Opinion
D068126
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID DANIEL LERMA, Defendant and Appellant.
Dacia A. Burz, 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, Peter Quon, Jr., and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed on February 23, 2017, be modified as follows:
1. On page 8, delete the first and second sentences beginning with "At the forensic . . . " and ending with "out of his pants" and replace with:
At Lerma's second townhome, Lerma threw A. on to the bed and took his penis out of his pants.
2. On page 12, line 5, delete the paragraph that begins with "At trial . . . " and replace with the following:
At trial, on direct examination, the prosecutor asked A. to describe each incident of abuse. Although on direct A. testified to instances of abuse, she did not mention any attempt by Lerma to penetrate her with his penis. When the prosecutor asked again if anything happened on the day of her Legoland trip, she responded, "I don't remember. I don't think so."
3. On pages 16-21, delete text from page 16 "C. Analysis" to page 20, line 9 ending with the words "at trial" and insert the following:
C. Analysis
A.'s statements in the forensic interview about appellant's attempt to put his penis in her vagina two or three times were inconsistent with her trial testimony. As we have seen, in the forensic interview she stated that on one of the days she visited Lerma at his second townhome, he tried to insert his penis in her vagina two or three times. However, at trial on direct examination, although the prosecutor asked her about each incident of abuse, she did not describe any incident in which Lerma attempted to penetrate her with his penis. Although A. recalled going to Legoland with Lerma, she stated that nothing else happened that day or nothing that she remembered. On cross-examination, she was more direct in agreeing that nothing happened on the day she went to Legoland.
After being impeached with her preliminary hearing testimony by both Lerma's counsel and the prosecutor, A. recalled on redirect that an incident occurred in which Lerma had attempted to penetrate her with his penis. She stated she was unable to remember when it occurred, but she was fairly definite that an incident in which Lerma attempted to penetrate her did occur. When asked how many times he tried to penetrate her, A. was also fairly definite that it had occurred only once.
Thus at trial, the overall effect of A.'s testimony was that Lerma tried to penetrate her once, and she could not remember whether it was on the day she went to Legoland or on some other day and offered few details about the incident. This was of course inconsistent not only with A.'s recollection of Lerma's two or three attempts to penetrate her with his penis, but also with the resistance and struggle she described in the forensic interview. The incident A. was eventually able to recall at trial was markedly different from the encounter she described in the forensic interview.
The record also fully supports the trial court's determination the probative value of the forensic interview outweighed its cumulative nature and any other prejudicial impact it may have had. Under Evidence Code section 352, a trial court has broad discretion to assess whether the probative
value of particular evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) The court's exercise of that discretion " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice. [Citations.]' " (Id. at pp. 1124-1125.) "[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
The record shows that at the time the forensic interview took place, A. had just completed the 8th grade; trial was 18 months later, after A. completed another full year of school. As the trial court pointed out, while for adults this is not a great span of time, in the life of a rapidly maturing adolescent, a full school year and half of another school year are a considerable amount of time in which attitudes and memories may change. Thus, the trial court did not err in finding that it was of value to the jury to see the younger version of A. setting forth her then fresher recollection of Lerma's abuse.
While the inconsistency between the forensic interview and A.'s trial testimony met the requirements of Evidence Code section 1235, the forensic interview was of course in important respects consistent with A.'s preliminary hearing testimony. The consistency between the forensic interview and the preliminary hearing testimony was of probative value in evaluating A.'s overall credibility and resolving the conflicts in her varying accounts of the attempted penile penetration.
In sum then, the trial court did not err in admitting the videotape of the forensic interview.
II
Although we find no error in admission of the forensic interview videotape, even had the trial court abused its discretion, admission of the interview would not require reversal. The erroneous admission of evidence is governed by the familiar standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See People v. Champion (1995) 9 Cal.4th 879, 919.) Under Watson, we may not reverse a judgment unless we are convinced that it is more probable than not the appellant would have achieved a more favorable outcome in the absence of the trial court's error. (Watson, at p. 836.)
In evaluating the prejudicial impact of the forensic
interview, we are guided by the court's disposition of a somewhat similar problem in People v. Arias (1996) 13 Cal.4th 92, 152-153 (Arias). In Arias, the defendant's mother was interviewed by a homicide detective prior to trial and relayed to the detective a conversation in which the defendant admitted participation in a burglary and murder. At trial, the mother was somewhat evasive and initially testified she did not remember her son's admissions. However, eventually at trial she did confirm that the defendant did tell her about his involvement in the burglary and murder. Because of the essential similarity between her earlier statements to the detective and her trial testimony, the court found that for the most part the mother's prior statements were not inconsistent and should not have been admitted. (Id. at p. 153.) However, the court found the very similarity which made the out-of-court statements inadmissible, also made them harmless: "[I]n great measure, [the mother's] trial testimony was not materially inconsistent with her prior statements. To that extent, admission of the prior statements for their truth under Evidence Code section 1235 was erroneous. [Citation.] But by the same token, the error was harmless. Insofar as [the detective's] testimony did not materially differ from [the mother's], and thus should not have been admitted, it was merely cumulative. Hence, it is not reasonably probable that such erroneous admission affected the verdict." (Ibid.)
Here, fundamentally, Lerma faces the same problem in attempting to show that the forensic interview was prejudicial. To the extent that the forensic interview was consistent with A.'s trial testimony and inadmissible, it was cumulative of her trial testimony and, as in Arias, not prejudicial. In addition, of course, here, the forensic statement was not only cumulative of A.'s trial testimony, the substance of her statement had also had been presented to the jury by Lerma by way of impeachment with A.'s preliminary hearing testimony. Moreover, the incident was not greatly different in character from the oral copulation and other lewd acts A. described at trial and, thus, not likely to further alienate jurors.
Importantly, there also was substantial corroboration of A.'s other testimony in the admissions Lerma made to the polygraph examiner. In sum then, had the videotape been excluded, it is not probable Lerma would have achieved a better result at trial.
4. On page 20, line 11, delete the text starting with "Finally, with respect" to page 23, line 20 ending with the words "instruction was required" and insert the following:
Finally, with respect to count 1 of the information, which alleged violation of section 288.7, subdivision (b), Lerma argues the trial court should have sua sponte instructed the jury they could instead convict him, as a necessarily lesser included offense (LIO), of attempted sexual penetration in violation of sections 288.7 and 664. We find no error.
When a charged crime may give rise to conviction of an LIO, a defendant is entitled to a sua sponte instruction on the LIO. (People v. Smith (2013) 57 Cal.4th 232, 239 (Smith).) In arguing that an LIO instruction was required here, Lerma relies on the holding in Smith. In Smith, the court held that when a crime may be committed in multiple ways, and it has been charged by the prosecution in multiple ways, an LIO is required if one of the ways in which the crime was charged includes all the elements of a lesser offense. (Id. at pp. 243-244.) The defendant in Smith was charged with two counts of deterring or resisting an executive officer in violation of section 69. As the court pointed out, a person may violate section 69 in two ways: one, by deterring an officer's immediate or future performance of a duty; or two, by resisting an executive officer " 'by the use of force or violence.' " (Smith, at pp. 240-241.) If violation of section 69 was committed in the second way, it necessarily includes violation of section 148 subdivision (a)(1), which makes it a crime to willfully resist a public officer. In Smith, the amended information alleged the defendant had violated section 69 in both ways. (Smith, at p. 243.) Accordingly, the court held that, because the information included an allegation the violation had occurred in the second way, an LIO instruction on violation of section 148, subdivision (a)(1) was required. (Smith, at pp. 244-245.) Importantly, the court stated: "The rule we affirm today—requiring sua sponte instruction on a lesser included offense that is necessarily included in one way of violating a charged statute when the prosecution elects to charge the defendant with multiple ways of violating the statute—does not require or depend on an examination of the evidence adduced at trial. The trial court need only examine the accusatory pleading. When the prosecution chooses to allege multiple ways of committing a greater offense in the accusatory pleading, the defendant may be convicted of the greater offense on any theory alleged
[citation], including a theory that necessarily subsumes a lesser offense. The prosecution may, of course, choose to file an accusatory pleading that does not allege the commission of a greater offense in a way that necessarily subsumes a lesser offense. But so long as the prosecution has chosen to allege a way of committing the greater offense that necessarily subsumes a lesser offense, and so long as there is substantial evidence the defendant committed the lesser offense without also committing the greater, the trial court must instruct on the lesser included offense." (Id. at p. 244, italics added.)
In Smith, although the accusatory pleading in fact alleged both means of violating section 69, the court nonetheless found that no LIO was required in that case. The court reiterated that "a trial court is not required to instruct the jury on a necessarily included lesser offense ' "when there is no evidence that the offense was less than that charged" ' " and found that on the record there was no evidence that the lesser crime had been committed. (Smith, supra, 57 Cal.4th at p. 245.)
In sum, under Smith, in determining whether it must give an LIO instruction, a trial court must consider two distinct questions: a) did the accusatory pleading make the lesser crime an LIO; and b) is there evidence in the record from which a jury might find the defendant committed the lesser crime, but not the greater crime. Under Smith, only if the court answers both questions in the affirmative is it required to give an LIO instruction. (See Smith, supra, 57 Cal.4th at p. 245.)
Here, section 288.7, subdivision (b) states: "Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." Section 288a, subdivision (a) defines oral copulation as "the act of copulating the mouth of one person with the sexual organ or anus of another person." Section 289, subdivision (k)(1) defines sexual penetration as "the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." Like section 69 considered in Smith, by its terms violation of section 288.7 subdivision (b) may occur in
two ways: by oral copulation with child under the age of 10 or by sexual penetration with a child under the age of 10.
Because violation of section 288.7 subdivision (b) can occur by way of either oral copulation with a child under 10 or sexual penetration with a child under 10, Lerma argues that, under Smith, the allegation he violated section 288.7 required an LIO instruction that would have permitted the jury to find him guilty of attempted sexual penetration in violation of sections 288.7 and 664. This argument fails on two related grounds. First, the accusatory pleading alleged only one means of violating section 288.7, to wit: oral copulation. Here, the district attorney's charging document alleged: "COUNT 1 - ORAL COPULATION/SEXUAL PENETRATION WITH A CHILD 10 YEARS OLD OR YOUNGER [¶] On or about and between September 21, 2006 and August 13, 2009, DAVID DANIEL LERMA, being a person eighteen years of age and older, did unlawfully engage in oral copulation and sexual penetration, as defined in Section 289 of the Penal Code with a child, who was 10 years of age or younger, in violation of PENAL CODE SECTION 288.7(b). [¶] To wit: Defendant's tongue to Victim's vagina; while she was in elementary school and living with Defendant." In contrast to the charging document considered in Smith, which clearly and unambiguously alleged both ways of violating section 69, here the document expressly limits the allegation to one way of violating section 288.7, subdivision (b): oral copulation. Only by either ignoring the last sentence of the allegation, or interpreting it somehow as not limiting the scope of the allegation, can one conclude that both ways of violating section 288.7, subdivision (b) were alleged. We are not willing to engage in either such strained interpretation of count 1.
However, even if the information did not limit count 1 to oral copulation, no LIO instruction would be required here. There is not only an absence of evidence Lerma attempted to penetrate A.'s vagina within the meaning of section 289 subdivision (k)(1), but A.'s testimony suggests that in fact Lerma did not attempt to penetrate her vagina. In both instances A. described at trial, she was under 10 and naked; in both instances he threw her on the bed, put a pillow over her head, touched her vagina but did not penetrate her, and then licked her vaginal area. There is no evidence in either of these factual settings that if Lerma had any desire to penetrate A.'s vagina, A. would have been able to prevent him from doing so.
Because, in both instances, instead of penetrating A.'s vagina Lerma chose to lick her vaginal area, a jury could not reasonably conclude that Lerma wanted to penetrate A.'s vagina but was somehow unable to do so.
There is no change in the judgment.
The petition for rehearing is denied.
BENKE, Acting P. J. Copies to: All parties
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. SCN315179) APPEAL from a judgment of the Superior Court of San Diego County, Sim Von Kalinowski, Judge. Affirmed. Dacia A. Burz, 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, Peter Quon, Jr., and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
Over the course of a number of years, defendant and appellant David Daniel Lerma molested his stepdaughter, A. The molestation began when A. was eight years old and ended when she was 11 or 12 years old, after her mother had divorced Lerma, and A. disclosed the abuse to her mother. Shortly after the disclosure, A. was given a forensic examination, including a forensic interview. During the interview she disclosed that on one occasion, after a trip to the Legoland amusement park, Lerma attempted to penetrate her vagina with his penis. At Lerma's trial, more than 18 months after the interview, A. was asked on direct examination about each incident of abuse and she was able to recall and describe most of them; however, she did not recall the incident during which Lerma attempted to penetrate her vagina with his penis, even though, after she set forth a number of other incidents, the prosecutor asked her if there was any other abuse. On cross-examination she confirmed her testimony on direct and was impeached with her preliminary hearing testimony, in which she had described the attempted penile penetration. In light of her testimony on direct and cross, the trial court permitted the prosecutor to play for the jury a videotape of her earlier forensic interview, in which she described Lerma's attempt to penetrate her. As we explain, her earlier description of the attempt was admissible as a prior inconsistent statement and the trial court did not otherwise abuse its discretion in admitting the videotape of the forensic interview.
We also find no error in the trial court's failure to instruct that in this case attempted penetration of a minor under the age of 14 within the meaning of Penal Codesection 289, is a lesser included offense of oral copulation, or sexual penetration of a minor under the age of 10 within the meaning of section 288.7.
All further statutory references are to the Penal Code unless otherwise indicated.
Accordingly, we affirm the judgment of conviction.
FACTUAL BACKGROUND
1. 2004-2005
Aisha R. met Lerma in 2004, when he worked as a sales associate at a car dealership. By 2005, Aisha and Lerma were married and they were living with Aisha's five-year-old daughter, A.
2. 2006-2009
a. First Mobile Home
Initially, Lerma, Aisha and A. lived together in a one-bedroom mobile home. When A. was eight or nine years old she began calling Lerma "Dad." A. later recalled that when she was eight years old and living with her mother and Lerma in the one-bedroom mobile home, she was asleep in her bed and woke up to find a man's hand on her vagina over her clothes. When A. woke up, the man moved his hand and walked out of the bedroom and she went back to sleep.
Shortly after this incident, A. told a counselor that she woke up at night to find her mother's boyfriend touching her inappropriately. She told her counselor that Aisha's former boyfriend, Marco, was the person who touched her. The counselor informed Aisha about the incident and she reported Marco to authorities. A. later learned Marco had been deported back to Mexico.
At trial, A. testified that she accused Marco because she was not able to see Lerma's face when she opened her eyes and she was not sure if Lerma or Marco had touched her. A. testified that when she was 10 or 11 years old, she realized that Lerma, and not Marco, was the person who had touched her inappropriately while she was sleeping in bed. She reached that conclusion when she saw a photograph of herself asleep in a twin size bed that Lerma bought her. At that point she remembered waking up in that bed and finding Lerma touching her. At trial, A. explained that when her mother dated Marco, A. slept in a toddler bed that had been converted from a crib. Based on the placement of the twin size bed in their bedroom, A. knew Marco was not the person who touched her inappropriately because she would have seen his face at an angle instead of straight ahead. A. never told Aisha that she erroneously blamed Marco for the inappropriate touching because she was scared Aisha would overreact.
On another, later occasion, while they were still living in the one-bedroom mobile home, Lerma molested A. as she was getting ready for a shower. A., who was not wearing any clothes, went from the bathroom back to the bedroom when she realized she forgot something in the bedroom. Lerma followed her into the bedroom, pushed her on to his bed, and put a pillow over her face. A. tried to move the pillow, but Lerma held it down with his hand. Lerma then put his fingers on A.'s vagina and then licked her vagina with his tongue. Lerma did not say anything to A. When Lerma was done, A. went to the bathroom and took her shower.
b. Second Mobile Home
When A. was 10 years old, Aisha and Lerma moved to a second, two-bedroom mobile home. When A. was still 10 years old and living in the second mobile home Lerma molested her a third time. A. was unclothed and getting ready to step into the shower when Lerma entered her bedroom, which was connected to the bathroom; Lerma pulled A. out of the bathroom, pushed her down on to her bed, put a pillow over her face, rubbed her vagina with his fingers, and then licked her vagina. Lerma then asked A. if she liked his finger or his tongue better, but she did not answer him. Then the telephone rang, Lerma answered it and A. overheard him tell Aisha that A. was taking a shower. A. then got up from the bed and took her shower.
3. 2009-2012
a. Lerma's First Townhome
A few months after moving to the second mobile home, Aisha divorced Lerma and he moved out of the second mobile home. Notwithstanding the divorce, Lerma stayed in contact with A. through phone calls and text messages and asked her to visit him. A. was 11 or 12 years old when she visited Lerma at a townhome in Vista, California. Lerma played video games in his bedroom while A. sat next to him on the bed and watched him play. At one point, Lerma unzipped his pants, pulled his penis out of the opening of his boxer shorts, and put a blanket over his lap. Then Lerma grabbed A.'s hand, brought it under the blanket, placed it on his penis and moved her hand up and down his penis until he ejaculated. After he ejaculated, Lerma let go of her hand and zipped up his pants. A. then washed her hands in the bathroom, and Lerma drove her back to her grandmother's house.
When A. was 12 years old, she visited Lerma on Father's Day. Lerma and A. were sitting on his bed when he pushed her down into a prone position, pulled her pants and underwear down to her ankles, touched her vagina with his hand, and touched her breasts over her shirt with his other hand. When Lerma stopped touching her, she pulled her pants back up. Lerma then stood in front of A., who was still sitting on his bed, lowered his pants down to his ankles, pulled out his penis from the opening in his boxer shorts, put her hand on his penis, and made her "[p]lay with his penis" until he ejaculated.
b. Second Townhome
During the following summer, 12-year-old A. visited Lerma at a second townhome. They went swimming at the pool while Lerma's then-girlfriend, Jennifer Delval, stayed behind at the townhome. After swimming, Lerma and A. watched television in a bedroom. He removed her pants and touched her vagina with his fingers. He then removed his pants, pulled out his penis from the opening in his boxer shorts, covered his penis with a blanket, and moved her hand up and down on his penis underneath the blanket. Lerma put his pants back on after he ejaculated, and A. washed her hands. After eating dinner, Lerma drove her home.
A. was 13 years old when she last saw appellant. She joined him, Delval, and Marcos, Delval's son from a previous relationship, for dinner because she wanted to meet Lerma and Delval's new baby. While A. was sitting at the dining room table, Lerma tried to touch her vagina over her clothes. When she pushed his hand away, he went to the kitchen. As A. turned her attention to the television, from behind Lerma pushed her down on to the couch, held on to her hips, and "started humping [her] butt." A. pushed Lerma away and he went back to the kitchen.
After dinner, Lerma told A. to get a videogame from his bedroom. While she was looking for the videogame in the bedroom, he approached her from behind, pushed her down onto the bed, and lay on top of her. She told him "no," pushed him away, and he walked out of the room with the videogame. They played the videogame for a little while, and then he drove her home.
c. Investigation
One morning in May 2012, when A. was 13 years old, and about a month after the last time that she saw Lerma, she told Aisha that Lerma had been touching her inappropriately. A. also told Aisha that Lerma, and not Marco, was the one who touched her inappropriately while she was sleeping some years earlier. A. and Aisha reported Lerma's conduct to the police.
In June 2012, in the course of investigating A.'s report, a forensic interview of A. was conducted by a licensed social worker. During the interview, A. described Lerma's lewd conduct over the course of four years. In the interview A. also described an incident which occurred during one of her visits to Lerma's second townhome, when she was 12 years old. At the forensic interview, and later at Lerma's preliminary hearing, A. stated the incident occurred on a day that Lerma had taken her to the Legoland amusement park. In the interview, A. described appellant's attempts at penile penetration as follows: Lerma threw A. on to the bed and took his penis out of his pants. He pushed her down on the bed, "opened" her legs, and tried to pull her closer to him as she struggled to move away from him. She kept telling him, "[N]o, it hurts." And, he kept responding that he would not hurt her anymore if she just let him "do it." She would not let him put his penis in her vagina. He also put his fingers inside her vagina, which hurt her. When she later urinated, she experienced a burning sensation. In the forensic interview, A. stated Lerma tried to put his penis in A.'s vagina two to three times. As we discuss more fully below, at trial A. had some difficulty recalling this incident.
Lerma was also interviewed by police, and in October 2012, submitted to a polygraph examination. During the polygraph examination Lerma denied that he had any sexual contact with A. However, in a conversation with the polygraph examiner after the examination was complete, Lerma admitted he had A. masturbate him, that he grabbed her butt underneath her clothes three to four times, that he touched her breast over her clothes four times, that he touched her vagina over her clothes one time, and that he inserted his finger in her vagina one time. Lerma also disclosed to the examiner that, one time when A. sat on his lap, she put her hand on his penis, unzipped his pants, put her hand inside his boxer shorts, and rubbed his penis. Lerma admitted he told A. not to stop rubbing his penis because it felt good and that, when he ejaculated in her hands, she said "it's [sic] feels weird."
4. Trial Court Proceedings
Lerma was charged in an information with: one count of oral copulation on a child 10 years of age or younger (§ 288.7, subd. (b); count 1); five counts of committing a lewd act upon a child 14 years of age or younger (§ 288, subd. (a); counts 2, 3, 4, 6 & 7); and one count of committing a forcible lewd act on a child under the age of 14 (§ 288 subd. (b)(1); count 5.) Count 5 referred to Lerma's attempt to penetrate her with his penis.
At trial, the jury was only asked to determine the oral copulation count and four of the lewd act counts. The jury was not asked to determine count 5, the penile penetration count. On January 21, 2014, the jury convicted Lerma on the oral copulation count (count 1) and three of the lewd act counts (counts 2, 4, and 7). With respect to counts 2 and 4 the jury found true allegations that Lerma had substantial sexual conduct with a child under 14 years of age. (Pen. Code, § 1203.066, subd. (a)(8).) The jury acquitted Lerma of one count of a lewd act upon a child 14 years of age or younger (count 3.).
On February 21, 2014, the trial court imposed a total indeterminate prison sentence of 23 years to life. On June 11, 2015, this Court granted Lerma's motion for constructive notice of appeal, and appellant filed his notice of appeal on June 16, 2015.
ARGUMENT
I
As we indicated at the outset, Lerma claims the trial court erred by admitting, as a prior inconsistent statement, that portion of A.'s forensic interview in which she stated that Lerma tried, two or three times, to put his penis in her vagina. Lerma contends that A.'s redirect testimony in which she described the attempted penetration was not materially inconsistent with her forensic interview statements about attempted penile penetration and the prejudicial and misleading effect of A.'s forensic interview statements outweighed their probative value and inflamed, confused, and misled the jury. A. Additional Background
1. Preliminary Hearing Testimony
Following her forensic examination in which she described Lerma's attempt to penetrate her vagina with his penis, at Lerma's preliminary hearing she testified about the attempted penetration:
"[W]e went to the new house and he went into the bedroom and he was playing video games and [Delval] was in the room with us and he told her to go to the store to go buy something to eat. So she left and it was just me and him alone, and this time he pulled down my pants. He just like pulled my legs. I was sitting down on my own and he just pulled my legs and he pulled down my pants and my underwear and he pulled down his pants and boxers, and he started playing with my vagina with his fingers and he then—he tried to put his penis inside—inside my vagina. [¶] But I told him no. I kept closing my legs, and he kept trying to pull them open, but I kept resisting him and kicking him, and when he told me to let him do it and I told him no and he stopped and I pulled my pants back up and I started crying, and then after that he made me play with his penis, and then after that he pulled down my pants and he start putting his fingers on my vagina. Then he tried to put his penis inside me again. I didn't let him. And then I told him I wanted to go back home to my grandma's house. So he took me home."
At the preliminary hearing she was questioned further by counsel about the incident:
"Question: I want to go back to the time when you said he tried to put his penis in your vagina back when you were—the day you went to Legoland, okay? Do you understand which time I'm talking about?
"Answer: Yes.
"Question: Do you remember talking about your vagina hurting?
"Answer: Yes.
"Question: Tell us about that.
"Answer: After he tried to do that, I went to the rest room and I went pee and it burnt and to close my legs it hurt a little bit, and I just felt real uncomfortable, and so I told him to take me home to my grandma's house.
"Question: Could you tell why it burned?
"Answer: Huh-uh, no.
"Question: At that same time, do you remember telling [Lerma] when he was putting his penis in your vagina that it hurt?
"Answer: Yes.
"Question: Tell us exactly what you said to him while that was happening.
"Answer: I told him to stop. He said why. I said because it hurts me, and he said that he wouldn't hurt me, to just let him do that, and I said no and that's when I moved away from him."
2. A.'s Trial Testimony
At trial, on direct examination, A. testified she and Lerma went to Legoland during the summer when she was 12 years old. When the prosecutor asked her what happened after the outing, she testified she believed she went home to her grandmother's house. When the prosecutor asked again if anything happened on the day of her Legoland trip, she responded, "I don't remember. I don't think so."
On cross-examination, defense counsel also asked A. about her day at Legoland. Counsel confirmed with A. the day was a special one which she would remember. Counsel also confirmed that A. had testified on direct examination that nothing happened between her and Lerma that day:
"Q: You told us that nothing happened the day you went to Legoland?
"[A.]: Right.
"Q: Is that right?
"[A.]: Right.
"Q: And you testified on direct that nothing happened the day you went to Legoland, right?
"[A.]: Right.
"Q: That's a day that stands out, right?
"[A.]: Right?"
Counsel then impeached A. by reading aloud to the jury portions of A.'s preliminary hearing testimony in which she described how appellant tried to put his penis in her vagina on the day they had gone to Legoland.
On redirect examination, the prosecutor asked A. to explain the reason she testified, at the preliminary hearing, about all of the things Lerma did to her on the day they went to Legoland, but did not mention those things in her direct examination at trial. A. testified she forgot about what happened on the day that she went to Legoland. In explaining the discrepancy A. stated, "[w]ell, I forgot what happened the day of Legoland. The story I said before, I forgot that that incident happened." A. testified that the "incident" happened, but that she could not remember if it happened on the day she had gone to Legoland.
The prosecutor then asked A. to focus her testimony on what actually happened and whether appellant tried to put his penis in her vagina. A. responded affirmatively. She again stated that the "incident" happened but that she was not sure whether it happened on the day that she went to Legoland. The prosecutor then asked A.: "How many times did an incident happen where he tried to put his penis in your vagina?" A. responded: "Only once." The prosecutor then asked her if she was sure and she responded in the affirmative.
3. Admission of A.'s Forensic Interview
Outside the jury's presence, the prosecutor offered A.'s forensic interview and asserted that it contained both prior inconsistent statements and prior consistent statements. The prosecutor explained A. was a young girl who made numerous inconsistent statements, that both he and defense counsel had called into question the credibility of her trial statements, and that he wanted the jurors to be able "to ferret the reality of what's taken place in this case and determine what they believe to be the truth."
Defense counsel objected to the admission of A.'s videotaped forensic interview statements on the grounds the statements were hearsay and in any event inadmissible under Evidence Code section 352. Counsel argued A.'s statements in the forensic interview about the day she went to Legoland were not inconsistent with her testimony at trial. Counsel stated, "There's nothing in this video [of the forensic interview] that is really different than what she testified to in court."
Because we reach the merits of Lerma's contention with respect to the forensic interview, we need not and do not discuss his conditional argument that his counsel was ineffective in failing to properly object to admission of the interview.
The trial court admitted A.'s statements during the interview as prior inconsistent statements. The court stated: "On direct she never testified to that despite the District Attorney asking her after going through each incident, in essence, saying what the next incident was, and it clearly would have come up if she had in that form of questioning. She never mentioned it. That is inconsistent with her earlier statements about the attempted penetration. [¶] Also on cross-examination after the incident was read to her that she related to the Lego incident, Legoland incident, she said that happened only once, but in the prior statements she indicated up to three times . . . There are also inconsistencies about the statements that were made either by herself or the defendant at the time of each related sexual incident." Noting that A.'s age was significantly different at the time of her forensic interview, the trial court ruled her statements during the interview were also relevant to her physical and mental development and relevant for the jury to judge her credibility and ability to recall, perceive, and describe events.
The prosecutor then played a videotape of A.'s forensic interview during the testimony of the person who examined A. B. Legal Principals
As the Attorney General notes, in general we review a trial court's ruling on the admission of evidence for abuse of discretion. (People v. Homick (2012) 55 Cal.4th 816, 859 (Homick); People v. Cowan (2010) 50 Cal.4th 401, 462 (Cowan).) Under Evidence Code section 1235, prior inconsistent statements are admissible to establish the truth of the matter asserted, as well as to impeach the declarant. (Homick, at p. 859; Cowan, at p. 462.) A party may introduce a witness' out-of-court statement if that statement is inconsistent with the witness's testimony at trial and the requirements of Evidence Code section 770 have been met. (Evid. Code, § 1235; Homick, at p. 859.) " ' "The 'fundamental requirement' of [Evidence Code] section 1235 is that the statement in fact be inconsistent with the witness's trial testimony." [Citation.] " 'Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness'[s] prior statement.' " ' " (Homick, at p. 859.)
Evidence Code section 770 provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: (a) The witness was so examined while testifying as to give him an opportunity to explain or deny the statement; or (b) The witness has not been excused from giving further testimony in the action."
A witness may be impeached not only by an opposing party, but by the party who called the witness. (Evid. Code, § 785.) Moreover, in either discrediting or supporting a witness's credibility, parties are not limited to only one of the means set forth in Evidence Code section 780. On the other hand, in offering multiple types of evidence with respect to a witness's credibility the parties are subject to the trial court's discretion under Evidence Code section 352, which among other matters permits a trial court to exclude cumulative evidence. (In re Romeo (1995) 33 Cal.App.4th 1838, 1843.) C. Analysis
Evidence Code section 780 states: "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: (a) His demeanor while testifying and the manner in which he testifies. (b) The character of his testimony. (c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies. (d) The extent of his opportunity to perceive any matter about which he testifies. (e) His character for honesty or veracity or their opposites. (f) The existence or nonexistence of a bias, interest, or other motive. (g) A statement previously made by him that is consistent with his testimony at the hearing. (h) A statement made by him that is inconsistent with any part of his testimony at the hearing. (i) The existence or nonexistence of any fact testified to by him. (j) His attitude toward the action in which he testifies or toward the giving of testimony. (k) His admission of untruthfulness." --------
A.'s statements in the forensic interview about appellant's attempt to put his penis in her vagina were inconsistent with her trial testimony. As we have seen, in the forensic interview she stated that on the day she went to Legoland with Lerma, he tried to insert his penis in her vagina two or three times. However, on direct examination, although A. recalled going to Legoland with Lerma, she stated that nothing else happened that day or nothing that she remembered. On cross-examination, she was more direct in agreeing that nothing happened on the day she went to Legoland. Thus, the inconsistency between her forensic testimony and her trial testimony, was clear.
Like Lerma, the People were entitled to impeach A. with her prior inconsistent statements about the day she went to Legoland and have those statements considered for their truth. (Evid. Code, § 785.) Although in his redirect examination, the prosecutor also impeached A.'s direct testimony by way of reference to her preliminary hearing testimony, the prosecutor could, in addition, seek to impeach her direct testimony with her even earlier inconsistent forensic interview statements. (Evid. Code, § 780.)
We recognize that during the prosecutor's redirect examination A. was rehabilitated to some extent when she explained she could not remember whether the attempted penetration occurred on the day Lerma took her to Legoland or on another occasion, but she did remember it did occur. While her explanation on redirect may have in part restored her credibility, it did not eliminate or erase the fairly plain inconsistency between her forensic interview and her testimony at trial on direct and on cross. Thus, her redirect testimony in no sense prevented the prosecution from offering the forensic interview.
The record also fully supports the trial court's determination the probative value of the forensic interview outweighed its cumulative nature and any other prejudicial impact it may have had. Under Evidence Code section 352, a trial court has broad discretion to assess whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 (Rodrigues).) The court's exercise of that discretion " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. ' " (Id. at pp. 1124-1125.) "[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
The record shows that at the time the forensic interview took place, A. had just completed the 7th grade, and at the time of trial she was in the middle of the 9th grade. As the trial court pointed out, while for adults this is not a great span of time, in the life of a rapidly maturing adolescent, a full school year and half of another school year are a considerable amount of time in which attitudes and memories may change. Thus, the trial court did not err in finding that it was of value to the jury to see the younger version of A. setting forth her then fresher recollection of what occurred on the day she went to Legoland.
The forensic interview was also probative because it was consistent with A.'s preliminary hearing testimony. Without the forensic interview the jury might have drawn the inference that the preliminary hearing testimony and her detailed recollection of the attempted penile penetration was invented and that her failure to mention it at trial on direct or cross, was a product of the fact that it had been invented at the time of the preliminary hearing. An inference of her willingness to invent events would of course damage her credibility. Presentation of the still earlier forensic interview and its consistency with the preliminary hearing testimony suggested of course that the attempted penetration did occur; however, it also supported A.'s credibility because it rebutted any inference that the incident had been invented at the preliminary hearing.
In sum then, the trial court did not err in admitting the videotape of the forensic interview.
II
Although we find no error in admission of the forensic interview videotape, even had the trial court abused its discretion, admission of the interview would not require reversal. The erroneous admission of evidence is governed by the familiar standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See People v. Champion (1995) 9 Cal.4th 879, 919.) Under Watson we may not reverse a judgment, unless we are convinced that it is more probable than not the appellant would have achieved a more favorable outcome in the absence of the trial court's error. (Watson, at p. 836.)
With respect to the attempted penile penetration A. discussed in the forensic interview, we note that by the time of trial the incident was not charged as a separate offense. Thus, its admission did not go directly to the merits of the crimes the jury was considering. Rather the principal relevance of the incident was with respect to A.'s credibility, which Lerma himself initially raised by way of his counsel's impeachment of her with her preliminary hearing testimony. Because the incident had been presented to the jury by Lerma by way of impeachment, its presentation again in the videotape of the forensic interview was not likely to substantially inflame the jury further. Moreover, the incident was not greatly different in character from the oral copulation and other lewd acts A. described at trial and thus again, not likely to further alienate jurors.
Importantly, there also was substantial corroboration of A.'s testimony in the admissions Lerma made to the polygraph examiner. In sum then, had the videotape been excluded, it is not probable Lerma would have achieved a better result at trial.
III
Finally, with respect to count 1 of the information, which alleged violation of section 288.7, subdivision (b), Lerma argues the trial court should have sua sponte instructed the jury they could instead convict him, as a necessarily lesser included offense (LIO) of attempted sexual penetration in violation of sections 289 subdivision (a)(1)(B) and 664. We find no error.
When a charged crime may give rise to conviction of an LIO, a defendant is entitled to a sua sponte instruction on the LIO. (People v. Smith (2013) 57 Cal.4th 232, 239 (Smith).) It is axiomatic that an LIO only arises when all the elements of the lesser crime are also elements of the greater crime. (Id. at p. 240.) In determining whether a crime is an LIO of a charged crime we must look either to the terms of the two statutes or to the accusatory pleading. (Id. at pp. 241-242.)
In arguing that an LIO instruction was required here, Lerma relies on the holding in Smith. In Smith, the court held that when a crime may be committed in multiple ways, and it has been charged by the prosecution in multiple ways, an LIO is required if one of the ways in which the crime was charged includes all the elements of a lesser offense. (Smith, supra, 57 Cal.4th at pp. 243-244.) In Smith, the defendant was charged with two counts of deterring or resisting an executive officer in violation of section 69. As the court pointed out a person may violate a section in two ways: one, by deterring an officer's immediate or future performance of a duty or two, by resisting an executive officer " 'by the use of force or violence.' " (Smith, at pp. 240-241.) If violation of section 69 was committed in the second way, it necessarily includes violation of section 148 subdivision (a)(1), which makes it a crime to willfully resist a public officer. In Smith, the amended information alleged the defendant had violated section 69 in both ways. (Smith, at p. 243.) Accordingly, the court held that, because the information included an allegation that the violation had occurred in the second way, an LIO instruction on violation of section 148 subdivision (a)(1) was required. (Smith, at pp. 244-245.)
Here, section 288.7, subdivision (b) states: "Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." Section 288a defines oral copulation as "the act of copulating the mouth of one person with the sexual organ or anus of another person." Section 289 subdivision (k)(1) defines sexual penetration as "the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." Like section 69, by its terms violation of section 288.7, subdivision (b) may occur in two ways: by oral copulation with child under the age of 10 or by sexual penetration with a child under the age of 10.
Section 289 subdivision (a)(1)(B) states: "Any person who commits an act of sexual penetration upon a child who is under 14 years of age, when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, shall be punished by imprisonment in the state prison for 8, 10, or 12 years." Under section 664, when not otherwise provided, attempts are punished by imposing one half of any prison term prescribed for the underlying offense.
Because violation of section 288.7 subdivision (b) can occur by way of either oral copulation with a child under 10, or sexual penetration with a child under 10, and because forcible penetration of a child under 14 is punished under section 289 subdivision (a)(1)(B), Lerma argues that, under Smith the allegation he violated section 288.7 required an LIO instruction that would have permitted the jury to find him guilty of attempted sexual penetration in violation of sections 289 subdivision (a)(1)(B) and 664.
This argument fails because either by examining the elements of the two substantive statutes or examining the accusatory pleading, section 289 subdivision (a)(1)(B) is not a necessarily included LIO of section 288. As we have noted, a necessarily LIO arises only when "the greater offense cannot be committed without also committing the lesser." (Smith, supra, 57 Cal.4th at p. 240.) Section 289 subdivision (a)(1)(B) by its terms requires proof of "force, violence, duress, menace or fear;" section 288.7, subdivision (b) does not. Thus, looking solely at the terms of the statutes, the greater offense, section 288.7, subdivision (b), can be committed without also violating section 289, subdivision (a)(1)(B), while sexual penetration of a child under 10, without any force or fear, plainly violates section 288.7 subdivision (b), it does not violate section 289 subdivision (a)(1)(B).
Moreover, this defect in Lerma's argument cannot be overcome by looking at the information which alleged violation of section 288.7 subdivision (b). The information alleged: "On or about and between September 21, 2006 and August 13, 2009, DAVID DANIEL LERMA, being a person eighteen years of age and older, did unlawfully engage in oral copulation and sexual penetration, as defined in [s]ection 289 of the Penal Code with a child, who was 10 years of age or younger, in violation of PENAL CODE SECTION 288.7(b). [¶] To wit: Defendant's tongue to Victim's vagina; while she was in elementary school and living with Defendant."
The information contains no allegation of the "force, violence, duress, menace or fear" that would be required for violation of section 289 subdivision (a)(1)(B). Thus, unlike Smith, reference to the accusatory pleading does not eliminate the possibility that Lerma violated section 288.7 subdivision (b) without violating the lesser offense proscribed by section 289 subdivision (a)(1)(B). Accordingly, on this record no sua sponte LIO instruction was required.
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.