Opinion
D048254
5-18-2007
THE PEOPLE, Plaintiff and Respondent, v. JOSE CERVANTES GOMEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
In this child molest case involving one of his daughters and a stepdaughter, Jose Cervantes Gomez proceeded to jury trial charged with 26 counts of lewd and lascivious acts upon a child under 14 years of age (Pen. Code, § 288, subd. (a)) and six misdemeanor counts of cruelty to a child with injury (§ 273a, subd. (b)). As to 12 of the felony counts (counts 1, 2, 6, 7, 11, 12, 16, 17, 21, 22, 26, & 27), it was further alleged that Gomez had engaged in substantial sexual conduct on a child. (§ 1203.66, subd. (a)(8).) As to all 26 felony counts, it was further alleged that he had committed the offenses against more than one victim. (§ 667.61, subds. (b), (c), & (e).)
All statutory references are to the Penal Code unless otherwise specified.
At the conclusion of the prosecution case, the court granted Gomezs motion to dismiss four of the child cruelty counts (counts 5, 10, 15, & 20). The jury subsequently found Gomez guilty of 16 counts of lewd and lascivious acts upon his daughter which occurred from 2001 through 2004 (counts 11-14, 16-19, 21-24, & 26-29) and two counts of cruelty to a child with injury (counts 25 & 30). As to counts 21 and 26, the jury found true the allegations that Gomez had engaged in substantial sexual contact with his daughter. The jury found the remaining allegations not true and acquitted Gomez of eight counts of lewd acts against his daughter, allegedly occurring from 1999 through 2000 (counts 1-4, & 6-9), and two counts of lewd acts upon his stepdaughter (counts 31 & 32). The trial court sentenced Gomez to a total prison term of 36 years.
Gomez appeals, contending the trial court deprived him of a fair trial: (1) by improperly denying his challenge to a prospective juror for cause and his subsequent request for additional peremptory challenges; (2) by improperly admitting hearsay statements to bolster the alleged victims credibility that did not meet the exceptions for prior consistent statements; (3) by improperly excluding critical evidence under Evidence Code section 352 regarding the alleged victims state of mind and motives in complaining about the alleged molestation; and (4) by improperly ruling that the prosecutor would be able to cross-examine the defense expert with the statements of a nontestifying expert that a molestation occurred, which were not considered by the defense expert, violated restrictions against the use of such evidence, and invaded the province of the jury. Gomez claims the individual and cumulative effect of the above errors requires reversal of his convictions. Finally, Gomez asserts the "court security fee[s]" imposed by the trial court under section 1465.8 should be stricken because they are based on a statute enacted after the commission of several of the alleged offenses and violate the constitutional prohibition against ex post facto laws.
As we explain below, we reverse on grounds the trial court prejudicially erred in making several evidentiary rulings that denied Gomez a fair trial.
FACTUAL BACKGROUND
Because Gomez does not challenge the sufficiency of the evidence to support his convictions, we merely summarize the facts presented at trial as background for our discussion. At all relevant times, Gomez lived in an apartment in El Cajon with his wife and her four children: daughters M., De. and Di., and son A. De. and Di. were Gomezs natural children, whereas M. and A. were his stepchildren. De. was born in 1991 and was 13 years old at the time of trial.
When De. was about five or six years old, she saw Gomez and M. standing on the bed in M.s room, kissing in an inappropriate manner. When she told them she was going to tell her mother, Gomez hit her and threatened to kill her. Gomez continued to physically abuse De., and when she was between seven and nine years old, he began sexually molesting her, either during the day or at night when her mother and siblings were not home or were in another room. De. explained that Gomez would climb into her bed, usually while she was sleeping, and touch her private parts, both her breasts and vagina, sometimes over and sometimes underneath her clothing. When she awoke, De. would try to roll away, but Gomez would pull her back toward him. Over time, he also inserted his fingers into her vagina. None of the incidents involved sexual intercourse or kissing on the lips. Gomez molested De. almost every other night from approximately 2001 to 2004. Before that time, it happened "on and off."
During this time, De. also often observed additional sexual contact between Gomez and her stepsister M., including several times when they were kissing in grocery stores or other public places. On one occasion, De. walked into the living room at home and saw Gomez and M. without her top on, sitting on the sofa, with a used condom nearby.
Although De. could not remember specific times when Gomez physically abused her by hitting her with his hand or with items that were lying around, she recalled one time in 2004 when he whipped her leg with an electrical cord, leaving a bruise, as she came in the house from school. When her friend Marie noticed the bruise at school, De. refused to talk about what had happened and tried to hide the bruise. Another time when Marie noticed some bruises on De. as they walked to school, De. told her that Gomez had gotten mad and had hit her.
On April 2, 2004, De. finally told Marie that Gomez had been sexually molesting her in addition to the physical abuse. Maria then told her mother about what De. had reported, and De. reiterated to Maries mother about the abuse she had suffered. Maries mother telephoned her husband about the matter. When he came home from work, De. detailed the abuse by Gomez. Maries mother and father then contacted the police.
When El Cajon Police Officer Mark Bevan responded to the call and spoke with De., he noticed that she was reserved and withdrawn. She explained that Gomez had physically abused her with an electric cord, which had left bruises her friends noticed at school and that Gomez had also sexually molested her underneath her clothing while she slept. De. told Bevan that the abuse had occurred over the last three to four years and that the last contact had been two to four weeks earlier. Bevan did not notice any bruises on De. at that time.
Bevan also talked with De.s family about De.s report of abuse. Although De.s mother was not aware of any current sexual abuse, she gave Bevan a photograph of Gomez kissing M., purportedly taken 10 years earlier when M. was 10 years old. De.s brother said he had only seen Gomez kissing M. once like "boyfriend and girlfriend." When Bevan talked with M., she was shaking and denied knowing of any abuse of De. by Gomez. When Bevan interviewed M. a third time, she cried and said she would write a journal documenting everything. M. never gave Bevan the journal and never expressly denied that she had been abused.
After De.s initial disclosure, Child Protective Services (CPS) immediately took her and her two younger siblings into protective custody. Four days later, on April 6, 2004, De. was taken to Childrens Hospital where her interview with a social worker was videotaped. During the interview, De. again reported that Gomez had threatened to kill her when she said she would tell her mother about his inappropriate behavior with M. De. also recounted how Gomez had whipped her with an electrical cord and the extent of the molestations.
The videotape was played for the jury at the close of the prosecution case.
Because of confusion in not knowing what was happening and frustration in being taken away from home for "something [she did not] do," De. did not fare well in the CPS "system." She was initially placed with her aunt along with her siblings, but was removed after she exhibited hostile behavior, punching and kicking walls. De. also was removed from her next placement with her friend Maries parents. Although Maries family tried to provide a "happy" place for De., she became withdrawn and depressed. When Maries mother found suicidal comments in De.s diary and became aware that De. had threatened Marie with a knife, she called the CPS social worker who placed De. in an institution. From there, De. lived in various institutions and facilities where she continued to exhibit hostility, depression and suicidal tendencies. While institutionalized, De. gradually made progress and improvements in controlling her anger and depression.
In addition to the above evidence being presented at trial, De. testified her family was upset with her for reporting the abuse. She believed her mother and stepsister M. were pressuring her to recant and lie about the abuse. On cross-examination, De. conceded that she was not sure whether she had been six, seven or eight when the sexual abuse started, but that she was "just guessing" when she had earlier reported that she was seven or eight when it began. De. also conceded inconsistencies in her statements to Bevan and the hospital social worker as to the frequency of the sexual contacts with Gomez and her age when she said the molests began, i.e., she had told the social worker the abuse began when she was nine or ten. Similarly, De. admitted she had given different answers to various doctors, social workers and Bevan, as well as in her testimony at the preliminary hearing in this case, regarding the last time she had been sexually abused by Gomez.
Also, in the prosecution case, De.s mother acknowledged that she had given Bevan the photograph of Gomez, her husband of 16 or 17 years, kissing her daughter M., but said the photo was from two months ago, not 10 years ago. De.s mother had suspected Gomez of having relations with M., but had never found anything.
A stipulation was entered and read to the jury that a CPS contact with De.s mother in 1997 "was found to be unsubstantiated and resulted in CPS doing no further investigation."
De.s brother A. testified that he had only observed Gomez hugging and kissing M. on her cheek. Although A. had told Bevan initially that De. did not lie, he noted at trial, "Oh, she lies."
M. testified her relationship with Gomez changed at the age of 18 or 19 when she began seeing him as a boyfriend rather than a father. She initiated the romantic relationship with Gomez by kissing him and then became sexually active with him in 2003. Although she later became pregnant by Gomez, she terminated the pregnancy. M. denied any relationship with Gomez when interviewed by Bevan and others before trial because she did not want her mother to find out. M. claimed she was 18 years old in the "kissing" photo and had written a letter to a detective denying that anything had happened between her and Gomez before she turned 18.
On cross-examination, M. stated De. had been withdrawn and depressed even before the reported abuse. She explained that when De. returned home from a two day sleep-over party she attended the week before she reported the molests, De. acted tired and would not talk. She played different music than before, started wearing all black clothing and began writing things like "fuck life," in her diary.
Defense Evidence
Gomezs defense amounted to an attack on De.s credibility. He maintained that at the time she reported the abuse, De. had mental and behavioral problems that led her to conjure up false allegations against him. In support of this theory, De.s younger sister Di. testified that she had not seen any touching between Gomez and De. and that when De. reported the abuse, her attitude and demeanor had changed from before. Di. explained that at that time De. was dressing differently, listening to different music and she easily became "mad."
DISCUSSION
Gomez contends this court should reverse his convictions because the trial court committed numerous legal errors which permeated this action and deprived him of his right to a fair trial. In addition to claiming the court committed reversible error regarding the handling of a challenge to a prospective juror for cause and asserting the unconstitutionality of the imposition of a "court security fee," Gomez contends a series of erroneous evidentiary rulings improperly bolstered De.s credibility, which was the critical issue in this case. Having thoroughly reviewed the record, we agree that two of the evidentiary rulings which precluded Gomez from fully challenging De.s credibility were erroneous and prejudicial. Because we cannot say that Gomez received a fair trial in light of those errors, we must reverse his convictions. Accordingly, we find it unnecessary to address Gomezs other contentions. We, therefore, turn to our discussion of Gomezs two evidentiary issues which together mandate reversal.
A. Ruling Regarding Expert Testimony
In limine, the prosecutor sought to exclude the testimony of Dr. Patel, one of De.s treating psychiatrists, who was expected to testify regarding his four diagnoses of De., including the possibility she suffered from bipolar disorder. The prosecutor argued that De.s mental illness was irrelevant to the issues of her credibility and that Patels diagnosis of her mental condition was unreliable. In support of her argument, the prosecutor pointed to the fact that CALJIC No. 2.20 regarding the credibility of a witness did not mention mental diagnoses as impacting on a persons behavior or ability to tell the truth, and the fact that Patel had only seen De. to prescribe medication for depression and that the juvenile court psychologist, Dr. Stubbs, had fully evaluated her and had determined she was not bipolar, but rather "[h]e diagnosed her as being neglected, sexually abused, physically abused, post-traumatic stress disorder and dysthymic disorder, which is sort of a depression." The prosecutor further argued that the evidence was prejudicial because it would require the admission of numerous documents, confuse the issues, prejudice the jury against De., and not really go to her credibility.
The court explained that from what it knew about the case at that point, this was a case "without any other evidence," only De.s accusations and Gomezs denials, and thus the mental diagnosis appeared to have some relevance because in some manner it might affect her credibility.
Defense counsel agreed, noting he would not be introducing documents, but only calling Patel to explain how De.s behaviors support his diagnoses, behavior which counsel believed she would testify to in accordance with her preliminary hearing testimony, so that other staff members from the institutions where she had been staying would not have to be called to "say this behavior supports the diagnosis." Counsel estimated that the total time for Patel to testify, in addition to any rebuttal by the prosecutor, would only entail one day, which would not be an undue consumption of time under Evidence Code section 352 analysis, especially in light of Gomez facing a life term when he had no record.
In response to the court questioning counsel on the prosecutors position that Patels opinion was limited because he had not done an extensive analysis and diagnosis of De. as had Stubbs, defense counsel stated the prosecutor could call Stubbs if she liked, but that Patel had spent no less than 12 hours with De., while Stubbs had only spent two or three hours. Counsel apprised the court that Patel had seen De. when she was at Casa de Amparo three times, twice in August 2004 and once in September 2004. Patel initially diagnosed De. with major depression and then arrived at a "bipolar mixed diagnosis. . . . "Patel saw De. again on October 19, 2004 and on November 8, 2004, at Aurora Behavioral Health Care, a psychiatric facility, when she was admitted because of "suicidal attempts and suicidal ideations." Patel was the admitting physician for both of De.s inpatient stays and diagnosed her at that time "with possible bipolar, major depression, recurrent and severe and manic bipolar disorder." Counsel explained how the various depressive disorders and "oppositional defiant disorder[s]" overlapped with bipolar disorder.
Counsel made an offer of proof that he would elicit conduct through De.s testimony to provide the factual support for Patels diagnosis, which he argued was relevant to her credibility. He outlined the various episodes of violent outbursts by De. ranging from several weeks before she reported the molestations in this case and continuing throughout her placements after her reporting. Counsel represented that De.s family members would testify that there was a severe change in De.s behavior right before she reported the molestations, including a change in her "from Mexican music to heavy metal [and] from a normal girl to what they call a Goth chick." Counsel believed he could "credibly argue that [De.s] pervasive organic mental disorder began manifesting itself right at that time because shes hostile, shes aggressive, shes violent, she punches and kicks, shes angry, shes disruptive. All of these are the same symptoms she showed at Casa de Amparo but in a more tightly grouped form."
Counsel further added:
"I have a doctor that says [De.] has a bipolar disorder. I have manifestations of that disorder that are pervasive from the time that she reports for the next six-to nine-months period. And then I have a diagnosis that shes been given. Whether you want to just say that its major depressive disorder with a manic episode or oppositional defiance disorder where people are hostile, physically threatening — and this is right out of the DSM[-IV: Diagnostic and Statistical Manual of Mental Disorders]. They may change their dress, makeup or personal appearances or to dramatically, flamboyantly or out-of-character may engage in activities that are disorganized or have bizarre qualities. And they may engage in psychotic thinking. [¶] In this case, in the absence of physical evidence, in the absence of witnesses, when it simply is — not to use a tired quote but, believe the child, I believe that I do have that super relevance that this material detracts from her credibility."
The prosecutor strenuously objected to Patel testifying, arguing his testimony as to De.s mental state after the report of abuse was not relevant, would necessitate the prosecution calling extra witnesses thereby lengthening a three-day trial to a six-day trial, and because Patel had not returned the prosecutors calls, the prosecutor was unsure how Patels diagnosis was supported. The prosecutor asked for an Evidence Code section 402 hearing to "make sure what [Patel] has to offer is relevant."
The court ruled it was going to allow Patels testimony even though it would result in the prosecutor having to call other witnesses to address it. Because of the "severity of the charges and the timing as it relates to when [De.] reported abuse," the court believed the evidence was relevant and the "impact, as it relates to judicial economy, is . . . not so severe that we cant have the opportunity to present it to the jury." As to an Evidence Code section 402 hearing to limit the scope of the expert testimony, the court and parties agreed the parties would attempt a conference call the next morning with Patel to answer any concerns and that if those were not addressed, then an evidentiary hearing would be held.
During opening argument, defense counsel mentioned that the evidence would show that De. had begun "exhibiting signs of a mental disorder in April [2004]," but was diagnosed with such a disorder only after she had reported abuse in this case. Counsel referenced Patels expected testimony which would explain her various diagnoses during her stays at Casa de Amparo and another "short-stay mental facility," and discuss her changed behavior due to her disorders.
During her cross-examination at trial, De. stated that she had met with Patel once a week while she was at Casa de Amparo, that she had been prescribed Prozac at that time, that she had been removed to another facility twice when she tried to commit suicide, and that she had told Dr. Stubbs, who had conducted a psychological interview in October 2004, that the last time Gomez had abused her had been the day before she reported the abuse.
Subsequently, at the close of the prosecution case and just before defense counsel was to call Patel as a witness, defense counsel sought a ruling to limit cross-examination of Patel with one of Stubbss diagnoses, "sexual abuse of a child," which would essentially give the impression that "somehow psychiatry established that [De.] was sexually abused." When the trial judge "put in words" what it thought was counsels concern, counsel replied he was "not contesting that at all. Im contesting that [the prosecutor] cant ask Dr. Patel, Isnt it true that Dr. Stubbs diagnosed her with childhood sexual abuse? and then we get into, well, what does that mean? Its not a psychiatric diagnosis. It is a focus of treatment and nothing else."
The trial judge specifically stated, "I believe your concern is not that it can be raised, . . . [b]ut . . . that its not a psychiatric or psychological diagnosis of a mental illness, child abuse, but it is one of those factors that can play in such as difficulty with the legal system. . . . But I think its clearly part of the process for the district attorneys office to raise those types of issues as to whether or not [De.s] acting out and the symptoms that she is showing can be as a result of one of these factors such as abuse."
The prosecutor disagreed, stating it was listed as one of the diagnoses in Stubbss report and "Patel can explain why that is listed there [and] if were putting on the psychiatric defense, which [defense counsel wants to do], then he gets the good, the bad and the ugly." The prosecutor thought it was important to get in the focus of Stubbss treatment for De. based on his evaluation that says "this girls been abused. She needs to get treatment that helps her deal with the abuse." Defense counsel reiterated his objection to allowing the prosecution to get before the jury a "psychiatric diagnosis of childhood sexual abuse, which goes to the issue that the jury is deciding."
The record reflects that the prosecutor offered to hand Patel a copy of Stubbss report at the hearing outside the jurys presence when Patel indicated to the court that he had not received or reviewed it. The record does not reflect whether Patel reviewed the report at that time.
When the court stated it did not have any problem with the prosecutor describing it as a treatment focus, defense counsel queried how the prosecutor would resolve the problem of asking about Stubbss diagnosis of childhood sexual abuse. The court agreed with the prosecutors response that she "will explain what it is. Didnt Dr. Stubbs make these diagnoses, and dont these diagnoses mean that the focus of the therapy should be to help [De.] deal with her past issues. " When the court ruled it would not keep such cross-examination out, defense counsel said, "If youre going to let that in, your honor, then I would not be calling Dr. Patel as a witness."
The trial judge then restated its ruling, to make the record clear:
"I am prepared to allow the district attorneys office, along with obviously allowing objections, to focus the issue of interpreting Dr. Stubbs[s] diagnosis and his treatment plan and — as part of the cross-examination of Dr. Patel. . . .[¶] [A]nd that I understand the concerns and the objections being raised by [defense counsel] on Mr. Gomezs behalf. [¶] But I think that once the issue is brought in as to the alleged victims mental disorders and/or organic brain issues, I believe its relevant and that the district attorneys office should have the opportunity to present that evidence."
Defense counsel then made his record as follows:
"Youll be allowing Dr. Patel to . . . discuss a report hes never seen and never considered. [¶] Dr. Stubbs is not going to be testifying as a witness and is not here. Dr. Patel never diagnosed this diagnosis, and now were into an area of explaining that some psychiatrist, at some point in October of 2004, quote, diagnosed [De.] with childhood sexual abuse, and that somehow — and the implication is, well, it must have happened, then, because why would a psychiatrist diagnose that if it didnt happen? [¶] So I dont think under any [Evidence Code section] 352 analysis, a jury whos deciding whether a victim was sexually abused as a child, can hear that a psychiatrist diagnosed her with childhood sexual abuse. I think it intrudes on the jurys province. I do not believe the jury would be able to comply with any limiting instruction that this diagnosis is just a treatment plan, not a diagnosis that it happened, and Im ordering you not to believe that it happened but that it is solely a treatment plan. I just think thats a useless limiting instruction and it wont work. [¶] On balance, I would rather not have Dr. Patel testify. If you are going to allow that information on cross-examination, I cannot have Dr. Patel testify and have my case suffer the consequences of it."
The prosecutor noted for the record that she did not want it to look like the court or the People were limiting Gomezs defense. The prosecutor thought that if Patel were allowed to testify as to his diagnoses of De., which had already been brought up in defense counsels opening statement, then Patel could be required to explain another diagnosis on cross-examination of a doctors report which defense counsel had already asked De. about in her cross-examination during trial.
Defense counsels final response on the matter was that:
"[A]bsolutely the court and the prosecutors cross-examination is impacting my ability to present a defense. This is analogous to allowing a jury in a mental health defense to have a psychiatrist say I dont believe they had that mental state at the time. This jury is deciding whether my client molested somebody. And youre going to let them hear that some psychiatrist, state official, essentially, [said] that she suffered from child sexual abuse. I dont know how a jury can ignore that. [¶] And then what is the point? The point of it is, from the Peoples perspective, not to get all of her diagnoses out. They can argue — and Dr. Patel is going to testify that, yes, this could have resulted — all of her psychiatric diagnoses that I diagnosed could have resulted from sexual abuse. They might not have resulted from [sexual] abuse. We cant tell. They are not precluded from arguing that. [¶] You are letting them go that extra step further, that this jury gets to hear a diagnosis that ties directly to what they are going to have to decide on guilt or . . . lack thereof. So I cant, under any good conscience, allow Dr. Patel to testify and have this jury hear that some other psychiatrist, not him, diagnosed her with childhood sexual abuse, who I then cant cross-examine."
On appeal, Gomez contends the trial courts ruling which refused to limit cross-examination of his expert, Dr. Patel, with Dr. Stubbss opinions and reported diagnosis of child sexual abuse violated established prohibitions against the use of opinions or reports of nontestifying experts and the use of material on which the testifying expert did not rely in reaching his opinion; improperly permitted the prosecution to introduce expert testimony regarding the ultimate issue in the case thereby invading the province of the jury; improperly permitted the prosecution to introduce otherwise inadmissible evidence under the guise of cross-examination of an expert; and violated the prohibition on the use of psychological evidence to prove sexual abuse in a particular case. Gomez asserts the courts erroneous legal ruling caused his counsel "to elect not to introduce Dr. Patel as a witness, lest the jury be exposed to the improper cross-examination[,]" thereby hampering his defense that De. was not credible.
The People respond that Gomezs assertion is not cognizable on appeal because he failed to call Patel as a witness to testify in the first instance, and regardless, the claim is without merit because the court properly granted the prosecutors request to fully cross-examine Patel to test the basis for his opinion that De.s behavioral problems stemmed from her various mental disorders. We disagree.
As a threshold matter, we do not find this case one in which to extend the Luce-Collins rule as the People suggest. Because the record before us provides Gomezs offer of proof regarding what his expert (Patel) would have testified about and the specific portion of the nontestifying experts opinion and report that defense counsel wanted kept from the jury (Stubbss diagnosis that De. suffered from child sexual abuse), we have sufficient background to address the purely legal issue of whether the courts ruling refusing to limit cross-examination of a defense expert witness regarding a specific portion of the report and opinion of a nontestifying expert was an abuse of discretion on its merits.
Luce v. United States (1984) 469 U.S. 38 (Luce) and People v. Collins (1986) 42 Cal.3d 378 (Collins) held that an erroneous in limine ruling permitting the prosecutor to use a prior conviction to impeach the defendant is not cognizable on appeal if the defendant fails to testify at trial. (Luce, supra, 469 U.S. at pp. 41-43; Collins, supra, 42 Cal.3d at pp. 383-385.)
With regard to such legal issue, we make some preliminary observations. Generally, "[p]sychiatrists, like other expert witnesses, are entitled to rely upon reliable hearsay, including the statements of the patient and other treating professionals, in forming their opinion concerning a patients mental state. [Citations.] On direct examination, the expert witness may state the reasons for his or her opinion, and testify that reports prepared by other experts were a basis for that opinion. [Citation.] [¶] An expert witness may not, on direct examination, reveal the content of reports prepared or opinions expressed by nontestifying experts. " The reason for this is obvious. The opportunity of cross-examining the other doctors as to the basis for their opinion, etc., is denied the party as to whom the testimony is adverse. " [Citations.]" (People v. Campos (1995) 32 Cal.App.4th 304, 307-308 (Campos).)
Although this rule does not generally preclude the cross-examination of an expert witness on the content of such reports, cross-examination of an expert on the content of those reports is improper where the testifying expert has not relied in any part upon the opinions in those other reports. (Campos, supra, 32 Cal.App.4th at p. 308; see Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 864, disapproved on another point in People v. Ault (2004) 33 Cal.4th 1250, 1272, fn. 15.) Further, prejudice may arise if, under the guise of cross-examination of an expert, otherwise inadmissible hearsay is brought before the jury which could be viewed by the jury as proof of a fact in contention. (See People v. Vanegas (2004) 115 Cal.App.4th 592, 597-598 (Vanegas).)
Moreover, an expert witness is generally precluded from expressing opinions concerning the guilt or innocence of the defendant as well as prohibited from expressing an opinion as to whether a crime has been committed. (People v. Torres (1995) 33 Cal.App.4th 37, 46-47 (Torres).) The reason for these rules is that the jury is just as competent as the expert to consider and weigh the evidence and make the necessary inferences to reach a conclusion as to the ultimate issue of fact in the case. (Id. at p. 47.) In other words, an experts testimony may not invade the province of the jury to decide the ultimate issue in a case even if such testimony relates to that issue.
In addition, with particular regard to the introduction of any evidence concerning the psychological consequences of child molestation, known as Child Sexual Assault Accommodation Syndrome (CSAAS) evidence, such " "is admissible solely for the purpose of showing that the victims reactions as demonstrated by the evidence are not inconsistent with having been molested." [Citations.]" (People v. Housley (1992) 6 Cal.App.4th 947, 955 (Housley), italics omitted, quoting People v. Bowker (1988) 203 Cal.App.3d 385, 394.) CSAAS evidence, however, "is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witnesss credibility when the defendant suggests that the childs conduct after the incident . . . is inconsistent with his or her testimony claiming molestation." (People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin.) The expert testimony is "admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation." (People v. Patino (1994) 26 Cal.App.4th 1737, 1744 (Patino).)
Because particular aspects of CSAAS are as consistent with false testimony as true testimony, and there is a possibility that a jury could use the expert evidence to improperly infer that the abuse occurred, the admission of such evidence is subject to certain limitations. (Housley, supra, 6 Cal.App.4th at p. 955; Bowker, supra, 203 Cal.App.3d at pp. 393-394; Patino, supra, 26 Cal.App.4th at p. 1744.) First, the CSAAS evidence must be addressed or tailored to some specific myth or misconceptions suggested by the evidence. (Housley, supra, 6 Cal.App.4th at p. 955.) Second, the jury must be admonished that the experts testimony is not intended and should not be used to determine whether the victims molestation claim is true, but is admissible solely to show that the victims reactions are not inconsistent with having been molested. (Id. at pp. 955, 958-959.)
"Identifying a myth or misconception has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victims credibility is placed in issue due to . . . paradoxical behavior, including a delay in reporting a molestation. [Citations.]" (Patino, supra, 26 Cal.App.4th at pp. 1744-1745.)
In applying the above law to the facts of this case, we conclude the trial court committed legal error and abused its discretion when it refused Gomezs counsels request to limit cross-examination of Dr. Patel with Dr. Stubbss report and opinions by excluding any questions regarding Stubbss diagnosis that De. suffered from child sexual abuse. Contrary to the Peoples arguments that the proposed cross-examination of Patel by Stubbss report would not have disclosed any evidence of Stubbss opinion, the record shows otherwise. The prosecutor below specifically sought to question Patel about Stubbss diagnosis of child sexual abuse and the court agreed the prosecutor would not be limited in doing so.
As the law clearly reflects, cross-examination of an expert about a nontestifying experts report and opinion on which the testifying expert did not review or rely on in rendering any of his opinions is improper. (Campos, supra, 32 Cal.App.4th at p. 308.) Moreover, where, as here, the evidence sought to be limited arguably consisted of so-called CSAAS evidence, it was error and an abuse of discretion for the court to admit such evidence to show that the complaining witness had been sexually abused and not to have carefully limited such evidence in the manner Gomezs counsel had sought below. (See McAlpin, supra, 53 Cal.3d at p. 1300.) By not doing so, the court in essence improperly sanctioned the admission of expert hearsay evidence that could have been viewed by the jury as proof De. had been sexually molested and of Gomezs guilt. (See Vanegas, supra, 115 Cal.App.4th 597-598; Torres, supra, 33 Cal.App.4th 46-47.)
B. Excluded Evidence During Cross-Examination of M.
We also conclude that the trial court erred in excluding crucial defense evidence when M. testified. During her cross-examination, defense counsel asked M. if she were present during a particular conversation when De. was visiting her mother after Gomezs arrest and De. had become angry with their mother. When M. responded that she had been present and was asked what De. said to their mother during that argument, the prosecutor objected on hearsay grounds. When the court overruled the objection, the prosecutor asked for a sidebar on the matter and an offer of proof. Defense counsel injected that he was not offering the statements for their truth, just for the fact the words were said.
After an unreported sidebar, the court advised the jury that there had been an objection and a "brief sidebar conversation" and it "was going to sustain an objection to that question." Subsequently during a break in the proceedings, on defense counsels request the trial judge placed on the record the substance of the sidebar conversation, noting the question presented was whether "the statement that was going to be elicited from [M.] was hearsay or whether or not it was for [the] purpose of showing bias." The judge noted it had ultimately sustained the objection, not on hearsay grounds, but rather on Evidence Code section 352 grounds, and asked the parties to place their respective positions on the record.
Defense counsel stated that "[i]f the witness was allowed to answer the question, she indicated she was witness to a conversation, argument between her mother and [De.], the first victim in this case. And when the mother upset [De.], [De.] said, I can put you in jail, just like I put him in jail. And so, I think that that is relevant — highly relevant to this case, based on credibility. I did not ask the same question to [Di.] because the court had made a ruling that it was not coming in. [Di.] was [also] party to that conversation."
The prosecutor noted that her first objection at sidebar was hearsay. "I didnt see it coming in for any reason other than for the truth of the fact that she said that. And, in addition, if it was stated in front of [Di.], we got provided a report of [Di.s] statements, and that was nowhere included in that discovery. . . . But I think under hearsay — and also, I believe [De.] should have been given an opportunity to explain the statement and be asked about it in context, and that didnt happen either."
The trial judge then reiterated it had denied the statements based on Evidence Code section 352. "And the reasons being is that I assume that, if I allowed it in, there would be a need to have [De.] come back to address that. I think that the probative value of that question and answer that it would have elicited would have resulted in — there would be limited probative value. It would have resulted in continuing this trial for additional time. And I also believe that, because of the age of the witness, I felt uncomfortable having that additional time and the impact it would have on her . . . being called back to testify did not justify allowing that question to come in."
Defense counsel further responded that "[s]ince its not offered as an inconsistent statement, theres nothing to confront [De.] about. . . . I dont have to call her or confront her with the statement. I can bring the statement out that shows her bias. Its up to the People as to whether they want to re-call her."
On appeal, Gomez contends the trial court prejudicially abused its discretion in excluding critical evidence on cross-examination of M. regarding statements she overheard De. say to their mother which showed De.s bias and motive to fabricate. He specifically argues De.s statements at issue here were not hearsay, but rather circumstantial evidence of her state of mind, and that the courts ultimate exclusion of those statements on grounds "its probative value was outweighed by other factors, such as the need to recall [De.] or to continue the trial — does not withstand even minimal scrutiny." We agree.
As the People concede on appeal, and the court recognized below, the statements by De. that Gomezs counsel attempted to elicit during M.s cross-examination were not hearsay because they were not offered for the truth of the matters stated, but rather as circumstantial evidence of De.s state of mind. (Evid. Code, § 1200.) As noted above, the court merely excluded the proffered statements under Evidence Code section 352.
The law is well-established that relevant evidence, i.e., "evidence, including evidence relevant to the credibility of a witness . . . , having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action" (Evid. Code, § 210), may be excluded under Evidence Code section 352 only where, its "probative value [is] substantially outweighed by the probability that its admission [will] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Ewoldt (1994) 7 Cal.4th 380, 404, quoting Evid. Code, § 352; see also People v. Cudjo (1993) 6 Cal.4th 585, 609.) This evidentiary rule also applies to evidence sought to be admitted during cross-examination. (People v. Hill (1995) 34 Cal.App.4th 727, 738.) In such regard, wide latitude should be given to cross-examination designed to test the credibility of a prosecution witness. (Ibid.) The trial courts discretion under Evidence Code section 352 "is not without limits, particularly if it operates to hamper defense counsels ability to present evidence. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 945 (Frye).)
On appeal, we review the exclusion of evidence under Evidence Code section 352 for abuse of discretion. (People v. Holloway (2004) 33 Cal.4th 96, 134.) We will not disturb the decision of the trial court to exclude evidence under Evidence Code section 352 absent a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Ochoa (2001) 26 Cal.4th 398, 437-438; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Here, the trial courts reasons for excluding Des statement appear to have been primarily based on its assumption the admission would result in undue consumption of time because the prosecutor had represented the trial would have to be continued so De. could be recalled to explain the statement. However, as the record shows, defense counsel made clear that the matter would be addressed by a few brief questions to M. as to whether the statement had in fact been made, and that there was no need for defense counsel to confront De. with the statement or give her an opportunity to explain it because the statement was not being offered as an inconsistent statement. The courts concern that the trial would have to be continued longer in order for the prosecution to call De. back to explain her statement does not appear to be reasonable on this record. Even if it were necessary to recall De., any examination as to whether she in fact had made the statement and, if she did, her reasons for making it, would equally be brief.
More importantly, however, because De.s credibility was not a collateral issue, but rather the crux of the prosecution case, the evidence excluded here was vital and significant to Gomezs defense that De. was not credible in her reporting that he had molested her throughout the years. Thus contrary to the courts remark that De.s statement had "limited probative value," the statement had significant probative value on De.s credibility by showing direct evidence of her state of mind and intent. Nor do we find that the brief questioning of M. regarding De.s statement would have confused the issues or misled the jury.
Because the record does not support the courts finding that the probative value was limited, its weighing under Evidence Code section 352 was necessarily skewered. As noted above, the courts discretion under such section is not without limits, especially, where as here, "it operates to hamper defense counsels ability to present evidence. [Citation.]" (Frye, supra, 18 Cal.4th at p. 945.)
In sum, because the record does not support a finding that the probative value was substantially outweighed by the danger of undue prejudice or of confusing issues or misleading the jury, we conclude the court abused its discretion in excluding the proffered defense evidence on M.s cross-examination.
C. Prejudicial Error
The question remains whether the trial courts errors in refusing to limit cross-examination of Patel with Stubbss report and diagnosis, and in precluding questioning of M. regarding statements De. made to their mother constitute reversible prejudicial error. Although we hesitate to reverse a case such as this, we believe in all fairness that the cumulative effect of the above evidentiary errors requires reversal.
It is well established that "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) The errors we have found are particularly troubling, as they go to the essence of this case, the credibility of the victim of alleged child sexual abuse, where there is no physical evidence or witnesses of any such abuse.
As our Supreme Court noted long ago in People v. Adams (1939) 14 Cal.2d 154, 167-168, about the importance of protecting a defendants rights in a case where the allegations of sexual abuse only come from the victim:
People v. Adams, supra, 14 Cal.2d 154, was overruled on another point in People v. Burton (1961) 55 Cal.2d 328, 351-352, which was then abrogated by People v. Brown (1994) 8 Cal.4th 746, 748-750.
"In such a situation, the only defense available, ordinarily, to the accused is his own denial of any asserted misconduct,. . . otherwise, he is utterly defenseless . . . . Errors committed either by the prosecution or by the court in the course of the trial, which ordinarily might be considered trivial and as of no material consequence from a standpoint of adverse effect upon the rights of a defendant, may become of great importance when committed in a case of the character of that here involved." (Ibid.)
In addition, because allegations of child sexual abuse are inherently inflammatory by nature, evidentiary errors in such cases may have a more serious impact than in other cases and are often likely to be prejudicial. (See People v. Stanley (1967) 67 Cal.2d 812, 820.)
Here, the trial courts erroneous rulings deprived Gomez of the opportunity to present potentially crucial evidence for his defense. As a result of the courts ruling regarding the expert cross-examination, which came near the end of trial and not in limine, Gomezs counsel was forced to withdraw Patels testimony so he would not be subject to improper cross-examination thereby depriving Gomez of evidence on De.s mental condition and behaviors which was relevant to contesting her credibility. At that time, the jury had already heard that Patel would be testifying about De.s mental condition, which would explain her behavior during and shortly after the time she reported the sexual abuse. By causing the removal of Patels defense testimony, the courts ruling in effect undermined the credibility of the defense while indirectly bolstering that of the complaining victim. Although the jury had evidence from De.s own testimony and others that she had some type of mental or behavioral problems, there was no independent or expert evidence presented explaining how such could effect De.s state of mind, motives and in essence her credibility, in making the reports of molestation against Gomez, which the prosecutor explained away during closing argument. The courts ruling that excluded De.s statement during Ms cross-examination also indirectly bolstered De.s credibility by keeping from the jury strong circumstantial evidence of her intent, bias and state of mind in making her molestation reports.
As a result of these errors, we simply cannot be confident that the jury would have reached the same verdict had the respective evidence properly been limited and admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.) All parties conceded that De.s credibility was the primary issue in this case, which essentially consisted of De.s in-court testimony and her out-of-court statements made to her friends family, a police officer and a social worker. Although De.s statements to those other witnesses had been somewhat consistent, they varied in significant ways as to the commencement and frequency of the alleged physical or sexual abuse. All parties further conceded that De. suffered from mental and emotional problems which effected her behavior. Where, as here, there is no other evidence to support a defendants denial of allegations of child molestation other than his own denial, we believe that evidence that is relevant to the child victims bias, state of mind and basic credibility in making such accusations, like that excluded in this case, may be sufficient to raise a reasonable doubt of the defendants guilt. Without such evidence, the jury is not provided with a total, fair picture to make its determination. Because Gomez has shown that the excluded evidence would have produced a significantly different impression of De.s credibility and that such was vital to his defense, we cannot find the combined effect of the evidentiary errors harmless. (See People v. Hawthorne (1992) 4 Cal.4th 43, 56-58.)
DISPOSITION
The judgment is reversed.
WE CONCUR:
HALLER, J.
OROURKE, J.