Opinion
E030959.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. OSCAR GARCIA, Defendant and Appellant.
Scott M. Rand, under appointment of the court of appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, Holley A. Hoffman and Maxine P. Cutler, Deputy Attorneys General, for Plaintiff and Respondent.
On October 25, 2001, following a jury trial, defendant Oscar Garcia was convicted of one count of committing a lewd act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) The jury specifically found not true the allegation that defendant had substantial sexual conduct with the victim. The trial court sentenced defendant to six years in state prison. He appeals contending: (1) the trial court erred in admitting the child sexual abuse accommodation syndrome evidence (CSAA syndrome); (2) the trial court erred in failing to give a limiting instruction as to the CSAA syndrome evidence; (3) the trial court erred in refusing to permit the defense to question the complaining witness about her prior consistent testimony in juvenile court; (4) the prosecutor committed misconduct by calling on a witness to opine as to the veracity of another witness; (5) the cumulative effect of the errors mandates a new trial; and (6) the trial court abused its discretion in denying probation.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
Mrs. Garcia, defendants wife, has five children with defendant, including the victim (Victim), age 13 at the time of trial. In December 2000, they all lived together in a four-bedroom house. Although the children have bedrooms separate from the parents, sometimes they would sleep together when it was cold. On December 23, the family slept together on the floor in the living room. Mrs. Garcia was initially lying between defendant and Victim; however, when the youngest child began to fuss, Mrs. Garcia moved next to her, leaving Victim lying in front of defendant. At that time, Mrs. Garcia weighed about 115 pounds and Victim weighed about 120 or 125 pounds. Both Mrs. Garcia and Victim were about 5 feet 2 inches tall.
On January 14, 2001, all of the children were in the master bedroom with defendant and Mrs. Garcia. Around 1:00 a.m., Mrs. Garcia noticed defendant sitting on the floor along side Victim, looking up at her and caressing her hair in a strange way that made Mrs. Garcia feel funny. Mrs. Garcia told defendant to move, and she placed herself between defendant and Victim because she felt something was wrong. Defendant told her she was crazy.
Mrs. Garcia took Victim into her bedroom and asked her if defendant had taken advantage of her. Victim initially denied anything had happened. Mrs. Garcia stayed with Victim in her bedroom. Later that night, Victim told her mother that although defendant had not touched her that night, he had done something to her on December 23, 2000. Victim wanted to explain the incident more fully to Mrs. Garcia; however, Mrs. Garcia became angry and confronted defendant. She believed defendant had raped Victim. Defendant denied abusing his daughter. Mrs. Garcia grabbed a pair of scissors and stuck defendant in the back, injuring him.
In December 2000 and January 2001, most of the family income was provided by defendants job as a mechanic and photographer. Because of the incident, Mrs. Garcia told defendant to leave the house. Defendant told her he would try to send money. A few nights after the argument, defendant brought money and food to the house; however, he was not providing support to the family at the time of trial.
In December 2000, Mrs. Garcia was engaging in very few sexual relations with defendant. She denied telling the police she had allowed defendant to have anal sex with her once or twice, but did not like it and would not engage in that activity with him.
Dayle Lopez, a forensic interviewer with the Childrens Assessment Center, interviewed Victim on February 22, 2001. She cried frequently during the interview. During the interview, Victim told Lopez that defendant placed his penis beside her buttocks while her family was sleeping in the living room on December 23, 2000. She said nothing like that had ever happened before, and that she told her mother about it a week later. Victim told Lopez she was wearing underwear, sweats, a bra and shirt. When she woke up, her sweats and underwear had been pulled down and she felt defendants penis going in her anus. Afterward, defendant brought toilet paper from the bathroom and wiped her buttocks. He threw the paper towel in the trash. Defendant returned and hugged Victim and gave her a kiss on the forehead, then she went to sleep.
A tape of this interview was played for the jury and the jury was provided with transcripts of the interview.
G. told Lopez that when confronted, defendant told her mother he would leave if she wanted him to and that he would never touch Victim. He said he thought Victim was Mrs. Garcia. Victim told Lopez that defendant was not giving her mother money for the household. Her mother was worried about the house payment and buying food. Victim said the gas had been turned off and there was no water. She said they did have electricity.
Dr. Clair Sheridan of the Loma Linda Department of Pediatrics specializes in child abuse and neglect evaluations. She examined Victim on January 29, 2001. Victim told Dr. Sheridan she had had anal contact with her fathers penis. Victim said she had rectal pain for three days after the incident. A physical exam showed no physical evidence of trauma. The exam was normal. However, Dr. Sheridan testified that superficial abrasions, redness or bruising would have gone away in a months time. The only evidence that would have remained after a month would be severe trauma, such as a deep tear that would heal with a scar. She also stated that even with deep penetration, there might not be physical evidence, even right after the event. In teenagers there is physical evidence of anal trauma less than 10 percent of the time.
Vernita Royal, a social service practitioner employed by San Bernardino County, interviewed Victim on January 17, 2001. Victim told Royal that her mother and father had an argument; however, she refused to elaborate. When Royal told Victim it was her understanding her father had touched her sexually, Victim began crying and nodding her head. She then proceeded to describe what had happened on December 23, 2000. She said defendant situated himself close to her, pulled down her sweat pants and panties, then she heard his zipper being unzipped. Victim said defendant placed his penis inside of her, it felt like water on her behind, and he got some tissue to wipe himself and her. Victim told Royal that her parents had an argument about her in January, at which time defendant denied doing anything wrong. He left the house, and returned the night prior to their interview on January 17. Victim told Royal that her mother told her not to tell anyone what was going on because she (Mrs. Garcia) would take care of it.
Royal also interviewed Mrs. Garcia on January 17, 2001. A Spanish interpreter was present. Mrs. Garcia told Royal that she contacted a relative for help. She told the relative that she was afraid Victim had been abused by defendant. Royal recalled a phone conversation with Mrs. Garcia in February wherein Mrs. Garcia said that defendant told her that he wanted to get back with her. Defendant denied sexually abusing Victim.
On January 17, 2001, Deputy Sheriff Jonathan Billings spoke to Victim and to Mrs. Garcia with the help of a Spanish interpreter, Maria Madrigal. Victim told the deputy that on December 23 her family was laying on the living room floor. Around midnight, defendant reached up behind her and pulled her sweat pants and panties down. He was positioned directly behind her. She said she heard her fathers zipper come down and he put his penis inside her behind. Victim said defendant moved back and forth for about five minutes. He then went to the bathroom. He returned with tissue to clean her up because she was "wet back there." Defendant then pulled her panties and sweat pants back up and went to the bathroom. He returned, gave her a hug, kissed her on the forehead, and they went to sleep without defendant saying anything. Victim told the deputy that it hurt really bad in her legs.
Deputy Billings interviewed Mrs. Garcia with Ms. Madrigal interpreting. Mrs. Garcia told him that on January 14, 2001, the family was sleeping in the master bedroom. When she woke up, she saw defendant laying on the floor next to Victim stroking her head. She felt uneasy about it, so she laid next to Victim and told defendant to get back in bed. She woke Victim and they went to Victims room. Victim told her mother about what had happened on December 23. When Mrs. Garcia confronted defendant, he told her he had made a mistake, he thought Victim was his wife. When he realized it was his daughter, he got a tissue to clean her up. Mrs. Garcia told the deputy that anal sex was not a normal act for her and defendant. She said they had engaged in anal sex one or two times in the past; however, she did not like it.
Detective Gary Somerville attended a September 22, 2001, assessment interview where he observed through a one-way mirror Victim talking to Lopez. Detective Somerville spoke to defendant on February 23, 2001, at the police station. During the interview, defendant stated that sometimes when he was sleeping he hugged his wife and that he mistakenly did that with Victim. Basically, he thought Victim was Mrs. Garcia. Defendant said he was probably dreaming when he mistakenly had sex with Victim, thinking she was Mrs. Garcia. Victim probably felt him moving. He said he pulled Victims pants down and when he woke up, his penis was in her anus. He denied ejaculating, although he said both he and Victim were wet. Defendant said he did not want to hurt Victim. He stated a father having sex with his daughter is a bad thing. It was by accident he had anal sex with Victim. He thought she was Mrs. Garcia. Once he found out it was Victim, he discontinued the act.
This conversation was also tape recorded. The tape was played to the jury and transcripts of the recording were distributed to the jury.
After interviewing defendant, Detective Somerville spoke with Victim. Victim said the family members were giving her a hard time. They were telling her she should have kept the incident within the family.
Licensed private investigator Dean Graham was the defense investigator assigned to this case. He spoke to Victim on October 10, 2001, and the conversation was tape recorded and played for the jury. Victim denied defendant pulled down her pants on December 23, 2000. She said defendant moved close to her and she could feel his presence although nothing actually touched her.
At trial, Mrs. Garcia testified that Victim explained that on December 23, 2000, "she felt her father come up close to her, that when he kissed her, perhaps he had become confused and believed that she was [her mother]. That[s] when he gave her a kiss, he realized that it was not [his wife]. He touched her face quickly as though he were frightened. He became frightened and he got up."
Mrs. Garcia denied telling a social worker named Royal that defendant told her that he had placed his penis in Victims anus, but that he thought it was Mrs. Garcia. Mrs. Garcia denied telling a police officer that defendant confessed to her that he had sodomized Victim, but that he thought it was Mrs. Garcia when he performed the act. Mrs. Garcia testified that Victim never told her defendant had sexually abused her. Mrs. Garcia testified that she did not believe defendant had sexually abused Victim.
Mrs. Garcia testified that she did not always believe Victim because Victim told lies. She did not believe defendant sexually abused Victim. Mrs. Garcia testified she did not intend for defendant to return to the family. However, she said that if she did not believe anything happened between defendant and Victim, he could return to the family. Mrs. Garcia further testified that she did not believe defendant molested Victim because Victim said it did not happen. Mrs. Garcia said she would not believe a molestation took place even if she were told defendant admitted sodomizing Victim.
G., 13 years old at the time of trial, was in the eighth grade and spoke Spanish and English. Victim spoke to her mother in Spanish because Mrs. Garcia did not speak English. Victim testified at trial that on December 23, 2000, she was sleeping on the floor in the living room in front of defendant. Her mother, sister and three brothers were sleeping on the floor behind defendant. Victim was wearing underwear, sweat pants and a T-shirt. She woke up when she felt defendant close behind her. He put his arm around her and hugged her, then he went to the bathroom. Victim testified she lied when she told the police defendant had put his penis in her because she was mad at him. She also lied about defendant returning from the bathroom with tissue to clean her up.
G. testified she lied to Lopez on February 22 when she told Lopez that defendant placed his penis in her anus. She did not remember telling Lopez that since her father left, they had no money, no running water, no way of heating the house or cooking the food. Victim testified she wanted to protect her father. He had written a letter to her, essentially telling her he hoped they will be together again because he could not live without his family. Victim testified that even if her father admitted sodomizing her to the police, she would still deny that he had sexually molested her. Victim testified that she lied to several people, including the doctor, about defendant molesting her because she was mad at him for calling her names and punishing her in a way she had forgotten.
Lopez opined that it was common for children to wait to disclose if they have been sexually molested. If there was a preexisting relationship between the perpetrator and the victim, such as a father to a child, the child may have some ambivalent feelings about the perpetrator. The child may have had loving feelings toward the perpetrator, but may also have been embarrassed, disgusted and ashamed. The child may have been reticent to disclose the molestation because he or she did not want to get the perpetrator into trouble, or the child did not want bad things to happen.
Lopez also opined that for the same reasons, children often minimize, or make less of what actually happened, or recant and say the event never happened, that the child lied. Lopez had interviewed children who had denied the sexual abuse they reported ever happened. The child may not have wanted to feel responsible for what happened to the perpetrator, or other family members may have pressured the child to deny the event occurred. The perpetrator may continue to have access to the child, and threaten the child about not telling.
CSAA SYNDROME EVIDENCE
Prior to the start of trial, the prosecutor indicated her intent to call Dayle Lopez to testify about the reasons why children might "accommodate or recant" their claims of abuse. The trial court asked if the witness was going to testify about the CSAA syndrome. The prosecutor indicated that she would testify both as to her interview with Victim and why, in her experience, training, and education, children fail to disclose immediately, minimize, or change their stories. Following a defense objection, the court ordered an Evidence Code section 402 hearing.
At the hearing, Lopez testified that she was a social worker with training as a forensic interviewer, with a masters in social work. She described her training in forensic interviewing, and indicated that she keeps updated. Lopez had previously worked as an investigator for Child Protective Services for San Bernardino County. She testified that she was familiar with Roland Summitts article on Sexual Syndrome; however, she admitted that she was not an expert on the syndrome. Instead, she was familiar with it in the work she did.
Over a defense objection, the court found that Lopez was an "expert in her forensic interviewer/social worker status." As such, Lopez was allowed to testify as to the area of minimization and recantation and to the reasons a molest victim may not report immediately, or delay in reporting, what had happened.
Defendant contends the trial court committed reversible error when it admitted into evidence Lopezs testimony on CSAA syndrome as to victim minimization, recantation, and delay in reporting events. He argues that Lopez was too involved in the case to be allowed to testify as an expert. We reject defendants contention for the following reasons.
To begin with, we note that Lopez did not testify as an expert witness on CSAA syndrome, as defendant suggests. Instead, she testified, based on her training and experience, on the issues of delayed disclosures, minimization, and recanting. Because she did not testify as an expert witness on the general topic of CSAA syndrome we must reject defendants claim that the trial court erred in admitting her testimony on CSAA syndrome. No evidence of CSAA syndrome was presented at trial. CSAA syndrome involves five stages: secrecy, helplessness, accommodation, disclosure, and reaction. (People v. Patino (1994) 26 Cal.App.4th 1737, 1742.) Again, Lopez did not testify about CSAA syndrome but instead testified, based on her background, experience, training and education, as to the general reasons for delay in reporting, minimization, and recanting on the part of abuse victim. In short, there was no evidence presented at trial regarding CSAA syndrome and therefore the trial court could not have erred in admitting Lopezs testimony.
Lopez had been a social worker since 1985. She spent 10 years investigating allegations of child sexual molestation. She interviewed hundreds of children that allegedly were abused. In 1996, she went to the Childrens Fund Assessment Center to train to be a forensic interviewer. As such, she is a neutral party who job is to "obtain detailed information from the child about any alleged molestation that may have occurred." Lopez had a masters degree in social work, 40 hours of basic forensic interviewing, 40 hours of advanced forensic interviewing training, and continuous training in that forensic interviewing. The continuous training includes evaluations and monthly peer reviews. She has received two weeks of training on child abuse at the San Bernardino Sheriffs Academy, a week in Florida, and a week in San Diego. Prior to being a forensic interviewer, Lopez had been an investigator for Child Protective Services since 1986. As such, she investigated allegations of physical and sexual abuse and interviewed 600 to 700 children from 2 to 17 years of age, both male and female. She is familiar with children recanting or minimizing their stories during the interviews.
Nonetheless, defendant claims that Lopez was too involved in the case to be allowed to testify as an expert because the jury would interpret her testimony as a testimonial of Victims credibility. We disagree. Lopez did not give her opinion as to Victims conduct in this case, nor did she apply her testimony regarding delayed disclosure, minimization, and recanting to Victims situation. She did not express an opinion regarding Victims credibility either at the time she was originally interviewed or at trial. The issue of Victims credibility was left for the jury to decide and we reject defendants contrary claim.
Even if we were to conclude otherwise, any error necessarily was harmless. The erroneous admission of evidence requires reversal of a conviction only if that error was prejudicial in that it resulted in a miscarriage of justice. (Evid. Code, § 353, subd. (b); Cal. Const., art. VI, § 13.) A miscarriage of justice occurs when this court is able to say, absent the erroneously admitted evidence, that it is reasonably probable the jury would have reached a result more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) As set out above, Victim, her mother, and defendant all acknowledged defendants inappropriate acts with Victim when they were interviewed by social workers, doctors, and detectives. The most damning evidence was defendants own admission. In view of that evidence, assuming the trial court erred in admitting the testimony of Lopez regarding the general reasons for delayed disclosure, minimization and recanting on the part of abuse victims, it is not reasonably probable the jury would have reached a result more favorable to defendant.
CSAA SYNDROME JURY INSTRUCTION
Defendant contends the trial court committed reversible error when it failed to sua sponte instruct the jury with CALJIC No. 10.64 that CSAA syndrome expert testimony may not be used to determine if the molestation claim was true, but was limited to show the victims conduct was not inconsistent with having been abused. Having concluded that there was no evidence presented at trial regarding CSAA syndrome, we likewise conclude that the trial court had no duty to instruct with CALJIC No. 10.64. Because the jury did not hear any evidence regarding CSAA syndrome, it would have been confusing for them to receive an instruction on such syndrome.
"Evidence has been presented to you concerning [child sexual abuse accommodation] [rape-trauma] syndrome. This evidence is not received and must not be considered by you as proof that the alleged victims [molestation] [rape] claim is true. [P] [[Child sexual abuse accommodation] [Rape trauma] syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a [molestation] [rape] has occurred, and seeks to describe and explain common reactions of [children] [females] to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.] [P] You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victims reactions, as demonstrated by the evidence, are not inconsistent with [him] [her] having been [molested] [raped]."
PRIOR CONSISTENT TESTIMONY
During in limine motions, the prosecutor noted that the defense had been trying to obtain juvenile records which potentially contained statements made by Victim. Having not seen a court order allowing defendant to obtain the statements, the prosecutor asked whether such order had been obtained. In response, defense counsel stated: "We do not anticipate using them."
Defense counsel asked Victim if she had previously testified about the incident in juvenile court proceedings. Specifically, counsel wanted to know if she had testified under oath in that proceeding in the same way as her current testimony. The prosecutor objected on the grounds of lack of discovery. Following a bench conference, the trial court ruled that defendant could not go into what was said in the juvenile court proceedings without an order from the juvenile court judge. The court noted that Welfare and Institutions Code section 827 sets forth the procedures that must be followed to access all or a portion of the juvenile dependency case file. Defense counsel explained that he did not have the transcripts from the juvenile proceeding and he knew only what Victim had told him she had said at that proceeding. Defense counsel wanted to offer Victims prior testimony for the purpose of showing that Victim had not changed her story since the juvenile proceeding. The court was inclined to allow counsel to ask Victim whether her story had changed; however, it maintained that the proceedings in the juvenile court were confidential.
The court further noted that, without the transcript of Victims prior testimony the prosecutor had no way of knowing whether it was consistent or inconsistent. Defense counsel added: "I dont have no [sic] way of knowing either except thats what she told me. I mean, I havent got the records." Given this information, the court ruled that defense counsel was prohibited from questioning Victim regarding her prior testimony in the juvenile proceedings on the grounds of Evidence Code section 352, i.e., that the prejudicial effect outweighed its probative value.
On appeal, defendant contends the trial court erred in its ruling. Specifically, he argues that the courts ruling violated his Sixth Amendment right of confrontation which overcomes any statutory privilege of confidentiality.
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] [Citation.] A trial courts discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.] "The latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." [Citation.] [Citation.] Regarding constitutional limitations, we have held that "not every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance." [Citation.] [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 374-375.)
Applying the above standard, we find no abuse of discretion in the trial courts decision to exclude evidence of Victims claim that she had denied any molestation occurred during a prior juvenile proceeding. Because defendant had not reviewed the transcript from the prior juvenile proceeding, he was unable to confirm the truth of Victims claim. Thus, it was unreliable and untrustworthy. As such, the trial court did not err by limiting defendants cross-examination and excluding the evidence.
Notwithstanding the above, we note that defendant was not denied his right to cross-examine Victim. In fact, he vigorously cross-examined her regarding the discrepancies between her trial testimony and her earlier statements that she had made to the police and social services personnel. Defense counsel pointed out that Victim was not under oath when she spoke to Detective Somerville and Lopez, whereas she was under oath when she testified at trial. Defense counsel also cross-examined Mrs. Garcia, emphasizing her testimony that Victim never told her that defendant had touched her inappropriately. He also brought out the fact that Victim told her mother that defendant had touched her because she was angry because he had not allowed her to spend the night at a girlfriends house and had scolded her.
During closing argument, defense counsel emphasized these inconsistencies to the jury, highlighting Victims testimony under oath. He pointed out that Mrs. Garcia testified, under oath, that nothing happened. He pointed out that defendant went voluntarily to talk to Detective Somerville. He argued that the detective put words in defendants mouth because defendants first language was Spanish and the interview was in English. Finally, defense counsel noted that Dr. Sheridan had found no evidence of anal penetration.
Thus, even if we had found that the trial court had erred by limiting defendants cross-examination and excluding the evidence, we would find that the error was harmless. (People v. Watson, supra, 46 Cal.2d 818, 836.)
PROSECUTORIAL MISCONDUCT
Because Mrs. Garcias primary language was Spanish, she required a Spanish interpreter when she was questioned by the police. During defendants cross-examination of Mrs. Garcia, defense counsel asked her if she spoke to Deputy Billings in English. She said that she did not. Instead, she testified that she spoke to someone in Spanish who then spoke to the deputy in English. Defense counsel asked Mrs. Garcia if she was able to understand "any of the English that that person spoke to the officer?" Mrs. Garcia responded: "Yes. I even remember that the officer scolded her telling her that he wanted to know what I said and not what she was saying." Defense counsel asked if she was able to understand if the translation was right. She said, "Yes." However, when asked if the translation was correct, she said that it was not "because [the translator] was explaining that [defendant] had lowered the zipper on the pants. And [Mrs. Garcia] remembered that he never sleeps with a zippered pant on. He sleeps with another kind of pants. And [Mrs. Garcia] asked [the translator] why she was saying all of that if that was nothing of what [Mrs. Garcia] was saying, what [she] was speaking." Defense counsel asked, "So your opinion is that the translation was not right?" Mrs. Garcia responded, "No. It was not good."
On redirect examination of Mrs. Garcia, the prosecutor questioned her regarding her understanding of the English language in light of her earlier testimony that she spoke very little English. The following exchange took place:
"Q But youre clear today that you understood the entire translation from English to Spanish to the police officer and that it was wrong.
". . . . . . .
"[MRS. GARCIA]: Not all of it.
". . . . . . .
"Q So some of it you could understand?
"A Yes.
"Q What is the part that you heard that you think is wrong?
"A She was explaining that he had hurt me. And I had never said that to her because its not true. She was saying that I had an injury to my head. And I even said, Check me, because it wasnt true.
"Q So this woman that you were talking to was just making things up to the police officer?
"[DEFENSE COUNSEL]: Objection. Calls for speculation. Argumentative too.
"THE COURT: Overruled.
"You may answer if you understand the question.
"[MRS. GARCIA]: I believe so. Because he even told her that he wanted for her to translate what I was saying, not what she might think."
On appeal, defendant contends the prosecutor committed misconduct when he asked Mrs. Garcia about the veracity of an interpretation of her statements, as told to the police by the translator. He argues that it "is improper for a prosecutor to ask questions which compel defense witnesses to offer opinions regarding the veracity of the government witnesses." We reject his contention because we find that the prosecutor did not ask Mrs. Garcia to express an opinion about the veracity of the witness in question, i.e., the translator. Rather, she asked her to state whether the witnesses testimony regarding the translation of what Mrs. Garcia had said in Spanish was what she had said in Spanish. Moreover, given defense counsels earlier question to Mrs. Garcia ("So your opinion is that the translation was not right?"), the prosecutors questions did no more that clarify Mrs. Garcias answer ("No. It was not good.").
"A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) Here, because defense counsel had already questioned Mrs. Garcia regarding the correctness of the translators translation, the prosecutor was justified in asking the questions she asked of Mrs. Garcia on redirect, and then calling the interpreter to the stand to ask whether Mrs. Garcia ever stopped her to say that her translation was not accurate. The prosecutors questions of Mrs. Garcia was arguably proper rebuttal. (People v. Mason (1991) 52 Cal.3d 909, 960-961, 277 Cal. Rptr. 166, 802 P.2d 950.)
CUMULATIVE ERRORS
Defendant contends reversal is required because of the cumulative prejudice arising from all the errors mentioned above. We have not found merit in any of defendants assertions of error but have assumed for purposes of argument that error may have occurred in the admission of Lopezs testimony and the exclusion of Victims prior testimony in juvenile court. We have found no prejudice from either assumed error, and we see no way in which they could have combined to prevent a fair trial. We therefore reject defendants cumulative error argument.
REASONS FOR DENYING PROBATION AND IMPOSING A PRISON TERM
In his final contention, defendant challenges the trial courts decision to deny him probation and sentence him to state prison for a term of six years.
In compliance with the requirements of California Rules of Court, rule 4.406(b)(2), which requires a statement of reasons for denying probation and imposing a prison term, the trial court gave a lengthy statement of reasons for its denial of probation and imposition of a prison term, finding that (1) defendant had taken advantage of a position of trust (rule 4.414(a)(9)), (2) he would not be adversely affected by a felony conviction because his work did not require bonding (rule 4.414(b)(6)), (3) he had not shown any remorse (rule 4.414(b)(7)), (4) there was a likelihood he would be a danger to others, to wit the victim, (rule 4.414(b)(8)), and (5) the record indicated that he has committed a more serious crime than before (rule 4.414(b)(1)). While some of the factors identified by the trial court were improper, denial of probation needs only one valid factor and there was such a valid factor here. Thus, the trial courts statement of reasons supported this particular sentence choice. (See People v. Powell (1980) 101 Cal. App. 3d 513, 518-519, 161 Cal. Rptr. 803.) We will uphold a trial courts sentencing determination where it is supported by substantial evidence. (People v. Oseguera (1993) 20 Cal.App.4th 290, 294.) Because, at least, one factor cited by the trial court here is supported by the record, it amply justifies the sentence choice.
All further references to rules are to the California Rules of Court.
"There is nothing in the 288.1 report that indicates that Dr. Jorge even considered the police reports. [P] . . . [P] . . . I dont know that [she considered anything other than what defendant told her] because under Evaluation Procedures, he was interviewed. She did a status examination. She looked at what the issue were before the Court and quickly stated the interview was conducted in Spanish. It is quite frankly the poorest 288.1 report I ever received. [P] But notwithstanding that, in her conclusion in looking at this case, I think that [the prosecutor] hit really the nail on the head. At a time when it was close in proximity to the incident alleged, there was a tape, and the tape, I think my evaluation is probably the same as the jurys. It had more weight than anything that was said in this trial. [P] Given the [tenor] of the victims statement, the contents of the victims statement, and truly the emotion that was stated on the tape, certainly gave us a view of the situation significantly different than what was testified to at the trial. [P] It appears to me, or obvious that the jury then chose to believe the evidence presented, and that was evidence that was on the tape as opposed to the testimony that was presented here from the witness stand, given that they were significantly different. [P] Looking at the criteria for eligibility for probation, it is true that [defendant] has received a favorable 288.1 report, for what its worth. The facts relating to the crime affecting the criteria is truly the defendant took advantage of the position of trust. There is no question about that, father and natural daughter. [P] And the specific facts that I look at regarding rejection of the probationary status of the defendant is the fact that a felony conviction will not adversely affect the defendants life. He wasnt doing something that required bonding or in which one would expect a felony conviction to make it one way or another. He was a laborer. [P] Two, he hasnt shown any remorse. That is the most outrageous thing I can see in here is there is absolutely no remorse from this man for what he has done. When he was talking to Detective Somerville, which the defendant is claiming is his early admission to wrongdoing, he kind of laughed it off, and I thought this was a little strange the way that he talked to Detective Somerville, but nevertheless certainly is not a funny or laughing matter. [P] And further I believe that there is a likelihood that if the defendant is present, that he11 be a danger to others, to wit the victim, and the reason for that is although he is only charged with one count, there was evidence during the course of the trial that there was on more than one occasion this type of thing, this type of situation, this type of seduction that occurred. [P] . . . And that is something the Court thinks is very pertinent. I do not believe the factors in aggravation outweigh those in mitigation. I think that those factors are balanced. [P] So that is why I think probation is not appropriate for the reasons I stated; that although he does have an insignificant prior record, his record does indicate that he has committed a more and increased serious crime."
DISPOSTION
The judgment is affirmed.
We concur: RICHLI J., and KING J.