Opinion
NOT TO BE PUBLISHED
Sup.Ct.No. 03F03104
MORRISON , J.
A jury convicted defendant Ruben Chavarria Chavez of seven counts of a lewd act with a child under the age of 14 (Pen. Code, § 288, subd. (a)), sustained allegations of substantial sexual conduct in six of the counts (Pen. Code, § 1203.066, subd. (a)(8), and that there were multiple victims (Pen. Code, § 667.61, subd. (e)(5)). The trial court sentenced defendant to five consecutive 15-year-to-life terms, and two concurrent six-year sentences, for a total term of 75 years to life.
On appeal, defendant contends the court erred in admitting the out-of-court statements under Evidence Code section 1360 and that trial counsel’s failure to object to the evidence was ineffective assistance of counsel. We reject the contentions and affirm.
BACKGROUND
C.M. and S.M. are sisters, E.B. is their cousin, and defendant is married to the grandmother of the three children. E.B. lived with defendant when he was in the fifth grade. When S.M. was five or six years old, she and her sister would stay at defendant’s house after school and on weekends. Their grandmother would babysit them while their mother worked.
C.M. testified to acts of sexual abuse committed by defendant against her sister and herself. On one occasion, when C.M. was between six and eight years old, defendant asked C.M. to play a game with him while they were in his bedroom. Defendant pulled his penis out from between his boxer shorts, put baby oil on her hands, and had C.M. massage his penis. She first testified that she did not put her mouth on defendant’s penis, but later testified to orally copulating him.
A second incident occurred within one week of the first, taking place at defendant’s house and involving C.M., S.M., and E.B. C.M. testified that while she was watching television with him, defendant asked her, “Do you want to play a game?” She said yes, and defendant told C.M. to get S.M. and E.B. Once the three children were in his bedroom, defendant sent E.B. to the window to act as a lookout. Defendant, who was laying on his bed, then took some baby oil from his nightstand, put it on the girls’ hands, and had them massage his penis “for a couple of minutes.”
C.M. testified that defendant then had her orally copulate him, holding her by the hair as she complied with his demand. S.M. never touched defendant with her mouth. Defendant ejaculated, cleaned up, and paid C.M. a dollar. He told her not to tell her grandmother.
S.M. testified that once, when she was at the house and her grandmother was gone, C.M. asked her to come into defendant’s room and play a game. She went to the room because C.M. said defendant would give them a dollar. Defendant was sitting on the bed with his pants lowered and his penis sticking out of his lowered pants while E.B. was standing towards the window. He put baby oil on the girls’ hands and had them rub his penis. S.M. believed they alternated rubbing defendant. When C.M. took her turn, S.M. stopped looking because she “felt weird.”
S.M. stated that she soon left because she “didn’t want to be in there.” Defendant, using a serious voice, told her not to tell anyone as she left. He told the girls that they would get in trouble if they told because their grandmother would not believe them. S.M. was eight or nine years old when this happened.
E.B. testified to witnessing two separate incidents involving defendant and his cousins at defendant’s house. Defendant told E.B. he would pay him to look out the window for E.B.’s aunt in defendant’s bedroom. C.M. and S.M. were sitting on the bed next to defendant when E.B. entered. E.B. saw defendant pull down his pants and tell the girls to play with his penis. Defendant told C.M. to orally copulate him, which she did. C.M.’s head was held by defendant during the oral copulation. Defendant ejaculated and cleaned up. He told E.B. not to tell his aunt or grandparents and paid E.B. $5.
E.B. referred to defendant’s wife, who is his grandmother as well as the girls’ grandmother, as his aunt.
E.B. acted as lookout a second time. S.M. and C.M. both rubbed defendant’s penis and S.M. also orally copulated him. Defendant had his hand on S.M.’s head and pushed her head down during the oral copulation, just as he did to C.M. the first time.
The incident took about 15 to 20 minutes. Defendant again told E.B. not to tell anyone. He did not pay E.B. the second time, and E.B. told the girls to tell their mother about the molestations. E.B. stated that the assaults took place about one year apart.
C.M. also testified that defendant grabbed her “butt” around three to five times. This happened when she was on vacation in Mexico with her mother, grandmother, and defendant. When she would walk by, defendant “would slap my ass.” This also happened whenever she was leaving his bedroom at defendant’s home in Sacramento.
C.M. testified about an incident in a hotel pool in Monterey, California. She was there on vacation with defendant, her mother, her sisters, and her grandmother. C.M. was alone in the pool with defendant when he grabbed her by the arm and touched her “private part.” Defendant rubbed it for a few seconds before C.M. told him to stop and she walked out of the pool.
Neither girl said anything about the incidents until C.M. got angry after her grandmother yelled at her for being rude to defendant. She was 12 years old at the time, and told her grandmother about the molestations. C.M.’s grandmother kept her in Mexico for about one month because she did not believe C.M.’s accusations. S.M. did not talk about the incident until C.M. spoke out. C.M. testified that it was hard for her to remember the events because they depressed her.
Pursuant to Evidence Code section 1360, the trial court admitted a videotape of a multidisciplinary interview center (MDIC) interview given by C.M. C.M. was 12 at the time of the interview, but defendant did not object to her being too old for the interview to qualify under section 1360.
The interview took place on March 20, 2005. In the interview, C.M. stated that when she and her sister were little, defendant would make them “do stuff to him” while their cousin looked out, “guarding the window and the door.” Defendant twice made her orally copulate him, both times in the bedroom of his house.
One day C.M. went to say hello to defendant, who was in his bedroom, lying on his back. She said hello and started to leave, but defendant “grabbed my hand and said, “No. Stay here. I’m lonely.” Defendant asked C.M. if she wanted to play something. C.M. said yes, and he said, “Okay. The game goes like you’re gonna close your eyes and I’m going to go down my pants--well unzip my pants.”
C.M. told defendant she did not want to play the game and started to leave, but defendant said that if she left he would make things up about her. He unzipped his pants, pulled down his underwear, and told C.M. to massage his penis with her hand. Defendant then grabbed C.M. by the hand and pulled her over to him. She tried to run away, but defendant grabbed her by the pants.
After C.M. massaged his “thing” for a long time, defendant said, “Okay. Now let’s play another game.” C.M. said no, but she had no choice because defendant was grabbing her by the pants. Defendant made her orally copulate him. “He grabbed my hair and put it right there.” When she tried to get away, defendant said, “[C.M.], if you don’t start sucking on me, I’m gonna slap you.” She orally copulated defendant, and after “white stuff” came out defendant let her go. Defendant said that if she told he would call the police “and tell them I was doing stuff that I really wasn’t, like lies about me.” This happened when C.M. was in the second grade, at the end of the third trimester. An incident involving C.M., defendant, and her sister, S.M., took place when C.M. was beginning the third grade. She remembers “doing the same thing to him.” Her cousin and sister were in defendant’s bedroom with C.M. and defendant.
Defendant told E.B. and C.M. to get S.M. by telling her defendant had something for her. After S.M. and C.M. were in his bedroom, defendant told them to put “baby lotion” on their hands. The girls then started “rubbing it . . . . And then he told me to start sucking it and not her.” Defendant grabbed her hair to keep her from stopping. After ejaculating, defendant paid E.B. one dollar for watching out.
C.M. also told the MDIC interviewer about improper touching by defendant. He started touching her when she was in the first grade. C.M. would come up to defendant to give him a kiss and a hug, “but instead of hugging me he was like . . . he hugged me and grabbed my ass at the same time.” During a family vacation in Acapulco, C.M. was going upstairs to hang some laundry, and, as she passed defendant, “he turned around [and] hit me right on my ass.” Another time, when the family was at the Papaiya River in Mexico, defendant was washing everybody’s feet as they went from a river to their truck. When it was C.M.’s turn to be washed, instead of washing her feet, “he started going up and trying to touch me.” She told defendant to stop, but defendant said to her, “You know you like it, so shut up.”
C.M. told the interviewer that nothing happened after the incidents in Mexico. She started to regain her memories of the earlier molestations while she was in Mexico. C.M. then told a friend in Mexico, who told C.M.’s aunt, who then told her mother.
DISCUSSION
Defendant asserts the tape of C.M.’s MDIC interview was not admissible under Evidence Code section 1360 because when she was interviewed she was too old for the interview to qualify under the statute. Defendant has forfeited this claim.
Evidence Code section 1360 creates an exception to the hearsay rule for certain recorded statements in criminal prosecutions “where the victim is a minor” and the statement is “made by the victim when under the age of 12 describing any act of child abuse . . . performed with or on the child by another, . . .” (Evid. Code, § 1360, subd. (a).) C.M. was 12 when she gave the MDIC interview.
The prosecution initially moved to admit MDIC interviews with C.M. and S.M. under Evidence Code section 1360, but withdrew the motion with respect to S.M. after defense counsel pointed out that she was 14 during the interview, making her too old at the time of the interview to qualify under section 1360. Defense counsel then stated that the “concern I had was the age of S.M. at the time, but that’s going to be ratified. C.M. was born in 1990. This seems like she’s a shade under 13, so, she was 12 at the time she did disclose, so, I submit it on that.”
After the court stated that the only MDIC tape offered would be the interview with C.M., defense counsel stated that his only concern with the tape is preserving his client’s right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]. Counsel stated: “The only issue that I have on that, Your Honor, is -- on the 1360, the only combat with the People versus Crawford [sic], an opportunity to cross-examine her. There was an M.D.I.C. -- I know 1360 specifically states that a child under 12; however, I think Crawford does comment on. I did not have an opportunity to cross-examine. The only thing I fear is the tape itself only come [sic] in with regard to C.M. And if that’s the case, then Crawford would apply specifically.”
The prosecutor informed counsel and the trial court that C.M. was planning to testify and observe the MDIC tape. Defense counsel explained to the court that his fear was that there would be a Crawford issue if “just the tape was going to come in” without C.M. testifying, but “if she does testify, that’s not an issue.”
The trial court then conducted a section 402 hearing to determine the authenticity and reliability of the MDIC recording. The court determined that the tape was reliable and admitted it pursuant to Evidence Code section 1360. Defendant did not object to admission on the grounds of C.M.’s age at the section 402 hearing, when it was introduced as evidence, or at any other point during the trial.
Evidence Code section 353 specifies that “[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; . . .” By failing to raise a timely objection in the trial court on the specific grounds urged on appeal, defendant has forfeited his contention. (People v. Sanders (1995) 11 Cal.4th 475, 510, 512, fns. 3 & 4.)
Defendant contends that trial counsel’s failure to object to the Evidence Code section 1360 evidence constitutes ineffective assistance of counsel. We reject defendant’s claim because he has failed to establish the required prejudice.
To establish ineffective assistance, defendant bears the burden of showing (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland); People v. Hawkins (1995) 10 Cal.4th 920, 940 (disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89).) Counsel’s performance was deficient; we can conceive of no purpose for counsel’s failure to recognize that C.M.’s testimony, like S.M.’s, was not admissible under Evidence Code section 1360 because of her age when she was interviewed.
Defendant contends the MDIC interview prejudiced him because C.M.’s story in the MDIC interview was “much more detailed and lurid than her testimony in Court.” In support of this contention, defendant argues there is a strong inference “that the lurid details resulted from C.M.’s anger at having been detained in Mexico by her grandmother.” Defendant asserts that C.M.’s more circumspect trial testimony reflects her diminished anger over the two years between the MDIC interview and trial. He concludes that the details about improper touching in Mexico further prejudiced him by adding “‘inherently prejudicial’” uncharged acts evidence to the prosecution’s case.
Defendant’s claim that the contents of the MDIC interview was the product of her anger at her grandmother is speculative. While C.M. testified that she did not want to stay in Mexico, she never indicated that this made her angry with her grandmother. She did say that her grandmother kept her there because she did not believe C.M.’s accusations against defendant, but there is no evidence that this angered her or influenced her MDIC testimony. The contention that the MDIC interview is an unreliable product of C.M.’s anger is not supported by the record.
It is not reasonably probable that a defendant would have received a more favorable verdict had the interview not been admitted. C.M.’s detailed trial testimony supported every allegation against defendant regarding crimes committed against her, and was supported by the testimony of S.M. and E.B. Although the interview provided more details with respect to the Mexico incidents and the first molestation, these details only supplemented allegations already made in the trial testimony of C.M, E.B., and S.M.
We also find it significant that defendant was convicted for the Monterey touching incident (count six) even though there is no mention of this incident in the MDIC interview. Although the MDIC tape provided testimony that should not have been admitted, the conviction for the Monterey incident shows that the MDIC interview was not needed for the jury to believe C.M.’s testimony and convict defendant.
The treatment of the charges involving S.M. support our conclusion. The jury acquitted defendant of charges of oral copulation and improper touching with respect to S.M. (counts eight and nine). Although S.M.’s MDIC interview was not played to the jury, we find it much more significant that she testified to not remembering whether she orally copulated defendant or was improperly touched by him. S.M. did testify to rubbing defendant’s penis, and he was convicted of the count related to that offense.
From this, it follows that the victim’s trial testimony rather than other sources such as the MDIC tape was critical to the jury’s decision to convict defendant. The jury acquitted defendant of the two counts not supported by the testimony of the complaining witness, counts eight and nine, but convicted defendant on the two counts supported by the victim’s testimony but not supported by an MDIC interview, counts six and seven.
C.M. testified in detail to each of the counts defendant was convicted of committing against her. This testimony was supported the testimony of E.B. and S.M. The content of the MDIC interview thus did not prejudice defendant.
C.M. did change her testimony after hearing the MDIC interview, stating that she orally copulated defendant in the first incident and that there was improper touching in Sacramento after having initially denied both allegations. To the extent that the MDIC interview was inconsistent with C.M.’s trial testimony, the interview was admissible as a prior inconsistent statement. (Evid. Code, § 1235.) Defendant cannot be prejudiced by portions of the tape which would have been admitted even if an Evidence Code section 1360 objection had been successfully made.
Defendant contends that the prior inconsistent statements exception does not apply to statements about oral copulation in the first incident because C.M. only testified to not remembering whether there was oral copulation. We disagree. When asked whether she did anything other than touch his penis with her hand in the first incident, C.M. replied, “At that time, it was just my hand.” She was later asked, “I think you said that you didn’t have your mouth on Reuben’s penis that first time?” C.M. answered, “Yeah.”
Since defendant would not have received a more favorable verdict if the objection had been made, his claim of ineffective assistance of counsel fails due to his inability to establish prejudice.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P.J. DAVIS , J.
C.M. testified to not remembering whether she told the investigating officer that she orally copulated defendant during the first incident. When asked whether oral copulation could have “happened both times[,]” C.M. answered, “It could have, but it didn’t.” This is a sufficient denial of the first oral copulation to render the contrary MDIC testimony admissible as a prior inconsistent statement.