Opinion
NOT TO BE PUBLISHED
Santa Barbara County Super. Ct. No. 1284144, James F. Iwasko, Judge.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Jorge Fuentes Montenegro.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Steven D. Matthews, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Jorge Fuentes Montenegro appeals from judgment entered after conviction by jury of four felony counts: sexual penetration of a child under 10 years old upon Jane Doe 1 (Pen. Code, § 288.7, subd. (b)), oral copulation of a child under 10 years old upon Jane Doe 1 (ibid.), committing a lewd act on a child under 14 upon Jane Doe 1 (§ 288, subd. (a)), and committing a lewd act upon a child under 14 with force or duress upon Jane Doe 2 (§ 288, subd. (b)). The jury found true multiple victim allegations as to the latter two counts. (§ 667.61, subd. (b)(e)(5).) The trial court sentenced appellant to 45 years to life in state prison.
All further references are to the Penal Code.
Appellant contends that the court's instruction on evaluating the testimony of a child witness (§ 1127f & CALCRIM No. 330) improperly bolstered the credibility of Jane Doe 1 in violation of his constitutional rights. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is married to Francisca Montenegro, who has six children: appellant's two stepdaughters, his two stepsons, his daughter and his son. Some of these children lived in the home as adults, along with their own young children, appellant's grandchildren.
The Charged Offenses
N., appellant's adult daughter, testified that on a July evening in 2008, she found her father (appellant) performing oral sex on her four-year-old daughter, Jane Doe 1, in his bedroom. N. reported this incident to police the next day.
Jane Doe 1 was immediately interviewed, and was interviewed again several days later. In both interviews, Jane Doe 1 said that appellant had licked her vagina and put his finger in her vagina. Before the second interview, she was promised a present. Her descriptions in both interviews were detailed.
Jane Doe 1 was six when she testified at trial. She had not seen appellant since the night her mother found him molesting her. She did not testify in much detail. She testified that appellant did a "bad touch" to her "private" in his bedroom, on the bed, more than once and that it felt weird and made her sad. She described the bedroom and her clothing. She identified the appellant, who was seated in the courtroom. In response to other questions about appellant's conduct she responded, "I forgot." Cross-examination was very short. Defense counsel asked only whether Jane Doe 1 had talked to the prosecutor and a police sergeant many times, which she said she had.
After Jane Doe 1's testimony, police officers testified about the details of her first and second interviews. The jury watched the videotape of the second interview.
Jane Doe 2, appellant's step-granddaughter, was 15 when she testified. She testified that when she was about nine years old, appellant trapped her between two doors in his room and told her to touch his penis. She said no. He rubbed his own hand over his crotch, grabbed her neck, pulled her close and kissed her neck. Months later, she told her parents. Her parents did not report it to the police but said they would stay away from appellant. She told a similar story to a police officer shortly after N.'s report.
The Uncharged Offenses
The prosecutor also presented evidence of uncharged similar incidents. N. testified that when she was a child, she saw appellant (her father) performing oral sex on two of her friends inside a car. When she was an adult, her mother said she had seen appellant touching the vagina of a neighborhood girl.
L., appellant's adult stepdaughter, testified that when she was between 14 and 17, appellant touched her buttocks with his private part. She also saw appellant perform oral sex on her niece, Jane Doe 3, when Jane Doe 3 was between 6 and 8 years old. About six years later, in 1994, L. made statements to a counselor that triggered a police investigation. Jane Doe 3 told an officer that her stepfather had kissed her and touched her private part when she fell from a bike, but denied the act of oral copulation that L. reported seeing.
At trial, Jane Doe 3 testified that when she was in kindergarten or first grade, appellant (her grandfather) performed oral sex on her. When she was 13 or 14, he touched her breasts and watched her when she showered.
Jane Doe 3's sister, Y., testified that when she was around 4 years old appellant (her grandfather) touched her vagina when they were in his bedroom. When she was about four or five, investigators asked her if appellant touched her inappropriately and she said no. In 1994, when Y. was six, she told a police investigator that no one had touched her inappropriately.
Appellant's wife testified that she had never seen appellant molest a child. She never heard or said that appellant molested girls and she was unaware of any police investigation in 1994. Appellant's brother attested to appellant's good character as a brother and supporter of his family.
DISCUSSION
We reject appellant's contention that the court improperly instructed the jury on the testimony of a child witness.
Penal Code section 1127f requires the following instruction, upon request of a party, in any criminal trial in which a child 10 years of age or younger testifies:
"In evaluating the testimony of a child you should consider all of the factors surrounding the child's testimony, including the age of the child and any evidence regarding the child's level of cognitive development. Although, because of age and level of cognitive development, a child may perform differently as a witness from an adult, that does not mean that a child is any more or less credible a witness than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child." (§ 1127f.) This instruction is set forth in substantially similar language in CALCRIM No. 330, and was given by the trial court.
Appellant contends that the instruction precluded the jury from considering doubts about Jane Doe 1's credibility based on her inability to perceive, understand, remember and communicate about the details of her claim. He contends that it therefore improperly bolstered her credibility, lessened the prosecutor's burden of proof, and violated his rights to a jury trial, to confront witnesses against him, to due process of law, and to present a defense under the Fourth, Fifth, Sixth and Fourteenth amendment of the United States Constitution.
Appellant's contentions have been uniformly rejected in published decisions with which we agree. (People v. McCoy (2005) 133 Cal.App.4th 974 [CALCRIM No. 2.20.1]; People v. Gilbert (1992) 5 Cal.App.4th 1372 [CALJIC No. 2.20.1]; People v. Jones (1992) 10 Cal.App.4th 1566 [CALJIC No. 2.20.1] and People v. Harlan (1990) 222 Cal.App.3d 439, 455-456 [CALJIC No. 2.20.1].) The language of CALJIC No. 2.20.1, the predecessor to CALCRIM No. 330, is substantively similar and does not usurp the jury's role, violate a defendant's right to confront witnesses, or preclude the jury from considering a child's cognitive ability in determining credibility. (Harlan, at pp. 455-456.) It does not advise a jury to bolster the credibility of a child above that of an adult witness or foreclose consideration of credibility based on all factors. (Jones, at pp. 1573-1574.) It does not lessen the government's burden of proof or inflate the testimony of a child. (Gilbert, at p. 1393.) These holdings apply with equal force to CALCRIM No. 330, for the reasons explained in People v. McCoy, supra, 133 Cal.App.4th 974, 979-980.
Like CALCRIM No. 330, CALJIC No. 2.20.1 provides that the fact that a child acts differently from an adult does not mean that the child is any more or less believable than an adult, and that the jury should consider the child's cognitive development, consisting of their ability to perceive, to understand, to remember, and to communicate. CALJIC No. 2.20.1 provided in full:
DISPOSITION
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.
"In evaluating the testimony of a child [ten years of age or younger] you should consider all of the factors surrounding the child's testimony, including the age of the child and any evidence regarding the child's level of cognitive development. A child, because of age and level of cognitive development, may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child.
"'Cognitive' means the child's ability to perceive, to understand, to remember, and to communicate any matter about which the child has knowledge."