Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County. Ct. No. 95M16909 John W. DeGroot, Judge.
George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted Eugenio Carmelo Luengas of one count of continual sexual abuse of a child (Pen. Code, § 288.5, subd. (a)), and one count of lewd and lascivious acts upon a child under the age of 14 (id., § 288, subd. (a)). He was sentenced to a total term of 18 years in prison. Although he makes numerous arguments on appeal, we conclude the judgment must be reversed because of several erroneous rulings by the trial court that limited the testimony of Luengas’s expert witness, which precluded Luengas from presenting his only defense to the charges.
FACTUAL AND PROCEDURAL SUMMARY
A.C. testified that in 1993 she was molested by Luengas when he sat her on his lap and fondled her vagina for a period of time. A.C. was approximately six years old at the time of the molestation. There was only one incident. She told her mother about the incident two years later after her mother had received a phone call advising that a child molester (not Luengas) lived in the neighborhood. After the phone call, A.C.’s mother asked her if anyone had touched her. That is when A.C. told her mother that Luengas had done so two years previously.
K.V., A.C.’s mother, testified that on June 20, 1995, she received a phone call from her brother-in-law, who told her there was a man (not Luengas) living in her neighborhood who was molesting children. K.V. asked A.C. if anyone had touched her. A.C. stated that Luengas had molested her. K.V. then called M.Z., G.L.’s mother, and told her what A.C. had stated. Luengas spoke to K.V. and denied molesting A.C. K.V. then suggested that M.Z. ask G.L. if Luengas had touched her. M.Z. called K.V. back a short while later, hysterical because G.L. told her that Luengas had been molesting her. K.V. picked up M.Z. and her children and took them to K.V.’s residence. The police were called and they interviewed the children. A.C. did not tell K.V. any details of the molestation for many years. K.V. did not attend the police interview of either A.C. or G.L.
G.L. testified that that on June 20, 1995, her mother asked her if Luengas had touched her in an inappropriate manner. G.L. initially denied she was being molested, but after a short while, on continued questioning by her mother, she admitted that Luengas had been molesting her. G.L. testified Luengas would come to her bed during the night, lie down beside her, put his hand under her pajamas, and rub her vagina. Although she was not certain, G.L. estimated the molestation occurred about twice a month over a two-year period. When G.L. was interviewed by the police, she told the officer that she had been molested approximately five times over the past few months. She did not tell the truth because she did not want to talk about what had occurred. At the time, G.L. did not know that A.C. also had been molested by Luengas.
The officer asked G.L. if Luengas had molested her one time or five times. G.L. nodded her head, indicating she had been molested five times.
Luengas is the father of three of M.Z.’s children. On June 20, 1995, M.Z., Luengas, and the three children lived together. On that date, K.V. called M.Z. and told her that Luengas had molested A.C. M.Z. believed that Luengas had molested A.C. Luengas spoke with K.V. and denied anything had occurred.
M.Z. then spoke to her daughter, G.L., and asked her if anyone, uncles, M.Z.’s brothers, anyone, had touched her in a way she knew was wrong. G.L. initially shook her head no, but M.Z. thought she was about to cry. M.Z. then said, “Mija, you got to tell me the truth, I am here to protect you. If somebody is touching you, you have to let me know, that’s what I am here for. You have to swear to God that nobody is touching you, [G.L.].” G.L. began to cry and stated that Luengas was molesting her. M.Z. went into the house and confronted Luengas. Luengas denied molesting G.L. or anyone else. M.Z. did not believe him, slapped him as hard as she could, and then took her children and left the house. That was the last time she saw Luengas until he was arrested. K.V. picked up M.Z. and M.Z.’s children, took them to her house, and the police were called. M.Z. was not present when the officer interviewed G.L., nor did she ever discuss the molestation with G.L.
On June 20, 1995, Officer William Spears responded to the initial call of a possible child molestation. He initially spoke with A.C., and she confirmed that Luengas had touched her in the vaginal area. He then spoke with G.L., who also claimed that Luengas had molested her. The interview with A.C. was rather short because Spears quickly learned that the crime occurred in the county, so the sheriff’s office would have jurisdiction over the investigation. Once Spears confirmed that there was enough evidence to suspect a crime had occurred, he called the Madera County Sheriff’s Office, who sent a deputy to conduct the investigation into A.C.’s allegations.
Spears spoke to each child individually, with no parent or other individual present. The interviews were not recorded. Spears spoke with the children while dressed in his full officer’s uniform. He asked open-ended questions and did not lead the children. He approached such investigations with an open mind, aware that false accusations could occur.
A.C. would not state where she was touched, but eventually she circled her groin area on a stick figure drawing to indicate the location Luengas had touched her. G.L. stated she had been touched at least five times in the last few months. G.L. was very restrained, so Spears assumed something was bothering her.
G.L. told Spears that Luengas would come to her bed, kiss her, and rub his hand all over her body. G.L. said Luengas did not penetrate her, but implied that his fingers made contact with her vagina. These incidents occurred after Luengas had been drinking. When Spears asked where Luengas touched her, G.L. was not comfortable. She would not state where. But every time Spears asked the question, G.L. would look towards her vagina. Spears asked if Luengas touched her on various body parts. G.L. said no to each area. When Spears asked G.L. if Luengas touched her on the knee, she said no, but it was close. She then pointed inward, which Spears took to mean that Luengas had touched G.L. in her vaginal area.
Spears had received approximately eight hours of training in how to investigate a molestation case. In his report, Spears indicated that he asked G.L. if Luengas had tried to touch her anywhere else and whether Luengas put his fingers in her vagina.
Psychologist Mitchell Eisen, Ph.D., called as a witness on Luengas’s behalf, testified to general theories about witness suggestability and memory implantation. As will be discussed, post, because of the trial court’s rulings, Eisen’s testimony was limited to a review of the research on this topic. Eisen testified that children generally are susceptible to answering questions falsely if various factors are present. Some of the factors identified by Eisen were (1) leading questions; (2) the body language of the interviewer; (3) perceived authority of the interviewer; (4) a child’s tendency towards attempting to please adults; (5) failure to understand a question, thus providing an inaccurate response; (6) parental coaching; (7) memory contamination; (8) potential problems with young witnesses; and (9) repeating questions.
In addition, Eisen testified about potential problems that could develop, leading to an individual having false memories, including postevent suggestability leading to false memories. There is no method to differentiate between true and false memories. Over the past 10 to15 years, the research has increased dramatically in this area, leading to improved techniques for interviewing potential molestation victims to minimize the possibility that the interviewer is improperly influencing the victims’ memories.
In rebuttal, the People called Psychologist Susan Napolitano, Ph.D., who agreed with Eisen’s testimony, but added that generally, if a child makes a false report of molestation, there is an underlying reason to explain the behavior.
The information charged Luengas with one count of continual sexual abuse of a child (§ 288.5, subd. (a)), and one count of lewd and lascivious acts upon a child under the age of 14 (§ 288, subd. (a)). The jury found Luengas guilty as charged. He was sentenced to the aggravated term of 16 years for the continuous sexual abuse of a child, plus two years consecutive for the lewd and lascivious acts on a child, for a total term of 18 years.
DISCUSSION
The People made a motion before trial to limit Psychologist Eisen’s testimony. The trial court granted the motion, ruling Eisen (1) could not answer hypothetical questions related to the facts of the case; (2) could not comment on the facts of the case; (3) could not render an opinion on the facts of the case, including the interrogation techniques; (4) and could testify, based on what studies have shown, only generally about suggestibility or memory, including the good and bad interrogation techniques, which the trial court recognized as issues in the case.
In addition, Luengas attempted to introduce evidence contained in the report filed by Deputy Sheriff Dewyer, who interviewed A.C., that supported his argument. The trial court refused to allow any reference to the report by any witness, including Eisen.
In limiting Eisen’s testimony, and refusing to allow any reference to the sheriff’s department’s report, the trial court reasoned that an expert could not comment on the facts of a case because to do so would invade the province of the jury. Accordingly, in the trial court’s opinion, hypothetical questions were impermissible because they constituted comments on the facts of the case. Similarly, Eisen was precluded from testifying to the credibility of either victim, or whether the officers used good investigative techniques. Again, it appears the trial court reasoned that whether the officers used good investigative techniques was an issue that the jury must decide; therefore, Eisen’s opinion was irrelevant.
When trial counsel attempted to convince the trial court that Eisen could rely on the sheriff’s department’s report, the trial court reiterated that Eisen could not testify to the circumstances surrounding the investigation, and he could not rely on the sheriff’s department’s report because it was hearsay, not reliable, and the deputy who prepared the report could not be located.
Luengas asserts the trial court erred in excluding the proposed expert testimony. We begin with expert testimony in general.
An expert witness is one who has special knowledge, skill, experience, training, or education sufficient to qualify as an expert on the subject to which his or her testimony relates. (Evid. Code, § 720.) An expert may offer opinion testimony if the subject is sufficiently beyond common experience that it would assist the trier of fact. (§ 801, subd. (a).) The opinion must be based on matter perceived by, or personally known, or made known, to the witness at or before the hearing that is of the type that reasonably may be relied on in forming an opinion on the subject to which the expert’s testimony relates. (Id., subd. (b).) On direct examination, an expert may state the reasons for his or her opinion and the matter upon which the opinion is based. (§ 802.)
All further statutory references are to the Evidence Code unless otherwise stated.
The trial court’s position, that Eisen could not testify about the facts of the case because such testimony would invade the province of the jury, appears to be an assertion that such testimony would be to the “ultimate issue” to be determined by the jury and thus would be inadmissible. The trial court was incorrect. Expert witnesses can, and do, opine about issues that must be decided by the jury, as long as the testimony would assist the jury in evaluating the evidence. (§ 805; People v. Lindberg (2008) 45 Cal.4th 1, 49 (Lindberg); People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77; People v. McDonald (1984) 37 Cal.3d 351, 371, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 911-924.)
Moreover, as we read the transcript, Eisen did not propose to testify that the two victims’ testimonies were false because they were the result of improper or coercive interrogation tactics. It appears from the limited record before us that Luengas anticipated Eisen would testify that the interrogation tactics, as well as the method by which the victims initially were approached by their mothers, could have resulted in false accusations because of the suggestibility of young children.
The record on this issue is rather limited because of the trial court’s abrupt dismissal of trial counsel’s argument.
Contrary to the trial court’s position, expert witnesses generally may render opinions on the basis of facts given in a hypothetical question that asks the expert to assume the facts presented are true. (People v. Gonzalez (2006) 38 Cal.4th 932, 946; People v. Boyette (2002) 29 Cal.4th 381, 449; People v. Gardeley (1997) 14 Cal.4th 605, 618 (Gardeley).) Such questions must be based on the facts shown by the evidence. (Boyette, at p. 449.) The evidence on which the hypothetical question is based need not be admitted into evidence, so long as it is the type of material that is reasonably relied on by experts in forming their opinions. (Ibid.) “‘Of course, any material that forms the basis of an expert’s opinion testimony must be reliable. [Citation.] For “the law does not accord to the expert’s opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.”’ [Citation.]” (Ibid.) A party may not, however, use hypothetical questions to “place before the jury facts divorced from the actual evidence and for which no evidence is ever introduced.” (Ibid.)
The trial court also erred in ruling that Eisen could not rely on hearsay in forming an opinion. Hearsay information of a type reasonably relied upon by professionals may be used to support an expert opinion. (People v. Catlin (2001) 26 Cal.4th 81, 137; People v. Carpenter (1997) 15 Cal.4th 312, 403; People v. Cooper (2007) 148 Cal.App.4th 731, 746-747; People v. Jantz (2006) 137 Cal.App.4th 1283, 1295 (Jantz); Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524 (Korsak).) “Hearsay relied upon by experts in formulating their opinions is not testimonial because it is not offered for the truth of the facts stated but merely as the basis for the expert’s opinion.” (Cooper, at p. 747.) Generally, the hearsay on which the expert bases his or her opinion should be considered improper matter unless it is necessary to the expert’s opinion and there are indications the hearsay is reliable. (Korsak, at pp. 1523-1525.) An expert may disclose the hearsay information to explain the reasons for his or her opinion, as long as the information is not considered for its truth. (Gardeley, supra, 14 Cal.4th at pp. 618-619; Jantz, at p. 1295.) The trial court may give a limiting instruction to prevent the jury from improper consideration of hearsay. (Jantz, at pp. 1295-1296.)
In this case both elements appear to be present. Reliance on the sheriff’s department’s report was necessary because the deputy sheriff who prepared the report could not be located, and reports by deputy sheriffs generally are considered reliable.
Finally, the trial court erred in ruling the portions of the sheriff’s department’s report to which trial counsel referred were inadmissible hearsay. Trial counsel pointed out that when the investigating deputy, Dewyer, initially interviewed A.C., she denied that Luengas had touched her underneath her shorts. The report continues “‘this conflicted with the information given to me by Officer Spears, so I consulted him briefly and we decided to do a joint investigation of the [victim], along with the [victim]’s mother present in hopes this would be more comfortable to [the victim] and get her to open up to me about the incident. After several minutes I was able to get [the victim] to tell me what had really happened.’”
While the police report is hearsay as defined in section 1200, subdivision (a), it may fall within the business record exception to the hearsay rule. (§ 1271.) This exception provides that “a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule where offered to prove the act, condition, or event, if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” (Ibid.) While any statements made by A.C. that are contained in the report would be inadmissible hearsay, Dewyer’s acts in contacting A.C., receiving a version of the events, consulting with Spears, and then reinterviewing A.C. and receiving a different version of events, are admissible acts or events if the proper foundation could be established by Luengas. As Eisen attempted to explain to the jury, it is these types of actions that can lead to false testimony.
Luengas presented this argument at trial, which the trial court rejected.
The trial court has discretion when deciding whether to admit expert testimony (Lindberg, supra, 45 Cal.4th at p. 45) and enjoys broad discretion in ruling on foundational matter on which expert testimony is based (Korsak, supra, 2 Cal.App.4th at p. 1523). “However, the discretion to admit or exclude evidence is not unlimited. ‘The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown. [Citation.]’ [Citations.]” (Ibid.) Moreover, it is prejudicial error to exclude relevant and material expert evidence where a proper foundation for it has been laid. (Ibid.) The trial court’s rulings in this case were not supported by any reasonable basis and did not comply with governing legal principles. The result is prejudicial error requiring reversal.
The only issue at trial was whether Luengas molested the children. Luengas’s defense was based on the argument that he was accused falsely because of the manner in which the children were approached first by their mothers and the manner in which they were interrogated by the investigating officers. The defense was dependent entirely on Eisen’s opinion testimony. When the trial court refused to allow Eisen to testify about any of the facts of the case, refused to allow Eisen testify about the basis for his opinion, refused to allow Luengas to ask hypothetical questions and erroneously excluded some of the evidence that formed the basis for the testimony, Luengas’s defense was gutted.
Even if we ignore the issue of the report prepared by Dewyer, there is ample testimony from the prosecution witnesses that could lead to an inference of suggestability. Both victims were young children. Both were approached by their mothers, asking them if they had been molested. G.L.’s mother approached G.L. after learning, and believing, that Luengas had molested A.C., thereby suggesting that she expected G.L. to state she also had been molested by Luengas. G.L. initially denied being molested but finally accused Luengas of molesting her upon further questioning by her mother. Neither child immediately identified to the officers where they were allegedly touched by Luengas.
Eisen should have been allowed to testify how these facts fit into the studies and research done in this field. The trial court’s refusal to permit such questioning leaves no doubt that the error was prejudicial and, therefore, the judgment must be reversed.
We are not suggesting that Luengas will or should be acquitted upon retrial. We only conclude that he is entitled to a judgment after the jury considers all relevant testimony.
DISPOSITION
The judgment is reversed and the matter remanded to the trial court for further proceedings.
WE CONCUR:
VARTABEDIAN, Acting P.J.,GOMES, J.