Opinion
E065805
02-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN ANTHONY MENDEZ, Defendant and Appellant.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1501156) OPINION APPEAL from the Superior Court of San Bernardino County. Victor R. Stull, Judge. Affirmed. David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant, Jonathan Mendez appeals from the judgment entered following jury convictions for oral copulation with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b); counts 1-3) and lewd acts upon a child (Pen. Code, § 288, subd. (a); counts 4-5). The trial court sentenced defendant to an aggregate term of 10 years, plus 45 years to life.
Defendant contends the trial court erred in admitting into evidence the pretrial statements of the victim, S.C. Defendant argues the statements were not sufficiently reliable to qualify as a hearsay exception under the Evidence Code section 1360 hearsay exception. Defendant also argues the statements were inadmissible under section 352 and the confrontation clause. We reject defendant's contentions and affirm the judgment.
Unless otherwise noted, all statutory references are to the Evidence Code.
II
FACTS
In 2012, T.C. (Mother) and D.C. (Father) lived with their daughter, S.C. (born in 2007), and a younger son. Mother began an intimate relationship with defendant in August 2012, while still married to Father. Mother and Father separated in August 2012. Father moved into his parents' home. Mother remained at the family's apartment. Mother began dating defendant in October 2012.
Initially, there was no custody agreement. Mother and Father shared custody of their two children. S.C. stayed with Mother during the school week and with Father on weekends. In November or December 2012, defendant moved into Mother's apartment. Mother had a roommate who also shared her apartment. As a consequence, S.C. was rarely alone with defendant. After about five months, Mother and defendant moved to another apartment. According to Mother, S.C. was then frequently left alone with defendant while Mother was at work or taking night classes. Mother often went out of town on business trips for weeks at a time. Maternal grandmother or defendant watched the children while Mother was out of town.
In December 2013, Mother and Father made accusations against each other, claiming the other parent was not properly caring for the children. On December 18, 2013, Mother filed a request for custody of the children.
Also in December 2013, S.C. told Father defendant was taking showers with her. Father immediately told Mother and then reported it to the County of San Bernardino Department of Child Protective Services (CPS). Father also called CPS and reported that defendant threw a wood sword at S.C.'s brother, and Mother "flicked" both children on the forehead when angry at them.
In December 2013, a police officer called defendant and told him he had been accused of taking showers with S.C. Defendant was also accused of neglecting and abusing S.C. and her brother. Defendant denied the allegations. In January 2014, CPS conducted several interviews, during which S.C. said that she had not been sexually abused. After completing its investigation, CPS concluded the allegations were unfounded and closed the case without removing the children from their home.
In February 2014, Mother and defendant moved once again. Mother had both children every other week. The children were left alone with defendant while Mother was at work and while she attended a night class four hours a week. From November 2014 to February 2015, Mother and defendant lived in New York. Mother's children remained in California with Father. Mother and Father agreed that the children would stay with Father and visit Mother during every vacation that was at least two weeks long. The last time S.C. saw defendant was in November 2014.
A. Disclosure of Sexual Abuse
In February 2015, the paternal grandmother (PGM), who on occasion took care of S.C., told Father she was concerned about something S.C. had told her. PGM urged him to talk to S.C. S.C. told Father defendant had touched her, pointing to her crotch. Father made an 18-minute recording of S.C.'s statements on his cell phone. S.C. told Father defendant touched her with a part of his body that looked "like a hot dog." She said he usually touched her when she was asleep. S.C. pointed to her crotch and said "he stuck it in." She said defendant stuck the "hot dog in" and did it a few times.
Because the children were going to spend the weekend with the maternal grandmother (MGM), Father told MGM that S.C. might want to tell her something. Father did not tell MGM what S.C. would say. Father also urged S.C. to tell MGM what she had just told him. While watching cartoons with MGM, S.C. told her defendant had been touching her. It sometimes happened when she was taking a bath, in the garage, in bed, and in the living room. She said he touched her on the bottom a lot.
MGM asked S.C. to draw a picture of the bad day she said she had. S.C. drew a picture of herself lying in bed, someone standing next to her, and a night stand with a bottle on it. S.C. said the picture was not of her bedroom. It was of "their bedroom." MGM asked if the container on the night stand was lotion. S.C. said, "No, grandma, because lotion doesn't hurt. That's what men use to put down there in your private area but it hurts real bad." MGM asked, "[W]hy would he put lotion there, Honey?" S.C. replied, "He uses it for that," and pointed to the penis she drew on the person standing in the picture. When MGM asked where Mother was, S.C. drew a picture of a store and said, "[T]his time she was at the store." S.C. told MGM the man also put cream on her other times, and told MGM about the other instances. MGM wanted to make sure S.C. was being truthful and had not been coached. MGM repeated what S.C. had told her but misstated some of the facts, and S.C. corrected her.
When Father picked up S.C. after she spent the weekend with MGM, MGM showed Father S.C.'s drawing and discussed what S.C. had said. Father and MGM concluded they should immediately report the matter to the police, which they did.
On March 24, 2015, Maricruz Dominguez at the Children's Assessment Center (CAC) interviewed S.C. A DVD of the interview was played for the jury. S.C., who was seven years old, described in detail numerous incidents in which defendant sexually abused her while living with Mother and S.C. Those acts occurred when Mother was not present, in S.C.'s home, in the shower, in Mother and defendant's bedroom, in the living room, and in the car. Defendant's sexual abuse acts included exposing his penis to S.C.; telling S.C. to take off her clothes; directing S.C. to touch his penis and put her mouth on it; putting his penis on her external genitalia and in her vagina; ejaculating on her; masturbating in her presence; digitally penetrating her vagina with his fingers and touching her external genitalia; making her lick his buttocks; and touching S.C.'s chest and kissing her on her genitalia.
S.C. said she did not tell her doctor that defendant had sexually abused her because she was too scared to and her doctor did not ask her if it happened. S.C. told Dominguez that, on one occasion, social workers came to S.C.'s home and asked her if anyone had touched her. Earlier in the day, defendant had sexually abused her, but S.C. was too scared to tell the social workers. She was afraid she would get in trouble.
On March 24, 2015, S.C. had a medical evaluation, but nothing of note was found because the examination was several months after S.C. had last had contact with defendant. The medical report stated, "Normal exam, can neither confirm nor negate sexual abuse." Normally, genitalia injuries heal very quickly, according to the forensic nurse practitioner's testimony. The forensic nurse practitioner, Kelly Deckard, who evaluated S.C., stated in the examination report that S.C. said she experienced a burning sensation with urination concurrent with the sexual abuse. This could have been caused by rubbing the skin and is commonly experienced by children who have experienced inappropriate genital touching.
B. Trial Testimony
S.C., who was eight years old, testified at trial that defendant inappropriately touched her "private parts" (external genitalia) and sexually abused her numerous times. It usually happened at Mother's home, in the bedroom or shower, when Mother was asleep or out of the house. S.C.'s testimony was for the most part consistent with her investigative statement. She stated she first reported the abuse to PGM. Up until that point, she did not tell anyone because she was afraid she would get in trouble. She did what defendant told her to do because Mother told her to listen to him.
A forensic psychologist and clinician testified about child sexual abuse accommodation syndrome (CSAAS), explaining that CSAAS is a pattern of behaviors sexually abused children often exhibit. CSAAS has five components: secrecy; helplessness; entrapment; delayed, unconvincing disclosure; and retraction or recantation. Victims often do not report the abuse because they are told to keep it a secret or they feel shame about being sexually abused. They do not have to be threatened. A child's helplessness is caused by the power differential between the perpetrator and victim. Children are told to obey parents and authority figures, such as a stepparent. A stepparent is viewed as a parent. A child acquiesces in order to receive the good part of the relationship or to have their basic needs met. Often, a child does not report the abuse right away or not at all, if committed by someone with whom they have a relationship. When a child reports sexual abuse, the child tends not to report all of the abuse initially. When sexual abuse is repetitive, a child tends to lump memories of events and not remember every detail. The child remembers what normally occurred, what was particularly intrusive, or the first or last incident.
C. Defendant's Testimony
Defendant testified to the following. When he began living with Mother, he had many arguments with Father. Father wanted defendant to stay away from Mother and the children. Father accused defendant of ruining his family. In December 2013, when S.C. was six years old, Father falsely accused defendant of physically abusing S.C. and her brother, and falsely accused him of showering with S.C.
Defendant stated that Mother left the children with him a "few times" before Mother and defendant moved to New York in November 2014. But 90 percent of the time he was not alone with the children. When Mother was out of town on business, the children stayed with MGM or Father. When Mother was attending night classes, defendant was attending classes at the same time. During that time, the children stayed with MGM or with defendant's mother or brother.
Defendant said he took on the role of stepfather to the children. He denied molesting S.C. or her brother. Defendant stated he never committed any of the acts of sexual abuse S.C. said he had committed. He never showered with S.C., exposed his penis to her, forced S.C. to touch his penis or put it in her mouth, put his penis near her vagina, ejaculated on S.C., masturbated in her presence, put his fingers inside her vagina, inappropriately touched her chest, or forced her to perform any sexual act upon him. Defendant recalled one instance when S.C. saw Mother and defendant having sex in the living room. Mother yelled at S.C. to go back to her room.
Mother, however, testified SC never walked in on Mother and defendant having sex.
Defendant further testified that, after he and Mother moved to New York, S.C. seemed excited to talk to him by phone and Skype. Defendant first learned of the sexual abuse allegations against him when he overheard a conversation between Mother and Father in February 2015. After that, his relationship with Mother deteriorated, but mostly because of defendant's frustration dealing with Father. Mother and defendant agreed to separate until Mother decided whether the allegations were true.
III
ADMISSIBILITY OF PRIOR STATEMENTS
Defendant contends the trial court abused its discretion in allowing evidence of S.C.'s prior statements under section 1360. The four statements at issue are S.C.'s pretrial statements made to Father, MGM, the CAC forensic interviewer, and Deputy Erwin. Defendant also argues that evidence of S.C.'s prior statements should have been barred under section 352 and the confrontation clause.
A. Procedural Background
Before the trial, the prosecution filed a motion in limine requesting the court to allow the prosecution to introduce into evidence the statements S.C. made to PGM, MGM, Father, Deputy Erwin, and Dominguez. The prosecution also requested that S.C.'s videotaped interview with Dominguez be admitted into evidence under sections 1360 and 352. Defendant opposed the motion.
The trial court heard extensive argument on the admissibility of S.C.'s prior statements, viewed S.C.'s interview by Dominguez, and listened to the audio recorded statements S.C. made to Father, MGM, PGM, and Deputy Erwin. The court concluded that S.C.'s statements were truthful and reliable because her description of the sex acts involved activity that was beyond normal knowledge and behavior of a child her age. The court also noted Dominguez's interview was appropriately conducted and allowed S.C. to provide spontaneous responses that did not seem to be "practiced," coerced or coached. The court also noted S.C. did not convey any reason why she would be untruthful. The trial court therefore ruled that evidence of the statements taken by Dominguez, Father, MGM, and Deputy Erwin were admissible. The court further ruled that S.C.'s statement to PGM was inadmissible. During the trial, the prosecution presented evidence of S.C.'s statements to Father, MGM, and Dominguez. The prosecution elected not to present evidence of S.C.'s statements to Deputy Erwin. He did not testify.
B. Admissibility Under Section 1360
Defendant contends the hearsay exception under section 1360 does not apply to S.C.'s statements made to Dominguez, Father, MGM, and Deputy Erwin (prior statements) because the requirements for the exception were not met. We disagree.
As explained by the California Supreme Court in People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367: "Section 1360 creates a limited exception to the hearsay rule in criminal prosecutions for a child's statements describing acts of child abuse or neglect, including statements describing sexual abuse. [Citations.] Section 1360 safeguards the reliability of a child's hearsay statements by requiring that: (1) the court find, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances surrounding the statement(s) provide sufficient indicia of reliability; (2) the child either testifies at the proceedings, or, if the child is unavailable to testify, other evidence corroborates the out-of-court statements; and (3) the proponent of the statement gives notice to the adverse party sufficiently in advance of the proceeding to provide him or her with a fair opportunity to defend against the statement. [Citations.] We review a trial court's admission of evidence under section 1360 for abuse of discretion."
C. Reliability of S.C.'s Prior Statements
Only the first factor is at issue. The second and third factors are not disputed. The second and third factors were met by S.C. testifying at the trial and defendant receiving notice that the prosecution intended to introduce at trial evidence of the prior statements.
As to the first reliability factor, defendant argues S.C.'s prior statements do not bear sufficient indicia of reliability based on trustworthiness factors enunciated in Idaho v. Wright (1990) 497 U.S. 805. "In Idaho v. Wright, supra, 497 U.S. at pages 821-822 . . . , the court identified a number of nonexclusive factors that are relevant to the determination of whether child hearsay statements possess the requisite indicia of reliability: (1) spontaneity and consistent repetition of the statement(s); (2) the declarant's mental state; (3) the declarant's use of terminology unexpected of a child of similar age; and (4) the lack of a motive to fabricate. [Citation.] Courts have 'considerable leeway in their consideration of appropriate factors.' [Citation.] The 'unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.'" (People v. Roberto V., supra, 93 Cal.App.4th at p. 1374.) This court independently reviews a trial court's determination that the statements bore sufficient indicia of reliability. (Ibid.; People v. Eccleston (2001) 89 Cal.App.4th 445, 446.)
A review of S.C.'s prior statements supports the trial court's determination that the statements were reliable. S.C.'s statements reflect spontaneity and consistency, and there is no indication the interviewers coached or coerced S.C. to respond as she did. This is reflected in her statements to each of the interviewers differing in minor ways, such that her statements do not appear to be scripted or memorized. The reliability of S.C.'s statements is further reflected in the consistency of her prior statements concerning key circumstances and conduct committed by defendant. The prior statements are also consistent with S.C.'s trial testimony.
S.C.'s omission of certain facts or details during some of her statements does not demonstrate material inconsistencies. Rather, it shows she responded spontaneously and was not coached to respond according to a scripted dialogue. The questions were not leading or suggestive. During the CAC interview by Dominguez, S.C. was told the interview was being recorded and urged to tell the truth and not guess in response to questions.
Furthermore, S.C.'s responses and terminology were consistent with that of a child of S.C.'s age (seven and a half years old). Her responses were matter-of-fact and did not reveal hostility, anger, or motivation to retaliate against defendant. Defendant argues that there was motivation for S.C. to lie because her parents were going through a divorce, and because Father and defendant held animosity toward each other. But there is no evidence S.C. was aware of this or that it had any impact on the veracity of her responses. Defendant has not presented any evidence that S.C.'s statements were fabricated or unreliable.
D. Section 352
Defendant argues that even if there was sufficient indicia S.C.'s prior statements were reliable, they should have been excluded under section 352. We disagree.
Under section 352: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "A trial court has wide discretion when determining whether Evidence Code section, 352 precludes the admission of evidence, and its exercise of discretion will be disturbed on appeal only if the court's decision exceeded the bounds of reason." (People v. Roberto V., supra, 93 Cal.App.4th at pp. 1366-1367.)
Defendant argues that, although he argued in the trial court that S.C.'s prior statements were inadmissible under section 352, the trial court did not address the argument. Defendant asserts that this demonstrates the trial court failed to understand and exercise its discretion under section 352 to exclude the repetitive evidence of S.C.'s prior statements. But nothing in the record establishes this. It cannot be assumed that because the trial court did not discuss section 352, it did not consider it. Furthermore, defendant did not object to the trial court not addressing section 352 during the hearing on the prosecution's motion in limine to introduce the prior statements. This court may infer the trial court implicitly conducted a proper section 352 analysis and rejected the argument, where there is no evidence to the contrary. (People v. Villatoro (2012) 54 Cal.4th 1152, 1168.)
Furthermore, even if the trial court erred in not exercising its discretion under section 352, the error was harmless. During defendant's motion for new trial, the trial court addressed defendant's argument that the trial court erred under section 352 in admitting evidence of S.C.'s prior statements. During the hearing on the motion for new trial, the court properly exercised its discretion under section 352 by specifying reasonable grounds for finding that the probative value of S.C.'s prior statements outweighed any undue prejudice. Therefore it is not reasonably probable the outcome would have been any different had the trial court addressed during the motion in limine hearing inadmissibility of the prior statements under section 352.
Defendant further argues that allowing evidence of S.C.'s multiple statements was unduly prejudicial because S.C.'s statements implicating defendant were repeated numerous times, which created a substantial danger of undue prejudice and unduly consumed the court's time. Although S.C.'s statements to MGM, Father, and Dominguez were similar and implicated defendant, the evidence was not unduly cumulative because the evidence was provided by different witnesses and was highly probative of defendant's guilt. Under section 352, "prejudicial" is not synonymous with "damaging." (People v. Daniels (2009) 176 Cal.App.4th 304, 317.) Under such circumstances, the trial court did not abuse its discretion in allowing evidence of S.C.'s prior statements.
E. Confrontational Clause
Defendant argues that allowing evidence of S.C.'s prior statements violated his Sixth Amendment right of confrontation under Crawford v. Washington (2004) 541 U.S. 36. This contention has no merit. The trial court's rulings on the admission and exclusion of evidence are reviewed for abuse of discretion. (People v. Chism (2014) 58 Cal.4th 1266, 1291.) "'[I]f the ruling was correct on any ground, it affirms.'" (Id. at p. 1295, fn. 12.)
"'"The United States Supreme Court has established that a defendant's Sixth Amendment right to confrontation is a fundamental right, applicable to the states through the Fourteenth Amendment. [Citation.] The California Constitution now provides a specific guarantee of the right to confrontation: 'The defendant in a criminal cause has the right . . . to be confronted with the witnesses against the defendant.' (Cal. Const., art. I, § 15.)"'" (People v. Christensen (2014) 229 Cal.App.4th 781, 789-790.)
However, the confrontation clause "'does not necessarily prohibit the admission of hearsay statements against a criminal defendant. . . .'" (People v. Kons (2003) 108 Cal.App.4th 514, 521.) "'Only the admission of testimonial hearsay statements violates the confrontation clause. . . .' [Citations.] . . . 'The court [in Crawford v. Washington, supra, 541 U.S. 36] explained that the confrontation clause addressed the specific concern of "[a]n accuser who makes a formal statement to government officers" because that person "bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." [Citation.] The statement of a three-year-old declarant made to his aunt is more like a "casual remark to an acquaintance" and is therefore not a testimonial statement under Crawford.'" (People v. Loy (2011) 52 Cal.4th 46, 66.)
"To be 'testimonial,' (1) the statement must be 'made with some degree of formality or solemnity,' and (2) its 'primary purpose' must 'pertain[] in some fashion to a criminal prosecution.'" (People v. Holmes (2012) 212 Cal.App.4th 431, 438; People v. Edwards (2013) 57 Cal.4th 658, 705.)
In the instant case, S.C.'s statement to MGM was not testimonial in nature. As defendant acknowledges, S.C.'s statements to MGM were not in response to questioning. S.C.'s other prior statements to Father, Dominguez, and Deputy Erwin were provided during questioning, which could be considered testimonial in nature. But even assuming these statements were testimonial under Crawford, allowing evidence of S.C.'s prior statements did not violate defendant's Sixth Amendment right of confrontation. S.C.'s prior statements were reliable and she testified at trial. MGM and Father also testified. Defendant therefore had an opportunity to cross-examine S.C., as well as MGM and Father, to refute SC's reliability as a witness and the veracity of her statements. As to evidence of S.C.'s prior statements to Deputy Erwin, such evidence was not introduced at trial and Deputy Erwin did not testify. We thus conclude evidence of S.C.'s prior statements introduced at trial was not inadmissible under the confrontation clause.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.