Opinion
D070618
03-24-2017
In re MOHAMED F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MOHAMED F., Defendant and Appellant.
Nancy Susan Brandt, 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, Charles C. Ragland and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J237855) APPEAL from an order of the Superior Court of San Diego County, Joan P. Weber, Judge. Affirmed. Nancy Susan Brandt, 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, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A petition was filed in the juvenile court alleging that Mohamed F. (the Minor) committed two counts of lewd and lascivious acts upon a child (Pen. Code, § 288, subd. (a)); Welf. & Inst. Code, § 602). Following trial, the juvenile court found the allegations to be true. The Minor was declared a ward of the court and placed on probation in the home of his parents.
The Minor appeals contending the trial court erred in admitting several of the victim's out-of-court statements in evidence pursuant to Evidence Code section 1360. Specifically, the Minor contends the trial court failed to find sufficient foundation to establish reliability of the victim's statements. We disagree. Based upon our review of the record, it is clear the trial court found the victim's statements, in and out of court, to be truthful and credible. The court found the victim, then a four-year-old child, would not have any way to know about the sexual acts she spontaneously described unless her statement was true.
All further statutory references are to the Evidence Code unless otherwise specified. --------
STATEMENT OF FACTS
While the parties disagree on the reliability of the victim's statements, they do not dispute what testimony was presented in the juvenile court. Accordingly, we will adopt the respondent's statement of facts as an accurate summary of the evidence admitted at trial.
S.M. was four years old and her family were next door neighbors of appellant's family. Both families were from Somalia. The families often visited each other in each other's homes. On June 3, 2015, S.M. asked her mother if she could go to appellant's family's home to play with appellant's sister. While at appellant's home, when she was upstairs, appellant brought S.M. into his room, took off her dress and underwear, and took off his pants. Appellant made S.M. taste his "pee" and tasted where S.M. pees. Appellant told her not to tell anyone because he would get in trouble.
When S.M.'s mother went to appellant's house to pick up S.M., all the children were upstairs, apparently watching television, and the adults were downstairs. When they got home, S.M. went with her older sister to the bathroom. Her sister was 28 years old and S.M. confided in her. When S.M. was sitting on the toilet, she told her sister that appellant made her taste his pee-pee. Her sister asked her what she meant and S.M. repeated it. She brought S.M. down to their mother and S.M. said appellant made her taste him and he tasted her.
Sheri Rouse was a forensic interviewer at Chadwick Center at Children's Hospital. She had done over 2,000 forensic interviews, 98 percent with children. Ms. Rouse interviewed S.M. on June 15, 2015, at the Chadwick Center. The interview was videotaped. After some preliminary discussion, S.M. said her sisters and mother brought her there "cause the boy did something wrong." She said the boy was appellant who lived right next door to her. S.M. said appellant "tasted where you pee." S.M. indicated where she meant and that he tasted it with his mouth. She said appellant said, "Pretty please can you taste mine," "and [she] had to do it" because he made her. She said appellant made her "taste his pee." She said it happened in appellant's room. She said appellant took off her pants and underwear. She said there was no other touching besides the tasting. She said that it only happened once. S.M. said when she was with appellant in his room, his mother was downstairs and his sisters were in their room watching a video game on a television. She said the first person she told about what happened was her sister. S.M. said appellant told her not to tell because he would get into trouble.
Defense Evidence
Appellant's mother testified that on June 3, 2015, she was home. When S.M. came over, appellant was playing basketball outside in the courtyard. The only television in their home was downstairs. On the day in question, when S.M. was at their home, appellant never went upstairs. Appellant was never alone with S.M. that day. Appellant's father testified he was home that day, sitting with guests in the living room. Appellant was downstairs playing basketball. Appellant never went upstairs.
DISCUSSION
The Minor contends the trial court did not make the foundational finding of reliability of the victim's statement in order to allow admission of hearsay under section 1360. While the trial court did not make such findings in the language of the statute, it did make a number of observations about the child's spontaneous statements on the day of the offense. By way of example, we will quote the court's statement on the Minor's motion to dismiss at the end of the prosecution's case. The defense motion was based on the argument the victim's statements were not credible or reliable, including her statements made in court and those made out of court. The court denied the motion. In doing so, the court commented on the victim's statements. The court said:
"The Court: Well, what do we do about the fact that it makes no sense to me that this tiny child, innocent little four-year-old girl, is going to just make up out of nowhere this conduct that she knows nothing about and she tells her sister immediately? The first thing out [of] her mouth to her sister is: He made me taste his pee-pee.
"So -- and she shows her where the pee-pee is and what he made her do.
"And to me, that is the most believable statement of everything, unless I find that [her sister] is in some way lying, which I have no basis to believe that.
"So we have her telling this the day it happened.
"She knew something was not right at all. She's four, so she doesn't know how bad it is, but she knows this is not right. And she discloses when she gets home to the first person she felt comfortable disclosing to, her sister."
A. Legal Principles
When we review evidentiary rulings of a trial court, we apply the abuse of discretion standard of review. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367.) We will not overturn such rulings in the absence of a showing of a clear abuse of the court's discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1004.) We independently review a finding of reliability of hearsay evidence offered under the independent review standard. (Roberto V., supra, at p. 1374.)
In People v. Brodit (1998) 61 Cal.App.4th 1312, the court discussed the admissibility of hearsay statements of child witnesses under section 1360. The court said:
"Section 1360 allows the court to admit a child's hearsay statement describing an act of child abuse upon that child provided three conditions are met: (1) the court finds that the time, content and
circumstances of the statement provides sufficient indicia of reliability; (2) the child either testifies at the hearing or there is corroborating evidence of the hearsay statements; and (3) the proponent of the statement gives notice to the adverse party that it intends to use the statement at trial." (Brodit, supra, at p. 1329.)
Among the factors to be considered in assessing whether a child's hearsay statement is sufficiently reliable, courts should consider a number of factors. The court in In re Cindy L. (1997) 17 Cal.4th 15, 29, identified the following nonexclusive factors in a hearsay analysis that would be similar to that required in section 1360: (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. Eccleston (2001) 89 Cal.App.4th 436, 445.)
B. Analysis
The victim's first report to her sister was clearly spontaneous. The child's statements were not the product of adult questioning or prompting. The child repeated the statements then to her mother, and sometime later to the child abuse interviewer. Her testimony at trial was consistent with the basic report that the Minor had orally copulated her and had her orally copulate him. The Minor points to inconsistencies in the victim's testimony and interview. Inconsistencies in the testimony of a child of four and then five are not uncommon, particularly when interviewed by strangers or testifying in court. The record shows the victim was frightened during her testimony.
What is clear from the record is the victim's basic statement never changed. The Minor had her "taste" him and he "tasted" her, which leads up to the factor of the use of language not normally used by a child of the same age.
The trial court was greatly influenced by the fact the then four-year-old girl reported what was essentially oral copulation. Nothing in the record allows any inference the child would otherwise know anything about such sexual activity. Nothing shows any adult influence that would have explained the child's awareness of such concepts. The only rational explanation in this record is the child learned the idea of "tasting" of what she described as the Minor's penis and her vagina, from the actions and comments of the Minor.
No motive to fabricate is demonstrated by this record. There is no evidence of prompting or suggestion by any adult, and no showing of animosity or any reason to infer the child has a motive to fabricate her statements.
Finally, nothing in the record reflects adversely on the victim's mental state at the time of her reports to her sister or mother. In short, we find sufficient evidence in the record to establish the reliability of the victim's out-of-court statements to support the juvenile court's decision to admit the statements into evidence.
The child testified and she was subjected to thorough cross-examination. At the conclusion of the evidence, the court reasonably found her statements and testimony to be reliable and credible. The court did not abuse its discretion in admitting hearsay under section 1360.
DISPOSITION
The true finding on the petition and disposition are affirmed.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
HALLER, J. /s/_________
AARON, J.