Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego CountySuper. Ct. No. SCE257508, Allan Preckel, Judge. Affirmed.
O'ROURKE, J.
A jury convicted defendant Diego Davalos of six counts of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)), and found true with respect to each of counts 1 through 4 allegations that in the commission of the offenses he had substantial sexual conduct with the victim, a child under the age of 14, within the meaning of Penal Code section 1203.066, subdivision (a)(8). On appeal, defendant contends the court prejudicially erred by (1) admitting the entirety of the victim's videotaped interviews at Children's Hospital because they were unreliable, contained multiple inadmissible hearsay statements and contained the interviewer's prejudicial endorsements of the victim's credibility; (2) admitting prior bad act evidence on the issues of common scheme or plan, intent, and propensity; (3) admitting unverified "victim impact" evidence by way of a tape recording of a monitored telephone call between the victim's step-sister and defendant; (4) instructing the jury it could convict defendant of the charged offenses without finding sexually motivated conduct; and (5) refusing to provide the jury with the instruction for the assertedly lesser included offense of misdemeanor child molestation. Challenging the trial court's refusal to grant him access to the victim's school records to determine relevant information, defendant asks this court to review them to assess the propriety of the court's ruling. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Margaret Davalos (mother) and defendant are the adoptive parents of three children, including the victim, M., who was 13 years old at the time of trial. Mother is also the biological mother of Jessica H., who was approximately 35 years old at the time of trial. Mother and defendant began living together in approximately 1978 and married in 1987, when Jessica was eight or nine years old. At defendant's suggestion, mother and defendant adopted four more children, three boys and M., who was two years old when adopted. Defendant also adopted Jessica when she was approximately 19 years old, at about the same time he and mother adopted the oldest son. Mother and defendant began divorce proceedings in April 2004, after defendant had an altercation with one of their sons while mother was out of town. Mother described their divorce as contentious.
Each of the three boys has the first initial K. Mother testified the oldest boy was three years old when adopted, the next was adopted about six or seven months later when he was about 18 months old, and the youngest, adopted about eight months after that, was also 18 months old. At the time of trial, the boys were approximately 17, 15, and 13 years of age, respectively. For privacy reasons, we will refer to the boys hereafter as the oldest son (or brother), middle son, and youngest son.
After mother and defendant began divorce proceedings, mother asked Jessica to write a letter to her divorce attorney describing her (Jessica's) relationship with defendant. Several months later, mother learned through her attorney that the letter indicated Jessica had been sexually abused by defendant. Mother never read Jessica's letter or received details about it, however she recalled an inappropriate incident when she awoke to find defendant in Jessica's bedroom standing at her bed unclothed with an erection. Defendant told mother Jessica was coughing and he was just covering her up.
Upon mother learning about Jessica's abuse, mother's attorney requested that defendant receive supervised visitation with the children at Hannah's House, a supervised visitation/exchange service. After the orientation but before the first scheduled visitation, mother had a conversation with M., who, distressed and crying, told her that defendant had "touched her and made her do things . . . that . . . were too gross to tell [her]." Up to that point in time, mother had not told M. about Jessica's claims.
M.'s Trial Testimony
M. testified at defendant's trial, recounting the incidents between her and defendant. She stated that the defendant had touched her in a way to make her feel uncomfortable, the last time on the day that he and her brother had the altercation leading to her parents' divorce. M. described an incident while she was lying in her bed in her room, where defendant entered her room wearing shorts or sweats and tried to make her orally copulate him. M. testified she pretended to be asleep but felt his "thing on [her] lips." She described his penis going inside her mouth a "little bit," explaining it "kind of went to my teeth." M. purposefully kept her mouth shut and teeth together during those times. M. testified defendant had done the same thing before in her parents' bedroom and the living room. She could not recall any specific times, but testified that a "couple of times" the defendant would tell her to go into her parents' room and he would follow her inside, either making her rub lotion on his stomach or trying to make her orally copulate him. She knew that was what he wanted her to do because he "kind of just put it to my face" and it would go inside of her mouth "[j]ust a little bit." M. testified there were other times when defendant's penis would go farther into her mouth, and when that happened, he would move his hand and also his penis. M. stated she was asked more than once to put lotion on defendant in her parents' room and the living room; he would remove his shirt and tug down his pants so she could see part of his penis. Defendant would move his hand up and down on his penis "a little bit" while she was rubbing the lotioN.M. estimated that the lotion incidents happened in her mother's room more than five times, and more than five times in the living room. She estimated that defendant tried to place his penis in her mouth in her bedroom "probably" five more times, and more than once in both the living room and her parents' bedroom.
M. described another time when she was younger and was playing in a plastic swimming pool with the defendant while her brothers were not close by. Defendant was sitting at the edge of the pool with his legs open when he took his penis out of his shorts, and "kind of [made M.] sit on it a bit" while she faced away from him before he would throw her into the pool. M. would feel his penis over her bathing suit and defendant would move her back and forth on top of him. M. testified she never told her mother about the incidents because she feared defendant would "kill her [mother], burn down the house, or something like that. Something stupid." Defendant also told her, "Don't tell your mother."
M. testified about an incident that occurred while everyone was asleep, when the defendant, telling her to bring him a comb, called her into the bathroom while he was showering and asked her to wash his back with a wash cloth. She complied and rubbed his lower back with a wash cloth while standing on the floor outside the shower. When he asked her to rub a little farther down, she did so, but she denied rubbing below his lower back down to the cheeks of his "butt" or rubbing his front.
M. testified that before she told her mother about defendant's acts, she found out that something might have happened to her sister Jessica when she overheard her mother and Jessica talking on the phone. She heard only her mother's side of the conversation, saying, "This is really bad," and she stated her mother was "kind of really upset." M. felt nervous about the possibility of having visitation with her father, and she explained she told her mother about what had happened between her and defendant, because "I knew that my sister had told her, and I just thought I should have told her, too." M. testified she was afraid to go visit her dad, which was part of the reason she told her mother. She testified that at the time of trial, she still did not know the details of what had happened between Jessica and her father.
M. testified that her oldest brother also touched her more than once with his hands in a way that made her uncomfortable, both over and under her clothing when they were outside by pens where her mother kept their sheep and goats. However, M. stated she never saw her brother's penis nor was she made to touch it, and he never put it in her mouth. M. also denied telling her mother that he tried to make her orally copulate him or that they had masturbated each other. Her brother called his actions "breeding." Their mother told them to stop the behavior.
Mother recalled defendant telling her that her son was "doing weird things," and when she went to see, observing her oldest son, then about nine years old, on M.'s back while she was on all fours. When mother asked him what he was doing to his sister, he told her, "I'm breeding her." Mother told him he shouldn't be doing that and it stopped. Because they lived on a farm where they saw animals breed, she felt it was not anything negative; that it was just them mimicking animal behavior. Both children were fully clothed at the time, and she did not consider the incident anything out of the ordinary.
M.'s Children's Hospital Interviews
Videotapes of M.'s interviews by forensic interviewer Laurie Fortin at Chadwick's Children's Center (Chadwick's or Children's Hospital), as well as transcriptions of those interviews, were shown to the jury and the videotapes (but not the transcripts) were admitted into evidence. M. was interviewed by Fortin on August 18, 2004, and again on September 29, 2004. During the first interview, M. bought up defendant's touchings spontaneously, without leading or prodding questions by FortiN.M. told her that defendant "put his private in my mouth" when her mother was gone; that he would call her alone into the front room of the house, his bedroom or M.'s bedroom and "that's when he would do it." M. said that the last time it happened was the day after he hit her brother; defendant was cooking food when he turned the stove off, told her to go to his room, closed the doors, and then put his private in her mouth. M. explained that she was lying down and he was sitting on her side when it happened, or she would be on the couch if it happened in the front room. She described defendant's private as long and red, and it tasted "sickening." Defendant never said anything about it afterwards, he would act "like nothing had happened and stuff." However, M. stated he told her not to tell her mother or "I'll kill her and you." M. told Fortin she did not tell her mother because she was afraid her mother would kill defendant and go to jail, but eventually did so because she did not want to have to go see him. M. estimated that the incidents in her room occurred "five or less or something" and that he "probably, mostly did it in the front room."
The parties agreed that the transcripts of the tapes would be made available to jurors only upon a request to play back the recordings.
In response to Fortin's question whether defendant had done "other inappropriate stuff," M. told her that once while he was showering defendant called her into the bathroom to give him a comb, but made her come back and wash his "bum" or "butt," telling her to scrub "lower" with a scrubber. Fortin asked M. if defendant ever wanted her to do anything else to any part of his body or put anything on his body, and M. told her that defendant would ask her to rub lotion on his stomach, stating he would "pull his shirt up and, like, have his private hanging out." Fortin asked, "Would he be doing anything to his private?" and M. responded, "Only, like, he would pull it." M. denied that defendant ever wanted her to pull on his private, and that she had only put lotion on his stomach or, when her mother was present, on his feet. She also denied that defendant ever took pictures of her, touched her "chi chis" or took off her clothing.
M. underwent a second interview with Fortin as a result of new information she had given to her mother. This time, Fortin asked M. whether defendant had done "that stuff" to anyone else, and M. replied her oldest brother and her sister Jessica, because her mother had told her about Jessica. M. wrote down for Fortin what she told her mother since the first interview: "White stuff came out of his penis and he had put . . . [¶] . . . it in my part." M. explained she had remembered this after hearing her mother "putting stuff out on the table about what happened to me and my brother and my sister" in a family meeting, but that she told her mother about it at a different time. M. later told Fortin her mother gave no details about what defendant had done to her sister or brother during that meeting, and that she had not talked to Jessica at all about it.
The second interview largely consisted of Fortin's efforts to get M. to explain what happened right before the "white stuff" came out, where it went, and how she was able to see it. M. described the incident as occurring while she was facing defendant as he sat on the bottom of their swimming pool while they were both partially underwater, and though M. initially said she was wearing a bathing suit, she later said she had shorts on as well. Defendant "had put it in her shorts" and after she left the pool and went to the bathroom, "[i]t was all down my stomach." According to M., she "didn't see it until [she] went to the bathroom." M. said that when defendant put his penis in her part, it felt "nasty" and it hurt "a little bit." Fortin asked whether M. ever had any "bleeding or anything" afterwards, and M. said it happened once when she went to the pool, "[o]nly from my bum." Fortin asked how M. knew the "white stuff" came from defendant's penis when she first saw it in the bathroom, and M. explained that her brother was taking a "family life" class and had told them that "white stuff" came out.
M. had initially said she was wearing a bathing suit. When M. described defendant putting his part in her shorts, Fortin asked whether she was wearing shorts or a bathing suit, and M said, "It was shorts and the top."
Mother's Trial Testimony
Mother also testified at trial. In part, she testified that in June 2004, after she had filed for divorce but before she learned of the incidents between defendant and M., she took the children for therapy at Kaiser. During an intake session, mother indicated M. had a "serious problem with lying," that she had a "moderate problem with needing excessive attention," and that she had a "serious problem with stealing." Mother explained that the type of lies she referred to was "kid stuff," such as about feeding the animals, watering the chickens, making sure the dogs had water, and whether or not she had broken something. As for stealing, mother explained M. would take things that her brothers had or things like a sewing basket, putting it in a corner of her room. Mother denied telling M. she wanted her to testify in any particular way.
Mother further testified that after M. had disclosed what had happened with defendant and was in counseling, M. told her that her oldest brother had tried to put his penis in her mouth. According to mother, M. stated that defendant had told them they were supposed to "practice for their future life with each other."
Jessica's Trial Testimony
Jessica described the incidents that occurred between her and defendant when she was between 11 and 12 years old, when they lived in San Diego. At times, defendant would sit on the couch and let his shorts open so that his genitals were visible to her. About once a week while her mother was at work, defendant entered the bathroom while she was showering and offered to help her; even though Jessica declined, he would tell her it was okay and would stand outside the shower and scrub her back with a sponge. After the first few times, he removed his clothing and entered the shower with her, having her turn around and washing her breast area. He also had her wash his back, then turn around and ask her to wash his stomach and genitals. Later, defendant would call her into the bathroom while he was showering and ask her to rub his back. Jessica estimated the latter occurred six to eight times. Defendant explained to her that families did this to help each other; that her mother did not want her to grow up and it was "better to have somebody that you know and loved teach you things than just some stranger." He also told her not to tell anyone.
On other occasions, defendant entered Jessica's room in the early morning while her mother was asleep and rubbed her breast and pubic areas. He later began climbing under the covers to orally copulate her. During these times, defendant would be unclothed, and Jessica always pretended to be asleep. Defendant also climbed on top of Jessica; twice he rubbed his penis so that it got just inside her labia, and about four or five times he rubbed his penis up and down against her vagina. Defendant's nightly visits stopped after they moved to a different house in Jacumba.
The last incident with defendant occurred when he was driving Jessica home from a school event in the evening. Jessica was asleep in the car when she awoke to find defendant with his hand under her shirt and bra, fondling her breasts. When his hand progressed to her pubic area on top of her pants, she confronted him and hit him in the head a few times, telling him, "I can't even believe you were going to fuckin' do that." Jessica testified she never told her mother what had happened between her and defendant because she did not want her mother to be alone.
Jessica testified that at some point after she wrote her letter to mother's attorney, she was contacted by a San Diego County Sheriff's detective and spoke with him about the incidents between her and defendant. Initially, she and the detective talked over the phone, and he later traveled to her home to speak to her privately. Although he did not provide her with any detail, the detective informed Jessica that M. had come forward with claims of inappropriate touching by defendant. At the detective's request, Jessica made a tape-recorded telephone call (the pretext call) to defendant. The detective described to her beforehand how the pretext call would be set up and that it was designed to have defendant admit his conduct toward her, and he gave her ideas about things to ask. During that call, which was made with the detective present and listening, Jessica told defendant she needed to talk with him about the incidents for "closure," that she had heard about M., and she needed to hear from him why he had started with M. Though defendant denied ever penetrating M. or making her orally copulate him, he responded to Jessica's questions with incriminating statements, including that "there was some inappropriate touching . . . [¶] . . . [¶] . . . Kind of like sitting on laps and stuff like that."
Shortly into the call, which was transcribed and also played for the jury, the following colloquy occurred: "[Jessica]: "Why did you start with [M.]?" [¶] [Defendant]: "I ju – I don't even know how to explain it to you. I mean, if I knew, I mean, I – I think I'm pretty intelligent, but I don't really even understand it myself. You know, 'cause I was conscious of it and then all of a sudden that – things just started happening, and then, you know, I was like, – uh, able to put a stop to it in time, you know, and then feel like, you know, it's time to wake up and realize, you know, that it was happening again. And so, that's why I think it's – [¶] [Jessica]: Well, – [¶] [Defendant]: – the best thing that could'a – the best thing that could'a happened is for me not to be there." Later, when Jessica told defendant that her mother reported that he had made M. orally copulate him, he denied it, stating, "I think there's some confusion there, 'cause I actually don't – I don't think I progressed to that level." Jessica asked him to clarify: "[Defendant]: Well, I think, you know, there was some inappropriate touching. I think that's about – you know, I can say that's about as far as I think it went. [¶] [Jessica]: "Showers?" [¶] [Defendant]: "Kind of like sitting on laps and stuff like that. You know." He likewise admitted to inappropriate touching when Jessica told defendant she believed M.: "[Jessica]: . . . I do believe [M.], though, you know, I do believe that [M.] – that you and her were touching an – and things like that. And that's all true. Right? [¶] [Defendant]: There was some inappropriate touchings, yes. [¶] [Jessica]: Uh, and – of her privates, as well? [¶] [Defendant]: Um-m, – I mean, you know, it's hard for me to remember. You know, really I mean, but there was – there was some inappropriate touching, yeah."
Defense Evidence
Defendant testified in his own defense. He denied orally copulating Jessica or ever penetrating her. He testified that when he referred to inappropriate touching with M. in his telephone call with Jessica, he meant inappropriate contact with M. sitting on his lap. Defendant explained that men felt uncomfortable having their daughters sit close or on their laps after they get to a certain age, and he felt it was inappropriate conduct given some of M.'s behaviors. He denied ever having any sexual contact with M. He admitted having sexual contact with Jessica, that he would lay in bed with her and fondle her breasts and then leave. He denied touching Jessica in her vaginal area. He asked Jessica to help him scrub his back once in the shower, between his shoulders. As for his laying in bed with Jessica when she was 13 years old, defendant testified that at the time it seemed consensual because she never told him to stop. He also testified that mother told him of oral copulation between M. and her oldest brother.
DISCUSSION
I. Admission of M.'s Videotaped Forensic Interviews
Defendant contends the court prejudicially erred by ruling that the entirety of the two videotaped interviews of M. by Fortin were admissible under Evidence Code section 1360. Pointing to various discrepancies between M.'s statements to Fortin, her statements at the preliminary hearing and at trial, he maintains the prosecution did not meet its burden to make a foundational showing of reliability. Defendant also argues the videotapes contained multiple prejudicial non-accusational hearsay statements that were inadmissible under section 1360. Finally, defendant maintains the interviewer's "reassurances" were an irrelevant and prejudicial expert endorsement of M.'s credibility, giving the jury a basis to know M. on a personal level and establish an emotional connection.
Further statutory references are to the Evidence Code unless otherwise indicated.
Section 1360 permits evidence of statements by a victim under the age of 12 relating to child abuse or neglect if, in addition to proper notice being given, the court finds sufficient indicia of reliability and either the child testifies or there is independent corroboration of the abuse. In determining reliability (and also whether the statements bear particularized guarantees of trustworthiness under the Confrontation Clause), courts have " 'considerable leeway in their consideration of appropriate factors' " (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1374, quoting Idaho v. Wright (1990) 497 U.S. 805, 822) which include but are not limited to: (1) spontaneity and consistent repetition of the statement(s); (2) the declarant's mental state; (3) the declarant's use of terminology unexpected of a child of similar age; (4) the lack of a motive to fabricate; and (5) the child's ability to understand the duty to tell the truth and distinguish between truth and falsity. (Roberto V., at p. 1374, citing Idaho v. Wright, at pp. 821-822; see also In re Cindy L. (1997) 17 Cal.4th 15, 29-30 [identifying factors as "nonexhaustive," and adding to them the child's ability to understand the duty to tell the truth and to distinguish between truth and falsity]; In re Lucero L. (2000) 22 Cal.4th 1227, 1250 [in addition to Idaho v. Wright factors, any factor bearing on reliability may be considered].) We review the court's admission of evidence under section 1360 for abuse of discretion. (Roberto V., at p. 1367; People v. Brodit (1998) 61 Cal.App.4th 1312, 1330.)
Section 1360 provides: "(a) 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 or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply: [¶] (1) The statement is not otherwise admissible by statute or court rule. [¶] (2) The 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. [¶] (3) The child either: [¶] (A) Testifies at the proceedings. [¶] (B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child. [¶] (b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement. [¶] (c) For purposes of this section, 'child abuse' means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and 'child neglect' means any of the acts described in Section 11165.2 of the Penal Code."
The People assert we must review the court's reliability determination independently, citing Roberto V., supra, 93 Cal.App.4th 1350 and People v. Eccleston (2001) 89 Cal.App.4th 436 at pages 445-446. In Eccleston, unlike this case, the hearsay declarant did not testify, giving rise to a question of Sixth Amendment confrontation clause admissibility. (Eccleston, at p. 445.) Roberto V. applied an abuse of discretion standard for the analysis under section 1360 (Roberto V., at p. 1367) and an independent standard for its confrontation clause analysis. (Id. at p. 1374.) Absent a confrontation clause challenge, we review the trial court's ruling under section 1360 for abuse of discretion. (E.g., In re Cindy L., supra, 17 Cal.4th at pp., 29, fn. 7, 35 [applying indicia of reliability requirements of section 1360 in approving child dependency hearsay exception in child dependency cases, and reviewing trial court's admission of evidence for abuse of discretion]; People v. Brodit, supra, 61 Cal.App.4th at pp. 1329-1330.)
A. Non-accusational Portions of Interviews
We begin with defendant's contention that the court erred and denied him a fair trial by admitting the non-accusational portions of M.'s videotapes. We agree the court erred by admitting M.'s interview tapes wholesale, without redacting Fortin's questions and M.'s answers in which M. did not "describe[] any act of child abuse or neglect with or on [her]" or "describe[] any attempted act of child abuse or neglect with or on [her] . . . ." (§ 1360, subd. (a).) During the first interview, Fortin asked M. about her grade level and how she liked her school teachers, how she got along with her brothers, the reason why her parents were getting divorced, and what she and her mother were doing that day after they left the interview. The questions elicited M.'s description of the incident in which defendant hit and punched her middle brother, causing him bruises. M. told Fortin that defendant told M.'s brother not to tell anyone, and that she (M.) reported the incident to her teacher who had asked about her brother's injuries. Fortin also asked M. if she was seeing a counselor and how she felt talking about the "nasty stuff," and if she was uncomfortable talking to her about it. Fortin assured M. that the abuse was "not your fault" and "[g]rownups know better than to do that stuff to kids," that it was "very good for [her] to tell her mother" about it and she was glad M. answered questions because it helped her under what had happened. The tape included M.'s commentary about her teachers and going to Walmart to spend her allowance money, including M.'s statement that defendant would spend money sent by her grandmother that was intended for her and her brothers.
Though we conclude these statements to M. should not have been admitted, we disagree with defendant's contention that they constituted an expert endorsement of M.'s credibility. Defendant suggests these statements "confirm[ed the examiner's] expert belief in the truth of the allegations," but we see no similarities between these statements, which are obviously designed to comfort M. and assure her she did nothing wrong by coming forward with the information, and the statements made or opinions expressed by the witnesses in the authorities cited by defendant. Fortin did not, for example, provide the jury with her opinion that M. was telling the truth, as did the police officers in People v. Sergill (1982) 138 Cal.App.3d 34, 40 [error reversible because court in effect declared the officer was especially qualified to render an opinion as to whether a person reporting a crime was telling the truth, making it reasonably probable the jury placed undue emphasis on the officers' testimony].)
Section 1360 is not a vehicle to admit prior hearsay statements of a victim that do not concern or describe the actual or attempted abuse against that victim by the defendant; there was no basis to include such extraneous matters in the interview tapes provided to the jury. We reject the People's assertion that counsel forfeited any argument as to the relevance of the extraneous matters; counsel objected to introduction of the videotapes "unless . . . they come in as consistent or inconsistent statements after [M.] has testified." This objection related to the content of M.'s accusations, and in our view it was sufficient to require the court to scrutinize the tapes and redact those portions that did not relate to defendant's alleged acts of abuse against M.
Despite our conclusion that the court erred in admitting the entirety of M.'s interview tapes, we hold the error is harmless under the People v. Watson (1956) 46 Cal.2d 818, 836, standard, which compels reversal if "it is reasonably probable the result would have been more favorable to the defendant had the error not occurred." (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) Given M.'s testimony at trial, the propensity evidence from Jessica, as well as defendant's damaging admissions made during his telephone call with Jessica, it is not reasonably probable the jury would found him innocent of the charged conduct if M.'s extraneous statements had not been admitted. M.'s statements and answers to Fortin's questions unrelated to the sexual abuse were far outweighed by this other evidence. Thus, even had counsel successfully obtained redaction of those statements, in view of the other evidence, there is no reasonable probability the jury would have reached a more favorable outcome.
B. Reliability
We turn to the trial court's reliability determination. In admitting the evidence under section 1360, the trial court stated it had reviewed M.'s trial testimony, the contents of the video interviews, the preliminary examination evidence, and the trial evidence up to that point, and found that the time, content and circumstances of M.'s statements provided sufficient indicia of reliability. Defendant has not demonstrated the court abused its discretion in this ruling.
First, we disagree with defendant's assertion that M.'s statements cannot be described as spontaneous because four months had passed between the last act and first accusation. His focus on the passage of time is misplaced. Cases addressing the issue indicate that in the context of the child hearsay exception, a spontaneous statement is one that is unprompted or "imparted at the victim's initiation." (People v. Eccleston, supra, 89 Cal.App.4th at p. 446;see State v. Robinson (1987) 735 P.2d 801, 811, cited in Idaho v. Wright, supra, 497 U.S. at pp. 821, 827.) The record at the time the trial court made its ruling showed that M. in fact spontaneously reported defendant's touchings to her mother while they were leaving Hannah's House, and not as the result of anyone asking her questions about her father or admonishing her to reveal any information she may have had. Likewise, M.'s statements to Fortin describing defendant putting his "private" in her mouth came spontaneously and without prompting while she and Fortin were discussing her parents' divorce, the hitting incident between defendant and her brother, and a time when defendant pushed her head underwater while they were at the beach, which M. characterized as a time when defendant "tried to drown me."
Defendant's compilation of purported inconsistencies in M.'s statements does not persuade us to find an abuse of discretion. As the People point out, M.'s description of the offenses against her were consistent as to the "general outline of abuse" (People v. Eccleston, supra, 89 Cal.App.4th at p. 446), and they focused upon defendant trying to place his penis into her mouth (placing it inside her lips to her teeth and putting it inside her mouth "a little bit," as M. testified at trial, or putting it to her lips while M. kept her mouth closed, as she testified at the preliminary hearing), having her rub lotion on his stomach, having her wash his back in the shower, and rubbing her against his crotch while they played in the swimming pool. That M. described a more serious incident to Fortin that she did not repeat during trial (defendant placing his penis in her shorts with "white stuff" coming out) can reasonably be attributed to the added comfort level she might have experienced with her mother and Fortin, an expert sex abuse interviewer.
Some of the purported inconsistencies raised by defendant are not supported by the record. Defendant states M. first denied in her interview knowing about Jessica's molest, and then later said she knew of it. He also states M. denied that anyone else molested her, but at trial testified that a brother had "done so" during the time defendant was living in the house. But in the first example, after questioning M. about defendant's conduct, Fortin asked M. if she knew if her father "did that inappropriate stuff to anybody else besides you" (italics added) and M. responded, "No, I don't think so." Fortin's question was specific – asking whether defendant had done the described acts to anyone else – and M.'s response is consistent with her testimony that she never learned the details of what happened to Jessica. In the second interview, Jessica reported to Fortin that she was told by her mother that defendant had done "that stuff" to her sister and her oldest brother. M.'s testimony reflects the fact that information had been exchanged between M. and mother between the interviews, and the court could readily conclude that her interview testimony was not so inconsistent as to render it unreliable. As for the second example, after M. described the incident in the pool with defendant, Fortin asked if she ever saw "white stuff" come out of anybody else's penis, and whether anyone else had tried to "do inappropriate stuff with you. Tried to do that?" (Italics added.) M. responded (nonverbally), "no" to both questions. M.'s response does not contradict her testimony about her brother touching her in a way that made her "uncomfortable" in the "breeding" incident, which mother perceived as innocent conduct by a child who was mimicking livestock behavior.
Other of the purported inconsistencies depend upon a selective interpretation of the record; M. told Fortin she saw defendant's "private hanging out" when she rubbed lotion on her stomach, and at trial, M. said she could "see at least part of his penis," descriptions that for a pre-teen girl are not necessarily inconsistent. Likewise, M. described the shower incident to Fortin as defendant asking her to wash his buttocks, but at trial M. testified he asked her to scrub "lower" though she did not "get down to the cheeks of his butt, the round part." M.'s statements to Fortin do not eliminate the possibility that M. considered the area of defendant's lower back at his tail bone his "butt."
These differences in M.'s testimony do not convince us the court was outside the bounds of reason in finding her statements reliable. Many of the asserted inconsistencies defendant raises are details that, given M.'s age and passage of time between the incidents and trial, do not significantly impact reliability. For example, the fact M. could not consistently recall whether a particular event (e.g. the "last molest") took place during the day or night, or in the living room or bedroom, in our view is not so unusual for a child of her age as to require the court to make a finding of unreliability.
Nor do we agree that there is enough evidence of some unreliable mental state or motivation on M.'s part to require us to hold the trial court abused its broad discretion in finding indicia of reliability. M. was coherent and "capable of rational conversation." (People v. Eccleston, supra, 89 Cal.App.4th at p. 447.) M. appeared to understand the factual matters that she was describing, giving support to the trial court's ruling. Defendant points to M.'s asserted "severe" lying or stealing problems; but mother testified that those problems (taken from the notations she made in her Kaiser intake report) amounted to fairly innocuous child behaviors such as lying about chores or taking items around the house that did not belong to her. The trial court was entitled to believe mother's explanation, as well as her testimony indicating that M., upset and crying, spontaneously told her of defendant's abuse after the visit to Hannah's House. The evidence does not suggest M.'s mental state at the time made her statements unreliable or that M. had some motive to fabricate her allegations. M. told the examiner that she came forward with her accusations against defendant because she did not want to visit with him; that she "hate[d] him" for "all the stuff that he's done," a normal reaction for M. under the circumstances. Defendant suggests the court should have ascribed to M. a "parentally inspired" motive to lie to support her mother with respect to divorce, but the court was entitled to believe mother's denial that she ever "strategize[d]" with M. to obtain evidence for her divorce. Further, the court could have reasonably concluded that had mother wanted to use M. to harm defendant due to the pending divorce proceedings, she would have compelled M. to raise her claims much earlier, sooner after her divorce proceedings started in April 2004.
II. Uncharged Sexual Offense Evidence
Defendant contends the court erred by allowing Jessica's testimony under sections 1101, for intent and common scheme or plan, and 1108 for propensity. As to section 1108, defendant specifically maintains the provision violates due process, and that under section 352 and People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the evidence should have been excluded.
With respect to his constitutional challenge to section 1108, defendant concedes that his claim was rejected by the California Supreme Court in Falsetta (supra,21 Cal.4th at pp. 907, 916-922.) We need not address the argument further because we are, of course, bound by Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Otherwise, we conclude the court did not err in admitting the evidence of defendant's conduct with Jessica under section 1108. Section 1108 subdivision (a) provides that where a defendant is accused of a sexual offense in a criminal action, "evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." The California Supreme Court has explained that " 'the Legislature enacted section 1108 to expand the admissibility of disposition or propensity evidence in sex offense cases. . . . [A]vailable legislative history indicates section 1108 was intended in sex offense cases to relax the evidentiary restraints . . . section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant's other sex offenses in evaluating the victim's and the defendant's credibility. In this regard, section 1108 implicitly abrogates prior decisions of this court indicating that "propensity" evidence is per se unduly prejudicial to the defense.' " (People v. Abilez (2007) 41 Cal.4th 472, 502, quoting Falsetta, supra, 21 Cal.4th at p. 911.)
" 'Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.' " (People v. Abilez, supra, 41 Cal.4th at p. 502, italics omitted.) While Abilez identifies several considerations, section 352's "weighing process . . . depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.] We will not overturn or disturb a trial court's exercise of discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314; see also People v. Mullens (2004) 119 Cal.App.4th 648, 658.) Nothing requires a trial court to consider or apply each of a list of particular factors; we need not go beyond the settled appellate standards for assessing a trial court's decision to admit evidence under section 352. (People v. Jennings, at pp. 1314-1315.)
Under these standards, and viewing the evidence in the light most favorable to the trial court's ruling (see People v. Carter (2005) 36 Cal.4th 1114, 1148), we cannot conclude the trial court's ruling in admitting Jessica's testimony as to defendant's prior acts on her was arbitrary, capricious, manifestly absurd, or exceeded the bounds of reason. (People v. Mullens, supra, 119 Cal.App.4th at p. 658.) We disagree the facts of defendant's actions against Jessica were so inflammatory or prejudicial as to preclude their admission in this case on the issue of his propensity to commit such acts. None of the prior acts involved extreme violence or severe injuries as did the defendant's prior conduct in People v. Harris (1998) 60 Cal.App.4th 727, on which defendant relies.
In Harris, the trial court was held to have prejudicially abused its discretion in admitting an incomplete and distorted version of the defendant's prior act involving brutal sexual mutilation in a case in which the defendant had kissed, fondled and sexually preyed upon emotionally and physically vulnerable women – crimes held to be of a "significantly different nature and quality." (Harris, at p. 738.) Here, defendant's acts toward Jessica were not of a significantly different nature and quality than the conduct toward M.; both his present and prior acts involved improper touchings of the girls (including having both girls wash him in the shower while he was unclothed), the acts mainly occurred when the girls were approximately the same age (10 or 11) and when they were living with defendant in the same house, and the incidents took place while mother was away or asleep. (Accord, People v. Mullens, supra, 119 Cal.App.4th at p. 660 [holding that under section 1108 analysis, dissimilarities in alleged incidents goes to weight, not admissibility, of evidence].) Defendant violated a position of trust with respect to both girls, to whom he was a father figure. While defendant's prior acts toward Jessica had progressed to the level of more serious sexual behavior (climbing on top of her in her bed and rubbing his penis against her vaginal area and penetrating her labia), that alone does not make evidence of them unduly inflammatory. By nature, evidence of prior sex offenses involves unpleasant facts of sexual misconduct. The facts of defendant's acts against Jessica, while somewhat more egregious than the present offenses, were not so extreme to warrant their exclusion.
We further reject defendant's assertion that the past incidents were too remote and consumed an undue amount of time at trial. As for the latter, we discern nothing about the time consumed by Jessica's testimony or the related jury instructions that warrants exclusion under section 352. As for the prior acts' remoteness, Jessica testified defendant's conduct had "pretty much stopped" by the time they moved to Jacumba, which according to mother was in 1986. M.'s testimony indicates defendant's acts toward her occurred approximately 16 years later, during the one or two years before he moved out of the house in March of 2004. There are no specific time limits establishing when a prior offense is so remote as to be inadmissible (People v. Pierce (2002) 104 Cal.App.4th 893, 900; People v. Branch (2001) 91 Cal.App.4th 274, 284 [evidence of 30-year-old sex offense properly admitted]) and we hold the similarities described above balance out any remoteness. (Accord, Pierce, at p. 900.) In sum, the trial court did not abuse its discretion in admitting the prior sex act evidence under section 1108 to prove defendant's propensity to commit the charged offenses. Our conclusion renders it unnecessary to address defendant's challenge to the evidence under section 1101, subdivision (b).
III. Admission of Purported Victim Impact Evidence
Defendant contends he was prejudiced by the court's admission of certain portions of Jessica's pretext telephone call with him in which she mentioned she was undergoing therapy, taking Wellbutrin, had become "very promiscuous," and suffered from weight gain as a result of his conduct. Relying on out-of-state and federal authorities that we are not bound to follow (People v. Gray (2005) 37 Cal.4th 168, 226 [federal]; US Ecology, Inc. v. State (2005) 129 Cal.App.4th 887, 905 [out-of-state]), he maintains Jessica's "impact" testimony was irrelevant to the purpose of the evidence to show his prior misconduct and there was no explanation to the jury as to whether her statements were true or part of the detective's protocol to draw admissions from him. While he does not expand on the point, in his argument heading he asserts the admission of the evidence denied him his 14th Amendment right to due process.
The trial court considered similar pretrial objections by defense counsel, initially conducting a lengthy discussion on the record about whether to admit the entirety of Jessica's call. In that discussion, the court reached a reasoned conclusion that Jessica's telephone call to the defendant should remain unredacted so its contents were kept in context, and that it would again address the subject matter of the call before its introduction to the jury. Before introducing the transcripts and tape to the jury, the court overruled defense counsel's objections to the inclusion of Jessica's asserted "self-diagnosis" statements in the tape and transcript.
In response to defense counsel's objections that the comments were irrelevant, highly prejudicial and distracting, the court stated: "Well, I think to ensure the contents of the call are kept in context, that you can't start splitting the proverbial baby. It is what it is. [¶] And, frankly, in my view, in a manner of speaking, this trial is going to involve the good, the bad, and the ugly. And, largely, it's all going to hang out. And we'll see what a jury does with it. [¶] That's not to suggest that the court has not viewed the prospective evidence with a critical eye and mindful of the pertinent Evidence Code and other statutory provisions that should control or at least direct the court's decision-making regarding what evidence is or is not admissible. [¶] But when I spoke of Jessica's testimony regarding what I'll characterize as collateral consequences not being admissible, what I was directing that ruling toward is any inquiry of Jessica on the stand now, 'Since you moved out of the home at about age 19, how have the events that you've described between you and Mr. Davalos affected your life thereafter?' [¶] But that's separate and distinct in the court's view from the controlled and recorded call that was then made by Jessica, and with the conversation between her and Mr. Davalos being fully recorded. In my view, you can't start redacting the contents of that call and do so without materially impacting the true content and understanding of what was being said by the individuals, each of them, and/or what was reasonably being understood by the other. [¶] So if anyone wants to present me with a transcript of that recorded conversation, I'd be happy to review it and further consider or reconsider my present ruling."
These rulings were not an abuse of discretion. (See People v. Guerra (2006) 37 Cal.4th 1067, 1113 [abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence and is particularly appropriate for questions regarding relevance and undue prejudice]; People v. Lenart (2004) 32 Cal.4th 1107, 1123 [admission of uncharged crime evidence is reviewed for abuse of discretion].) First, we are not convinced the jury considered Jessica's statements as victim-impact evidence. It heard Jessica testify about being contacted by the detective who asked her to make the pretext call to defendant, and it was aware the detective had given her ideas before the call about things to ask and also "[wrote] down one or two things" while the call was progressing. The jury could have as easily concluded that Jessica did not make these statements because they were true, but solely to gain defendant's sympathy to elicit admissions about his actions against her. The trial court rationally decided that the jurors were entitled to hear the entirety of Jessica's call to understand how she and in what manner she was able to elicit information from defendant, and the jury could evaluate for itself the credibility of the information she provided in her call.
Further, Jessica did not directly attribute being in therapy and taking Wellbutrin to defendant's conduct, and those comments, along with her statements about other purported results of defendant's conduct (promiscuity and weight gain) were brief and took up only a few lines of an approximately 16-page transcript. The court reasonably concluded that the purported impact statements were not unduly inflammatory, sympathy-evoking, or time consuming in the context of the entire call.
IV. Instructional Error
A. Motive Instruction
In addition to instructions relating to the Penal Code section 288, subdivision (a) offenses, the trial court instructed the jury with CALCRIM No. 370, which states: "The People are not required to prove that the defendant had a motive to commit the crimes charged. In reaching your verdicts you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty."
Defendant contends the court reversibly erred by giving CALCRIM No. 370, characterizing the instruction as telling the jury it could convict him without finding he engaged in sexually motivated conduct. In particular, he argues that the Penal Code section 288 subdivision (a) offense requires the People to prove " 'sexual motivation' " (People v. Martinez (1995) 11 Cal.4th 434, 449), yet CALCRIM No. 370 "nullified" the court's separate instruction that the People were required to prove that he "committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child" and that "[t]he touching need not be done in a lewd or sexual manner." Defendant maintains the conflicting instructions confused the jury or forced them to ignore the sexual motivation requirement of the intent instruction.
Proceeding to the merits of the contention despite counsel's failure to object, we reject it. In People v. Martinez, the court "refused to adopt a 'hyper literal' reading of [the phrase "lewd or lascivious act"] that would contravene legislative intent or produce anomalous results, and instead interpreted it with reference to other language in [Penal Code] section 288 that, '[a]s commonly understood, . . . refer[s] to . . . "sexual motivation." ' " (People v. Murphy (2001) 25 Cal.4th 136, 143, fn. 2, summarizing its holding in Martinez, supra, 11 Cal.4th at p. 449.) Thus, Martinez explained that whether behavior falls "within or without the protective purposes of [Penal Code] section 288" depends upon "the actor's motivation, innocent or sexual, . . . [and] the only way to determine whether a particular touching is permitted or prohibited is by reference to the actor's intent as inferred from all the circumstances." (Id. at p. 450.) It noted that courts had long indicated "that [Penal Code]section 288 prohibits all forms of sexually motivated contact with an underage child"; and to prove the offense, "the cases have made clear that a 'touching' of the victim is required, and that sexual gratification must be presently intended at the time such 'touching' occurs." (Id. at p. 444.)
An objection is not necessary to preserve a claim of erroneous instruction for appellate review where substantial rights of the defendant are affected by the erroneous instruction. (See Pen. Code, § 1259 ["The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"]; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Because defendant's right to a fair trial would be affected if the trial court erred in the manner he alleges, i.e., that the jury was improperly instructed that the People did not need to prove an element of the offense, we address the merits of his argument.
It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Estep (1996) 42 Cal.App.4th 733, 738-739; People v. Wilson (1992) 3 Cal.4th 926, 943.) Here, the intent element of Penal Code section 288 was not described to the jury in terms of sexual motivation; rather, they were properly instructed that in order to prove guilt, the People were required to prove "[t]he defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child . . ." (Italics added.) That is an accurate instruction on the intent element of Penal Code section 288, subdivision (a). (Pen. Code, § 288, subd. (a); see People v. Lopez (1998) 19 Cal.4th 282, 289 [any outwardly innocuous and inoffensive touching of a child under the age of 14 violates this section if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim].) Because the court did not instruct the jury that they were required to find sexual motivation, and the jury was properly instructed about the specific intent it was required to find, we cannot perceive any possibility of jury confusion from the giving of CALJIC No. 370, relating to motive.
Thus, this case differs significantly from People v. Maurer (1995) 32 Cal.App.4th 1121, relied upon by defendant. In Maurer, after a former high school teacher was charged with multiple counts of improper sexual conduct involving three of his female students, the jury acquitted the defendant of all charges except for two counts of misdemeanor child annoyance under Penal Code section 647.6. (Maurer, at p. 1124-1125.) The trial court properly instructed the jury on the mental state element required to convict defendant of those charges as follows: "Such acts or conduct [must be] motivated by an unnatural or abnormal sexual interest in" the victim. (Id. at p. 1125.) In another instruction, however, the trial court told the jury that "[m]otive is not an element of the crime charged and need not be shown." (CALJIC No. 2.51; Maurer, 32 Cal.App.4th at p. 1126.) The appellate court reversed the convictions, concluding that the trial court erred in providing these conflicting instructions on this mental state element, that the error was not invited, and that, based on the equivocal state of the evidence, the error was prejudicial. (Id. at pp. 1126-1132.)Here, unlike Maurer, motive was not identified to the jury as an element of the Penal Code section 288, subdivision (a) offenses. No reasonable juror, after being instructed as the jury was in this case, would have concluded that the People did not have to prove beyond a reasonable doubt that defendant committed the crime with the requisite intent in order to find him guilty of the offenses. We conclude the trial court did not misstate the law or otherwise err in instructing the jury with CALCRIM No. 370.
We reject defendant's suggestion in his reply brief that jurors would construe the required intent the same as sexual motivation because the courts interchangeably describe intent as one of sexual motivation. The high court has also made clear that motive and intent are legally distinct concepts. (See People v. Cash (2002) 28 Cal.4th 703, 738-739; People v. Hillhouse (2002) 27 Cal.4th 469, 504.) And, in this case, there is no reasonable likelihood the jury understood those terms to be synonymous in a way to lessen the People's burden of proof. (Accord, People v. Cash, at pp. 738-739.) In any event, the evidence as to defendant's intent is overwhelming. Thus, even assuming error, we would conclude beyond a reasonable doubt that it did not contribute to the verdict. (People v. Maurer, supra, 32 Cal.App.4th at pp. 1128-1129 [applying federal constitutional prejudice standard]; see Chapman v. California (1967) 386 U.S. 18, 24; Neder v. U.S. (1999) 527 U.S. 1, 18 [inquiry is whether it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error"], criticized on other grounds in People v. McCall (2004) 32 Cal.4th 175, 187, fn. 14.)
B. Failure to Instruct on Misdemeanor Annoying and Molesting a Child
Defendant contends the trial court erred by refusing his request to instruct the jury with the offense of misdemeanor child annoyance (Pen. Code, § 647.6, subd. (a)). Agreeing that under Lopez,the court was not required to give the child annoyance instruction sua sponte (id. at p. 285), he argues that because the People included allegations that he "did have substantial sexual conduct with M." within the meaning of Penal Code section 1203.066, subdivision (a)(8), the instruction should have been given under the "accusatory pleading" test for determining whether a lesser offense is necessarily included in the charged offense.
"[Penal Code s]ection 647.6, subdivision (a) states a misdemeanor offense for every person who 'annoys or molests any child under the age of 18.' In contrast to [Penal Code] section 288, subdivision (a), [Penal Code] section 647.6 subdivision (a) does not require a touching [citation] but does require (1) conduct a " 'normal person would unhesitatingly be irritated by" ' [citations] and (2) conduct ' "motivated by an unnatural or abnormal sexual interest" ' in the victim." (People v. Lopez, supra, 19 Cal.4th at p. 289.)
As relevant here, Penal Code section 1203.066 provides: "(a) Notwithstanding [Penal Code s]ection 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to [Penal Code s]ection 1385 for, any of the following persons: [¶] . . . [¶] . . . (8) A person who, in violating [Penal Code s]ection 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age."
Both parties point out that in People v. Wolcott (1983) 34 Cal.3d 92, the California Supreme Court held a trial court may not consider allegations of sentencing enhancements in applying the accusatory pleading test to determine a trial court's sua sponte duty to instruct on lesser included offenses. (People v. Wolcott,34 Cal.3d at p. 101.) Wolcott, which involved a firearm use enhancement, reasoned in part that California courts had consistently stated that such enhancements do not prescribe a new offense but are merely additional punishment for an offense in which a firearm is used. (People v. Wolcott,at p. 100.) The court reasoned that the orderly process of criminal trials would become confused if the trier of fact had to consider evidence of the enhancement in determining guilt of a lesser offense. (Id. at p. 101.)
Defendant asks us to distinguish Wolcott on grounds Penal Code section 1203.066, subdivision (a)(8) involves probation ineligibility, and "describes the nature of the charged sexual conduct . . . itself." He maintains "the combination of the charge and this allegation forms a more serious kind of [Penal Code section 288] offense, not an additional element such as the use of a firearm . . . ." He also seems to argue it differs because he requested the instruction as opposed to relying on the trial court's sua sponte duty. The fact defendant requested the instruction, however, does not change the trial court's duties to instruct the jury on general principles of law, including giving instructions on lesser included offenses. (See People v. Breverman (1998) 19 Cal.4th 142, 154 [" 'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence . . . That obligation has been held to include giving instructions on lesser included offenses"].) If the subject of the requested instruction is not a lesser included offense under the relevant legal standard, the fact defendant requested it is immaterial.
We reject defendant's argument that we should treat a probation ineligibility allegation differently from a firearm use enhancement. Both allegations set forth additionally egregious conduct that warrants additional punishment; in the Penal Code section 1203.066 context, by rendering a defendant ineligible for probation. Further, in People v. Sloan (2007) 42 Cal.4th 110, the California Supreme Court reaffirmed the "long-standing" rule in Wolcott that "enhancements may not be considered as part of an accusatory pleading for purposes of identifying lesser included offenses." (Sloan, 42 Cal.4th at p. 113.) Defendant acknowledges the high court's statement in Sloan, but heprovides no reason to depart from it, despite the different context in which Sloan was decided (addressing the rule prohibiting multiple convictions based on necessarily included offenses). Because the accusatory pleading test provided no basis for an instruction on the offense of misdemeanor child annoyance, the trial court did not err in refusing to give the jury defendant's requested instruction.
V. Discovery of School Records
Before trial, the court reviewed in camera subpoenaed records from two different schools (marked as court's exhibits 6 and 7) pertaining to M. and her brothers. The court indicated it was looking to decide whether they were discoverable "after weighing and balancing the privacy rights and interests of the school district and, more particularly, of the individuals as to whom the records pertain, weighing and balancing those interests as against the rights and interests of [defendant] in seeking disclosure of those records." The court concluded after "balancing the interests of those involved, including [defendant] certainly, that none of those records are properly discoverable in whole or in part; and, therefore none of the records will be released to counsel."
Asserting judges are not in the best position to assess the relevance of discovery materials, defendant contends he was denied a fair trial by the court's decision to withhold the subpoenaed documents from him. He asks that we review the sealed exhibits to determine whether there is "impeaching or other relevant matter therein related to [M.] . . . includ[ing] evidence of psychiatric disturbance, mendacity, false complaints including claims about misconduct toward her by others, and any other evidence that may be relevant to the case." He also suggests we should permit him access so that he can "intelligently argue that denial of access to these exhibits at trial denied him his state and federal constitutional rights to due process of law by disabling his counsel from access to the tools for effective examination of witnesses, and thus his right of confrontation."
We have already denied defendant's request for his counsel's access to these documents, which was the subject of a separate motion filed by defendant in this court. Defendant relies solely on California Rules of Court, rule 8.328, subdivision (c)(6), which provides: "Unless the reviewing court orders otherwise, confidential material sent to the reviewing court . . . may be examined only by a reviewing court justice personally; but parties and their attorneys who had access to the material in the trial court may also examine it." Because defense counsel did not have access to the subject documents in the trial court, the rule on its face does not permit disclosure.
Defendant does not otherwise meaningfully challenge the trial court's sealing of these documents or its treatment of them as subject to M.'s privacy rights. For purposes of resolving his contention, we assume M. has a legitimate privacy interest in her educational records. Under the subpoena duces tecum procedure contained in Penal Code section 1326, when a criminal defendant has requested records of a nonparty, "the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents." (Pen. Code, § 1326, subd. (c).) If the records are privileged, the trial court is not required at the pretrial stage of the proceedings to review or grant discovery of the information in the hands of a third party, but may later review records and disclose information at trial if necessary to preserve the defendant's right to confrontation. (See People v. Hammon (1997) 15 Cal.4th 1117, 1127; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 30, fn. 6.)
Given M.'s privacy interest in her educational records, we cannot say the trial court erred by withholding them at the pretrial stage under the above-referenced procedures. Nevertheless, we have independently reviewed the records and conclude the court did not abuse its discretion in its ruling. "Parties who challenge on appeal trial court orders withholding information as privileged or otherwise nondiscoverable 'must do the best they can with the information they have, and the appellate court will fill the gap by objectively reviewing the whole record.' " (People v. Avila (2006) 38 Cal.4th 491, 606, quoting People v. Price (1991) 1 Cal.4th 324, 493.) Considering the entire record before us, we conclude the court did not violate defendant's fair trial or confrontation rights by refusing to disclose the documents. " '[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679; Pennsylvania v. Ritchie (1987) 480 U.S. 39, 53 ["Normally the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses"]; see also People v. Cornwell (2005) 37 Cal.4th 50, 95 [confrontation clause permits trial courts to retain wide latitude to impose limits on cross-examination concerning matters of marginal relevance].) Here, defendant had abundant evidence with which to impeach and challenge M.'s credibility, and he had wide latitude in cross-examining her about her claims.
Even assuming defendant's confrontation rights were somehow infringed by the trial court's ruling, we would not conclude reversal is required because any error would be harmless beyond a reasonable doubt. (See Delaware v. Van Arsdall, supra, 475 U.S. at p. 684 [deciding prejudice based on "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case"].) As stated, defendant extensively cross-examined M., seeking to impeach her with her previous preliminary hearing testimony and the statements she made during her Children's Hospital interviews. The jury had before it abundant evidence pertaining to M.'s veracity, yet it concluded she was a credible witness. M.'s testimony, combined with the propensity evidence of defendant's prior acts against Jessica as well as defendant's own incriminating admissions concerning his "inappropriate touching" of M., all of which we have held were properly admitted by the trial court, render any possible constitutional error harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McINTYRE, J.