Opinion
C056328
7-9-2009
THE PEOPLE, Plaintiff and Respondent, v. BRENT JEFFERY LAMBERT, Defendant and Appellant.
Not to be Published
Defendant appeals his conviction on six counts of committing a lewd act on a child under 14 against two victims. He contends: (1) he was deprived of his right to a fair trial because videotapes of interviews of the victims during the investigation were shown to the jury; (2) he was deprived of a fair trial because the trial court excluded evidence of a victims prior complaint of molestation; (3) the prosecutor committed misconduct by disparaging a defense expert; (4) the trial court may have failed to disclose all relevant Child Protective Services records after in camera review; (5) cumulative errors require reversal; and (6) he was deprived of effective assistance of counsel because his attorney did not request a hearing to test the competency of the victims to testify.
We affirm.
PROCEDURE
Defendant was charged by information with six counts of lewd conduct against a child under 14. (Pen. Code, § 288, subd. (a).) Three counts alleged that defendant committed the crimes against B. (counts one through three), and three counts alleged that he committed the crimes against A. (counts four through six). The information also alleged that defendant committed the offense against two or more victims. (Pen. Code, § 667.61, subd. (e)(5).)
A jury convicted defendant on all counts and found true the allegation defendant committed the offense against two or more victims.
The trial court sentenced defendant to 15 years to life in state prison on each of the counts, all to be served consecutively.
FACTS
A. Report of Abuse
C. is the mother of A. and B. A. was eight years old at the time of the crimes in 2003 and 12 years old at the time of trial in 2007. B. was five years old at the time of the crimes and nine years old at the time of trial. C. also has two other children. C. met defendant when they were teenagers and dated for one year before she joined the military in 1991. She married another man, but in October 1996, after she had broken up with her husband, she moved in with defendant in another state.
In 1999, C. and defendant broke up for several months. During that time, C. and the children lived with a woman and a man whom the children called Grandpa Jim. On several occasions when Grandpa Jim was alone with the children, he took A. to his bedroom and molested her. A. was six years old when this was reported to the police. Around August 1999, C. and defendant reunited and lived together again.
In March 2002, defendant, C., and the children moved to the Sacramento area.
In March 2003, B. who was five years old at the time, approached C. and said, "Dont worry mommy, I know daddy and I are not having sex." C. asked her what she meant, and B. responded that she wasnt supposed to talk about it and didnt want A. to know that she had said anything. C. called A. into the room and asked her what B. meant by saying that she and defendant were not having sex. A. became upset at B. and yelled at her for telling their mother. A. told C. that, while C. was at work, defendant had been touching A. and B. sexually.
C. waited more than one week before going to the police on March 16, 2003, with the information she received from A. and B. In the meantime, she took money out of a joint account with defendant and put it into her own name so that she would be able to pay rent and bills in the event defendant were to flee. When C. finally went to the police, she lied about when the victims had told her about the abuse.
Deputy Michael Liston of the Sacramento County Sheriffs Department went to the home to investigate the abuse report. He interviewed A. and B. together in the kitchen to substantiate that a crime had occurred. The conversation lasted 10 or 15 minutes, during which the victims disclosed sexual abuse by defendant.
A. told Deputy Liston that defendant would place his penis between her legs and attempt to put it in her vagina and anus, both while she faced him and while her back was to him. He would spit on his hand for lubrication. She knew it was wrong but was afraid to say anything. B. would come into the room while A. and defendant were under the covers.
B. told Deputy Liston that defendant had touched her in her "crotch" area with his "dick." Deputy Liston clarified with B. that she was talking about her vaginal area and defendants penis.
A. and B. were interviewed separately at the Multidisciplinary Interview Center (MDIC) on April 2, 2003, 17 days after C. reported the abuse to the police.
B. A.s MDIC Interview
At the time of the interview, A. was eight years old and in second grade. The interviewer established that A. knew the difference between a lie and the truth.
The interviewer asked A. if anything had happened to her that was not "okay." A. responded that defendant "did a bad thing to me and my sister." A. explained that she knew something bad had happened to B. because B. had told her.
During the interview, A. said that what defendant had done to her occurred once in her bedroom and all of the other times in his room. Defendant molested her when she was five and six years old. Defendant stopped molesting her, then Grandpa Jim molested her and got arrested, then defendant started molesting her again. Defendant did not molest her during the time that Grandpa Jim was molesting her. Defendant also molested her when she was seven and eight years old.
A. described a game she would play with defendant and B., in defendants bedroom at night, called "cats." After playing the game, defendant would put his tongue and his penis in her vagina, while using his hands to spread her legs. He would also twist her breasts with his hands. His penis was stiff and he would move back and forth. He would also spit on his hand and wipe it on his penis. A. was too scared to try to get away. B. was in the room when this happened but did not see it happen because defendant and A. were under the covers. This happened while C. was at work. Defendant threatened A. that, if she ever told anyone, he would hurt her.
A. said that defendant put his penis in her vagina 17 times and his tongue in her vagina 5 times. He twisted her breasts 16 times. About 20 times, defendant put his penis in her anus. When asked whether anything else happened with defendant, A. replied that "[n]othing else different happened." Defendant never had A. do anything to his body.
A. said that, when she was five, she told C. about the molestation because her brother saw it happen and got upset. (Later in the interview, A. said that her brother saw Grandpa Jim, not defendant, molesting her.) C. got mad at defendant and had A. stay away from him for 60 days, but she did not call the police because, in A.s words, "it wasnt so bad the first time" and "he wasnt doing that to me very oftenly [sic]."
C. B.s MDIC Interview
At the time of the MDIC interview, B. was five years old and in kindergarten. The interviewer established that B. knew the difference between a lie and the truth, and B. promised to tell the truth.
When the interviewer asked B. whether anything had happened to her body that was not okay, she responded that defendant "did something to my sister and me, and that was gross." He did something to her two times, once in her bed and once in defendants bed, while C. was at work.
The time that it happened in defendants bedroom, he put his penis in B.s vagina. His penis was hard, and he was not moving. He stopped because he had to go to the bathroom. A. was not in the room at the time.
In B.s bedroom, she was lying on her bed on her stomach. Defendant put his penis in her anus. His penis was hard, and he was not moving. Although B. said that something had happened only twice, she said that defendant put his penis in her anus on another occasion also.
B. saw defendant molest A.
D. The Prosecutors Interviews of A. and B.
The prosecutor interviewed A. and B. on May 25, 2007, which was shortly before trial and more than four years after the MDIC interviews. An investigator from the District Attorneys office observed the interview and took notes. The investigator testified concerning the interview.
A. stated that most of defendants acts took place in the living room during the daytime. He put A. on his lap and put his penis in her anus and his fingers in her vagina. A. and B. played a game called "cats" with defendant. B. was the wild cat, and A. was the house cat. Defendant was the father cat. He had A. and B. purr while he touched them sexually. Defendant put his penis in A.s mouth, his penis in her vagina, and his mouth on her vagina and chest. He also hit her in the face with his penis. She said that it happened several times during each week and more than once during some days. She also saw defendant molest B. three times. He made B. watch and purr while he molested A.
B. stated that defendant molested her three times, all in defendants bedroom. They played "cats," during which they all were on the bed. They rubbed up against defendant and purred and cuddled with him. He threatened her that, if she told anyone, he would kill the entire family.
E. A.s Trial Testimony
A. testified that she was 12 years old and in sixth grade at the time of trial. She demonstrated her knowledge of the difference between truth and lies.
Grandpa Jim molested A. while she lived in another state. One time, her brother saw this happening through the window. They told C. what was happening.
Defendant molested A. while she lived in California. (She moved from the state after defendant was arrested.) She did not remember how old she was or what grade she was in when defendant molested her. The molestation took place in the living room or in defendants bedroom.
In the living room, he would sit on a chair with his pants down and a blanket over him. He would tell A. to sit on his lap and, when she did, he would put his penis in her anus. He did this frequently.
In defendants bedroom, defendant would put his penis in A.s vagina and anus and he would touch her chest. He would also put his tongue in her vagina. He made her put her mouth on his penis. Defendant played "cats" with A. and B. He would have them crawl around on the bed and purr, then he would molest A.
A. saw defendant put his penis in B.s vagina once when he was putting her to bed. B. screamed, and defendant told her to shut up and left. Another time, in defendants room, A. saw defendant put his penis in B.s vagina and anus after he had done the same thing to A. After he finished with B, he returned to A. and put his penis in her vagina.
A. did not remember talking to the police after C. reported the molestation. She also did not remember the MDIC interview and could not answer questions concerning that interview.
A. felt that defendant was nicer to B. than to her. She was "quite happy for him to move out of the house."
F. B.s Trial Testimony
B. testified that she was nine years old (within a month of being 10) at the time of trial. She demonstrated her knowledge of the difference between truth and lies.
B. said that defendant sexually abused her three times. The first incident occurred in defendants bedroom. Defendant put his penis in B.s vagina and moved up, down, and sideways. The second incident also happened in defendants bedroom. He put his penis in B.s anus, while she was lying face down on the bed. A. saw this happen.
The third and last incident also occurred in defendants bedroom. On this occasion, defendant put his penis in B.s vagina. Defendant made B. stand next to the wall while he then put his penis in A.s vagina and anus. Finally, he put B. back on the bed and he put his penis in her anus. He told A. and B. that, if they told anyone, he would kill them.
B. remembered her MDIC interview. She acknowledged some discrepancies between her MDIC interview and her trial testimony and stated that "I was littler, and I didnt really know better if I should tell the truth, or just lie." Later, she said that the discrepancies were mistakes, not lies. She had wanted the MDIC interview to end and gave answers to move away from the topics that embarrassed her.
G. Forensic Evidence
An expert in evaluating children physically for signs of sexual abuse examined and took photographs of the vaginal areas of A. and B. on March 19, 2003, three days after C. reported the abuse to police. The expert testified that a young girls hymen may show signs if there has been sexual abuse but that it may also heal quickly after abuse and return to normal, typically within 10 to 12 days.
On the date of the examination, A.s hymen was normal.
When B. was examined, however, the expert detected evidence of healed hymenal trauma, which supported a concern that B. had been sexually abused. The expert concluded that the evidence was consistent with B.s report that her vagina had been penetrated by a penis.
H. Defense Case
The defense case consisted, mainly, of three types of evidence: (1) forensic evidence, (2) evidence concerning suggestive interviewing, and (3) character evidence.
1. Forensic Evidence
The defense presented two experts on child sexual assault examinations who viewed the photographs of the examination of B. Both of them believed that the expert who conducted the examination of B. was mistaken in finding evidence of sexual abuse. One of the experts considered B.s hymen, as seen in the photographs, to be normal. The other considered B.s hymen to be unremarkable, consistent with a history of abuse as well as a history of no abuse.
2. Evidence of Suggestive Interviewing
The defense presented the testimony of Dr. William ODonohue, a psychologist, concerning the evaluation of interviews with and testimony of child sexual abuse victims. He testified that sometimes children lie about being sexually abused or they may mistakenly believe that they have been sexually abused when they have not been. They can form false memories when improper interviewing and other techniques are used.
Dr. ODonohue criticized the MDIC interviews of A. and B. He opined that the meaning of truth was not sufficiently discussed in the victims interviews. There were some instances of improper repetitive questions and disconfirmation (leading the child to believe another answer was desired).
In evaluating the interviews, Dr. ODonohue found there were inconsistencies in some of the core details, rather than just peripheral details. He described some of the core details that were inconsistent in the victims statements concerning defendants actions. He also determined that A.s recollection of defendants actions may have been contaminated by her abuse by another person.
However, Dr. ODonohue stated that children as young as five years old can accurately report what happened to them.
In summary, Dr. ODonohue had concerns about the manner in which the MDIC interviews were conducted but believed that, in all, they were not bad.
3. Character Evidence
Defendant had several witnesses testify, generally, concerning his good character. These included his fiancée, his stepmother, his ex-wife, his mother, a friend who is a corrections officer, and the wife of the corrections officer.
DISCUSSION
I
Admissibility of Interview Videotapes
Videotapes of B.s and A.s full interviews at the MDIC were admitted. Defendant contends that their admission deprived him of his right to a fair trial because the hearsay statements contained in the videotapes were unreliable. Defendant forfeited this constitutional argument because he did not object based on the fair trial ground, or any other constitutional doctrine, in the trial court. Even assuming the constitutional argument is not forfeited, defendant also forfeited the reliability argument because he did not make a timely and specific objection based on reliability. Finally, the argument that the statements were so unreliable as to be inadmissible is without merit.
A. Procedural Background
The prosecution did not use the videotapes of the victims MDIC interviews during its case-in-chief. During the defense case-in-chief, defendant showed several excerpts of the videotapes during his questioning of the victims to impeach them with inconsistencies between their MDIC interviews and their trial testimony.
After defendant had shown parts of the MDIC interviews, the prosecution moved to show the entire interviews to the jury, citing Evidence Code section 356, which allows a party to introduce an entire writing or conversation when the opposing party has introduced part of it. Defendants attorney stated that he did not think it was necessary to have the jury hear the preliminary part in which the victims identified themselves and discussed the importance of telling the truth because it was beyond the scope of defense questioning. However, defendants attorney said that the victims allegations would "possibly all come in." With that, counsel submitted the question of the admissibility of the videotapes to the court. The trial court ruled that the videotapes were admissible in full.
Evidence Code section 356 states: "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."
On the next day of trial, the prosecution played the videotapes for the jury. After the videotapes were played, defendants attorney objected to the admission of the videotapes pursuant to Evidence Code section 1360. He said: "I dont believe that they would probably be admitted under [Evidence Code section 1360], and I think the basis for the District Attorneys argument and courts ruling being under the prior consistent and inconsistent statements, and rule of completeness, but I certainly dont concede that these would be admissible under 1360." Defendants attorney did not say why he believed the videotapes were not admissible pursuant to Evidence Code section 1360.
After some further discussion, the trial court said, referring to the substance of Evidence Code section 1360: "I am prepared to find that the timing of the tapes, and the content of the tapes, and circumstances of taking these statements is sufficient indicia for reliability, not for the court to vouch for them by any means, but sufficiently reliable for them to be introduced into evidence." The court added that the victims were still subject to recall, even though they had already testified. That ended discussion of the matter.
Defendant concedes that he forfeited the issue of whether the trial court should have held a hearing on admissibility of the MDIC interview videotapes.
B. Analysis
1. Forfeiture of Constitutional Argument
Defendant forfeited his argument that the admission of the videotapes violated his fair trial rights because he did not object to the admission of the videotapes on that ground in the trial court. (People v. Benson (1990) 52 Cal.3d 754, 788.) "[T]he rule that a challenge to the admission of evidence is not preserved for appeal unless a specific and timely objection was made below stems from long-standing statutory and common law principles." (People v. Anderson (2001) 25 Cal.4th 543, 586.) In any event, the contention is without merit.
2. Forfeiture of Reliability Argument
Defendant argues that the videotaped interviews were unreliable under the criteria used for determining admissibility pursuant to Evidence Code section 1360. That section allows admission of hearsay statements made by the victim when the victim was under the age of 12 if certain conditions are met. One of those conditions is that "the time, content, and circumstances of the statement provide sufficient indicia of reliability." (Evid. Code, § 1360, subd. (a)(2).) The determination of whether there is sufficient indicia of reliability is made after a hearing outside the presence of the jury. However, no such hearing need be held or determination of reliability made if the defendant does not interpose a timely and specific objection. (Evid. Code, § 353.)
Evidence Code section 1360 states:
"(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse . . . is not made inadmissible by the hearsay rule if all of the following apply:
"(1) The statement is not otherwise admissible by statute or court rule.
"(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.
"(3) The child either:
"(A) Testifies at the proceedings.
"(B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.
"(b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement. . . ."
Defendant failed to preserve an objection based on the reliability of the victims MDIC statements. The jury was shown the MDIC interviews via videotape before defendants attorney raised the issue of whether they were admissible pursuant to Evidence Code section 1360. Thus, even if the belated statement that counsel did not concede the Evidence Code section 1360 issue could be perceived as an objection, it was untimely, resulting in forfeiture of the issue for appellate purposes. (Evid. Code, § 353.)
Defendant was the original proponent of at least some of the statements from the victims MDIC interview. As far as reliability is concerned, defendant makes no effort to distinguish between the statements from the MDIC interviews that he used to impeach the victims and the statements later admitted to give the entire interviews to the jury.
3. Merits of Reliability Argument
Defendant bases his constitutional fair trial argument on the Fourteenth Amendment requirement that "victims hearsay statements possess sufficient indicia of reliability to satisfy due process." (People v. Otto (2001) 26 Cal.4th 200, 211.) Based on this constitutional dimension of his argument, he asserts that error requires reversal unless the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].) As we discuss below, we need not consider prejudice because there was no error. The evidence was sufficiently reliable to be admissible.
Defendants citation of People v. Otto for the proposition that victims hearsay statements must be sufficiently reliable to satisfy due process is problematic. That case involved a civil proceeding to commit a sexually violent predator. The court determined that multiple-level hearsay of the victim was admissible, even though the victim did not testify. (People v. Otto, supra, 26 Cal.4th at pp. 209-215.) Even assuming, however, that the reliability of a victims testimony implicates due process in a criminal proceeding in which the victim testifies, defendants argument that he was denied a fair trial is without merit.
Even assuming defendant preserved an objection based on reliability, his contention that the statements of the victims were not sufficiently reliable to be admitted is without merit. It is doubtful that Evidence Code section 1360 should be applied in this instance because defendant introduced parts of the interviews which then became admissible in full pursuant to Evidence Code section 356. Nevertheless, the reliability argument would not have prevailed, even if it had been raised in a timely and pertinent manner.
To be admissible, hearsay evidence must exhibit sufficient indicia of reliability. (Idaho v. Wright (1990) 497 U.S. 805, 814-815 [111 L.Ed.2d 638, 651-652].) "In Idaho v. Wright, supra, 497 U.S. at pages 821-822, the court identified a number of nonexclusive factors that are relevant to the determination of whether child hearsay statements possess the requisite indicia of reliability: (1) spontaneity and consistent repetition of the statement(s); (2) the declarants mental state; (3) the declarants use of terminology unexpected of a child of similar age; and (4) the lack of a motive to fabricate. (Ibid.) Courts have `considerable leeway in their consideration of appropriate factors. (Id. at p. 822.) The `unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made. (Ibid.) We independently review a trial courts determination that the statements bore sufficient indicia of reliability. [Citations.]" (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1374.)
Defendant asserts that the evidence did not support a finding of reliability because the statements of B. and A. were not spontaneous and consistent, referring to the first factor noted by the United States Supreme Court in Idaho v. Wright. With this argument, defendant implicitly concedes that the other factors favored a finding of reliability, namely the mental state of B. and A., their use of terminology unexpected of a child of similar age, and the lack of motive to fabricate.
While it is true that some of the statements of B. and A. were inconsistent, especially when viewed between the MDIC interviews, which took place in April 2003, and the trial in June 2007, more than four years later. That is unremarkable given the tender age of the victims and the intervening period.
Citing lack of spontaneity, defendant asserts that, at trial, B. acknowledged that she either lied or was mistaken in parts of her MDIC interview. We disagree that this shows lack of spontaneity. To the contrary, it appears to be the childs honest attempt to tell the truth during her trial testimony and account for differences in her MDIC interview.
Defendant cites A.s inability to recall the MDIC interview and her failure to report defendants abuse in some of her counseling as reasons to find that her statements at the MDIC interview lacked consistency and spontaneity. We fail to see anything more than a slight relevance of these circumstances to the reliability of A.s statements during the MDIC interview.
The trial court found that the "timing of the tapes, and the content of the tapes, and circumstances of taking these statements" supported a finding of reliability. We agree. The MDIC interviews were much closer in time to the abuse than was the trial. The victims appeared to have no motive to fabricate and exhibited their ability to know truth from lies. Accordingly, the totality of the circumstances supported the trial courts finding that the statements made by B. and A. in their MDIC interviews were sufficiently reliable.
Since (1) defendants argument that admission of the MDIC interview videotapes violated his constitutional fair trial rights is based on the reliability of the hearsay statements in the videotapes and (2) the statements were sufficiently reliable to be admissible, defendants constitutional argument is without merit, in addition to being forfeited.
II
Exclusion of Prior Complaint
Defendant sought to introduce evidence that A. had made a prior false complaint that she had been molested. When A. was three years old, she said that defendant had molested her, and then she changed her story, saying that her brother had molested her. The trial court excluded the evidence pursuant to Evidence Code section 352. Defendant asserts that the exclusion of the evidence violated his constitutional fair trial rights. We conclude that (1) defendant forfeited the issue of a violation of his fair trial rights because he did not make that constitutional argument in the trial court and (2) the trial court did not abuse its discretion pursuant to Evidence Code section 352 and, therefore, did not violate defendants fair trial rights.
A. Background
During trial, defendants attorney sought permission from the court to introduce evidence concerning a false report of molestation by A. He wanted to ask C. whether A. had accused defendant of "lick[ing] [her] peepee." C. took A. to the hospital and, there, she told C., "actually [defendant] didnt lick my peepee, [my brother] did it, but [she] didnt want to get [him] in trouble." Defendants attorney expected that C. would testify that A. said defendant had molested her to protect her brother. At the time of the complaint, A. was three years old and her brother was four years old. No action was taken on the complaint because it was considered false. The trial court asked defendants attorney how he knew it was a false report, and the attorney responded, "Because when she says [defendant] didnt do it, she is saying that its a false report."
Acting pursuant to Evidence Code section 352, the trial court excluded the evidence, stating: "I am going to find that the prejudicial value — I think the prejudicial effect of allowing this is immense in terms of confusion as particularly illustrated by the discussion we just had. [¶] There is — there is not an indication that this is a false report. If she is saying [defendant] licked my pee pee, and she is referring to [defendant], we dont know if thats false or not. [¶] . . . [¶] [A]t any rate, the consumption of time it would take with the jury would be considerable. [¶] In turn, considering the probative value there is certainly enough ambiguity in what the witness has stated both here in court and also when confronted with prior statements that I think that adds very little additional probative value especially in light of not understanding whether it is a false report or a true report. [¶] . . . [¶] So it appears to me the prejudicial effect far outweighs any probative value."
B. Analysis
1. Forfeiture
Defendant failed to raise his current constitutional argument, that exclusion of the alleged prior false complaint evidence violated his constitutional fair trial rights. He therefore forfeited review of the issue on appeal.
2. Merits
Even assuming defendant did not forfeit review of this issue on appeal, it is without merit.
"Evidence Code [s]ection 352 provides: `The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. `[A] trial courts exercise of discretion under Evidence Code section 352 will not be reversed on appeal absent a clear showing of abuse. [Citations.] It is also established that "`Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and his right to present all relevant evidence of significant probative value to his defense." [Citations.] This does not mean that an unlimited inquiry may be made into collateral matters; the proffered evidence must have more than "slight-relevancy" to the issues presented. [Citation.] . . . [Citation.] The proffered evidence must be of some competent, substantial and significant value. [Citations.] (People v. Northrop (1982) 132 Cal.App.3d 1027, 1042, italics omitted, disapproved on other grounds in People v. Smith (1984) 35 Cal.3d 798, 807-808.) A trial courts exercise of discretion under section 352 `will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.] (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)" (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457.)
As we stated in People v. Tidwell, Evidence Code section 782, which applies to prior sexual activity of a victim, does not apply to circumstances in which there was a prior false complaint of rape or molestation. (163 Cal.App.4th at p. 1456.) We therefore need not discuss that section.
A false complaint of molestation is relevant to the victims credibility. However, the prior complaint is not relevant unless it is proved to be false. (People v. Tidwell, supra, 163 Cal.App.4th at p. 1457.)
Here, the trial court did not abuse its discretion. It is not readily apparent which version of A.s complaint she made when she was three years old (whether she was touched by defendant or by her brother) was the true version, if either was true. Trying to establish whether it was false that defendant had molested A. and true that her brother touched her would have been confusing to the jury and tangential to the issues being tried. The evidence may have been relevant to A.s credibility if the jury were to conclude that the complaint about defendant was false; however, what A. said when she was three had little relevance to her credibility when she was eight (at the time of the crimes) or 12 (at the time of trial). The evidence relating to credibility was weak and potentially confusing. Under these circumstances, the trial court did not abuse its discretion in excluding the evidence pursuant to Evidence Code section 352.
"Application of the ordinary rules of evidence generally does not impermissibly infringe on a [] defendants constitutional rights." (People v. Kraft (2000) 23 Cal.4th 978, 1035.) Therefore, defendants constitutional argument is without merit.
III
Alleged Prosecutorial Misconduct
Defendant contends that the prosecutors comments during closing argument concerning the testimony of defense expert Dr. William ODonohue, who testified about interviews of young victims, constituted prosecutorial misconduct. We conclude that defendant forfeited this issue because he failed to object to the prosecutors comments. In any event, to the extent the comments were improper, they were not prejudicial.
A. Background
Dr. ODonohue has testified many times in criminal proceedings, about 90 percent of which has been for the defense. He is paid $400 per hour for his services and $200 per hour for travel. He is not retained unless he determines that there is a problem with the interviewing done on the victim.
During closing argument, the prosecutor commented on Dr. ODonohues testimony. The prosecutor calculated, based on Dr. ODonohues rate and the number of hours he spent on this case, that he had earned $6,400. The prosecutor stated: "And for that price, you get a lot of false memories." Later in the closing argument, the prosecutor returned to the topic of Dr. ODonohues alleged bias:
"Doctor ODonohue. I am not going to get up here and say Doctor ODonohue is a boldface liar, and that he doesnt have any place in the criminal justice system, he should just never ever, ever see the face of a courtroom again. Thats not what I am here to say. [¶] But when you apply the law, and you apply the law to the opinions of Doctor ODonohue, and you apply the expert witness law, and the law in regards to how you look at any witnesss testimony, bias, interest, or motive, some things are readily apparent. [¶] If Doctor ODonohue got up here and said, I am sorry, [defense counsel], thats a perfect MDIC interview, and these children, no matter how inconsistent, its perfect. [¶] Would he make $400 an hour and $6400 a case if he continued to tell defense attorneys what they didnt want to hear? Come on, folks.
"Is he going to get up here and lie, no. But is he motivated by desire to generate income. Is he motivated by a desire to be retained again by defense attorneys. Yes. [¶] But, you know, Doctor ODonohue says these kids are lying, and they are just — they are telling people what they want to hear, you know. [¶] They just know that these adults want to hear these horrific things, so thats just what they are telling them. I mean, Doctor ODonohue says, look, these are horrible things, and children want to say these things because they are horrible, they want to get this stuff off their chest, you know. [¶] And thats why when you see the inconsistencies, I mean, you could tell they are lying."
Defendant did not object to any of the prosecutors comments concerning Dr. ODonohue.
B. Analysis
1. Forfeiture
"`[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 952.)
Here, defendant did not object to the statements that he now asserts constituted prosecutorial misconduct. He has therefore forfeited review of the issue on appeal.
Nonetheless, defendant asserts that we should consider the issue because (1) an objection, and resulting admonition, would not have cured the unfairness and (2) the comments infected the trial with unfairness. Neither assertion has merit.
The only potential problem with the prosecutors argument is that the defense bought Dr. ODonohues conclusion that there had been problems with the interviews ("And for that price, you get a lot of false memories"). If the comment constituted misconduct, a timely objection would have prompted the trial court to admonish the jury to disregard that statement and to remember that argument does not constitute evidence.
Additionally, the comment did not infect the trial with unfairness to the extent that defendant was denied a fair trial. (See Darden v. Wainwright (1986) 477 U.S. 168, 181 [91 L.Ed.2d 144, 157] [reversal if comments so infected trial as to deny due process]; People v. Farnam (2002) 28 Cal.4th 107, 167.) The prosecutors comments on Dr. ODonohues possible bias occasioned by his profit motive were appropriate observations. "It is within the bounds of proper argument to attack the credibility of defense expert witnesses, and the weight to be given their testimony, based on the witnesses compensation and the fact of their employment." (People v. Babbitt (1988) 45 Cal.3d 660, 702.) To the extent the prosecutor may have gone beyond proper argument to insinuate that Dr. ODonohues conclusions were for sale was but a small jump from the proper argument concerning his bias. Accordingly, defendants argument that the comments infected the trial with unfairness is without merit and did not excuse the failure to object.
2. Merits
Even assuming defendant did not forfeit his prosecutorial misconduct argument by failing to object in the trial court, we conclude that the prosecutors comments do not require reversal.
"Under California law, a prosecutor commits reversible misconduct if he or she makes use of `deceptive or reprehensible methods when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. (People v. Strickland (1974) 11 Cal.3d 946, 955.)" (People v. Riggs (2008) 44 Cal.4th 248, 298.)
We need not consider whether the prosecutors comments were deceptive or reprehensible because, as we noted above with respect to the due process argument, the comments were not prejudicial. In other words, it is not reasonably probable that defendant would have achieved a more favorable outcome absent the comments. The prosecutor was entitled to comment on, and the jury to consider, Dr. ODonohues possible bias as a result of his pecuniary interest in finding problems with the MDIC interviews. Therefore, the additional insinuation that the conclusion was bought by the defense is not likely to have caused the jury to discount Dr. ODonohues testimony by itself. Furthermore, although there were inconsistencies in the specifics of the victims testimony, they were consistent in their allegations that defendant had abused them.
Accordingly, because there was no prejudice, the prosecutors comment does not require reversal for prosecutorial misconduct.
IV
In Camera Review of Sealed Records
Records of the Child Protective Services (CPS) were filed under seal with the trial court. After an in camera review, the trial court released some of the records to the defense because they were deemed relevant to these proceedings. (Welf. & Inst. Code, § 827.) On appeal, defendant requests that this court review the sealed CPS records that were not released to defense counsel to, in defendants words, "determine whether the material not provided was properly withheld and whether any prejudice to [defendant] ensued therefrom."
We have reviewed the unreleased CPS records that were filed in the trial court and find nothing in them that was improperly withheld. We therefore need not consider the matter of prejudice to defendant.
V
Alleged Cumulative Error
Having found that the issues defendant raises on appeal were either forfeited or do not constitute reversible error, we also conclude that there was no cumulative error requiring reversal. (See People v. Hill (1998) 17 Cal.4th 800, 844 [cumulative effect of errors and misconduct may deprive defendant of fair trial].) Even considering the entire trial and the asserted errors and misconduct together, we conclude that defendant was not denied a fair trial.
VI
Effective Assistance of Counsel
In a supplemental brief, defendant contends that he was denied effective assistance of counsel because his trial attorney failed to request a hearing to test the competency of the victims to testify. The contention is without merit because the victims were competent to testify.
"`A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) "Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance." (People v. Wharton (1991) 53 Cal.3d 522, 575, quoting People v. Ledesma (1987) 43 Cal.3d 171, 215, italics in original.) It is defendants burden to demonstrate the inadequacy of trial counsel. (People v. Pope (1979) 23 Cal.3d 412, 425 (Pope).) We have summarized defendants burden as follows: `"In order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was `deficient because his `representation fell below an objective standard of reasonableness . . . under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 687-688] [(Strickland)]; Pope, supra, 23 Cal.3d at pp. 423-425.) Second, he must also show prejudice flowing from counsels performance or lack thereof. (Strickland, supra, 466 U.S. at pp. 691-692 [80 L.Ed.2d at pp. 695-696].) Prejudice is shown when there is a `reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (In re Harris (1993) 5 Cal.4th 813, 832-833.)" (People v. Lucas (1995) 12 Cal.4th 415, 436, italics in original.)
Here, we need not engage in a prejudice analysis because defendant fails to establish that the representation fell below an objective standard of reasonableness. Trial counsels failure to request a hearing to test the competency of the victims to testify was reasonable because the victims (A. and B.) were competent to testify.
"A person is disqualified to be a witness if he or she is `[i]ncapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him (Evid. Code, § 701, subd. (a)(1)) or `[i]ncapable of understanding the duty of a witness to tell the truth (Evid. Code, § 701, subd. (a)(2)). `"[T]he burden of proof is on the party who objects to the proffered witness, and a trial courts determination will be upheld in the absence of a clear abuse of discretion. [Citations.]" [Citations.] The challenging party must establish a witnesss incompetency by a preponderance of the evidence. [Citations.] Unlike a witnesss personal knowledge, a witnesss competency to testify is determined exclusively by the court. [Citations.] [Citations.]" (People v. Avila (2006) 38 Cal.4th 491, 589.)
Defendant asserts that, because the record raises a doubt as to the victims "capacity to recollect events and recount them truthfully, there was a reasonable probability that a hearing outside the presence of the jury to determine the admissibility of evidence from the girls would have resulted in its exclusion." To the contrary, the record does not support the conclusion that the trial court may have excluded the testimony if defendants attorney had requested a hearing.
A. and B. were 12 and nine years old, respectively, at the time of trial, not of such a tender age that responding to questioning truthfully would be beyond their capacity. (See People v. Bronson (1968) 263 Cal.App.2d 831, 838 [finding no error in allowing nine- and 12-year-old to testify].) At the beginning of the testimony of each victim, the prosecutor satisfied the court, through questioning of the victim, that the victim knew the difference between truth and lies and would tell the truth. While there were some inconsistencies in the testimony of the victims when compared to other interviews, inconsistencies do not require exclusion of the evidence. (People v. Avila, supra, 38 Cal.4th at pp. 589-590.) Each of the victims was subject to cross-examination, during which defendants attorney used inconsistencies to impeach the victims statements. These witnesses were competent to testify.
Because a hearing would not have resulted in the exclusion of the victims testimony, the performance of defendants attorney was not deficient for not requesting a hearing outside the presence of the jury. Defendants contention that he was deprived of effective assistance of counsel is without merit.
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P. J.
CANTIL-SAKAUYE, J.