Opinion
F068487
06-26-2017
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY RAGENE LINE, Defendant and Appellant.
Jonathan E. Berger and Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF261054)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge. Jonathan E. Berger and Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Jeffrey Ragene Line was convicted of committing sex offenses against three minor victims, C.G., Michael G., and Mercedes H. He was sentenced to 80 years to life in prison. He raises several claims of evidentiary error, argues that his sentence violates the federal Constitution's prohibition against cruel and unusual punishment, and seeks independent review of the trial court's Pitchess inquiry and determination. We will affirm the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
PROCEDURAL HISTORY
A fifth amended information (information) filed in the Tulare County Superior Court, on October 5, 2012, charged Line with one count of oral copulation of a child 10 years of age or younger (Mercedes) (Pen. Code, § 288.7, subd. (b); count 1); one count of committing a lewd and lascivious act on a child under the age of 14 (Mercedes) (§ 288, subd. (a); count 2); three counts of committing a lewd and lascivious act upon a child under the age of 14 by force, violence, duress, menace, or threat of bodily harm (Michael) (§ 288, subd. (b)(1); counts 3-5); and another three counts of committing a lewd and lascivious act upon a child under the age of 14 by force, violence, duress, menace, or threat of bodily harm (C.G.) (§ 288, subd. (b)(1); counts 6-8).
Subsequent statutory references are to the Penal Code unless otherwise specified.
The information further included multiple victim and substantial sexual contact allegations in connection with counts 2-8. (§§ 667.61, subd. (b), 1203.066, subd. (a)(8).) Specifically, the information alleged, pursuant to section 667.61, subdivision (b), that Line had committed an offense enumerated in section 667.61, subdivision (b) against multiple victims, thereby triggering separate sentences of 15 years to life on counts 2-8. It also alleged, pursuant to section 1203.066, subdivision (a)(8), that the section 288 offenses at issue in counts 2-8 involved substantial sexual conduct with a victim who was under the age of 14 years, thereby precluding a grant of probation. Finally, the information alleged that Line was a minor who was at least 14 years old at the time of commission of the offenses involving Michael and C.G., as charged in counts 3-5 and 6-8, respectively.
A jury found Line guilty of both counts involving Mercedes (counts 1 & 2), one count involving Michael (count 5), and all three counts involving C.G. (counts 6, 7, 8). Although the jury found Line not guilty of the remaining two counts involving Michael, counts 3 and 4, it convicted Line of the lesser included offenses of attempted lewd act upon a child (§§ 664/288) and battery (§ 242) applicable to both of these counts. The jury also found both the multiple victim and the substantial sexual conduct allegations true as to counts 2, 5, 6, 7, and 8. Regarding the allegation that Line was a minor who was at least 14 years old at the time of commission of the offenses set forth in counts 3-8, the jury found this allegation true only as to counts 5-8.
Line was sentenced to an aggregate term of 80 years to life, which included a determinate term of five years, and five consecutive indeterminate terms of 15 years to life. The determinate five-year term consisted of Line's consecutive sentences for attempted lewd act upon a child in counts 3 (the upper term of four years) and 4 (one year, i.e., one third the middle term). The five consecutive indeterminate terms of 15 years to life were for Line's convictions for oral copulation of Mercedes in count 1, a forcible lewd and lascivious act on Michael in count 5, and three forcible lewd and lascivious acts on C.G. in counts 6, 7, and 8, resulting in a total indeterminate term of 75 years to life. Line's aggregate term of 80 years to life did not include his sentence on count 2 (lewd and lascivious acts on Mercedes). The sentence on count 2 was stayed pursuant to section 654, because counts 1 and 2 were based on the same act, i.e., the oral copulation of Mercedes. Other than the 15 years to life term on count 1 (oral copulation of Mercedes), the rest of Line's sentence (i.e., an indeterminate sentence of 65 years to life) was for conduct committed when Line was a minor.
Line was born on January 18, 1981.
FACTS
A. Counts 1-2
Mercedes was 12 years old at the time of trial. In April 2008, she was seven years old, in the second grade, and lived on Road 156 in Tulare County with her mother Michelle H., family friends Dan and Debbie D., their daughter B.H., and their granddaughter R.Y. At that time, April 2008, Mercedes's mother was dating Line, who was in his late 20s.
During the night of April 13, 2008, Michelle was sleeping in her bedroom with Line. Mercedes was sleeping in the same bedroom, in a small, "princess" bed at the foot of the bed that Michelle shared with Line. At around midnight or 1:00 a.m., Dan woke Michelle to tell her that her sister-in-law had died. Michelle got up and left the house to be with family members. Michelle told Mercedes that she had to go because Mercedes's aunt had died, whereupon Mercedes went back to bed.
Later that night, Mercedes heard Line get out of bed. Line came to the side of Mercedes's bed. He first pulled the covers off of her, then pulled her pants and underwear down. He proceeded to "lick" her "vagina" for what seemed to her to be a long time. Mercedes tried to pull the covers up but Line pulled them back down again. Line eventually stopped "licking" her and left the room. Mercedes got up and went to the room next to hers, where B.H. and R.Y. slept; Mercedes went to sleep on a pallet on the floor.
Approximately two years later, Mercedes told her grandmother Mildred W., her half brother's grandmother V. C. (Mildred and V.C. lived together), as well as her cousin Kayla, what had occurred. Mildred testified that Mercedes told them that Line had "licked her privates." In September 2011, Mercedes told her mother, Michelle, about the incident. About two weeks later, Michelle contacted the police.
Line's conduct with Mercedes formed the basis only of counts 1 and 2 in the instant case. The remaining counts involved other victims. Counts 3-5 related to Line's molestation of Michael and counts 6-8 to Line's molestation of C.G., Michael's older sister. Although Mercedes was not related to Michael and C.G., V.C. had told her that they also were molested by Line.
V.C.'s father was married to Line's mother, and Michael and C.G. were the children of the sister of Line's mother.
B. Counts 3-5
Michael was 22 years old at the time of trial. Michael and Line were cousins (their mothers were sisters). As a child, Michael lived with his family in a house on West Beaumont in Tulare. Line and his mother would visit on the weekends. Michael last saw Line when Michael was 12 or 13 years old.
Michael testified that when he was six or seven years old, Line came into his bedroom and shut the door. Line climbed on top of Michael, pulled out his penis, and started to masturbate over him. Line grabbed Michael's hand and forced him to stroke Line's penis. Line ejaculated into his own hand.
Michael recalled that a similar incident took place a week or two later in the bathroom. Line climbed on top of Michael, pulled out his penis, and made Michael stroke it. Line did not ejaculate on that occasion.
Michael also recalled a third incident that took place in his bedroom closet. Michael, C.G., and Line were playing school in the bedroom. Line was in the role of principal and the bedroom closet was the principal's office. Michael was sent to see the principal, i.e., Line, in the bedroom closet. Line put his penis in Michael's mouth but did not ejaculate. This was the last time Line molested Michael. As a result of these incidents, Michael was afraid of Line and apprehensive about his visits.
Michael first reported the incidents with Line in 2008, when he was 18 years old and a senior in high school. During his senior year, he was in a class that included readings and discussions on child abuse. After attending classes dealing with this subject matter, Michael had dreams that were homosexual in nature. He testified he wanted to experience things at his age but felt he had to disclose what had happened to him in the past before he could do so. He told his girlfriend about the incidents with Line and she encouraged him to tell his mother, which he did. Michael and his mother reported the matter to the police the following day.
Michael was interviewed by Officer Misael Aguayo on February 29, 2008. Officer Aguayo testified in the defense's case. He explained that Michael told him about three incidents with Line, two occurred in Michael's bedroom and one in the bathroom. Michael told Aguayo that all three incidents entailed Line putting his penis in Michael's mouth.
C. Counts 6-8
C.G. was 27 years old at the time of trial. As a child, C.G. lived with her parents and two younger brothers (one of whom was Michael), first in an apartment on Meadow Drive and then a house on Beaumont Street, in Tulare. Line, who was five years older than C.G., spent a lot of time with C.G.'s family when she was growing up. C.G. last saw Line at her eighth grade graduation. C.G.'s mother, Ronda G., testified that Line stopped coming around to visit the family when he was 18 or 19 years old.
C.G. testified that when she was seven or eight years old and in the third grade, Line started touching her "butt," breasts, and "front part" while they played "doctor" or "house" in her bedroom. At the time, the family lived in the Meadow Drive apartment. The apartment had two stories and an interior staircase. On at least 30 occasions, Line had her bend over on the top stair while he stood behind her, pulled her pants down, and inserted his penis in her anus. He would put his hands on her back or hips, and if she tried to pull away, he would only push harder. Sometimes, he pushed so hard, it caused her to do a front roll. He would make her get back into position and reinsert his penis into her anus. There were times she was unable to go to the bathroom because her "butt had ripped." On occasion, she noticed blood when she wiped herself and in her underwear. Her mother never saw what happened because, from the top step, it was possible to see people coming up the stairs and Line would watch out for that possibility. Line never threatened her but he did say that nobody would believe her if she exposed his behavior.
C.G. testified that, at the apartment, Line also had vaginal intercourse with her on a couple of occasions and made her touch his penis and orally copulate him. He would also kiss her on the mouth; when he did so she could smell a strong odor of chewing tobacco.
Once the family moved to the house on Beaumont Street, such incidents became less frequent. The last time Line sodomized C.G., she was 12 years old and in seventh grade.
In 2008, after Michael told his mother, Ronda, about Line's abuse, Ronda asked C.G. whether anything similar had taken place with her. C.G. broke down crying and told her mother about Line's actions. Tulare Police Sergeant Edward Hinojosa testified that Ronda called the police on April 7, 2008, to report that her daughter may also have been molested.
C.G. was interviewed by police shortly after reporting the matter. In her initial interview, she said Line never had vaginal intercourse with her. In a subsequent interview, she said that Line had put his penis in her vagina.
Ronda never suspected that anything was amiss with her children. C.G. regularly went to the doctor; her doctor never suspected that she had been the victim of sexual abuse. Ronda had educated her children about the distinction between appropriate and inappropriate touching. She did not detect any changes in her children's relationship with Line at any time.
D. Testimony of Dawn C. regarding uncharged conduct
Dawn C. was 28 years old at the time of trial. Dawn's mother, V.C., was Line's step-sister. Dawn and V.C. were also connected to Mercedes. Dawn had a son with Mercedes's father, Dennis H. Further, Mercedes's paternal grandmother, Mildred, lived with V.C.
Line's mother was married to V.C.'s father.
Dawn lived in Farmersville with her grandfather and Line's mother. Line also lived there for certain periods. Dawn testified that in 1995, when she was 10 years old, Line had sexual intercourse with her. Line, who would have been 14 years old at the time, told her not to tell anyone about it. Line also "fondl[ed]" Dawn's vagina at a neighbor's house and had inappropriately touched her at other times. However, the sexual touching stopped as they both got older.
During the investigation of the instant case, Dawn was interviewed by Detective Ronna Brewer of the Tulare County Sheriff's Department. Brewer testified that in that police interview, Dawn did not reveal that Line had intercourse with her. Dawn testified, contrary to Brewer's testimony, that she had in fact told Brewer that Line had intercourse with her. Dawn also testified that she was using drugs at the time of the interview.
E. Line's police interrogation
On May 29, 2008, Sergeant Edward Hinojosa of the Tulare Police Department interrogated Line for about an hour regarding the allegations levelled by C.G. and Michael. Although the transcript of this interrogation was made a part of the record with respect to an Evidence Code section 402 hearing involving Hinojosa, no recording of the interrogation was played for the jury, nor was the recording or transcript entered into evidence.
Sergeant Hinojosa described the interrogation in his testimony. Line acknowledged that C.G. and Michael were his cousins and that their mother was his aunt. He said he had spent a lot of time with them as kids and that they all had a good relationship. Line had no problems with C.G. and Michael, or their mother, and had good memories of their interactions. He said C.G. and Michael were well brought up and he had a lot of respect for them; he did not think they would make up lies about him. Line had not seen the family since his earlier teenage years. He lost contact with them as he got older and started using drugs.
Line denied that he had perpetrated inappropriate or abusive sexual acts on either C.G. or Michael. He "remember[ed] fishing and going to the races," "[w]atching monster trucks," and "playing cars" together; he had no inappropriate interactions with them. Referring to the accusations made by C.G. and Michael, Line asked Hinojosa, "Why would they do that to me? Nothing like that ever happened." When Hinojosa pressed Line in relation to C.G., Line said, "If anything, we would have probably just kissed or something." He also said he was a kid himself and might have done some "weird shit" like kissing.
When Hinojosa specifically asked about anal sex, Line responded, "I don't know why anybody would want to say anything about me like that." Line further insisted, "I'm not a predator, that's for damn sure." As to the allegations against him, he said, "It's crazy. I think it's crazy, man." Hinojosa testified that Line acknowledged, however, that because C.G. and Michael were "not on drugs, they're going to have a better account of what occurred, that they're going to remember things that he couldn't." Eventually Line's tone became more uncertain and he noted, "I'm not saying none of it is bullshit, I'm just saying I don't remember none of that." Line denied that he had been a victim of sexual abuse himself.
The parties stipulated that Line's date of birth was January 18, 1981.
DISCUSSION
I. Trial court's evidentiary rulings under Evidence Code section 352
Line argues the trial court abused its discretion by admitting some evidence while excluding other evidence under Evidence Code section 352, which in turn violated his constitutional rights to due process and confrontation. As discussed below with reference to the specific categories of evidence cited by Line, we disagree.
A. Mildred's testimony about Mercedes's complaint of oral copulation by Line
Line challenges the trial court's admission of the testimony of Mildred, Mercedes's grandmother, about Mercedes's complaint to her that Line had orally copulated her in April 2008. Line moved in limine, as well as at trial, to exclude evidence of Mercedes's complaint to Mildred, which Mercedes made in December 2009 or January 2010, well after the molest took place. The prosecutor countered that Mercedes's disclosure to Mildred was admissible under the common law fresh-complaint doctrine, as well as under Evidence Code section 1360, which governs, in child abuse proceedings, the admissibility of statements made by a child under the age of 12. The defense argued that Mercedes's report of the incident to Mildred was inadmissible hearsay rather than a fresh complaint, since a fair amount of time had elapsed between the occurrence of the incident in April 2008 and Mercedes's complaint to Mildred in December 2009/January 2010.
The court finally ruled, without relying on Evidence Code section 1360, that "[t]he People may introduce evidence that Mercedes H. told her grandmother, [Mildred], and other persons or person that [Line] had sexually molested her in April of 2008 or thereabouts." At trial, Mildred testified that Mercedes told her that Line "had licked her privates"; Mildred also noted that Mercedes was crying and upset and did not know what to do about the situation. Mildred told Mercedes not to tell her father because the latter would probably kill Line. The following day, when Mildred saw how upset Mercedes was, Mildred told her to tell her mother about the incident.
Line now argues, summarily and without developing the argument to any extent, that Mildred's testimony was inadmissible under Evidence Code section 352 because it was "merely cumulative." He does not explain the basis of his claim or even identify the other evidence that putatively overlapped Mildred's testimony. Nor does he explicate, beyond simply asserting that Mildred's testimony was cumulative, why the asserted overlap in evidence warranted exclusion of Mildred's testimony under Evidence Code section 352. In light of the perfunctory nature of his claim, we reject it as improperly raised. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2 (Associated Builders); Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 (Nielson).)
In any event, assuming Line's argument is that Mildred's testimony was cumulative of Mercedes's own testimony to the effect that she had complained to Mildred of Line's conduct, the fact that both Mildred and Mercedes testified about the latter's complaint of the molest does not automatically render Mildred's testimony inadmissible. Mildred's testimony that Mercedes had complained of Line's conduct, as well as her testimony about the circumstances under which Mercedes made this complaint, was clearly relevant to the jury's evaluation of whether Line orally copulated Mercedes. Line has not shown that admission of Mildred's testimony was an abuse of discretion under Evidence Code section 352.
Mildred's testimony was admitted under the common law fresh-complaint doctrine. Line does not challenge the admission of Mildred's testimony on grounds that it was inadmissible under this doctrine; nor does he cite any authority for this proposition. Nevertheless, we note that Mildred's testimony, in part, exceeded the scope of the fresh-complaint doctrine, and part of her testimony was thus inadmissible. Specifically, under the fresh-complaint doctrine, Mildred's testimony to the effect that Mercedes had complained of Line's conduct was admissible, but Mildred's description of the specific conduct at issue was not. Admission of the impermissible portion of Mildred's testimony, however, was harmless in light of the record as a whole.
In People v. Brown (1994) 8 Cal.4th 746, 749-750 (Brown), our Supreme Court clarified that evidence of a victim's complaint of sexual abuse may be admissible as a "fresh complaint" even if it was preceded by some delay. Brown also explained that fresh-complaint evidence is not admissible to prove the truth of the content of the victim's complaint (which would violate the hearsay rule), but rather is admissible only for purposes of showing that a complaint was made. (Id. at p. 762.) Accordingly, Brown cautioned that fresh-complaint evidence should be "carefully limited to the fact that a complaint was made, and to the circumstances surrounding the making of the complaint, thereby eliminating or at least minimizing the risk that the jury will rely upon the evidence for an impermissible hearsay purpose." (Ibid.)
Here, Mildred testified that Mercedes had complained about Line's conduct. Mildred further described the specific content of the complaint, explaining that Mercedes had said that Line "licked her privates." Mildred's testimony thus went beyond the narrow scope of the fresh complaint doctrine as articulated in Brown. Under Brown, the court should have limited Mildred's testimony to the fact that Mercedes had complained that Line had molested her on the night in question, thereby excluding the specific content of the complaint. The error was, however, harmless.
Mercedes described Line's specific conduct in her own testimony. In addition, as discussed in more detail below, a videotaped interview of Mercedes by a trained, forensic interviewer was played for the jury. In this interview, Mercedes volunteered the details of Line's conduct in response to nonleading, open-ended questions by the forensic interviewer. On both occasions, Mercedes consistently and unwaveringly stated that Line had licked her vagina. There was nothing ambiguous or contradictory about Mercedes's description of the conduct at issue, nor was there any evidence that her recollection of the conduct was hazy. Therefore, to the extent the court erred in permitting Mildred to describe the specific conduct that Mercedes had complained of, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Dawn's testimony about uncharged sexual acts
Line next challenges the trial court's admission of Dawn's testimony regarding prior, uncharged sexual conduct. Dawn testified that Line had vaginal intercourse with her in 1995 and "fondl[ed]" her "vagina" on another occasion. Line moved in limine to exclude evidence of this sexual conduct on grounds that it was substantially more prejudicial than probative under Evidence Code section 352. The prosecutor countered that the evidence was admissible under Evidence Code sections 1101, subdivision (b) and 1108, as well as 352. The trial court ruled that the evidence was admissible under Evidence Code sections 1108, as well as 352. Line now argues that although this evidence was "technically admissible" under Evidence Code section 1108, the trial court's ruling was an abuse of discretion under Evidence Code section 352.
We review a trial court's rulings under Evidence Code section 352 for abuse of discretion and will not disturb the trial court's determination unless the court acted in an arbitrary, capricious, or patently absurd manner. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Branch (2001) 91 Cal.App.4th 274, 281-282.)
Generally, evidence of prior bad acts is inadmissible to show a defendant's criminal disposition or propensity to commit crimes. (Evid. Code, § 1101, subd. (a).) As an exception to the general rule, Evidence Code section 1108, permits, in sex offense cases, admission of uncharged sexual conduct precisely to show a defendant's propensity to commit similar sex crimes. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013; People v. Falsetta (1999) 21 Cal.4th 903, 915 (Falsetta).) Evidence Code section 1108 is geared to assist the trier of fact in making difficult credibility determinations, given that sex offenses are usually committed in seclusion, without third party witnesses or substantial corroborating evidence. (People v. Villatoro (2012) 54 Cal.4th 1152, 1160, 1164; Falsetta, supra, at p. 915.) However, evidence that is admissible under Evidence Code section 1108, is nonetheless subject to exclusion under Evidence Code section 352.
Evidence Code section 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." The trial court is best situated to evaluate the evidence at issue through the lens of Evidence Code section 352, and, accordingly, enjoys broad discretion in applying the statute. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) Furthermore, "'[t]he prejudice [that] Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.'" (People v. Eubanks (2011) 53 Cal.4th 110, 144.) Rather, Evidence Code section 352 is designed to avoid "undue prejudice" because "the ultimate object[ive] of the section 352 weighing process is a fair trial." (People v. Harris (1998) 60 Cal.App.4th 727, 736 (Harris).)
Line contends that Dawn's testimony was more prejudicial than probative under Evidence Code section 352, because the "vaginal intercourse" she described was "dissimilar to the charged crimes." Relying on Harris, Line argues that in light of this dissimilarity, the "uncharged crime did not tend to show that [he] had committed the charged offenses" and, in turn, was not relevant to any issue in dispute. Rather, Line suggests that, just like the prior bad conduct evidence in Harris, Dawn's testimony about Line's intercourse with her was "was merely inflammatory." Line's reliance on Harris is unavailing because the prior bad conduct evidence in that case was, in the view of the Harris court, qualitatively different from and far more violent and disturbing than the conduct at issue in the charged offenses in that case. Furthermore, the Harris jury was given a redacted and skewed version of the facts relevant to the prior conduct that included suggestive details but left unanswered key questions about the defendant's actual role, thereby inviting the jury to speculate about the scope of the defendant's culpability. Accordingly, the Harris court found the prior conduct evidence was "inflammatory in the extreme" and determined that its admission by the trial court constituted an abuse of discretion under Evidence Code section 352.
The defendant in Harris was a nurse at a mental health center who was charged with crimes involving "abuse of trust" based on sexual contact, such as licking and fondling, with his patients. The prosecution sought to introduce evidence of his prior bad conduct related to a conviction he had sustained 23 years previously. The victim in that prior case was found beaten, bloodied, and unconscious, with trauma to her genital and rectal areas, causing police initially to surmise that a rape had occurred. The defendant was found nearby with blood on his clothing. The defendant ultimately pleaded to the offense of burglary with the infliction of great bodily injury. (Harris, supra, 60 Cal.App.4th at p. 735.) The trial court in Harris admitted evidence regarding the prior incident under Evidence Code sections 1108 and 352. Based on the evidence, the prosecutor argued that the defendant had "'viciously sexually assaulted'" the victim in the prior incident. (Harris, supra, at p. 693.) The Court of Appeal noted that the evidence was "inflammatory in the extreme" because the abuse involved in the charged offenses was limited to licking and fondling while the prior incident involved a viciously beaten and bloody victim. The Harris court further noted that the "defendant's role in the [prior] attack and his subsequent conviction for burglary, while apparently violent and sexual, is unexplained," leading to "a great deal of speculation as to the true nature of the crime." (Id. at p. 738.) Because of the inflammatory and speculative nature of the prior bad conduct evidence, the Harris court deemed it was unduly prejudicial and reversed the defendant's conviction on grounds that the trial court's decision to admit the evidence under Evidence Code section 352 was an abuse of discretion.
Unlike Harris, here the prior conduct that Dawn testified about, i.e., vaginal intercourse, was not qualitatively different from or far more violent and disturbing than the acts that the complaining witnesses testified about. All the complaining witnesses testified about sexual acts that Line committed on them when they were young children, including, in the case of C.G., sodomy and vaginal intercourse, in the case of Mercedes, oral copulation by Line, and, in the case of Michael, Line's placement of his penis in Michael's mouth. Furthermore, Dawn's testimony related to a single instance of vaginal intercourse; she clearly described Line's role and the jury was not left to speculate as to the extent of his culpability. Dawn's testimony was thus relevant to the jury's determination of the key disputed issues in the trial and was not merely inflammatory and, in turn, unduly prejudicial, as defendant suggests.
While we recognize that certain factors militated against admission of Dawn's testimony—e.g., the facts that the incident in question was remote in time and there were some inconsistencies in Dawn's prior police statements—we cannot say that admission of her testimony was an abuse of discretion under Evidence Code section 352. (See Falsetta, supra, 21 Cal.4th at p. 917 [remoteness and degree of certainty of commission of the prior bad act at issue are factors for trial court to consider in Evid. Code, § 352 analysis of evidence otherwise admissible under Evid. Code, § 1108]; People v. Abilez (2007) 41 Cal.4th 472, 502 [same].)
We also note that Dawn's testimony was admissible under Evidence Code section 1108. As the California Supreme Court explained in People v. Loy (2011) 52 Cal.4th 46, 63 "'[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.'" Here, both the charged offenses and the uncharged sexual acts involving Dawn qualify as "'sexual offenses'" under Evidence Code section 1108, subdivision (d).
C. Evidence of criminal conviction of Mercedes's father
Defense counsel sought to introduce evidence of a conviction suffered by Mercedes's father, Dennis, for forcible oral copulation of a minor under section 288, subdivisions (a) and (b)(1). Dennis suffered the conviction in 2006 and served time in prison until December 2010. Defense counsel explained that the defense's investigation had revealed that Mercedes believed her father was accused of, convicted of, and sent to prison for "rape." Defense counsel clarified she "was not trying to suggest that dad's the perpetrator" of any offense against Mercedes, but, rather, wanted to cross-examine Mercedes to show that, prior to making accusations against Line "to her grandmother in 2010" and "to the police in 2011," Mercedes had developed knowledge of sexual activities and terminology through family discussions related to her father's conviction. The prosecutor countered that the defense could question Mercedes about the basis of her potential knowledge of sexual activities and terminology, without reference to her father's conviction, thereby avoiding undue prejudice arising from the nature of the conviction.
Defense counsel also sought to introduce evidence that Mercedes's father had been in prison through December 2010. Counsel noted that Mercedes had said, at various points, that she had delayed reporting the incident with Line to the police because she was afraid her father would beat Line up. Counsel sought to impeach Mercedes on the basis that she could not have feared her father would beat Line up because her father was in prison through 2010. Finally, counsel sought to cross-examine Mercedes as to whether knowledge of her father's conviction "create[d] an environment under which she believe[d] that she can falsely accuse somebody, a person gets out of her life, goes to prison for four or five years."
The trial court precluded counsel, under Evidence Code section 352, from "getting into the details of the father's conviction" and from cross-examining Mercedes as to whether she was fabricating the incident with Line based on knowledge she had gleaned on account of her father's conviction. Although counsel clarified that her theory was not that the father was the perpetrator of the charged offenses involving Mercedes, the court remained concerned that this suggestion nonetheless would be "backdoored" were the father's status as a sex offender to be admitted into evidence. The court, however, permitted counsel to question Mercedes, without reference to her father's conviction, about the basis of her putative knowledge of sexual acts and terminology, including the terms "vagina" and "oral copulation." The court further permitted counsel to cross-examine Mercedes as to whether her father was in prison during the relevant period.
At trial, Mercedes testified, on cross-examination, that she learned the word "vagina" at school. She also said that, after she told her grandmother about Line's conduct, she thought her grandmother would tell her mother, her mother would tell her father, and her father would probably kill Line when he got out of prison.
Line now summarily contends, without any argument, analysis, or citation to authority, that the court improperly excluded evidence of the sex offense conviction of Mercedes's father under Evidence Code section 352. Given the perfunctory and passing nature of this contention, we reject it as improperly raised. (Associated Builders, supra, 21 Cal.4th at p. 366, fn. 2; Nielsen, supra, 178 Cal.App.4th at p. 324.) In any event, in light of the limited probative value of the sex offense conviction of Mercedes's father in relation to the charges against Line, as well as its inflammatory nature, Line has not shown that the court's exclusion of this evidence under Evidence Code section 352 was an abuse of discretion.
D. Accusations against Dan
At the time that Mercedes was orally copulated by Line, she was living in her house with her mother Michelle, family friends Dan and Debbie, their daughter B.H., and granddaughter R.Y. Prior to Mercedes's report of the incident with Line to law enforcement, Dan was accused of sexually molesting R.Y. but the accusations were never substantiated. Defense counsel argued the allegations nonetheless were relevant for purposes of impeaching Mercedes's credibility on the theory that she had prior knowledge of the accusations and this knowledge spurred her to fabricate molestation accusations against Line, possibly to get him out of her life. The prosecutor countered that the allegations against Dan were irrelevant and unduly prejudicial under Evidence Code section 352. The court excluded evidence of the sexual molestation allegations against Dan.
Here Line simply asserts, without any argument, analysis, or citation to authority, that evidence of the sexual molestation allegations against Dan was improperly excluded under Evidence Code section 352. Given the perfunctory nature of this contention, we reject it as improperly raised. (Associated Builders, supra, 21 Cal.4th at p. 366, fn. 2; Nielsen, supra, 178 Cal.App.4th at p. 324.) In any event, the allegations against Dan were not particularly probative since there was no evidence that Mercedes was aware of the allegations themselves or of any resultant consequences. To the extent the defense theory was that the allegations against Dan spurred Mercedes to falsely incriminate Line, it bears mention that Line appeared to largely be out of Mercedes's life by the time she reported that he had orally copulated her. Mercedes's mother, Michelle, testified that her relationship with Line lasted six to eight months and ended years before Mercedes told her about the incident; moreover, the prosecutor advised the trial court that Line was living in another state when Mercedes told her grandmother about the incident. Thus, the probative value of the disputed evidence was tenuous and, at the same time, there was a substantial likelihood that, on account of its inflammatory nature, it would confuse the issues and mislead the jury. We conclude Line has not shown that the trial court's exclusion of this evidence constituted an abuse of discretion under Evidence Code section 352.
E. Prior drug use by witnesses
As mentioned above, at the time that Mercedes was orally copulated by Line, she was living in a house with her mother Michelle, family friends Dan and Debbie, their daughter B.H., and their granddaughter R.Y. Michelle and B.H. testified for the People and Debbie testified in the defense case. During Michelle's testimony, defense counsel sought to ask her whether B.H. and Debbie used methamphetamine at the time that Mercedes was orally copulated by Line. The trial court conducted an Evidence Code section 402 hearing on the issue. Michelle said she had used methamphetamine with B.H. and Debbie in the past but did not know whether the latter two used methamphetamine on the night that Line orally copulated Mercedes; she also testified that Dan was not a methamphetamine user. Since Michelle did not know whether B.H. and Debbie had used methamphetamine on the date in question, the trial court precluded defense counsel from questioning Michelle about that issue. The court, however, permitted counsel to ask B.H., Debbie, and Dan whether they were under the influence of any drug, including methamphetamine, on the night in question. Ultimately, both B.H. and Debbie admitted, under questioning from defense counsel, that they were habitual methamphetamine users during the relevant time period, i.e., when Line orally copulated Mercedes.
Here, Line summarily asserts that the court's exclusion of evidence of drug use by these witnesses was an abuse of discretion under Evidence Code section 352. Again, we reject this contention as improperly raised since Line provides no argument, analysis, or applicable citations to support his claim of error. (Associated Builders, supra, 21 Cal.4th at p. 366, fn. 2; Nielsen, supra, 178 Cal.App.4th at p. 324.) In any event, the trial court permitted defense counsel to ask B.H. and Debbie whether they had used drugs on the date in question and both testified they were habitual users of methamphetamine during that time period. The court also held an Evidence Code section 402 hearing at which Michelle testified she did not know whether B.H. and Debbie used methamphetamine on the date in question. Line has not shown that the trial court abused its discretion in precluding defense counsel from cross-examining Michelle on the issue of drug use by B.H. and Debbie. Furthermore, since B.H. and Debbie both in fact testified that they were habitual users of methamphetamine during the relevant period, Line was not prejudiced by the trial court's ruling.
F. Derivative due process violation
Line argues that the collective impact of the trial court's Evidence Code section 352 rulings with respect to the above-enumerated categories of evidence, constituted a denial of due process. However, in this context, due process is violated when the trial court improperly applies Evidence Code section 352, leading to the denial of a fair trial. (People v. Dejourney (2011) 192 Cal.App.4th 1091, 1106.) Here, Line has not shown that the trial court improperly applied Evidence Code section 352, with respect to the specified categories of evidence, and, in turn, has failed to establish the denial of his rights to a fair trial and due process. II. R.Y.'s accusations against Dan as third party culpability evidence
Line's argument (or, more accurately, bare assertion) that the court's exercise of discretion under Evidence Code section 352 regarding these categories of evidence also violated his right to confrontation, fails for the same reason. (See People v. Ardoin (2011) 196 Cal.App.4th 102, 122.)
Line contends that the trial court abused its discretion by excluding alleged third party culpability evidence relating to Dan. He further argues that this evidentiary ruling violated his constitutional rights, including the right to present a defense. We reject these contentions.
A. Background
The prosecution moved in limine, in relation to the counts alleging that Line had orally copulated Mercedes, to exclude evidence of third party culpability involving Dan because there was no direct or circumstantial evidence connecting Dan to the offenses charged in these counts. The defense countered there was sufficient circumstantial evidence connecting Dan to the oral copulation of Mercedes, because Dan was present in the same house that night and there was evidence that Dan had been accused by third parties of sexually molesting his granddaughter, R.Y. (who also lived in the same house at the time). Defense counsel also pointed out that Child Protective Services (CPS) had investigated Dan, and, at one point, even removed R.Y. from the home. The prosecutor noted that the defense's claim as to the existence of circumstantial evidence connecting Dan to the oral copulation of Mercedes was extremely "weak." The prosecutor explained there were two police reports concerning sexual abuse allegations against Dan: one was initiated by an unrelated third party who was evicted from Dan's house and the other by R.Y.'s biological mother, who was trying to regain custody of R.Y. Neither of these reports were ultimately substantiated, indeed R.Y. specifically denied the accusations made by the evicted third party, who evidently was retaliating against Dan for the eviction. The prosecutor also noted that Mercedes had never wavered as to the identity of the person who had orally copulated her.
Defense counsel asked the court to delay ruling on the People's motion in limine to exclude third party culpability evidence related to Dan, so as to give the defense an opportunity to file a written evidentiary proffer concerning Dan. Defense counsel then filed, under seal, a written declaration explaining that she intended to introduce evidence of the sexual abuse allegations against Dan "to show [R.]Y. manipulated the CPS system for her own gain (to get out of her grandparents' home and move back in with her mother)." Counsel clarified she did not intend to show "that Dan ... was in fact a sex abuser." In other words, counsel's theory was not that Dan had sexually abused R.Y. and, in turn, was also possibly responsible for the oral copulation of Mercedes, but rather, that R.Y.'s situation may have influenced Mercedes to make false accusations against Line. Indeed, counsel stated in a subsequent hearing on the issue: "I also believe that [R.Y.'s] accusation, as the DA points out in their brief, could very well be false. The fact that [R.Y.] used those [allegations] to manipulate the justice system and [used] that as a way to get out of the house could be a model for Mercedes H." Counsel added that evidence of the sexual abuse allegations against Dan "wouldn't be necessarily offered by the defense to show that somebody else is responsible, but to show where Mercedes could have gotten the idea to make a false sexual abuse report in order to get [Line] out of his mom's home" so that V.C., his stepsister, could claim the home.
Defense counsel provided a redacted version of the declaration to the prosecutor.
Line's mother was married to V.C.'s father, Tommy. Defense counsel contended that Line's mother and Line were living in the family home owned by Tommy, who evidently had passed away. Defense counsel posited that Mercedes was close to V.C. and may have fabricated her allegations to benefit V.C. Specifically, counsel suggested that Mercedes fabricated the allegations so Line and his mother would leave the family home, thereby allowing V.C. to claim it.
The prosecutor responded, "shortly after the alleged incident occurred, the defendant left and moved away from Michelle. They weren't together anymore [and] Mercedes was not even around him to that extent." The prosecutor continued, "And to use [R.Y.'s] family situation to say that just because this girl has some issues going on [makes] Mercedes a false reporter, I think, is absolutely inadmissable. [¶] It's irrelevant under [Evidence Code section] 350. It's highly prejudicial under [Evidence Code section] 352 and it has nothing to do with this situation. There's no evidence." The prosecutor also pointed out that the relevant police reports indicated it was third parties with a reason to either retaliate against or smear Dan, who had filed police reports with these allegations, and furthermore, there was no evidence that Mercedes knew about the allegations against Dan or understood the consequences.
The trial court granted the People's in limine motion to exclude evidence of third party culpability involving Dan, specifically the evidence of sexual abuse allegations against him. The court also precluded the defense from introducing evidence of these allegations on the theory that the existence of these allegations influenced Mercedes to falsely accuse Line of oral copulation.
We addressed this ruling in the previous section of this opinion.
At trial, Mercedes testified that on April 14, 2008, her uncle Gary and cousin Keith, came to the house and knocked on the door of the bedroom where Mercedes, her mother (Michelle), and Line were sleeping. They told Michelle that a relative had passed away. It was really late at night. Michelle got ready to leave with Gary; Mercedes asked her whether she could go as well but Michelle said "no." Therefore, Mercedes went back to bed. As she was "just lying there" on her back, drifting off to sleep, she heard Line get up and "come down" from the "big bed" he shared with Michelle. He pulled off her covers, knelt "to the side" of her bed, pulled down her shorts and underwear (she was wearing shorts and a tank top), and then "was licking [her] ... [o]n [her] vagina" for "a long time." She tried to pull her covers up but "[h]e pulled them back." After he stopped "licking" her, he went to the kitchen. Mercedes testified that at that point, "I pulled my pants up and I went into Rose's room," which "was right next to mine on the left." As she walked to the other room, she saw Line drinking water in the kitchen; they made eye contact but Line did not say anything.
Mercedes testified that B.H. and Debbie were also in the kitchen at the time. However, B.H. testified that she was in the bedroom she shared with her niece, R.Y. B.H. further testified: "Michelle left the house about midnight, and Mercedes had come into my room crying[,] wanting her mom. So I told her she could lay in there, that her mom had to go handle something." B.H. added, "[Mercedes] stayed in my room after she came out of her mom's room."
Michelle, for her part, testified that at approximately 1:00 a.m. on the night of April 13 or 14, 2008, she was woken up by Dan with news that a relative had died. She left the house for a few hours to be with family. When she left, Mercedes was sleeping in a "princess" bed at the foot of Michelle's bed. Line was sleeping in Michelle's bed, as the two were dating at the time. Four years later, Mercedes told her that Line had inappropriately touched her that night. Two weeks after Mercedes's revelation, on October 3, 2011, Michelle reported the incident to the police. Michelle did not have "hard feelings" towards Line after their breakup, only "fond memories." When the police interviewed Michelle in connection with the report she had made, Michelle explained what Mercedes had told her. Michelle testified she asked Mercedes how she knew Line was the culprit. Mercedes told her that Line had walked into the kitchen to get a drink of water, leaving the bedroom door open—Mercedes saw him in the kitchen.
B. Analysis
Line now contends that the trial court erroneously excluded evidence of the sexual molestation allegations against Dan because these allegations were admissible as evidence of third party culpability, i.e., to show Dan had potentially orally copulated Mercedes on the night in question. We disagree.
People v. Hall (1986) 41 Cal.3d 826 (Hall) delineates the criteria governing the admission of evidence of third party culpability. The Hall court rejected the proposition, adopted by earlier cases, that for third-party culpability evidence to be admissible, a defendant would have to adduce "'substantial proof of a probability' that the third person committed the act." (Id. at p. 833.) Rather, Hall explained that "courts should simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ... unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion [under Evidence Code section 352]." (Id. at p. 834.) Hall clarified that third-party culpability evidence is relevant if it is "capable of raising a reasonable doubt of [the] defendant's guilt." (Id. at p. 833.) However, the court cautioned: "At the same time, we do not require that any evidence, however remote, must be admitted to show a third party's possible culpability." (Ibid.) Indeed, "evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Ibid.)
Under the standards governing admission of third-party culpability evidence, as explicated in Hall, the trial court did not err in excluding evidence of allegations that Dan had sexually molested R.Y. Even assuming these allegations suggested that Dan was motivated to molest Mercedes and his presence at the house amounted to an opportunity to do so, "mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt." (Hall, supra, 41 Cal.3d at p. 833.) On the contrary, Hall clarifies, "there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Ibid.) Here, there was no direct or circumstantial evidence linking Dan to the oral copulation of Mercedes. Accordingly, the trial court properly precluded the defense from introducing evidence of sexual abuse allegations against Dan to show that the latter may have committed the crime of oral copulation of Mercedes. Since the evidence involving Dan did not amount to relevant third party culpability evidence, the balancing process of Evidence Code section 352 did not apply. Therefore, there was no error under Evidence Code section 352. In light of our conclusion, we need not address Line's derivative arguments that the court's erroneous exclusion of relevant third-party culpability evidence violated his constitutional rights. (See People v. Gonzales (2012) 54 Cal.4th 1234, 1261 ["[T]he exclusion of weak and speculative evidence of third party culpability does not infringe on a defendant's constitutional rights"].) III. Evidence of Mercedes's CART interview
As part of the background to his argument regarding the court's exclusion of third-party culpability evidence involving Dan, Line references the fact that Line's older brother was serving a prison term of 25 years to life for sexually molesting his minor cousins. Line further notes that V.C.'s brother Lewis W. was also accused of pulling down the blankets on a boy sleeping in his home, ultimately leading to some type of conviction. Line does not contend that the evidence concerning Line's older brother and Lewis was relevant third-party culpability evidence in relation to the charges against Line, but, rather, appears to offer this information as background. Accordingly, we need not address it further.
Line argues the trial court improperly admitted Mercedes's interview with the Child Abuse Response Team (CART) under Evidence Code section 1360, which in turn violated his federal constitutional rights to due process and confrontation of witnesses against him. We reject these contentions.
A. Background
The People moved in limine to introduce into evidence, pursuant to Evidence Code section 1360, a videotaped CART interview of Mercedes conducted on November 30, 2011. Prior to that, the People had informed the defense of their intention to introduce the CART interview, as expressly required under Evidence Code section 1360. Both parties agreed that before admitting evidence under Evidence Code section 1360, the trial court was required, also by the express terms of the statute, to hold an evidentiary hearing to assess the reliability of the proffered evidence. The prosecutor declared her intention to call Detective Brewer of the Tulare County Sheriff's Department—who had personally observed the CART interview—as a witness at the requisite evidentiary hearing. Defense counsel did not ask that Mercedes testify at the evidentiary hearing. On the contrary, counsel told the court that, rather than having Mercedes testify at the evidentiary hearing, the court should wait to hear Mercedes's actual trial testimony and thereafter rule on the reliability, and in turn the admissibility, of the CART interview.
Defense counsel urged the court to defer its ruling as to the reliability and admissibility of the CART interview until after Mercedes had testified at trial, for other reasons as well. She argued that were the prosecutor to use admission of the CART interview as a ruse to limit Mercedes's direct examination, the defendant's right to cross-examine the witness would be compromised, as would the jury's ability to assess her credibility. Defense counsel also expressed her belief that the court could better evaluate any Evidence Code section 352 objections to the CART statement after hearing Mercedes's trial testimony. The prosecutor stated she did not intend to use the CART interview to limit Mercedes's direct testimony and agreed to have Mercedes testify before introduction of the CART interview. Granting defense counsel's request, the court deferred ruling on the admissibility of the videotaped CART interview until after the requisite evidentiary hearing was conducted and Mercedes had testified at trial.
The trial court subsequently conducted the evidentiary hearing required under Evidence Code section 1360. The prosecution called Detective Brewer as a witness. Brewer testified that the crime was reported to the police on October 3, 2011, and several weeks later, in November 2011, Brewer attended Mercedes's CART interview in downtown Visalia, at one of the offices of the county district attorney. Brewer could not correctly recall the actual date of the interview but her report stated the interview occurred on November 30, 2011.
Brewer explained that the CART interview was conducted by Laura Boland, a forensic interviewer, in a warm, friendly environment, a living room-type setting, with children's furniture and stuffed animals. Brewer testified that she watched the entire interview, both the video and audio, on a television in a separate room. Brewer could communicate with Boland during the interview using walkie-talkies and ear pieces. At the beginning of the interview, Boland told Mercedes that nothing she would say would get her into trouble and instructed her on the difference between telling the truth and a lie. Boland conducted the interview by asking open-ended, nonleading questions. The interview was recorded.
The prosecutor showed Brewer a DVD with notations made by Brewer. Brewer verified that she had viewed the DVD and it contained an accurate depiction of Mercedes's CART interview. At the conclusion of the evidentiary hearing, the parties agreed that the prosecutor would provide the court with a DVD and transcript of the interview for the court to review before ruling on the admissibility of the interview. The court reviewed the interview and also redacted it, excising hearsay and inflammatory content based on defense objections.
Defense counsel indicated that the court could rely on the transcript for purposes of its review but, in an abundance of caution, both the DVD and the transcript were included in the record.
After Mercedes testified at trial, the court ruled that the redacted CART interview was admissible under Evidence Code sections 1360 and 352. The court's ruling was based on the evidentiary hearing on the reliability of the interview, the court's review of the interview transcript, and Mercedes's trial testimony. A DVD containing the redacted version of Mercedes's CART interview was then admitted into evidence and played for the jury during Brewer's trial testimony.
In the interview, Mercedes described, in response to nonleading questions, an incident that occurred when she was seven or eight years old and in the first grade. It happened the night her aunt died. At around midnight or 1:00 a.m. that night, a couple of family members came to take Mercedes's mother to be with the family. Mercedes's mother had been sleeping with Line on a "big bed" in her bedroom; Mercedes was sleeping in a "little bed" at the foot of the big bed. After her mother left, Mercedes realized that Line had taken off her covers, pulled down her shorts and underwear, and was "licking" her "vagina." Line continued to do so for about 10 minutes in Mercedes's estimation. He then got up and left the room for a drink of water. Mercedes got up as well and went to the room next to hers, i.e., B.H. and R.Y.'s room, where she went to sleep on a pallet on the floor. That was the one and only time that Line, or indeed anyone else, had ever touched her inappropriately. At the end of the interview, Mercedes confirmed that she had told the truth and that no one had told her what to say in the interview.
B. Analysis
Under Evidence Code section 1360, a child's hearsay statement describing an act of sexual abuse perpetrated upon that child is admissible provided three conditions are met: (1) the court finds, after holding an evidentiary hearing, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; (2) the child either testifies at the hearing or there is corroborating evidence of the hearsay statement; and (3) the proponent of the statement gives notice to the adverse party of its intention to use the statement at trial. (See People v. Brodit (1998) 61 Cal.App.4th 1312, 1329.) Line challenges the admissibility of Mercedes's CART interview solely on the basis of the first requirement for admissibility under Evidence Code section 1360. He argues the court did not properly evaluate the reliability of the interview, whereby admission of the CART interview was an abuse of discretion. We disagree.
Evidence Code section 1360 provides:
"(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 or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, 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.
"(c) For purposes of this section, 'child abuse' means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and 'child neglect' means any of the acts described in Section 11165.2 of the Penal Code."
We review the admission of evidence under Evidence Code section 1360 for abuse of discretion. (People v. Brodit, supra, 61 Cal.App.4th at p. 1330.) Under Evidence Code section 1360, the trial court is required to determine, at an evidentiary hearing, whether "the time, content, and circumstances of the [hearsay] statement [at issue] provide sufficient indicia of reliability." (Evid. Code, § 1360.) In making this determination, the trial court may consider the following nonexclusive factors: "(1) spontaneity and consistent repetition; (2) mental state of the declarant; (3) use of terminology unexpected of a child of similar age; and (4) lack of motive to fabricate." (People v. Brodit, supra, 61 Cal.App.4th at pp. 1329-1330; accord, People v. Eccleston (2001) 89 Cal.App.4th 436, 445-449.)
Line first contends the trial court simply failed to hold the requisite evidentiary hearing to assess the reliability of the CART interview, resulting in a deprivation of his rights to due process and confrontation of witnesses under the federal Constitution and requiring automatic reversal. Line then incorrectly and inexplicably cites to the court's unrelated ruling regarding the admissibility, under the fresh-complaint doctrine, of Mercedes's complaint of Line's conduct to her grandmother. Contrary to Line's contention, before finding Mercedes's CART interview admissible, the court did in fact conduct an evidentiary hearing to evaluate its reliability and also reviewed the CART interview itself. Line's contention that the court failed to hold an evidentiary hearing to assess the reliability of Mercedes's CART statement, and his related claims that this failure violated his constitutional rights, have no merit.
Line further contends that the CART interview was not sufficiently reliable because Mercedes's statements were not "spontaneous" or "consistently repeated." He argues the statements were not spontaneous "because they were made in an artificial setting after persistent questioning." Again, these contentions have no merit. Mercedes was interviewed in a noncoercive environment by a forensic interviewer, who employed nonleading, open-ended questions. Indeed, the interview demonstrates that Mercedes largely volunteered the material information without prompting by the interviewer. Furthermore, Mercedes's description of the molestation was internally consistent and was also consistent, in material respects, with her trial testimony. Accordingly, the trial court's determination that Mercedes's CART interview was sufficiently reliable to warrant admission was not an abuse of discretion under Evidence Code section 1360. IV. Expert testimony of SART nurse
Line argues the trial court prejudicially erred in admitting the testimony of Cathy Boyle, a Sexual Assault Response Team (SART) nurse, who testified as an expert witness on pediatric sexual assault forensic examinations. Line contends Boyle's testimony was irrelevant to the issues in dispute and merely served to vouch for the credibility of the complaining witnesses. We disagree.
Expert opinion testimony is admissible when it "[r]elate[s] to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) Line does not challenge the court's qualification of Boyle as an expert on forensic examinations of children in cases of suspected sexual abuse. Rather, he challenges the admission of Boyle's testimony on grounds it improperly bolstered the credibility of the complaining witnesses and did not assist the jury in resolving the disputed issues. We review the admission of expert witness testimony under an abuse of discretion standard. (People v. Kovacich (2011) 201 Cal.App.4th 863, 902.)
Boyle's credentials as presented to the trial court were strong and she was clearly qualified to testify as an expert on forensic examinations of children in cases of suspected sexual abuse. Boyle had a master's degree in nursing, and was a registered nurse and certified pediatric nurse practitioner. She had conducted sexual assault forensic examinations since 1989, and in 2008 was certified as a sexual assault forensic nurse examiner. She had performed approximately 8,600 sexual assault examinations of children and adolescents in her career, many of them during the 21 years she worked at the Child Protection Center at the University of California Davis Medical Center. She had also testified over 420 times in California courts as to her findings in sexual assault examinations. In addition, she had conducted thousands of peer reviews of sexual abuse examinations performed by others. At the time of trial, Boyle was a pediatric nurse practitioner at Mark Twain Medical Center in Calaveras County, the SART coordinator for the county, and a certified SART examiner for both adults and children.
Here, the prosecutor advised the court that she intended to have Boyle testify regarding the infrequency of detection of physical trauma in sexual assault examinations of children suspected of being sexually abused. Defense counsel objected that Boyle had not examined the complaining witnesses and would be extrapolating from her experience as a pediatric sexual assault forensic examiner, thereby improperly bolstering the credibility of the complaining witnesses. Defense counsel further argued that Boyle's testimony would not assist the jury and should be excluded as being "prejudicial and unfair to the defendant." The court permitted Boyle to testify but precluded her from (1) commenting on the believability of any complaining witness, and (2) referencing a study concluding that 95 percent of pediatric sexual assault examinations yielded normal results in part because children do not promptly disclose sexual abuse. The court, however, allowed Boyle to testify that late disclosure could prevent detection of trauma since injuries healed over time.
At trial, Boyle testified that sexual assault examinations of young children rarely yielded physical evidence of trauma in suspected cases of sexual abuse. The low incidence of trauma findings in pediatric sexual assault examinations was a consequence of the fact that children tend to delay reporting the abuse as well as the fact that genital and perianal injuries tend to heal rapidly and may not subsequently remain visible. Furthermore, many types of sexual abuse, such as fondling, did not result in physical injuries in the first instance. Boyle also clarified that sexual assault examinations were not conducted in instances of historical sexual abuse, i.e., when the suspected abuse had occurred many years in the past. On cross-examination, Boyle agreed that anal assaults could result in anal fissures, scarring, rectal tearing, as well as internal injuries. Finally, Boyle acknowledged she had not met the complaining witnesses in the instant matter, examined them, or heard their trial testimony.
Line now argues that Boyle's testimony was irrelevant because it merely served to bolster the credibility of the complaining witnesses, and, consequently, its admission was highly prejudicial and resulted in the denial of due process and a fair trial. We reject this contention; in light of the issues in dispute, the admission of Boyle's testimony was not an abuse of discretion. Here, C.G. testified that Line had at times forcefully sodomized her, resulting in anal tearing that caused bleeding when she went to the bathroom as well as at other times. C.G.'s mother Ronda indicated that neither Ronda nor C.G.'s pediatrician had detected any injuries suggesting that C.G. was being sexually abused. Boyle's discussion of the rapid healing of genital and anal injuries, as well as the subsequent invisibility of such injuries, was relevant to this issue. Boyle also testified that sexual assault examinations were not performed on suspected victims of sexual abuse if the abuse had taken place years earlier. This testimony was relevant to explain the lack of evidence of any sexual assault examination conducted in connection with the instant matter. Furthermore, the trial court specifically precluded Boyle from commenting on the believability of any complaining witness and from mentioning the specific percentage of children whose sexual assault examinations yielded no findings as a result of late disclosure of the abuse in question.
In sum, in admitting Boyle's testimony, the trial court did not abuse its discretion under Evidence Code sections 801 and 352. Moreover, even were we to assume the trial court erred in admitting Boyle's testimony, the error was harmless. As noted above, Boyle admitted she had not met the complaining witnesses, examined them, or heard their trial testimony. We cannot say there is a reasonable probability that, absent the error, the outcome would have been more favorable to Line. (People v. Watson, supra, 46 Cal.2d at p. 836.) V. Cruel and unusual punishment
Line contends his sentence of 80 years to life—in his case, a de facto sentence of life without the possibility of parole—constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution. More specifically, he contends this sentence is unconstitutional under Coker v. Georgia (1977) 433 U.S. 584, 592 (Coker) because (1) it makes no measurable contribution to acceptable penological goals, and (2) it is inherently irrational and thereby fails to serve rational penological goals.
Coker held that "a punishment is 'excessive' and unconstitutional if it ... makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering." (Coker, supra, 433 U.S. at p. 592.) While we accept Line's claim that his sentence is essentially a life sentence, we reject his contentions that this sentence is excessive, and, in turn, unconstitutional because it makes no measurable contribution to acceptable goals of punishment and/or is inherently irrational.
The goals of criminal punishment include vindication of society's sense of justice, protecting society from criminal harms, and deterring criminal behavior. (See People v. Mesce (1997) 52 Cal.App.4th 618, 632 [The "classic concerns of sentencing" are "retribution, deterrence, and incapacitation."]; see also In re Nunez (2009) 173 Cal.App.4th 709, 730 ["Valid penological goals include retribution, incapacitation, rehabilitation, and deterrence."]; People v. Warner (1978) 20 Cal.3d 678, 689 ["The paramount concern in sentencing must be the protection of society"].) Here, Line's repeated and predatory sexual assaults affected multiple children at extremely vulnerable times in their lives, realistically leading to lifelong consequences for them. Furthermore, Line continued to commit the offenses over a considerable span of time. Given this record, the sentence that Line received furthered acceptable penological goals of retribution, deterrence, and incapacitation and, accordingly, was not excessive under Coker.
Line further argues, in a gloss on his first argument, that a sentence like his, which on its face exceeds normal, human life expectancy, is inherently irrational. Relying on Justice Mosk's concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, Line contends that such a sentence cannot serve rational penological goals and is, in turn, unconstitutional under Coker. (Id. at pp. 600-602 (conc. opn. of Mosk, J.) [any sentence longer than the human life span can serve no rational penological purpose and is inherently cruel and unusual].) However, as People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 clarified when confronted with the same argument, "'no opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.]' [Citations.] Because no other justice on our Supreme Court joined in Justice Mosk's concurring opinion [in Deloza], it has no precedential value." Furthermore, as the Byrd court observed, a sentence in excess of a human life span does "[serve] valid penological purposes: it unmistakably reflects society's condemnation of [the] defendant's conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future." (Ibid.) Accordingly, we reject Line's claim that a sentence like his, which reasonably exceeds human life expectancy, serves no rational penological purpose and in turn is unconstitutional under Coker. VI. Pitchess motion
Prior to trial, defense counsel filed a Pitchess motion seeking discovery of any personnel records of District Attorney Investigator Frank Arnold relating to his credibility, including records reflecting any (1) incidents of false arrests, fabrication of charges, dishonesty, manipulation of witness statements, fabrication of reports; (2) misconduct in connection with a prior criminal matter in which he was involved (People v. Ray); and (3) disciplinary actions against him. The trial court granted the motion after a hearing.
The custodian of records for the Tulare County District Attorney's Office, Bureau of Investigations, produced Arnold's personnel records for in camera review by the court. The custodian of records stated he had reviewed the files page by page and generally described the types of documents in the files. In response to the court's specific inquiry, the custodian confirmed the file contained no documents reflecting instances of perjury or dishonesty on Arnold's part, or any disciplinary actions or internal affairs investigations in connection with his involvement in People v. Ray or otherwise. Next, the court itself reviewed each document in the file, providing a description of each, in order to create an adequate record for purposes of appellate review. The court perused all of Arnold's performance evaluations, noting that "no reference is made to any instance of misconduct, allegations of dishonesty or perjury, or any matter relating to the Ray case." The custodian of records confirmed that the district attorney's office did not possess other potentially relevant documents that were not present in the file. The court also ascertained that the custodian of records had acted with requisite due diligence in attempting to locate all potentially relevant information. After the in camera review, the court noted: "[T]he Court has conducted a Pitchess inquiry, and the Court has reviewed each and every document. [¶] And there is no information or documents to be disclosed based on any of the matters that have been suggested. Indeed, there is nothing in the files."
The court also ordered county counsel, after the fact, to have the custodian of records return to court with Arnold's personnel documents for the court clerk to make a copy for inclusion in the case record. It appears that a copy of the personnel file ultimately was not included in the instant record. The omission is moot as the trial court's detailed description of the records it reviewed is adequate for purposes of appellate review.
Line requests us to independently review the sealed transcript of the in camera proceedings and any accompanying exhibits to assess the propriety of the Pitchess inquiry conducted by the court, as well as its determination that Arnold's personnel files contained no discoverable material in relation to Line's Pitchess motion. The People have no objection to Line's request for independent review.
People v. Mooc (2001) 26 Cal.4th 1216, 1232 (Mooc), outlines the procedure for conducting a Pitchess inquiry. The custodian of records must produce "all potentially relevant" materials to the court, which then should make a record of what it reviewed:
"Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy
them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent." (Mooc, supra, 26 Cal.4th at p. 1229.)
A trial court's determinations pursuant to a Pitchess inquiry are reviewed for abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.) We have independently reviewed the record of the trial court's Pitchess inquiry. The trial court adequately described the documents in the file, thereby complying with Mooc. We detect no error in the court's determination, in relation to Line's Pitchess motion, that Arnold's personnel files did not contain any discoverable information.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
PEÑA, J.