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show the defendant is guilty. Not having a motive, may be a factor tending to show the defendant is not guilty."
Defendant contends that the last quoted instruction conflicts with the other quoted instructions and confused the jury about the intent requirement for the charged offense, requiring reversal of his conviction. We disagree.
All the above-cited instructions, except for the last, make clear that defendant must have had the intent of arousing, appealing to or gratifying the lust, passions or sexual desires of himself or the victim when he touched her. The "motive" instruction did not address this intent. Rather, it addressed defendant's motive in committing the crime. It did not provide that defendant's motive in touching the victim was not something the People did not have to prove. It provided that defendant's motive in committing the crime was not something the People had to prove. In order to commit the crime, defendant had to have the intent of arousing, appealing to or gratifying the lust, passions or sexual desires of himself or the victim. All the "motive" instruction told the jury was that defendant's motive for touching the victim with the requisite intent was not something the People had to prove. For example, if defendant committed the touching with the requisite intent in order to humiliate the victim or as a means of revenging some misdeed committed by her family, that motive was not something the People had to prove. We disagree with defendant that the presence of the "motive" instruction would lead any reasonable juror to question whether the People had to prove that defendant touched the victim with the requisite intent.
The fact that some appellate courts have used the word "intent" and the word "motive" interchangeably in discussing this crime had no effect whatsoever on this jury. Just as in People v. Wilson (2008) 43 Cal.4th 1, 22, "the instructions here as a whole did not refer to motive and intent interchangeably, and there is no reasonable likelihood the jury understood the terms to be synonymous."
People v. Maurer (1995) 32 Cal.App.4th 1121, which defendant cites in support of his position, is distinguishable. The intent element of the crime charged there was that defendant's "'acts or conduct [were] motivated by an unnatural or abnormal sexual interest in' [citation] the victim." (Id. at p. 1125.) The presence of the "motive" instruction there confused the jury because of the manner in which the intent element was worded. As the appellate court held, "It is generally true that motive is not an element of a criminal offense. [Citations.] But the offense [charged] is a strange beast. . . . 'Although no specific intent is prescribed as an element . . . , a reading of the section . . . indicates that the acts forbidden are those motivated by an unnatural or abnormal sexual interest or intent with respect to children.' . . . [¶] There is no doubt that in proving the mental state element of the . . . offense, the prosecution must show that the acts or conduct 'were motivated by an unnatural or abnormal sexual interest.' [Citations.] . . . [T]he question whether 'motive' is somehow different from 'motivation' or 'motivated by' is a question of some academic interest but of little practical significance. One instruction told the jurors here that 'the following element must be proved . . . . Such acts or conduct were motivated by an unnatural or abnormal sexual interest in [the victim]' Another instruction told the jurors that '[m]otive is not an element of the crime charged and need not be shown.' . . . [T]he audience for these instructions is . . . a room of lay jurors reading conflicting terms." (Id at pp. 1126-1127, some italics added, capitalization altered.) Here, in contrast, the requirement of the specific intent for the charged offense was clearly and repeatedly set forth and there was no conflict between the wording of the instructions given defining that intent and the "motive" instruction.
Moreover, the limits of Mauer were made clear in People v. Hillhouse (2002) 27 Cal.4th 469, 503, where an instruction that "the force or intimidation required for robbery 'must be motivated by the intent to steal'" was given along with the "motive" instruction here at issue. The California Supreme Court rejected defendant's contention that there was a conflict between this requirement and the "motive" instruction, saying, "[A]lthough . . . certain intents and purposes are elements of the crimes [charged], as the court correctly instructed the jury, motive is not an element. 'Motive [and] intent . . .— contrary to appellant's assumption—are separate and disparate mental states. The words are not synonyms. . . . Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent . . . Maurer . . . found that [the charged offense there] . . . did have a motive as an element— an unnatural or abnormal sexual interest. [Citation.] . . . This case is distinguishable. Here, although . . . purpose to steal [was the] element[] of the offense[], motive was not." (Id. at pp. 503-504.)
b. Flight Instruction
The jury was given the standard instruction on flight, which provides, "If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that a defendant fled or tried to flee cannot prove guilt by itself."
Defendant here contends that the evidence presented at trial did not support the giving of this instruction. We disagree.
The victim's father testified that defendant left before the police arrived. Of course, defendant had already been accused by the father of molesting the victim. The father testified that he called 911 and gave the dispatcher the license plate number of defendant's wife's car before it departed the scene. He wanted to get ahold of defendant so the latter could not leave, but was not successful. He testified he could not believe the defendant had left. The officer who first arrived at the scene testified that the father told him that he had grabbed onto the license plate of defendant's wife's car and got dragged by it while on the phone to the dispatcher. The father told the officer, "[The father] saw the vehicle. He s[aw defendant] inside the vehicle, so he ran toward the vehicle and the vehicle was in motion. He . . . tried [to stop] it, but [defendant's wife] continued on driving the vehicle. So [the father] . . . was not going to stop the vehicle, so he held on to the license plate while dialing 911 and he repeated the license plate [number] two, three times." The officer could not locate defendant at the scene and the victim's father told him that defendant had left. Defendant's daughter testified, without contradiction, that defendant and his wife did not go home or to a hospital, despite defendant's injuries, after leaving the scene, but to a restaurant. Defendant's wife's brother-in-law testified that defendant and his wife met with his family members after they left the scene. This evidence was not disputed. This constituted sufficient evidence to support the giving of the instruction.
Defendant's assertion to a police officer two days after the crime that he left the scene because he received death threats and the testimony of his daughter and wife's brother-in-law that the victim's father had threatened him while he was in his wife's vehicle was something for the jury to consider in determining whether defendant's flight might have an innocent explanation. However, it is not a reason to conclude that the giving of this instruction lacked evidentiary support. Also, it is not entirely clear that defendant initiated phone contact with the police on July 14th, or the police obtained his phone number through the registration on his wife's car, and/or through the California Law Enforcement Telecommunication System and initiated contact with him. In any event, this did not mean he did not leave the scene on July 12 for reasons from which the jury could infer consciousness of guilt.
c. Adoptive Admissions
The jury was given the standard instruction on adoptive admissions, which states, "If you conclude that someone made a statement outside the [c]ourt that accused the defendant of a crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of following is true: [¶] No. 1, the statement was made to the defendant or made in his presence. 2, the defendant heard and understood the statement. 3, the defendant would, under all the circumstances, naturally have denied the statement if he thought it was not true. And, 4, the defendant could have denied it, but did not. [¶] If you decide all these requirements have been met, you may conclude that the defendant admitted the statement was true. If you decide that any of these requirements has not been met, you may not consider either the statement or defendant's response for any purpose."
Defendant here claims that this instruction lacked evidentiary support. We disagree. The victim's father testified that after he grabbed the victim off defendant's lap, he asked defendant, "Who are you? What are you doing with my daughter?" Defendant did not answer the father, so the latter began hitting him. The victim's father also testified that after he beat defendant but before he and his brother stomped on defendant's head and face, the latter was on the ground, conscious, and the father and another man who came in response to the father's request for help held defendant down. The victim's father told the other man that defendant had his daughter and was touching her. There was no testimony that defendant denied this accusation. The officer who arrived at the scene testified that the father told him that after he grabbed the victim off defendant's lap, he began fighting with the defendant and other family members arrived in response to the yelling and screaming. The father told these people that defendant had sexually assaulted the victim. There was no testimony that defendant denied this. 2. Admission of Evidence
The officer who responded to the scene testified that the victim's father told him that he grabbed the victim off defendant's lap, "[a]sked [defendant] who he was, and [defendant] replied, 'I didn't do anything.' At that point, [the father] proceeded to beat [defendant] up." The jury was free to reject this version of what happened and accept the version the father offered during his testimony.
a. What the Hospital Told the Primary Investigating Officer
The primary investigating officer, a detective, testified on direct that around noon on July 13, 2008, he was assigned to contact someone at the children's hospital near the victim's home regarding the victim, "who was complaining of vaginal pain." He was then asked, "When you contacted the hospital, what did you learn?" Defense counsel objected on the basis of hearsay. The trial court overruled the objection, commenting, "I'll allow it to explain his subsequent contact." The prosecutor said that was the reason he was offering it. The detective testified, "Basically, that the victim was sexually assaulted in the Perris area, and they were requesting a sexual assault exam." He went on to explain that when a sexual assault exam is performed, normally a member of law enforcement goes to the hospital to collect any evidence that is taken during the exam and to collect the report that is generated by the exam in order to establish the chain of possession for both. He added that on the 15th, he went to the hospital and picked up those items.
Defendant here contends that the admission of the detective's statement that he learned from the hospital that the victim had been sexually assaulted and a sexual assault exam had been requested to explain why he went to the hospital was in error because the "hearsay 'explanation' explained nothing." He is incorrect. The detective's statement explained why he went to the hospital. Moreover, it was admitted for a non-hearsay purpose; therefore, it was not hearsay. Despite defendant's assertion that it was irrelevant, it established the chain of custody for the report of the exam.
Defendant next asserts, "The hospital purportedly confirmed the sexual abuse to [the d]etective . . . ." and this was "a purported medical finding that [the victim] was sexually assaulted." However, it is clear from the detective's statement that he was not told on July 13 by the hospital that the victim had been examined and it had been determined that she had been sexually abused. Indeed, the doctor who performed the exam had already testified that she did not finish performing the exam until 4:20 p.m. on July 13 and the detective's call to the hospital occurred around noon that day. Therefore, the detective's statement meant only that he had been told by the hospital that there had been an allegation that the victim had been sexually assaulted and a request had been made that she undergo a sexual assault exam. Before the detective made this statement, the victim's father had testified that just after encountering defendant and the victim together at the party, the father told another party-goer that defendant had molested the victim. The victim's mother had testified that the father told her at the party that defendant "did stuff" to the victim and the victim told her soon thereafter that defendant touched her private parts, licked the back of her neck, her ear and her cheek, kissed her back, ear and around her neck and put his tongue on her tongue. The mother also had testified that the victim told her that defendant touched her butt. The owner of the home where the party took place had testified that the victim's father told him that defendant touched the victim. The officer who responded to the scene had testified that the father reported that the latter told several party-goers that defendant sexually assaulted the victim. The officer also had testified that the mother told him that touching occurred at defendant's car and under the canopy. The doctor who performed the exam had testified that her findings were consistent with "the history of . . . digital penetration" and the mother told her that someone "touched [the victim] inside" and kissed and licked the victim's cheeks, lips, neck and upper abdomen. Therefore, the fact that an allegation of sexual assault had been made was not something the jury had not yet heard. We note with interest that defendant did not object to below, nor does he challenge here, admission of the detective's statement that the victim was complaining of vaginal pain,which is more prejudicial and inflammatory than the fact that an allegation of sexual assault had been made and an exam requested.
The doctor who performed the exam testified that the victim had told her mother that her private parts hurt.
b. The Victim's Statements during the Riverside Child Assessment Team (RCAT) Interview
Over defense hearsay objection, the detective testified that during the victim's July 29, 2008 RCAT interview, she reported that defendant had asked her several times at the party if she wanted to feed the goats and she said no and asked him who he was. She said he said he was her father's cousin or uncle and she eventually agreed to feed the goats with him. He later invited the victim to go with him to the canopy where he held her down by her shoulders, kissed her ear, neck and lips and licked her tongue. He touched the victim's private parts, skin to skin, using an up and down motion. He touched the top of her butt, skin to skin, and her belly button. He asked her if she wanted to kiss him and she said no. The RCAT interviewer presented the victim a six photo lineup that included defendant's picture and the victim picked it out, saying it kind of looked like the person who had touched her, but the person in the picture did not have blood on his face as the perpetrator had. She did not mention anything about a vehicle.
Before trial began, defendant sought the exclusion of any statement made during this interview as testimonial hearsay, whose admission would violate the Confrontation Clause. When reviewing the People's proposed witness list before trial, the prosecutor said he was unsure whether he was going to call the RCAT interviewer to testify, explaining, "[It d]epends [on] how well the victim does during her testimony." Defense counsel acknowledged that he had reviewed the tape of the interview. In next discussing admission of 911 tapes, the prosecutor said, "again, they would only come up if a witness could not remember or testifies in some way inconsistent with those statements." Concerning statements the victim made during the sexual assault exam, the prosecutor asserted that they were admissible, inter alia, under Evidence Code section 1360, which addresses statements by a child under the age of 12 in a sexual assault case in which the child testifies. The trial court did not make a ruling on that ground, but rejected the defense's assertion that the statements were inadmissible under Crawford. Subsequently, defense counsel withdrew his foundational objections to these statements. Finally, concerning statements the victim made during the RCAT interview, the prosecutor said, "Again, all is dependent upon how the victim testifies. If there [are] no inconsistencies or a need to impeach, that would make the RCAT repetitive." The trial court asked the prosecutor if he was intending to introduce the statements only "as a prior inconsistent statement or if the victim forgets something" to which the prosecutor agreed. The trial court denied defendant's motion to exclude the statements on the basis of the Confrontation Clause.
Crawford v. Washington (2004) 541 U.S. 36.
Defendant here attacks the trial court's ruling, arguing that the statements were not admissible as prior inconsistent statements, nor were they admitted to fill in for the victim's forgetfulness on the witness stand. Under Evidence Code section 791, the interview statements must be consistent with her trial testimony and be offered after evidence of a statement that is inconsistent with her trial testimony is admitted, but the interview statements must precede the aforementioned inconsistent statement. Because the victim's interview statements were the last set of substantive statements she made, they cannot possibly be admissible under this section because they did not precede any inconsistent statement she made. The People do not address the admissibility of the interview statements on the basis that the victim forgot things while on the witness stand. Our review of her testimony reveals no such lapses in memory.
That section provides, in pertinent part, "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after . . . [¶] . . . [e]vidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement[.]"
The People counter that they were admissible under Evidence Code section 1360. As stated before, the People had asserted that the victim's statements during the sexual assault examination were admissible, inter alia, under this section. However, the trial court had not ruled on this and defense counsel eventually withdrew whatever foundational objections he had to this evidence, which, of course, would have included this exception to the hearsay rule.
Evidence Code section 1360 also requires that the particulars of the statement be indicated by the proponent in advance of trial to provide the other party a fair opportunity to prepare. However, contrary to defendant's assertion, this occurred when defense counsel acknowledged before trial that he had viewed the recordation of the RCAT interview.
Evidence Code section 1360 provides, in pertinent part, " . . . In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse . . . is not made inadmissible by the hearsay rule if . . . [¶] . . . [¶] . . . [t]he court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability [and] . . . [¶] . . . [t]he child . . . [¶] . . . [t]estifies at the proceedings." There was no hearing conducted and no findings made by the trial court that the time, content and circumstances of the victim's statements during the interview provide sufficient indicia of their reliability. Therefore, the record does not support the admissibility of the interview statements under this hearsay exception.
However, we do not conclude that admission of this evidence requires reversal of defendant's conviction. First, the victim's reports of the crime to her father, her mother (and what her mother told the doctor the victim had told her) and her brief statement to the detective about defendant telling her to come to his car, as he had a sticker for her, were all introduced into evidence. This was just one more report she made and it was less prejudicial than what she told her mother or what her mother reported to the doctor the victim had told her. Secondly, it impeached the victim's trial testimony, thereby benefitting the defense. At trial, she testified that she had asked defendant if he was her uncle and defendant had said yes. In the interview, she said she had asked defendant who he was and he either said he was her father's cousin or uncle. At trial, she testified that defendant wanted her to go with him to his dark green van and he took her there, where he put her on the front seat near the steering wheel while he stood outside, he got out cigarettes, he touched her on both of her hips, then put the cigarettes in his pocket and they left. She did not mention any of this during the interview. At trial, she testified that defendant took her to beneath the canopy where he hugged her and put her on his lap while her father's stepnephew stood some distance away. He touched her vagina and breasts under her clothing, kissed her on the neck and lips and licked her neck and wrist before her father showed up and the stepnephew left. In contrast, during the interview, she said that defendant held her down by her shoulders, kissed her ear, neck and lips and licked her tongue. He touched her private parts, which she did not enumerate, using an up and down motion. He touched the top of her butt and her belly button and asked her if she wanted to kiss him, but she said no. She did not mention the stepnephew being present. During cross-examination of the detective, these inconsistencies were emphasized. During argument to the jury, defense counsel asserted that the inconsistencies between her trial testimony and this, as well as other earlier versions of the crime the victim had given, suggested that she lacked credibility. Additionally, during cross-examination of the detective, defense counsel solicited the fact that the victim told the interviewer to call her a made-up name, which counsel used to argue to the jury that the victim was easily led by her father and was motivated to fabricate the abuse story so the latter could avoid punishment for beating up defendant.
Defendant asserts that another statement the victim made during the interview was irrelevant and prejudicial. The detective testified that the victim was hesitant during one portion of the interview to discuss the intimate details of what had happened to her. The victim said she was reluctant to talk about it because she knew she was being filmed and she did not want her father to see the film because seeing her say that someone had licked, kissed and touched her would make him angry. First, the victim had already told her father at the scene that defendant was inappropriately touching her and the father had witnessed some of this himself. More importantly, the defense used this evidence to argue that the father was in a rage over what he perceived to be abuse of his child by defendant and he put the child up to supporting his theory of defendant's behavior.
c. "Victim Impact" Evidence
During the victim's mother's testimony on direct, she said that before July 2008, the victim was "[m]ore outgoing [and] . . . talkative. She had a little bit more friends. School wise, [she was] much better. . . . [S]he was actually[,] homework[-]wise[,] doing much better, turning in her homework on time. She was remembering a lot of stuff." Defense counsel did not object to this testimony. The prosecutor then asked the mother whether this had changed since July 2008. Then, defense counsel objected on the ground of relevancy, but the trial court overruled his objection. The mother responded that the victim was, since July 2008, "quiet. She doesn't want anybody to be near her. She forgets a lot of stuff. . . . [¶] . . . She just kind of sometimes spaces out. . . . [S]he has a lot of anger. She slams the door. She locks herself in the room. I have to knock and knock and knock and have her open the door . . . and she's never done this before. . . . [When] trying to talk to her about her feelings, . . . I can't get anywhere with her. [¶] . . . [¶] . . . [I]f she had a bad day at school, I ask her, 'Are you okay.[' She answers, ']I don't want to talk about it.[' I ask,']What do you mean you don't want to talk about it?[' She answers,']I don't want to talk about it.' I try to hug her or touch her on her shoulder; the moment I even try to do this, she goes like this (indicating). She wants to push everybody away. She has just a lot of anger and she was not like that. It's . . . like my daughter that I had is gone. [¶] . . . [¶] . . . It's progressing and it seems even now lately, of course, it's just getting more and more." The mother went on to say that she was alarmed at how the victim played with her stuffed animals, especially the first couple months after the crime, but defense counsel's relevancy objection prevented her from elaborating further.
Defendant here contends that the trial court abused its discretion in permitting the admission of that portion of the foregoing testimony that followed its objection. First, defendant asserts that it was irrelevant because "there was evidence . . . [the victim] suffer[ed] from existing medical and behavioral conditions" and, thus '[t]here was no showing of any connection between the . . . offense and her post-offense behavior. The victim's mother testified that the victim had run a high fever when she was one and one-half years old which resulted in a seizure. When the victim turned six or seven, she "[began] getting more seizures more frequently" and she was taken to a neurologist and, when she was in third grade, put on anti-seizure medication and a drug for ADHD/hyperactivity. The mother also testified that the victim was not "the type of kid that just makes up stories[.]" The victim's father testified that when the victim was a baby she was "a real smart girl," but due to issues with vaccinations, she developed a high fever and "got a seizure and totally lost her ability to do anything, talk. She had attention disorder. . . . [W]e struggled with that for years. . . . She would cry for no reason at all. She had problems all her life and then when she turned around five years old, she started getting seizures . . . . [¶] . . . [S]he has been doing okay, but she is not all there . . . ." He said that while the victim still had issues with talking, she is able to have a conversation. He also said that she had problems with focus when she was a lot younger, but she had gotten better with the medication and was improved in her focus. He denied that she made things up. Of course, the jury could observe the victim's abilities as she testified at trial. The mother drew a clear connection between whatever happened in July 2008, and the victim's behavior afterwards. The jury was free to attribute the victim's post July 2008 behavior to either her pre-existing condition, the crime she asserted occurred, or the fact that her father beat up the victim in her presence. The fact that her behavior could be attributed to something other than the alleged crime went to weight, not admissibility.
It must also be remembered that the first portion of this disputed evidence came in without an objection by defendant, so he must prove somehow that the portion that was objected to prejudiced him beyond what the initial testimony did to the point that reversal is required.
We also disagree with defendant that expert testimony was necessary to make the mother's testimony relevant. It is a matter of common sense that a child would be expected to act out or change behavior after experiencing some sort of trauma. Moreover, as the People correctly point out, there was expert testimony about the cause of the victim's post-traumatic behavior. The pediatrician who performed the sexual assault examination testified, without objection from the defense, that the victim was "'laughing/crying, withdrawing during the exam' . . . [w]hich is . . . a very natural reaction to somebody who has . . . had something bad happen to them. They withdraw. . . . [¶] . . . [¶] . . . [I]t just means the kid has been traumatized. A pediatrician's interpretation would be that this is a traumatized kid." Whether that trauma the victim suffered was the alleged crime, the father pressuring her to falsely claim that defendant had molested her, and/or the victim's witnessing her father beating up the defendant was a matter for the jury to decide. Certainly, the fact that the victim did not want to be touched, even by her mother, suggests a link to molestation rather than trauma from being pressured to lie or from seeing her father beat up the defendant. Therefore, the prosecutor's use of this evidence to argue to the jury was proper, and defendant's failure to object to this argument below waived the matter. (People v. Foster (2010) 50 Cal.4th 1301, 1354 (Foster).)
Contrary to the assertion in his reply brief, the doctor did not testify that the victim's state was due to the exam she was undergoing.
In his reply brief, defendant, for the first time, asserts that the doctor was in no position to make an observation that the victim had been traumatized. If that was the case, it was incumbent upon him to object to the doctor's testimony, which he did not do. Defendant's assertion, also for the first time in his reply brief, that the failure to object can be excused because the trial court had admitted the mother's testimony about behavioral changes in the victim after July 2008, ignores the fact that his current objection is based on foundation, not relevancy, therefore, the admission of the mother's testimony would have had no effect whatsoever on an objection by the defense that the doctor was not competent to make such an observation.
Defendant's assertion, in his reply brief, that, "[i]f the prosecution were to be up front about its aims, it would have proffered an expert to say that [the victim] had behavioral changes explicable only by her being molested" literally drips with irony. It could only be imagined how defense counsel below would have attacked such armchair quarterbacking, particularly in a case such as this where the defense was claiming that the only trauma the victim suffered was being put up to falsely accuse defendant of this crime after seeing her father beat up the defendant. Much like the pediatrician concluded that she could not definitively say that the injury to the victim's genitals was caused by molestation, any believable forensic expert would have to concede that the victim's psychological trauma could have been caused by being forced by her father to falsely accuse the victim or being "the cause" of her father beating up the defendant and causing a scene at a family gathering.
Defendant also asserts that the prosecutor committed misconduct by arguing to the jury that defendant further victimized the victim by exercising his right to have a trial. Specifically, in discussing the negative impact the crime had on the victim, the prosecutor said, in pertinent part, "She ha[d] to be interviewed after seeing her parents go out of their mind[s] because of what [defendant] did. To being interviewed by a forensic interviewer, to having a doctor tell her she has to take all her clothes off and have pictures taken of her private parts, to coming in here and sitting 50 feet away from the person that did this to her and try and tell a bunch of strangers in a courtroom what happened. [¶] You saw [the victim] when she came into the court and you saw that [she] isn't handling this well. You saw she had to take a break. . . . [W]hat may be argued is that this 11-year-old girl . . . who could barely keep it together and had to take a break, managed to concoct a story, put it all together and have evidence on evidence upon evidence confirm [what she said] and have this . . . defendant confirm exactly what she stated." Defendant did not object to any of these remarks, therefore he waived the matter. (Foster, supra, 50 Cal.4th at p. 1354.) The fact that, according to defendant, there could have been no tactical reason for defense counsel to not object does not affect this, unless defendant is claiming ineffective assistance of counsel, which he does not clearly do. Moreover, there was a tactical reason for defense counsel not to object, i.e., his objection would have been overruled because the argument was fair game, as explained below.
Defendant's claim also fails on the merits. Everything that happened to the victim before she testified would have happened even if defendant had not exercised his right to have a trial and pled guilty. Commenting about the trauma to the victim of having to testify was not an attempt to motivate the jury to punish defendant for exercising his right to have a trial, but to suggest that the victim would not put herself through the painful experience of testifying just to support a false accusation, which is precisely what she was accused of doing by the defense. The prosecutor was entitled to counter this defense by pointing out how difficult it was for her to testify.
d. Defendant's Pretrial Statements as Rebuttal Evidence
Before trial began, defendant moved to exclude statements he made to a police officer on July 14, 2008, before he was arrested, asserting only that they constituted inadmissible hearsay without further discussion. Because in the analysis portions of his motion, defendant did not mention these statements, the trial court did not rule on their admissibility and defense counsel did not press the trial court for a ruling. However, in the context of argument concerning statements made by defendant after he was arrested, the prosecutor told the trial court that he did not intend to introduce any pretrial statements made by defendant to law enforcement. He also said he did not anticipate, at that point, any rebuttal.
However, after the defense rested, the prosecutor called the officer who spoke to defendant on July 14, 2008 as a rebuttal witness. Although defense counsel did not object to the prosecutor calling the officer as a rebuttal witness, when the prosecutor was about to ask the officer about defendant's statements during that conversation, defense counsel objected. At sidebar, defense counsel said he was objecting to this evidence on the bases that the statements were hearsay and that the officer may have misinterpreted them. As to the latter, the prosecutor said that this officer was not the one who had, perhaps incorrectly, interpreted defendant's post arrest statement. The trial court added that any possible translation problems could be brought out during cross-examination of the officer. The trial court rejected defendant's contention that his statements had to constitute admissions to criminal acts in order to be admissible as statements by a party opponent. The trial court concluded that the hearsay exception was not so limited and the evidence was highly relevant on the issue of whether it was defendant and not someone else, as suggested by the defense, who had molested the victim. Defendant made no other objection to this testimony. The officer testified that defendant admitted going to where the goats were at the party and speaking to a little girl there. After smoking a cigarette at his vehicle, he went under the canopy where it was very dark and sat by himself. The victim approached him again and wanted to talk to him. The victim sat on his lap and her father approached and grabbed the victim and began beating him.
Before trial began, the defense moved to exclude post-arrest statements defendant made, which the defense represented had been translated from Spanish into English by this officer. In their moving papers, the defense asserted that this officer had initially incorrectly interpreted defendant's invocation of his right to an attorney due to the officer's lack of familiarity with Spanish spoken by a person who was not Cuban, as was the officer.
See footnote seven, ante, pages 21-22.
Now defendant, for the first time, alleges that the prosecutor engaged in improper "sandbagging" by waiting until rebuttal to introduce these statements. Defendant seeks to avoid the consequences of failing to object to this testimony on this basis below by relying on the trial court's comments that statements were relevant "in light of the testimony that has been brought out both in cross-examination, as well as the defense case, suggesting that [defendant] is not the person who was with [the victim]. That was clear from questions and answers that I heard, especially from the last [defense] witness. [¶] And even the suggestion that even though [the victim's father] came in here and identified the defendant as the person, that his behavior on the night of the incident suggests he wasn't sure who had done it, and he was trying to identify the individual, all making it much more appropriate or even more appropriate, if this witness is going to so testify, to statements made by [the defendant] regarding his interaction with [the victim] on the night of the incident."
The testimony concerning the behavior of the victim's father that the trial court was alluding to in the above-quoted ruling was the testimony of the last defense witness, the husband of defendant's sister-in-law. This witness offered the only testimony at trial that when he arrived at the fight under the canopy, both the defendant and a man in dark clothing had been knocked unconscious. The witness testified that he dragged defendant to another part of the canopy, away from where the fighting was continuing. After this witness, with the help of two other men, lifted defendant up and put him into a chair, then on his feet, defendant asked what had happened. The victim's father appeared, went up to defendant and said, "There he is. It's him. I'm going to kill him." The victim's father pushed and tried to go behind the witness, but the latter blocked him. The father shouted that the victim had been molested by some man wearing a dark shirt with stripes and a beard and a goatee. The witness then described defendant to the victim's father, and said, "['L]ook, [defendant] doesn't have a beard, so it's not him. So [the victim's father] looked at [defendant] and he looked at me and he said, 'It's not him?' and I said[, 'N]o.'" After defendant was dragged to his wife's vehicle, the victim's father once again confronted him there and defendant's wife yelled for help, after the father described the assailant and defendant's wife told him that defendant did not have a beard or striped shirt. Then, the victim's father went towards another man that was present who had a goatee and had been badly beaten, saying to this man, "'I'm going to kill you.'" It appeared as though the victim's father was going to draw a gun on this man. The witness separated them and told the man to leave. After everything calmed down, the witness, the victim's father, the father's brother, the owner of the home where the party was taking place and another person "asked each other what had happened and tried to investigate amongst ourself [sic] what had happened." They spoke to the father's stepnephew and the victim's father questioned the boy about what had happened. The boy said the assailant had a hat, goatee, beard, dark coat, a shirt with stripes and boots. He saw this man when the latter was feeding leaves to the goats and then he saw the man and the victim in a truck. The victim's father asked the boy, "What were they doing?" and added, "They were hugging each other." The boy replied, "'[K]ind of'" and the father got mad and asked, "'Were they hugging, yes or no?'" and the boy said, "'Yes.'" The witness asked the boy what happened after that and the latter said the man and the victim went toward the canopy, but he saw nothing there. When the witness asked the boy questions, the victim's father would interrupt and ask if the victim and her assailant had been hugging and the boy said they did. But when the witness would ask the boy, the latter would say no. The witness did not disagree with the prosecutor's characterization of the way the victim's father questioned his stepnephew as the father "pushing [the boy] to answer questions in a certain way[.]" The boy said the victim and the man were in a white pickup truck with a camper shell. The witness thought that defendant was not involved in the crime. The witness testified, "I thought [it] was odd that [the victim's father] would ask so many questions after everything that happened. My impression was he didn't know what had happened either. [¶] . . . [¶] . . . [The victim's father] got confused about who it was that did this[.]" The father did not tell the witness what he had seen. He did not say that he saw defendant nibble or kiss the victim's neck.
The witness testified that this occurred after defendant had left the area, but this could not have been the case, as demonstrated by his statements to the victim's father and his testimony that it was not until later that two men picked up defendant and, with the witness's wife directing the way, dragged defendant to the latter's car.
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Before this witness testified, the victim's father had not testified about any encounter he had with this witness after beating up defendant. He specifically denied touching anyone else and said he did not know that he had a fight with anyone else. He said that his cousin was the person that dragged defendant out from under the canopy and to defendant's wife's car and he did nothing to stop his cousin. He did not testify about having a confrontation with another man at defendant's wife's vehicle or defendant's wife yelling at him or interacting with the witness here. He did not testify about being with his brother, the homeowner, the witness and another person while questioning his stepnephew.
Before this witness testified, the stepnephew had said nothing during his testimony about being questioned by the witness or the victim's father in the presence of this witness. He testified only that after the defendant had been beaten, the victim's father and his stepfather (the father's brother) asked him about defendant's clothing. He denied talking to the victim's father about what had happened and he said he only told his stepfather that he saw defendant carry the victim. His stepfather did not testify.
The homeowner had not, before this witness's testimony, testified to any discussion amongst himself, the witness, the victim's father, the victim's father's brother and another man about what happened and who did it, nor about questioning the father's stepnephew. In fact, he said that after he tried to get the victim's father off of defendant during the fight, he lost contact with both.
No one testified, before this witness did, that two people had been knocked unconscious under the canopy.
Defendant concedes that proper rebuttal evidence is that made necessary by the defendant's case in the sense that he has introduced new evidence. Nothing in the record before us suggests that the prosecution was aware that this witness was going to offer the testimony he did. If believed, it would have been devastating to the case against defendant. The trial court was correct that this witness suggested that the victim's father was unsure who had assaulted his daughter. Aside from negative inferences about the credibility of the victim and her father, no evidence offered during the prosecution's case in chief triggered the need to introduce defendant's admissions. However, that need was triggered after this witness testified. Moreover, defendant could not possibly have been surprised by the introduction of this evidence since he, himself, made the statements. There is no basis to conclude that the trial court abused its discretion in admitting defendant's statements as rebuttal evidence. (See People v. Carrera (1989) 49 Cal.3d 291, 323.)
Having concluded there was only one error, which does not justify reversal of defendant's conviction, we necessarily reject his contention that cumulative error requires such reversal.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
HOLLENHORST
J.
MILLER
J.