Opinion
A117006
4-16-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALBERTO HERNANDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Jose Alberto Hernandez (appellant) was convicted, following a jury trial, of continuous sexual abuse of a child under the age of 14. On appeal, he contends: (1) the prosecutor committed misconduct during closing argument and the trial court erred when it failed to cure that misconduct; (2) the trial court erred when it prohibited defense counsel from arguing to the jury that there was no physical evidence corroborating the victims claims; (3) the trial court erred when it admitted for the truth the victims hearsay statements to her aunt; (4) the trial court erred when it admitted the videotape of a police interview with the victim; and (5) the conviction should be reversed due to cumulative error. We shall affirm the judgment.
PROCEDURAL BACKGROUND
On September 25, 2006, appellant was charged by information with one count of continuous sexual abuse of a child under the age of 14. (Pen. Code, § 288.5, subd. (a).)
On November 17, 2006, a jury convicted appellant of the charged offense.
On March 7, 2007, the trial court denied appellants motion for a new trial and sentenced him to the midterm of 12 years in state prison.
Also on March 7, 2007, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Norma R. was 10 years old and in the fifth grade at the time of trial. She lived with her mother, father and three younger sisters in Fairfield.
Norma used to visit her Aunt R., her Uncle Jose (appellant), and her two younger cousins fairly often on the weekends, and would sometimes spend the night at their home. Aunt R.s family lived in Suisun for a time in a two-story apartment. Normas grandfather also lived with them; he stayed on the first floor because he used a wheelchair. At times, appellant would take care of Norma when she stayed there because her aunt would be at work. In 2005, when Norma was about eight years old and in the third grade, appellant touched her "bottom." While her cousins were watching TV or were outside playing, appellant and Norma were in appellants room and appellant told Norma to take her clothes off. She said no and he got sort of mad and took them off himself. He then took off his own clothes, lay her down on the bed, and "put his front on my front." He also "squished" her "boobs." This lasted about an hour. Appellant told her not to tell anyone. Appellant touched Norma "a lot of times" while he lived in Suisun.
Then, when appellants family moved to Fairfield, appellant would take off Normas clothes and his clothes and "start doing the sex," which meant both of them were naked on the bed and "you start like humping and all that stuff." Once, when Norma was taking a shower, he came into the bathroom and said he wanted to take a shower with her, but she said no. Another time, Norma was in the shower when appellant came in, took off his pants, and told her to touch his "front." He first moved his own hand up and down and then took her hand and put it on his "front."
Normas grandfather moved to Colorado at that point.
On recross-examination, under defense counsels questioning, Norma acknowledged that she had testified that nothing had happened in the shower. She also acknowledged that, during the break, the prosecutor had asked her about whether anything had happened in the shower, and she had said yes.
In all, appellant put his finger in Normas "front" about five times, he touched her "bottom" more than 10 times, and touched her "boobs" more than five times. He "had sex" with her more than seven times. The touching always happened when Normas aunt was out working. Appellant also rubbed his "front" up and down with his hand in front of Norma about five times. Some "white stuff" came out once and he put the white stuff on her stomach. She said, "Dont do that," and went outside. Appellant kissed her with his tongue on her tongue about eight times altogether.
On two occasions, appellant showed Norma a videotape of himself and her Aunt R. "doing sex." In the tape, they were naked and appellant was "humping" her aunt. Appellant told Norma not tell her "auntie that he was videoing her and him doing the s-e-x." At the same time he showed her the videotape of him and her aunt, appellant also played a videotape of other naked adults "doing sex." After showing her the videotapes the first time on the downstairs TV, appellant took off their clothes, put her on the couch, got on top of her, and started "humping" her. He tried to put his "front" in her bottom. The second time appellant played the videotapes, he put his hand under her pants and underwear and touched her "front" with his hand for about two minutes.
The last time appellant touched her, Norma was in fourth grade. Appellant told Norma not to tell anyone on more than five or seven occasions and said he would give her money. He would give her the money when he was done touching her. He gave her "[l]ike 20, 30, ten or five" dollars in cash. He said it because he was "doing that" with her, and told her not to tell anyone who gave her the money. She was scared of appellant because she thought he "was going to do something to my family or hurt someone."
Norma eventually told her friend Cynthia about the touching. Cynthia then told Normas Aunt R. (appellants wife). R. called Normas mother, who called Normas Uncle Francisco while Norma was in the car with him and her Aunt Sylvia; they were on their way to appellants house for R.s birthday party. Norma told her Aunt Sylvia what had happened with appellant. Her Uncle Francisco got mad and took Norma to the police department, along with Normas mother and Aunt Sylvia. She then was taken to the hospital because "they were going to check me in case I had something so they have proof that he did." That day was the last time appellant touched her.
Later, Norma answered questions and was videotaped at the Rainbow Center. She was telling the interviewing officer the truth when she spoke at the Rainbow Center.
Normas aunt, Sylvia C., testified that her husband, Francisco, is Normas mothers brother. On June 19, 2006, Sylvia had come to Solano County from her home in Lodi to visit Normas mother, Claudia. She was in the car with Francisco and Norma, on their way to R.s apartment, when Normas mother called Francisco on his cell phone. He pulled over, turned to Norma, and asked, "Did Berto [appellant] . . . do something to you?" Norma said nothing, but started crying. Sylvia then asked Norma if appellant had touched her, to which Norma said yes. Sylvia asked where, and Norma pointed to her vagina. Sylvia asked whether he touched her on top of or under her underwear, and Norma said "under." Sylvia asked if he put something inside her private area, and Norma said yes. Sylvia asked if he put his thing inside her, and Norma said yes, "[h]e had sex with me. [¶] . . . [¶] . . . He put his dick inside." Norma was crying the entire time she was talking. They then drove to the home of Normas mother, Claudia; picked her up; and went to the police department.
R.B., appellants wife and mother of two children who were ages five and two at the time of trial, had previously lived with appellant in Fairfield. Before moving to Fairfield, R., appellant, and their children lived in Suisun City, along with R.s father, who was in a wheelchair and kept to himself. Since 2005, while living both in Suisun City and in Fairfield, R. had worked at Burger King five days a week, including Sundays, on the 5:00 p.m. to 10:00 or 11:00 p.m. shift. Appellant worked in the mornings and got off work at around 4:00 p.m., so he could stay with the children while R. worked. Norma, who is the daughter of R.s sister, Claudia, came over to R. and appellants home every weekend. R. would leave Norma with appellant when she went to work.
In R. and appellants home, there was a VCR in the living room and their bedroom. They had one pornographic videotape they kept at their home both in Suisun City and Fairfield. R. was not aware of any videotape of her and appellant engaging in sex acts.
On Sunday, June 18, 2006, Norma had spent the night at R. and appellants home. June 19 was R.s birthday, and Norma and a friend had made a cake for her. R. accompanied Norma and her mother, Claudia, to the Rainbow Center sometime after June 19.
On cross-examination, R. testified that she never saw Norma with $30 or $40 while they were shopping, though she may have had $5 or $10. Sometimes Normas father or appellant would give her money. Norma would not ignore R. if she asked where Norma had gotten some money. R. never heard Norma say she did not want to come over to R.s house and she never seemed upset when she was dropped off there.
Bee Xiong, a Fairfield police detective, testified that, on June 19, 2006, he met with Norma, her aunt, Sylvia C., and her mother, Claudia B., at the Fairfield Police Department. He took statements from the two women. He then met them at North Bay Hospital where a sexual assault examination was performed on Norma. Xiong later arranged for Norma to be interviewed at the Rainbow Center, which has a setting that is more comfortable than the police department for interviewing a child.
Joshua Cohen, a Fairfield police detective assigned to child abuse and sexual assault, testified that he arranged for a forensic interview of Norma at the Rainbow Childrens Center in Vacaville. The interview took place on June 27, 2006. The videotape of the interview, with some redactions, was played for the jury at trial.
In the videotape, Norma said that appellant had done something nasty to her "a lotta times" since she was eight years old. Norma did not recall what happened the first two times appellant molested her, but she told about several instances of touching, including when he took off her clothes, lay her on the bed, and touched his private to her private before rubbing his hand up and down on his private until something white came out. She also told about the time appellant came in and took off his clothes while she was in the shower. He made her put her hand on his private and rub up and down. He also kissed her and touched her boobs.
Appellant also had "s-e-x" with Norma close to the previous Christmas, which involved getting naked and humping. He tried to put his private in her, but said her private was too small. His private was not inside or outside, but was kind of "in the middle right there." She also told about appellant showing her a videotape of naked people having sex and a videotape of appellant and her aunt having sex. The last time appellant did anything to Norma was on a Sunday after her friend, Cynthia, left. He took off his pants and underwear, pulled her pants and underwear down and touched his private on her private.
The various acts took place both in Suisun and at the Fairfield apartment. Appellant told Norma not to tell anyone and he gave her money, "[l]ike twentys, tens, thirtys, fortys." The same month as the interview, she finally told her friend Cynthia some of what was happening. Cynthia then told her auntie. She did not tell anyone about the touching before that because she was scared.
DISCUSSION
I. Alleged Prosecutorial Misconduct
Appellant contends the prosecutor committed misconduct during closing argument and the trial court erred when it failed to cure that misconduct. In particular, he argues that the prosecutor improperly (1) "testified" and vouched for the victim, and (2) asked jurors to rely on statements made by a prospective juror during voir dire.
A. Trial Court Background
During jury voir dire, Mr. R., a prospective juror who was ultimately excused, said that he had a young cousin who was sexually assaulted. Mr. R. "turned the guy in" and he was convicted. Upon further questioning, Mr. R. explained that, 23 years before, his cousin had come to him and told him about the molestation and had said not to tell anyone. He reported the conversation to his grandparents, who contacted the police. The man, a family friend and minister, was found guilty after a jury trial. Mr. R. and his cousin were no longer in contact.
During closing argument, the prosecutor told the jury that appellant, a very close family member, had recurring access to Norma almost every weekend and repeatedly warned her not to tell what he was doing to her. The prosecutor argued that Norma listened to him and did not tell anyone, including her mother, aunts, or uncle for almost two years, until she finally told her best friend. The prosecutor continued, "She said, `Cynthia, my best friend, I told her. Thats what children do. [¶] You heard from a juror who got excused, Mr. R[.]—" At that point, defense counsel objected and the court said to the prosecutor, "I am going to admonish you that you cannot be making statements about what jurors said and what people left [sic]."
Following a discussion outside the presence of the jury, during which defense counsel requested a curative instruction, the court said, "I dont think theres a need for a curative instruction at this point. I dont think any information about Mr. R[.] got out." The court also said, "[F]irst of all, nothing came in. Second of all, shes [the prosecutor] indicated to me shes not going to reference comments made by an excused juror. [¶] So at this point, given your [defense counsels] outburst, the jury obviously knows that there was an upset here. I prefer to, rather than draw attention to either party, move forward with the closing argument." The trial court then denied defense counsels motions to dismiss and for a mistrial. The court also denied appellants subsequent motion for a new trial on this ground.
B. Legal Analysis
Our Supreme Court has explained that " ` " `[a] prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." " [Citations.] 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 court or the jury." " [Citation.] [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 819.) The defendant need not show that the prosecutor acted in bad faith. (Id. at p. 822.)
The California Supreme Court has further observed that " ` " `a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . . . " [¶] Prosecutors, however, are held to an elevated standard of conduct . . . because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. [Citation.]" (People v. Hill, supra, 17 Cal.4th at pp. 819-820.)
In evaluating a claim of prosecutorial misconduct based on a prosecutors comments to the jury, we must determine whether " `there is a reasonable possibility that the jury construed or applied the prosecutors comments in an objectionable manner. [Citations.] [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 132-133; People v. Berryman (1993) 6 Cal.4th 1048, 1072.)
"Argument is improper when it is neither based on the evidence nor related to a matter of common knowledge" (People v. Pitts (1990) 223 Cal.App.3d 606, 702.) A prosecutors reference to facts not in evidence constitutes misconduct "because such statements `tend[] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be `dynamite to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." [Citations.] [Citations.]" (People v. Hill, supra, 17 Cal.4th at pp. 827-828.)
First, the prosecutors comment in this case that "[t]hats what children do," arguably did constitute an impermissible reference to facts not in evidence and not necessarily related to a matter of common knowledge. (See People v. Pitts, supra, 223 Cal.App.3d at pp. 702-703.) However, the reference was fleeting and the point made—that one might expect Norma to confide in her best friend—was not especially momentous, particularly in light of the overall consistency and compelling nature of Normas testimony. (See, e.g., People v. Brown (2003) 31 Cal.4th 518, 554.)
Second, the prosecutors reference to prospective juror Mr. R. ("You heard from a juror who got excused, Mr. R[.]—") was improper. However, it is extremely difficult to imagine that it had any discernible effect on the jury. The reference was not only fleeting, it was interrupted before anything of substance could be said. Moreover, even if some jurors happened to remember Mr. R.s comments, as previously noted, we do not believe the point the prosecutor was trying to make would be of great significance to the jury, particularly when measured against the strong evidence of appellants guilt. Finally, the court immediately made clear to the jury that such references were improper when it said to the prosecutor, "I am going to admonish you that you cannot be making statements about what jurors said and what people left [sic]."
We also observe that the court instructed the jury that the attorneys remarks during opening statements and closing arguments are not evidence (CALCRIM No. 222), and that the jurors alone were to judge the credibility of the witnesses (CALCRIM No. 226). We presume the jurors followed these instructions. (See People v. Holt (1997) 15 Cal.4th 619, 662.) Nor do we agree with appellant that the trial courts refusal to give the jury an additional curative instruction constituted prejudicial error. (See People v. Bolton (1979) 23 Cal.3d 208, 215-216, fn. 5.)
This case is distinguishable from People v. Pitts, supra, 223 Cal.App.3d 606, in which the prosecutor spoke during closing argument about whether children should be expected to tell their teachers that they are being molested: "How many teachers do we have on this jury panel? How many teachers did I ask, did you hear me ask, have you ever had a kid complain about being, a child, being molested to you? . . . [¶] . . . We heard jurors talk about one or two incidences. Its not something that you tell your teacher. . . . First of all, you saw a lot of teachers testify before you. I mean—excuse me, a lot of teachers during jury selection, you heard how many of them had actually had kids come up and discuss with them that they were victims of child abuse." (Id. at pp. 703-704.)
The appellate court held that the prosecutor had committed misconduct, explaining: "[The prosecutors] questioning of teachers about molestations reported by students, occurred during voir dire, not the evidentiary portion of trial. Some of the jurors may not have been privy to it, depending on what panel was being questioned. Regardless, the prospective jurors answers were not `evidence as that term is defined by statute, such as could properly be argued against defendants." (Id. at p. 704, fn. omitted.) The prosecutors explicit and drawn out reliance on prospective juror responses during voir dire in People v. Pitts is simply not comparable to the brief mention here of an excused jurors name, with no discussion of what that juror said or its relevance to the present matter.
In short, it is highly unlikely that the complained of comments in this case convinced the jury that Norma must be telling the truth and that appellant was guilty simply because she told her friend about the molestation first. Accordingly, assuming that both of the prosecutors comments rose to the level of misconduct, they certainly were not so egregious as to have prejudiced appellant. (See People v. Hill, supra, 17 Cal.4th at p. 819.) The comments did not render the trial fundamentally unfair (ibid.); nor is there a "reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion" (People v. Berryman, supra, 6 Cal.4th at p. 1072).
For these same reasons, the court did not abuse its discretion when it denied appellants motions for a mistrial and a new trial.
II. Defense Counsels Attempt to Argue that No
Physical Evidence Supported Normas Claim
Appellant contends the trial court erred when it prohibited defense counsel from arguing to the jury that there was no physical evidence corroborating Normas claims.
A. Trial Court Background
During trial, Norma testified that, on June 19, 2006, she was taken to the hospital "[b]ecause they were going to check me in case I had something so they have proof that he did" molest her. Officer Xiong testified that a sexual assault examination was performed on Norma at the hospital.
During his closing argument, defense counsel argued that no videotape of appellant having sex with his wife, R., had been found. He then stated, "In fact, theres no physical evidence after these exams that the—" At that point, the prosecutor objected, stating, "Thats improper argument." The trial court sustained the objection. Defense counsel then returned to the subject of the videotapes, stating, "Theres no evidence that this supposed stash of secret videotapes existed . . . ."
B. Legal Analysis
Comments during closing argument on a partys failure to introduce certain evidence are generally permissible. (People v. Bradford (1997) 15 Cal.4th 1229, 1339; People v. Medina (1995) 11 Cal.4th 694, 755-756.) It is, however, improper argument for a party to refer to facts not in evidence. (Cf. People v. Bolton, supra, 23 Cal.3d at p. 212.)
Here, we agree with respondent that defense counsel appeared to be commenting on the failure of the examination results to provide physical evidence of molestation, rather than on the prosecutors failure to introduce the results at trial. Such a reference to facts not in evidence was improper. (See People v. Bolton, supra, 23 Cal.3d at p. 212.) While this may not have been his intention, counsels language indicated that he was engaging in improper argument, and he did nothing to clarify his intention or request an opportunity to restate his comment.
The record reflects that the trial court had previously been amenable to calling sidebar conferences at defense counsels request.
The trial court did not err in sustaining the prosecutors objection.
III. Admission of Normas Statements to Her Aunt Sylvia C.
Appellant contends the trial court erred when it admitted for the truth Normas hearsay statements to her aunt, Sylvia C., regarding the molestation, as testified to by both Sylvia C. and Officer Xiong.
A. Sylvia C.s Testimony
1. Trial Court Background
During the direct examination of Sylvia C., the prosecutor asked a number of questions about a conversation she and her husband, Francisco, had with Norma on June 19, 2006 while driving to appellants house:
"Q. Okay. How did it come about that she [Norma] started disclosing something to you?
"A. Well, we were going to the apartment and . . . the mom called my husband on his cell phone. He pulled over and started talking to her, and he hung up the phone and he turned around and looked at Norma and asked her that—he said, `Did Berto—we call him Berto—`Did he do something to you? And she just—she didnt say nothing. And he looked and said
"MR. MARSHALL [defense counsel]: Objection, Your Honor.
"THE WITNESS: —`Tell us the truth.
"MR. MARSHALL: Sixth Amendment.
"MS. ABRAMS [prosecutor]: This is a fresh complaint.
"THE COURT: It is a narrative.
"MS. ABRAMS: I can ask another question.
"THE COURT: Overruled to the hearsay, but sustained as to the narrative.
"MS. ABRAMS: Thats fine.
"Q. And so as you were in the car, after Francisco was on the phone, you said
"A. He had hung up and turned around to talk to Norma.
"Q. —you guys pulled over in the car?
"A. Mm-hm.
"Q. And then after he asked her if Berto—and thats what you refer to the defendant as, Berto?
"A. Berto.
"Q. —what did Norma do?
"A. She started crying. And I was looking at her and I told her, `Norma, say the truth and dont be afraid. Were here. Nothing is going to happen to you. Were here, you know, just let us know.
"And I asked her, `Did he do something to you? And she said, `Yes.
"I said, `Did he touch you?
"MR. MARSHALL: Objection. Narrative.
"THE COURT: Sustained.
"MS. ABRAMS: We can go question by question.
"Q. So you asked her if he touched her?
"A. Yes.
"Q. Okay. And what did she say?
"A. `Yes.
"Q. Did you ask her any more questions?
"A. `Where? And she pointed to her private area.
"Q. And do you know what the private areas word for that?
"A. Vagina.
"Q. Okay. And thats where she pointed?
"A. Yes. And I asked her—you know, I was in shock, and I asked her, `Did he touch you like on top of your underwear or under your underwear?
"And she goes, `Under, and she was crying.
"And I asked her again a different question. I asked her, `Did he put something inside your private area? And she said, `Yes.
"And then I go, `Did he put his thing inside you? And she said, `Yes. And she said, `He had sex with me.
"And I told her, `Do you know what that means? Do you know what youre saying? And she goes, `Yes.
"I go, `He put his private area inside yours? And she goes, `Yes. And she used the word dick. `He put his dick inside, and she pointed to her private area.
"Q. And so you said that she was crying?
"A. Yes.
"Q. Can you just describe what . . . her demeanor was the entire time she was talking to you and disclosing that to you?
"A. Crying."
2. Legal Analysis
Our Supreme Court articulated the "fresh complaint" doctrine in People v. Brown (1994) 8 Cal.4th 746, 749-750 (Brown): "[P]roof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victims disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of facts determination as to whether the offense occurred. Under . . . generally applicable evidentiary rules, the timing of a complaint (e.g., whether it was made promptly after the incident or, rather, at a later date) and the circumstances under which it was made (e.g., whether it was volunteered spontaneously or, instead, was made only in response to the inquiry of another person) are not necessarily determinative of the admissibility of evidence of the complaint. Thus, the `freshness of a complaint, and the `volunteered nature of the complaint, should not be viewed as essential prerequisites to the admissibility of such evidence."
Such testimony, however, must be "limited to the timing of [the victims] complaint and the circumstances under which it was made, omitting the content of the statements and specifically any description of the molestation itself." (Brown, supra, 8 Cal.4th at p. 764.)
We review the trial courts decision to admit evidence over a hearsay objection for an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 203.)
Here, we conclude that part of Sylvia C.s testimony, regarding the circumstances under which Norma disclosed the sexual abuse, was admissible under the fresh complaint doctrine—as the prosecutor asserted in response to defense counsels hearsay objection. The testimony in which Sylvia recounted the initial questions and answers between Norma and Sylvias husband, Francisco, and between Norma and herself were properly admitted, not for the truth, but as evidence of a fresh complaint. (See Brown, supra, 8 Cal.4th at pp. 749-750.)
Appellant does not argue that this portion of Sylvias testimony was not admissible under the fresh complaint doctrine. Rather, he argues that the courts failure to instruct the jury that the evidence was not being admitted for the truth rendered admission of this portion of the evidence error. We disagree. The court in Brown stated that a trial court has no duty, absent a request, to provide such a limiting instruction. (See Brown, supra, 8 Cal.4th at p. 757, citing People v. Clark (1987) 193 Cal.App.3d 178, 182-183.) There was no request for a limiting instruction in this case. Thus, appellant cannot now complain about the trial courts failure to instruct the jury that this evidence was not being admitted for the truth.
We also conclude, and respondent acknowledges, that Sylvias testimony regarding Normas responses to questions about the details of the abuse was not admissible as evidence of a fresh complaint. (See Brown, supra, 8 Cal.4th at p. 764.) Defense counsel, however, failed to object to that portion of Sylvias testimony on the ground of hearsay; he objected on that ground only as to Sylvias initial testimony regarding the interaction between her husband and Norma. Counsel did object later in Sylvias testimony, but did so while the prosecutor was still eliciting the fresh complaint testimony, and he objected solely on the ground of "narrative."
We disagree with appellants assertion that it would have been futile for counsel to object to the latter portion of Sylvias testimony regarding her interaction with Norma, and more particularly, her testimony regarding the details of the abuse. That portion of the testimony was distinct from the initial testimony in that it was no longer admissible under the fresh complaint doctrine. Hence, because we do not believe a hearsay objection would have been futile in these circumstances appellant has not preserved the issue on appeal. (See, e.g., People v. Seijas (2005) 36 Cal.4th 291, 301.)
Although we do not agree with respondent that the remainder of Sylvias testimony would have been admissible as a spontaneous statement (Evid.Code, § 1240), we find that, even if the issue had not been waived, appellant was not prejudiced by admission of this evidence. Sylvias testimony was cumulative of Normas testimony, which was much more detailed and which, as previously discussed, was quite credible and consistent. Accordingly, it is not reasonably probable that appellant would have obtained a more favorable result in the absence of this evidence. (See People v. Watson (1956) 46 Cal.2d 818, 835-836.) Nor did the evidence render appellants trial fundamentally unfair in violation of the federal Constitutions due process clause. (See Estelle v. McGuire (1991) 502 U.S. 62, 73.)
B. Officer Xiongs Testimony
1. Trial Court Background
During the direct examination of Officer Bee Xiong, Xiong testified that he took a statement from Sylvia C. Then, on cross-examination, defense counsel asked the following questions about what Sylvia C. had told him about Normas disclosure to her:
"Q. You talked to Ms. C[.] about what Norma R[.] had told her?
"A. Correct.
"Q. And do you recall that there was some conversation about having viewed a videotape at some point?
"A. Yes.
"Q. And what Ms. C[.] told you was that, first of all, she talked to [Norma], correct?
"Ms. C[.] told you she had talked with Norma R[.] in some detail, correct?
"A. Correct.
"Q. And one of the things that Ms. C[.] told you was that [Norma] said that there was an incident where she alleged that her uncle had played an adult movie in Norma R[.s] presence, correct?
"A. Correct.
"Q. And Ms. C[.] told you that Norma R[.] said no and walked away, correct?
"A. If I recall correctly, [appellant] asked [Norma] to watch the movie with him and she refused to and walked away.
"Q. That was what Ms. C[.] told you that Norma R[.] had told her?
"A. Correct."
Then, on redirect examination, the prosecutor asked Officer Xiong the following questions about what Sylvia C. had said Norma had told her while they were on the way to appellants apartment:
"Q. And [Sylvia told you] that she then started questioning her about whether her uncle had done anything to her; is that right?
"A. Yes.
"Q. And that Norma started crying, Sylvia C[.] told you that?
"A. Yes.
"Q. And then Sylvia C[.] told you she asked the victim, Norma, to tell her what happened?
"A. Yes.
"MR. MARSHALL: Objection, Your Honor. Hearsay; beyond the scope.
"MS. ABRAMS: Your Honor, he opened the door, and I think that I can get into the entire statement.
"MR. MARSHALL: Objection. Speaking objection. Ask to approach.
"THE COURT: Can you both please approach?"
After a sidebar conference, the prosecutor continued questioning Xiong:
"Q. So when you spoke to Sylvia C[.], she told you that Norma stated that [appellant] had been doing these things to her for about a year; is that right?
"A. Correct.
"Q. And she told you that Norma told her that [appellant] was giving her money to keep her mouth quiet?
"A. Yes. Did Ms. C[.] tell you that?
"Q. Yes.
"Q. Did Ms. C[.] tell you while she was at the police station, that Norma told her that [appellant] had touched her buttocks, her bottom?
"A. Yes.
"Q. And that he touched all parts of her body?
"A. Yes.
"Q. And did she tell you that Norma told her that he had sex with her?
"MR. MARSHALL: Objection, Your Honor. Leading.
"THE COURT: Sustained.
"MS. ABRAMS: Q. Well, can you tell us what else Sylvia C[.] told you on June 19th at the police department that Norma told her?
"A. She said that [appellant] had sexual intercourse with the minor or had sex with the minor.
"Q. Ms. C[.] told you that?
"A. Yes. [¶] . . . [¶]
"Q. Did Ms. C[.] make any statements to you that Norma had told her that [appellant] would ask her what to do if a boy wanted to have sex with her?
"A. Yes.
"Q. And did she tell you whether Norma said
"MR. MARSHALL: Objection, Your Honor.
"Can I approach? This is clearly beyond the scope.
"THE COURT: You can approach."
Following a sidebar conference, the prosecutor changed the subject of her questioning and asked Xiong no further questions regarding what Sylvia C. said Norma had told her.
2. Legal Analysis
Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
Our Supreme Court has explained that, " ` "[i]n applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry. `In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence. . . . [Citation.]" [Citation.] Further, the jury is entitled to know the context in which the statements on direct [or cross] examination were made. [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 334-335.)
In the present case, we have already concluded that the first layer of hearsay—what Norma said to Sylvia C.—was partly admissible as a fresh complaint and that, to the extent part of it was not admissible, appellant may not challenge the testimonys admission because he failed to object to that portion of the testimony during trial. As to the second layer of hearsay—Officer Xiongs testimony regarding what Sylvia told him—we conclude that the testimony was admissible pursuant to Evidence Code section 356.
During cross-examination, defense counsel questioned Xiong about the details of what Sylvia told him about what Norma had said about appellant showing her pornographic movies. On redirect examination, the prosecutor asked about additional details from the same conversation. Appellant objected on the grounds of hearsay and "beyond the scope." The prosecutor stated that defense counsel had "opened the door, and I think I can get into the entire statement." The trial court later explained its decision to allow the prosecutor to inquire into additional parts of the conversation, including that it had stopped the prosecutor when she eventually began asking about parts of the conversation to which Sylvia C. had not referred during her testimony. The court stated, "So I feel that there was adequate protections in that regard in terms of fairness having to provide each side the opportunity once the door was open to address that."
Because the testimony elicited by the prosecutor on redirect examination regarding additional parts of Xiongs conversation with Sylvia C. had "some bearing upon" Xiongs testimony about the same conversation on cross-examination, the jury was "entitled to know the context in which" statements on cross-examination were made. (People v. Harris, supra, 37 Cal.4th at p. 335.) There was no error.
IV. Admission of a Videotaped Police Interview with Norma
Appellant contends the trial court erred when it admitted into evidence most of a videotaped police interview with Norma.
A. Trial Court Background
On direct examination, the prosecutor asked Norma whether she had been interviewed at the Rainbow Center, and Norma responded in the affirmative. The prosecutor also asked Norma whether she told the officer the truth during the interview, and Norma responded in the affirmative.
On cross-examination, defense counsel asked Norma numerous questions regarding the content of her interview at the Rainbow Center, as shown in the following excerpts from Normas testimony on cross-examination:
"Q. Now, do you remember when you went into the Rainbow Center and you talked to the man there?
"A. Yes.
"Q. You told him that you didnt remember the first or second time that something happened; isnt that right?
"A. Yes.
"Q. How do you know that something happened if you cant remember that it happened? [¶] . . . [¶]
"A. Yeah, I just know that he did something to me. I just dont remember the dates he did it. [¶] . . . [¶]
"Q. Now, you said that after he showed you the videotape, he touched you, right?
"A. Mm-hm.
"Q. Do you remember when you were in the Rainbow Center telling the man there that
"A. Yeah, I told him.
"Q. Got a little bit more of the question. Please give me just a second to finish up.
"Do you remember at the Rainbow Center how you told them that after your Uncle Berto [appellant] showed you this videotape, that you just walked in your grandfathers room and nothing else happened?
"A. Yes. [¶] . . . [¶]
"Q. Now, didnt you tell the man at the Rainbow Center that the first time this happened, you were actually there with your cousins and your uncle took you out of the room when they were sitting there?
"A. Yes."
Subsequently, the prosecutor requested that the videotaped interview be admitted into evidence. Defense counsel objected, pursuant to Evidence Code section 352, that the interview was cumulative and there was a lack of foundation. Ultimately, the court admitted the videotaped interview into evidence, with limited redactions, because defense counsel had opened the door and raised an inference of prior inconsistent statements.
B. Legal Analysis
Evidence Code section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770."
Evidence Code section 770 provides that a witnesss inconsistent statement is admissible if "[t]he witness was so examined while testifying as to give him an opportunity to explain or deny the statement . . . ."
As previously discussed, under Evidence Code section 356, "`[w]here part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party . . . . " (See People v. Harris, supra, 37 Cal.4th at pp. 334-335 [" ` " `In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence " "]; see also pt. III., B. 2., ante.)
Here, we need not decide whether the videotaped interview was admissible to rebut the inference of a prior inconsistent statement raised during defense counsels cross-examination of Norma. That is because we conclude that, as with Officer Xiongs testimony regarding what Sylvia C. told him about Normas statements to her, the interview was admissible pursuant to Evidence Code section 356.
The prosecutors initial questions about the Rainbow Center interview did not raise the content of the interview in any way, while defense counsels cross-examination delved directly into what Norma had said during that interview. The entire videotaped interview thus had "some bearing upon" and "connection with" the testimony defense counsel elicited on cross-examination. (People v. Harris, supra, 37 Cal.4th at p. 335.) Defense counsel having opened the door during cross-examination, the jury was "entitled to know the context in which" that testimony on cross-examination was made. (Ibid.)
The court did not err in admitting the redacted videotaped interview into evidence.
V. Cumulative Effect of Errors
Appellant contends his conviction should be reversed due to cumulative error.
We have found that none of the alleged errors in this case were prejudicial. Nor do we find that the cumulative effect of any errors calls into doubt the jurys verdict or undermines the fairness of the trial in this case. (See People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
DISPOSITION
The judgment is affirmed.
We concur:
Haerle, J.
Lambden, J.