Opinion
G051974
01-13-2017
THE PEOPLE, Plaintiff and Respondent, v. GARY MARTIN GRUBER, Defendant and Appellant.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed on January 13, 2017, is modified as follows:
1. On page 8, in the fourth paragraph, insert a new paragraph following the first complete sentence ending in "denied the motion."
2. Begin the new paragraph with, "On appeal," and continue with the sentence, "Gruber argues the court violated Evidence Code sections 210, 352, and 1103, and his constitutional right to confront witnesses and present a defense by excluding the facts of D.P.'s molestation of E.C. and A.C."
3. After the above sentence, insert the following two sentences: "He contends the statements E.C. and A.C. made regarding the cave incident show that these girls have the willingness to lie about significant issues not only to their parents, but to police officers, and to child abuse services team members. He claims counsel sought to undermine E.C.'s credibility by offering the extensive fabrications she made about the cave incident, but was prevented from doing this which painted a different picture of E.C.'s credibility."
4. On page nine, in the first full paragraph, fourth sentence, delete the word "simple," and insert "and concocted an untruthful story about the cave incident" after the word "parents."
This modification does not change the judgment.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10CF3316) OPINION Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Gary Martin Gruber of three counts of lewd acts on E.C., a child under 14 years of age (Pen. Code, § 288, subd. (a); counts 1, 2, 3; all further statutory references are to the Penal Code), and one count of lewd acts on M.C., also a child under the age of 14 (count 4). The jury found true multiple victim (§ 1203.066, subd. (a)(7)), and substantial sexual conduct with a child (§ 1203.066, subd. (a)(8)) sentence enhancement allegations. The court sentenced Gruber to a total term of 12 years.
We are using initials in accordance with our Supreme Court's policy regarding protective nondisclosure, and not out of any disrespect. --------
Gruber argues the court violated his constitutional rights to present a defense, confrontation of witnesses, and a fair trial by excluding evidence E.C. had been sexually abused by someone else, excluding evidence of a witness's out-of-court statements, and denying his mistrial motion. He also asserts the cumulative effect of the errors warrants reversal of the judgment. We find these arguments meritless and affirm.
FACTS
In 2006, nine-year-old E.C. and six-year-old M.C. lived in Santa Ana with their parents, J.C. and K.C., and siblings, 10-year-old A.C., eight-year-old Ma.C. and three-year-old L.C. Around that time, Gruber became a family friend and frequent visitor. For instance, in 2007, after K.C. and J.C. were temporarily separated, Gruber began to take the children for various activities, and they frequently spent the night in the apartment Gruber shared with his roommate, R.B.
The relationship between Gruber and J.C.'s family continued for several years. In 2008, Gruber and R.B. moved to a larger home, and Gruber took in three male foster children, then-15-year-old A.S., 13-year-old S.S., and 10-year-old A.S.
On the evening of December 8, 2010, K.C. took the children and their grandmother to church. Someone at the church overheard E.C. and A.C. discussing an unrelated sexual assault against them by a family friend, D.P. E.C. talked to church personnel and her mother about the incident, and the police were called. After E.C. recounted the unrelated sexual assault, she also told police Gruber molested her. 1. Trial
a. E.C.
E.C. testified Gruber befriended the family when she was in the third grade. She considered him to be the equivalent of an uncle. He babysat for her parents, and he took the siblings for bicycle rides, dinners, and other fun activities. The siblings frequently spent the night at Gruber's home. She and L.C. slept with Gruber while the other children would sleep in the living room on an air mattress. Initially, L.C. would be between Gruber and E.C. and after L.C. fell asleep, Gruber would move her and get next to E.C.
Between January 2006 and December 2010, Gruber put his hand down E.C.'s pants and rubbed her vagina with his fingers in a circular motion on more than five occasions; he touched E.C.'s vagina under her clothing 20 to 25 times; he inserted one or two fingers into E.C.'s vagina about 10 times, took her pants and underwear off about 10 times, and told E.C. to take off her clothes about three times. He also used a flashlight to look at her vagina.
E.C. also testified about an occasion when she fell off her bicycle and ripped her pants. Gruber told her to take off her pants so he could look at her legs. However, when E.C. took off her pants, Gruber jumped on her and touched her private area. He also told her, "I could make this a lot harder. I could pin you to the bed."
During a camping trip with Gruber and his brother, Gruber touched E.C. when they were alone together inside his tent. He also once rubbed E.C. over her clothing while driving home from a restaurant. Gruber asked E.C. to "copulate" him, and to have vaginal sex, but she refused. She also refused on two or three occasions when Gruber jumped on top of her and tried to pull her pants down. E.C. said that when she told Gruber she did not want to sleep in his bed he would yell at her.
Gruber also warned E.C. not tell anybody about what they were doing because he would lose custody of his foster sons. E.C. said she kept quiet, in part, because she had a crush on then 13-year-old S.S. and did not want him to be taken away from Gruber. E.C. said Gruber had not touched her for a couple of years.
E.C. told her sister A.C. that Gruber had molested her in July 2010. E.C. also told her friend, K.P., when all three girls were on K.P.'s family vacation during the summer, but the girls did not tell their parents.
b. M.C.
When first questioned by police officers, M.C. said Gruber often entertained the children at his house. As for the sleeping arrangements, M.C. said she slept on a little blow-up mattress in the boys' room with A.C. L.C. and E.C. would "sometimes sleep[] with [Gruber]." When an officer asked M.C. if Gruber had ever touched her private parts, M.C. said he had twice "kinda got his finger and put it in, but it didn't feel good."
M.C. also told the officer Gruber once beckoned her into his bedroom after she finished taking a shower. He asked her to lie down on his bed, and then he touched her vagina. M.C. said she told Gruber it felt "bad," and he stopped. Gruber made M.C. "promise not to tell anyone." M.C. kept her promise out of fear she would get into trouble, although she complained, "I don't like him touching me."
At trial, M.C. testified she was six years old when Gruber became a family friend. He took M.C. and her four siblings to the beach and he rode bicycles with them. On many Saturday nights, the siblings spent the night in Gruber's home. M.C. and A.C. slept in the room shared by Gruber's foster sons, Ma.C. slept on the couch, and E.C. and L.C. slept with Gruber.
Sometime after M.C. entered the third grade, Gruber started to touch her vagina under her clothing. He did that seven or eight times. On the way home from dinner one night, Gruber gave her an iPod. He also pulled down her pants and underwear and touched her vagina. He touched her vagina another time when she got out of the shower.
M.C. said Gruber repeatedly asked her how the touching felt. She asked him to stop and told him it felt "bad." Gruber would stop, but he also did it again on another day. Gruber told M.C. to keep the touching a secret.
c. K.C.
K.C. confirmed the close relationship between her children and Gruber, but realized now why the children had begun to resist visits with Gruber at his home.
She also confirmed J.C.'s violent temper. For instance, K.C. knew E.C. had seen J.C. stab her with a fork and hit her, and she admitted J.C. used a belt to discipline A.C. K.C. acknowledged E.C. had fibbed about her grades to the police, and that she was not always truthful.
K.C. was not always truthful, either. In 2005, she wanted her children to attend a particular school. For this cause, she submitted a false, notarized change of address form to the Department of Motor Vehicles, a false lease agreement and false residence verification form to the school, and she told her children to lie about their address. After the incident with D.P., she also told M.C. to attribute her school absences to illness.
d. M.G.
Thirty seven-year-old M.G., testified Gruber befriended her older brother and sister when she was a child. When M.G. was 16 years old, Gruber asked her and her family on an annual family camping trip. One evening, Gruber persuaded M.G. to take a hike with him. During the hike, Gruber knocked M.G. to the ground, got on top of her, tried to unbutton her pants, and put his hand down her pants. M.G. pushed Gruber away and told him to stop. He complied, and they walked back to the campground.
Six years later, M.G. went to dinner with Gruber at her father's insistence. Gruber told her he was sorry for what had happened and for blaming her when her family had confronted him. M.G. was perplexed because she never told her family what Gruber had done. Nevertheless, a few years later, M.G. worked for several months as Gruber's bookkeeper. 2. Defense
Gruber, who was 51 years old at the time of trial, testified he and J.C. became friends in the mid-2000's when J.C. invited him to come to church with J.C.'s family. Gruber thought J.C. was abusive with M.C., extremely stern with the other children, and not particularly nice to K.C. Gruber said K.C. once told him she could not leave J.C. because of his temper. E.C. told him J.C. beat her to set an example for the other children.
Gruber said the children frequently spent the night at his home. When they did, Ma.C. slept on the couch, A.C., M.C., and E.C. slept on an air mattress in the living room, and baby L.C. wanted to sleep with him. E.C. always started out on the air mattress, but there were times she would come into Gruber's room and sleep with L.C.
In 2008, Gruber and his roommate R.B. moved into a three bedroom home, and Gruber took in three foster boys. The boys faced challenges at school and home, but their grades improved substantially after they came to live with Gruber. According to Gruber, J.C. made E.C. sleep on an air mattress in Gruber's bedroom after he caught E.C. and one of his foster sons, S.S., in bed together.
In August 2010, Gruber got into an argument with K.C. and J.C. about parenting after L.C. injured herself during one of Gruber's family barbeques. During the argument, J.C. threw a drink in K.C.'s face. Gruber yelled at J.C. and said he was being abusive. K.C. disagreed with Gruber, after which Gruber demanded J.C. leave. Gruber threatened to call social services on them, but nothing happened. However, Gruber did report J.C.'s behavior to people at their church in an effort to enlist support for K.C, and he threatened to call social services if he saw J.C. being abusive again.
Gruber said he remembered the family camping trip with E.C. and L.C. Gruber testified the girls slept in his tent for their safety. He also remembered the camping trip with M.G., but denied anything inappropriate happened. He admitted M.G.'s family asked about what happened, but he denied the allegations. He said M.G.'s parents seemed to believe him, and M.G. later went to work for him.
S.S. testified E.C. and L.C. slept in Gruber's room, Ma.C. slept on the couch, and the other girls slept on an air mattress in his room, or in the third bedroom. S.S. admitted he and E.C. had become boyfriend and girlfriend.
Gruber's roommate R.B. testified L.C. slept with Gruber, but the other children slept in the living room on an air mattress. Furthermore, Gruber always slept with his bedroom door open.
R.B.'s girlfriend testified E.C. slept in Gruber's bedroom only one time, but she told officers E.C. often slept with Gruber.
J.M., who was 13 years old at the time of trial, testified that she met Gruber when she was five years old. J.M. frequently visited Gruber's house, and occasionally spent the night on his couch. J.M. reported E.C. slept on the air mattress with all the other children, and she had never seen E.C. or L.C. sleep in Gruber's bed.
R.G., a 20-year-old woman at the time of trial, met Gruber when she was 12 years old. He had never done anything inappropriate to her.
DISCUSSION
1. Evidentiary Error
a. Background
The prosecution moved to exclude evidence of D.P.'s independent sexual abuse of E.C. and A.C., citing Evidence Code sections 782 (sexual conduct of complaining witness) and 1103 (character evidence of crime victim). Gruber argued this incident was "an integral part of Mr. Gruber's defense," and admissible under Evidence Code section 782. Defense counsel filed a sealed declaration with the motion, and he requested an in camera hearing to discuss its contents.
In general terms, defense counsel's offer of proof was as follows: Four days before then 13-year-old E.C. accused Gruber of molestation, J.C. caught her in a beach cave with then 20-year-old D.P. A.C., then 12 years old, and eight-year-old, M.C., had gone with E.C. and D.P. to the beach, and all four had failed to return before dark as promised. When J.C. got to the beach, E.C. and D.P. were alone in the cave while M.C. and A.C. waited outside. J.C. was extremely angry, and the children agreed to lie about why they were late.
Although they were initially evasive, E.C. and A.C. told the police D.P. engaged in certain lewd acts with them. Sometime later, D.P. pleaded guilty to two counts of lewd acts with a child in connection with this incident.
Defense counsel argued the fact E.C. disclosed Gruber's abuse during her police interview about D.P. proved she fabricated Gruber's abuse "to divert attention away from herself," and as family payback for the big falling out. In defense counsel's opinion, evidence E.C. initially lied about an unrelated instance of sexual abuse by D.P. provided evidence she lied about Gruber's abuse.
Citing People v. Jennings (1991) 53 Cal.3d 334, 372, the court concluded the proffered evidence was a collateral matter with only slight relevance to the charged offenses, and denied the motion. Gruber argues the court violated Evidence Code sections 210, 352, and 1103, and his constitutional right to confront witnesses and present a defense by excluding the facts of D.P.'s molestation of E.C. and A.C. We disagree.
We review a trial court's evidentiary rulings under the abuse of discretion standard. (People v. Avila (2006) 38 Cal.4th 491, 578.) The court abuses its discretion by acting "in an arbitrary, capricious, or patently absurd manner that result[s] in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; see Evid. Code, §§ 353, 354 [erroneous exclusion, or admission, of evidence must result in a "miscarriage of justice" to justify reversal of the judgment].) In addition, the trial court retains broad discretion when weighing the appropriate factors under Evidence Code section 352. (People v. Tully (2012) 54 Cal.4th 952, 1010), and a court may put reasonable limits on cross-examination pertaining to the credibility of a witness and not violate the confrontation clause. (See People v. Quartermain (1997) 16 Cal.4th 600, 623-624.)
There was no abuse of discretion or violation of constitutional rights in this case. E.C. merely delayed reporting D.P.'s molestation. There is no evidence she fabricated the accusations. To the contrary, D.P. pleaded guilty to two counts of lewd acts on a child in connection with the incident. The simple fact the girls were not immediately forthright with their parents on one occasion was marginally relevant to E.C.'s truthfulness about Gruber's molestation. Thus, the probative value of the evidence was substantially outweighed by the probability that its admission would require the undue consumption of time and confuse the issues. (Evid. Code, § 352.)
Furthermore, although Gruber does not mention it in his briefs, defense counsel conducted a limited cross-examination of E.C. about her statements in church without objection from the prosecutor. As a result, E.C. admitted she had lied to her parents about something important for several days. E.C. also admitted knowing she would get in trouble for lying, and that she had seen J.C. attack K.C. with a fork and hit her with a belt. Thus, the only potentially relevant part of D.P.'s molestation of E.C. was introduced at trial. 2. Witness Misconduct & Mistrial Motion
a. Background
After defense counsel asked K.C. a few questions, the court stopped the proceedings and appointed counsel to determine if K.C. risked criminal prosecution by further testifying. After a brief recess, appointed counsel represented K.C.'s conduct was beyond the three-year statute of limitations for perjury, and cross-examination continued.
Defense counsel's first question after the break was, "Ma'am, did you discuss your testimony with anyone during the break?" K.C. said, "No." Defense counsel introduced evidence of the fraudulent residence verification form and lease agreement, and the court took its noon recess.
After lunch, an alternate juror told the court about an incident that occurred during the morning recess. The juror said K.C. "plopped herself down on the bench outside in the hallway in the middle of multiple jurors and began discussing the case . . . ."
After disclosing the situation to counsel in chambers, the court asked the reassembled venire for "a show of hands of any jurors who either were present during a conversation that [K.C.] had in the hallway about this case or if you were not present, but any other juror has discussed with you or raised it with you in any fashion." Four jurors and the alternate juror raised their hands.
The court excused the remainder of the panel with the instruction, "any out of court commentary" is not evidence, and questioned the five jurors individually in chambers. When questioned, the alternate juror said K.C., A.C., and A.C.'s friend K.P. were together in the hallway during the morning recess. The alternate heard K.C. complain that the defense attorney had tried to trip her up, and she said something like "even though [the court said] 'overrule' when they would object, she said, 'Well, it doesn't matter because, you know, the jury would still know about it.'" K.C. also mentioned that her friend would be angry and need to get a public defender because of the fraudulent lease. K.C. also took a phone call from her daughter's school, but A.C. and K.P. said nothing.
The court ordered the alternate juror to "not discuss anything related to this either our discussion or anything related to [K.C.] and/or that third person," and admonished the juror that the incident was not evidence to be considered at trial. This procedure was repeated four times with the other jurors. Each successive juror heard less of what K.C. said, or something substantially similar to what the alternate juror had already reported, and the court admonished each of the jurors to disregard K.C.'s out-of-court statements.
When the trial resumed, defense counsel said he had no further questions for K.C., and she was excused. However, at the close of the prosecution's case, defense counsel moved for a mistrial based on the court's exclusion of the fact K.C. talked about the case in the hallway and then denied it on the witness stand. Counsel argued Gruber's defense was "that [K.C.] has put this family up to making these allegations . . . ." Thus, in defense counsel's opinion, K.C.'s most recent lie was not just relevant to her credibility, but pivotal.
The court denied the mistrial motion, and further concluded the admonition to disregard K.C.'s out-of-court statements cured any potential prejudice. On appeal, Gruber cites various Evidence Code sections, and argues the court abused its discretion and denied him a fair trial by excluding this evidence and denying his mistrial motion. We disagree.
A motion for mistrial should be granted only when a party's chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282.) "Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." (People v. Haskett (1982) 30 Cal.3d 841, 854.) In only exceptional cases will "'the improper subject matter [be] of such a character that its effect . . . cannot be removed by the court's admonitions.'" (People v. Allen (1978) 77 Cal.App.3d 924, 935.) This is not an exceptional case.
The improper subject matter was K.C.'s hallway statements, and those statements were not evidence. (§ 1122.) Thus, the court properly admonished the jurors to disregard them. (See CALCRIM Nos. 101, 104.) But more importantly, defense counsel's cross-examination effectively left K.C.'s credibility in tatters. The jury knew she committed perjury in an attempt to enroll her children in a particular school. Evidence she talked about the case in the hallway during a recess would have added very little to the equation.
In any event, Gruber fails to demonstrate the court's exclusion of this evidence caused a miscarriage of justice. (See Evid. Code, § 354.) As stated above, this was not a close case. E.C. and M.C. testified to facts sufficient to prove the elements of Gruber's crimes. K.C. did not witness these crimes, and her testimony provided no crucial evidence for the prosecution's case.
In sum, the court did not abuse its discretion by excluding evidence of K.C.'s hallway statements, and the court's neutral application of state law evidentiary rules did not violate Gruber's constitutional rights. In addition, the court's admonition to disregard K.C.'s out-of-court statements was required under section 1122, and adequate to cure potential harm. Consequently, the court correctly denied Gruber's mistrial motion, and the court correct evidentiary ruling did not violate Gruber's constitutional right to confront witnesses, present a defense, or a fair trial. 3. Cumulative Error
Finally, Gruber also asserts a cumulative error argument. But, we have rejected each of Gruber's individual arguments so there was no error to cumulate. (People v. Beeler (1995) 9 Cal.4th 953, 994 ["If none of the claimed errors [are] individual errors, they cannot constitute cumulative errors that somehow effected the . . . verdict"].)
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.