Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. GA060640 Zaven V. Sinanian, Judge.
Charles T. Mathews for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
A jury convicted defendant Cruz Mejia of five counts of child molestation (Pen. Code, § 288, subd. (a)), and found true the allegation under section 667.61, subdivision (b), that he committed the crimes against multiple victims. He was sentenced to concurrent terms of 15 years to life on each count. He appeals from the judgment of conviction, contending that the trial court erred in: (1) limiting cross-examination of J.T., the alleged victim of counts 1 and 2; (2) not conducting an in camera review of the records from J.T.’s stay at Las Encinas Hospital; (3) not excluding “newly discovered evidence” that J.T. had made a prior complaint of molestation by defendant; and (4) permitting expert witness testimony on Child Abuse Accommodation Syndrome. We affirm.
All undesignated section references are to the Penal Code.
EVIDENCE
I. Prosecution Case
The alleged molestation victims were defendant’s nieces, J.T., LT., and Y.A., each of whom testified at trial.
Counts 1 and 2 (J.T.)
Born in January 1989, J.T. was 16 at the time of trial. When she was six, she was living at her grandmother’s house. Defendant would frequently drive J.T. and her grandmother places. J.T. would sit in the rear seat of the car on the passenger side, and her grandmother would sit in the front passenger seat. When J.T.’s grandmother was not looking, defendant would reach behind and put his hand inside J.T.’s underwear, digitally penetrating her vagina. This happened about nine times.
The last time defendant molested J.T. was toward the end of January or the beginning of February 1996, at her grandmother’s house. Her grandmother had invited defendant over, even though there was a rule that he was not allowed in the house when J.T.’s parents were not present. J.T. was under the kitchen table playing with some toys when her grandmother served defendant some soup. Defendant reached under the table, grabbed J.T.’s arm, and put her hand on his crotch. J.T. left to go to her bedroom, but defendant grabbed her in the living room and tried to kiss her, passing his tongue over her mouth.
J.T. did not tell anyone about the molestations because she did not know “what [she] was doing, if it was right or it was wrong, ” and was afraid of getting in trouble and of what her parents might say. Also, she was worried that her grandmother, who had a close relationship with defendant, would not believe her.
When she was 14, J.T. finally told her mother. At the time, she was frustrated and angry with defendant, who would complain to J.T.’s mother about “any little thing” J.T. did, like being late when defendant picked her up from school, or changing clothes once she got to school. Also, defendant would never let his daughter sleep over at J.T.’s house. J.T.’s mother was shocked and cried when J.T. told her. However, her mother did not want to tell the police, because she was afraid of what J.T. would have to go through.
On January 17, 2004, J.T. was at Martin Luther King Hospital, and was transferred to Las Encinas Hospital. There, in the process of being admitted, J.T. was crying because she had a headache. A therapist or intake social worker asked why she was crying. J.T. told her that she had “gotten molested, ” and at some point named defendant. J.T. had not gone to Las Encinas because of the molestations, but for unrelated reasons.
Later, J.T. repeated her accusations to a social worker with the Department of Children and Family Services, and to the police. J.T.’s allegations divided her relatives on her mother’s side of the family.
Counts 3 and 4 (L.T.)
Born in November 1993, L.T. was 11 years old at time of trial. From the age of 6 until she was 9, defendant molested L.T. perhaps 20 to 30 times. Frequently at defendant’s apartment, usually after he picked her up from school, defendant would take L.T. into his bedroom, and close the door. He would then touch her vagina under her clothing and digitally penetrate her. Defendants’ sons (C. and A.) would be present elsewhere in the apartment, and sometimes L.T.’s aunt. At least once, defendant kissed her, putting his tongue inside her mouth. One time he made her touch his penis with her mouth, and once or twice with her hand. On occasion, defendant would drive L.T., J.T., and his sons to school. He would reach behind him to the back seat, where L.T. was sitting, and would touch L.T.’s leg.
When L.T. was 9 and J.T. was 14, L.T. heard about some bad things defendant did to J.T.; J.T. “confessed” about them. L.T.’s mother asked L.T. if anything had happened to her, and L.T. said no. L.T. did not want to tell anyone about what defendant had done to her, because she did not want to cause her mother any more pain. A few months before trial, however, after her mother told her to tell the truth, L.T. told a social worker that defendant had molested her, and later told her mother and the police.
Count 5 (Y.A.)
At the time of trial, Y.A. was seven years old, born in November 1998. In her trial testimony, Y.A. denied that in November 2002 defendant put her on his lap and touched her “private parts.” She admitted, however, that she had earlier told the police that defendant touched her private part while she was sitting on his lap, and that her grandmother A.R. was present. Y.A. testified that a few months after making this statement to a police detective, she told the detective that her accusation was false. When the detective asked why she was now saying defendant did not touch her, she said she was confused and scared. She had seen her grandmother crying at night, and asked her grandmother why. Her grandmother said it was because defendant was in jail. That made Y.A. sad, and she decided to say that defendant had not touched her. Y.A. had also told her teacher and her mother that what she said about defendant molesting her was not true.
Y.A. was angry that L.T. and J.T. had talked to the police. She believed that they should not have spoken to the police, even if what they said was true.
John Collins, Director of Community Problems for Childhelp USA, taught a course in child abuse prevention to students at Y.A.’s elementary school in February 2005. At a session in late February, after he had explained that no one had a right to touch the children’s private body parts, Y.A. raised her hand and said that her uncle had done so. After class, Collins talked to Y.A. with her teacher present. He asked Y.A. what she meant when she said her uncle had touched her private parts. Y.A. placed her right hand on her crotch, and said that her uncle had touched her there with his finger. She said that he had done so beginning when she was six and continuing for about a year.
Child Abuse Accommodation Syndrome
Dr. Toni Johnson, a clinical psychologist specializing in the field of child sexual abuse, testified that most children who are molested do not immediately report the abuse, and many who do make a report will try to retract it. There are many reasons for this, including the child’s belief that adults are good people who would not hurt them, and the fear that the molester will deny the conduct, that the child will not be believed, and that other family members will shun the child. A child who discloses abuse may do so after he or she has matured enough to understand that abuse occurred, or out of anger at the offender. Often, when children are molested in a particular setting, they return to that setting, despite the abuse, because that is where their caretakers are. According to Dr. Johnson, there were very few known incidents of false accusations by young children, although there were many incidents that could not be substantiated. Further, although the incidence of false reports is greater among teenagers, who may make false accusations out of anger, such allegations are generally about supposedly current events. Rarely would a teenager make a false report of molestations that occurred ten years earlier.
II. Defense Case
Defendant testified in his own defense, and denied having molested J.T., L.T., or Y.A..
A.R. (grandmother of J.T., L.T., and Y.A.) testified that in 1995 to 2000, she was a cook at a preschool where she spent the night during the work week, and was not with J.T. on those days. She was never in a car with defendant in the driveway of her home in 1995 and 1996, and never saw defendant touch J.T. in the car. Further, defendant never came to her house by himself and had soup. The Director of the preschool, Helen Acuna, testified that A.R. spent Sunday through Friday nights at the school, and was present there during the days.
J.M., Y.A.’s mother, testified that Y.A. was taken to the police by Y.A.’s aunts. When Y.A. came home, she told J.M. that defendant had never done anything to her. J.M. believed that defendant was innocent and was an honest man.
Margret Andricos, a social worker at Las Encinas Hospital, spoke to J.T. during her intake into the facility. When Andricos asked J.T. if there was any history of abuse, she said that she had been sexually abused. She did not name anyone, and said that “extended family members” had molested her.
Humberto Rubal, who was the third-grade teacher for both defendants’ sons, had known defendant for about seven years, and believed defendant to be truthful and honest.
DISCUSSION
I. Cross-Examination of J.T.
Defendant contends that the trial court erred in precluding his attorney from cross-examining J.T. concerning the circumstances that led to her admission to Las Encinas Hospital. We find no abuse of discretion.
On January 17, 2005, J.T. was admitted to Las Encinas Hospital, a behavioral and chemical dependency rehabilitation facility. During her admission, she disclosed to a social worker that about ten years earlier she had been sexually abused by two or three male adults in her extended family. Her accusation was reported to the Department of Children and Family Services and the San Gabriel Police Department, ultimately resulting in the instant prosecution of defendant.
The prosecution made a pretrial motion to preclude the defense from cross-examining J.T. concerning the circumstances that resulted in her being admitted to Las Encinas Hospital. According to the prosecution, J.T.’s mother confiscated her cell phone. J.T. cursed her father, using vulgarities, and he slapped her. J.T. then cut her wrists in the bathroom, causing superficial wounds. J.T.’s father called the police. The police suggested that J.T.’s parents take her to Las Encinas for observation, which they did.
The prosecution argued that the circumstances that led to J.T.’s admission to Las Encinas were irrelevant, or in the alternative inadmissible under Evidence Code section 352 as more prejudicial and than probative. At the hearing on the prosecution’s motion, defense counsel argued that the circumstances of J.T.’s admission to Las Encinas provided a motive for her to make false accusations of molestation. According to defense counsel, the family “dysfunction” demonstrated by J.T.’s argument with her parents and her cutting her wrists was “certainly probative” to demonstrate why J.T. would make false accusations of sexual abuse to “shield herself . . . as to any ill feeling that her parents had against her at that time, ” and to engender sympathy from her parents. In response, the prosecutor noted that J.T.’s parents knew of her allegations before her admission to Las Encinas.
The trial court concluded that evidence of J.T.’s dispute with her parents and her cutting her wrists was irrelevant, and would “mislead the jury into . . . collateral matters as opposed to matters that are at issue.” Therefore, the court precluded defense counsel from cross-examining J.T. about the circumstances leading to her admission to Las Encinas.
We conclude that the trial court did not abuse its broad discretion under Evidence Code section 352. (See People v. Ayala (2000) 24 Cal.4th 243, 282 [trial court has broad discretion to exclude impeachment evidence “‘to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues’”].) J.T. had told her parents of the alleged molestation before the incident that resulted in her being admitted to Las Encinas, thus undercutting any inference that she made the allegations again at Las Encinas in order to garner sympathy from her parents. According to the DCFS report prepared on the basis of J.T.’s admission to Las Encinas, J.T. reported to the intake social worker in her parents’ presence that she had been molested around ten years earlier on several occasions by two or three male adults in her extended family. J.T.’s parents stated that “they did not know about it [the alleged molestation] until much later, ” thus implicitly acknowledging their prior knowledge. Further, at trial, J.T. testified that when she was 14, she told her mother that she had been molested by defendant. However, her mother did not want to tell the police, because she was afraid of what J.T. would have to go through.
Thus, the inference, if any, that J.T. made the allegations of molestation when admitted to Las Encinas in order to obtain sympathy from her parents was weak. As the trial court rightly observed, questioning about the dispute J.T. had with her parents and about her cutting her wrists prior to being admitted to Las Encinas would involve issues collateral to the question of defendant’s guilt or innocence, and would only remotely, if at all, reflect on the credibility of J.T.’s allegations.
Defendant argues that the trial court’s ruling permitted the prosecution to suggest that J.T. was emotionally distraught when admitted to Las Encinas because she had been molested, rather than because of the dispute with her parents. The evidence, however, left no inference that J.T.’s emotional state on admission was caused by having been molested. The molestations occurred ten years earlier. J.T. testified that she was admitted to Las Encinas for reasons unrelated to being molested, and that she when was crying when admitted because she had a headache. Thus, the jury was not misled into believing that J.T. was crying because of the molestation.
We conclude that the trial court did not abuse its discretion in precluding cross-examination of J.T. concerning the circumstances leading to her admission to Las Encinas.
II. J.T.’s Records from Las Encinas
Defendant contends that the trial court erred in declining to conduct an in camera review of J.T.’s records from Las Encinas Hospital. According to defendant, the court should have reviewed the records to determine what material, if any, was subject to the psychotherapist-patient privilege (Evid. Code, § 1014), and whether his Sixth Amendment right to confront and cross-examine J.T. outweighed J.T.’s interest in the confidentiality of the records. We disagree.
Before trial, the defense subpoenaed J.T.’s records from Las Encinas Hospital, and moved to have the court make an in camera examination of them and disclose any statements she might have made that would be relevant to cross-examination. In the supporting memorandum of points an authorities, defense counsel argued that defendant denied J.T.’s allegations, and that J.T. “reported [them] ten years after she claims they occurred, only after having been admitted to the hospital based on a parental dispute, completely unrelated to the present allegations. According to the Social Worker’s intake hospital report, J.T.’s mother took her cell phone away, J.T. cut her wrists, yelled obscenities at her father, causing him to slap her and call the police. Based on their observations, the police advised the parents to take [J.T.] to the hospital for psychiatric evaluation. [¶] The timing of the dispute with her parents, and her allegations against [defendant] are intertwined to the extent they may form the basis for false accusations. It is vital to have the first, and all subsequent reports made regarding these allegations during her hospital stay. [¶] . . . These are discoverable in that they provide direct evidence of the accusation. The Court, therefore, should review the requested records in camera and provide the defense relevant information to properly confront and cross examine the witness as afforded by the Sixth Amendment.”
At oral argument on the motion, the prosecutor represented that he was authorized to invoke the psychotherapist-patient privilege concerning the Las Encinas records, and that J.T. wished to keep her communications between herself and her therapist privileged.
In support of her request for an in camera review, defense counsel noted that J.T. had stayed at Las Encinas “for a period of time.” Counsel stated that the defense was not “necessarily seeking anything that would be a privileged communication with her psychotherapist or any doctor relating to her own mental condition but rather what she stated regarding the allegations against [defendant] because the next time [after her hospitalization] that we have her speaking to anybody at all . . . is quite a bit later when she spoke to a police officer. So certainly [it] does not interfere with her privilege as to what she said regarding [defendant]. And based on that, I certainly think that . . . the court should look at the hospital records and determine what is there that would be relevant to impeach [J.T.] . . . or anything regarding her allegations.”
After taking the matter under submission, the trial court denied the request to review J.T.’s records in camera, and properly so. J.T.’s confidential communications with psychotherapists during her stay at Las Encinas were prima facie privileged. (Evid. Code, § 1014.) Generally, a witness’s psychiatric records in the possession of third parties are not discoverable prior to trial. (People v. Gurule (2002) 28 Cal.4th 557, 592.) As held in People v. Hammon (1997) 15 Cal.4th 1117, 1119 (Hammon), the right of confrontation does not require the trial court, “at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the hands of third party psychotherapy providers.” Hammon explained that the right of confrontation as construed in Davis v. Alaska (1974) 415 U.S. 308 (Davis) (which held that a criminal defendant’s confrontation right sometimes requires witnesses to answer questions that call for information protected by state evidentiary privileges) is a trial right. (Hammon, supra, 15 Cal.4th at pp. 1123-1124.) Any broader reading of Davis “is called into question” by Pennsylvania v. Ritchie (1987) 480 U.S. 39, in which no majority opinion emerged, leaving it unclear “‘whether or to what extent the confrontation or compulsory process clauses of the Sixth Amendment grant pretrial discovery rights to the accused.’ [Citations.]” (Hammon, supra, 15 Cal.4th at p. 1126.) Rejecting the contention that the Sixth Amendment grants the right to pretrial discovery of psychiatric information, the Hammon court held that there was no “adequate justification for taking such a long step in a direction the United States Supreme Court has not gone. Indeed, a persuasive reason exists not to do so. When a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon, as in Davis, to balance the defendant’s need for cross-examination and the state policies the privilege is intended to serve. [Citation.] Before trial, the court typically will not have sufficient information to conduct this inquiry; hence, if pretrial disclosure is permitted, a serious risk arises that privileged material will be disclosed unnecessarily.” (Hammon, supra, 15 Cal.4th at p. 1127.)
In light of Hammon, the trial court in the instant case did not err in declining to conduct a pretrial review of J.T.’s records from Las Encinas. The court in Hammon noted that its holding did not “address the application at trial of the principles articulated in Davis.” (Id. at p. 1128.) In the instant case, however, nothing occurred at trial to invoke Davis.
In Davis, the defendant was charged with burglarizing a bar and taking the bar’s safe. The safe, pried open and missing its contents, was discovered near the home of the chief prosecution witness. The witness, who disclaimed involvement, identified defendant as one of two men he had seen standing beside a car near where the safe was found. According to the witness, defendant was holding a crowbar. At trial, the defense proposed to cross-examine the witness concerning his being on juvenile probation following a finding of delinquency based on his having committed two burglaries. The defense sought to show that when the witness spoke to the police and identified defendant, he might have feared that the police suspected him of involvement in the charged burglary, and also might have feared that his probation would be violated. However, a state law made the witness’s probationary status confidential, and the trial court precluded the proposed examination. The High Court held that the defendant had a Sixth Amendment right to cross-examine the witness for bias, despite the state confidentiality provision. (Davis, supra, 415 U.S. at p. 320.)
In the instant case, the defense made no comparable showing that cross-examining J.T. about statements she might have made to therapists during her stay at Las Encinas might have disclosed any facts relevant to her credibility. Moreover, defense counsel possessed the report prepared by the intake social worker, who reported that J.T. had said she was molested about ten years earlier by two or three male adults in her extended family. Defense counsel cross-examined J.T. concerning her failure to name defendant as her molester. After J.T. testified that she had named defendant, defense counsel impeached her with testimony from the social worker (Margret Andricos), who testified that J.T. had not named anyone, and had simply said that “extended family members” molested her. On these facts, we conclude that defendant’s right to confront and cross-examine witnesses as construed in Davis was not implicated. Defendant made no showing that cross-examining J.T. concerning any statements that might be contained in the Las Encinas records was necessary to properly evaluate her credibility.
III. Child Abuse ACCOMMODATION Syndrome
Defendant contends that the trial court erred in admitting, over his objection, expert testimony by Dr. Toni Johnson on child abuse accommodation syndrome. We disagree. Such expert testimony “has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation.” (People v. Patino (1994) 26 Cal.App.4th 1737, 1744.) In the instant case, Dr. Johnson’s testimony was properly tailored to explain why most children do not immediately report being molested, why a child might retract an accusation once made, why an abused child might continue to return to the situation where abuse occurs, and why at a later age the child might disclose abuse that occurred years earlier. These issues were raised by the allegations of molestation made by J.T., L.T., and Y.A.. Moreover, before Dr. Johnson testified, the court instructed the jury on the limited use to be made of her testimony pursuant to CALJIC No. 10.64, and repeated the instruction as part of its instructions at the close of the case. We find no error in the court’s admission of Dr. Johnson’s testimony.
The court instructed in relevant part that the evidence concerning child abuse accommodation syndrome “is not received and must not be considered by you as proof that the alleged victim’s molestation claim is true. [¶] Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt. [¶] You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim’s reactions, as demonstrated by the evidence, are not inconsistent with her having been molested.”
IV. Newly Discovered Evidence
Defendant contends that the court erred in admitting “newly discovered evidence” that J.T. told her mother about having been molested when she was 14. The contention is based on a misunderstanding of the record.
After the jury was selected, the prosecution filed a motion to admit newly discovered evidence. The newly discovered evidence was not that J.T. had reported being molested to her mother when she was 14 – that fact had been disclosed to the defense. The newly discovered evidence was that after J.T. made the report to her mother, her mother took her to a physician to have her examined. The prosecutor had subpoenaed the medical records, and wished to use them at trial. Defense counsel objected to any use of the records, and to any testimony that J.T. had been examined by a doctor. After lengthy argument in two separate hearings, the court excluded the records and any mention of J.T.’s doctor’s visit during the prosecution’s case-in-chief, and ruled that it might be admissible in rebuttal if J.T.’s credibility were attacked. At trial, J.T. testified without objection that when she was 14 she told her mother that she had been molested. No evidence of her examination by a doctor was introduced. In short, no newly discovered evidence was admitted.
It appears that defendant might be contending that the trial court erred in not declaring a mistrial or granting a continuance to allow him to hire an expert to evaluate the records in an attempt to impeach J.T.’s credibility. The contention is not developed and is unsupported by citations to relevant authority. We therefore deem it forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).)
V. New Trial Motion
Without discussion or citation to relevant authority, defendant contends that the trial court erred in not granting his motion for a new trial. We deem the contention forfeited. (Badie, supra, 67 Cal.App.4th at pp. 784-785.) In any event, the motion was based on the trial court’s alleged errors in admitting Dr. Johnson’s expert testimony, declining to review J.T.’s records from Las Encinas Hospital, and precluding cross-examination of J.T. regarding the reasons she was admitted to Las Encinas. As we have explained, none of the trial court’s rulings was erroneous.
DISPOSITION
The judgment is affirmed.
We concur:
EPSTEIN, P. J. SUZUKAWA, J.