Opinion
F071568
10-30-2017
THE PEOPLE, Plaintiff and Respondent, v. ORLANDO MORFIN, Defendant and Appellant.
Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F10905837)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison and Houry A. Sanderson, Judges. Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Orlando Morfin was convicted by jury of one count of sexual penetration of Serena, a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b); count 6), and one count of molesting Jasmine, a minor (§ 647.6, subd. (a); count 10). In addition, defendant admitted he had served one prior prison term (§ 667.5, subd. (b)). The jury was unable to reach a verdict on counts 1 through 5, and 7 through 9. As a result, a mistrial was declared as to those counts.
All further undefined references are to the Penal Code unless otherwise indicated.
Following retrial, defendant was convicted by jury of three counts of oral copulation of Serena (§ 288.7, subd. (b); counts 1, 3 & 9), three counts of sexual intercourse with Serena (§ 288.7, subd. (a); counts 2, 4 & 8), and one count of sodomy of Serena (§ 288.7, subd. (a); count 7). The court dismissed one charge of committing a lewd act against Serena on the People's motion (§ 288, subd. (a); count 5). Defendant was sentenced to a total aggregate prison term of 160 years to life.
On appeal, defendant contends (1) the trial court erred by failing to instruct the jury on the untimely disclosure of evidence pursuant to CALCRIM No. 306, and (2) the trial court abused its discretion by excluding evidence of contributions made by the local police officers' association to Serena and her family. We affirm.
FACTUAL AND PROCEDURAL HISTORY
FIRST TRIAL
Serena was born in 2000. From 2007 through August 2010, she lived primarily with defendant. In August 2010, she told a school official defendant was molesting her and she did not want to go back to his home. She disclosed the abuse because she was afraid she could become pregnant.
Officer Jaimy Gaines conducted an interview with Serena at her school. Serena reported multiple instances of sexual abuse perpetrated by defendant beginning from when she was seven years old. One week after this interview, Serena was interviewed at the Multi-Disciplinary Interview Center in Fresno where she repeated her allegations.
Sexual Penetration of Serena (count 6)
In her 2010 statement, Serena told police defendant used a pink sex toy to penetrate her vaginally on one prior occasion. At trial, Serena did not recall whether she had been penetrated with this object. However, DNA testing of the sex toy produced a profile of a female major contributor that matched Serena. The sample contained epithelial cells—cells found on surfaces internal to the body—consistent with insertion of the device into Serena's vagina or mouth. Sperm fraction from the sex toy was consistent with defendant's DNA.
Molestation of Jasmine (count 10)
Jasmine is Serena's aunt. When she was 16 years old, defendant asked Jasmine for a photograph of her breasts. He also offered her money in exchange for sex acts. Jasmine did not take defendant seriously. She testified defendant kissed her approximately 200 to 300 times. On at least one occasion, defendant grabbed Jasmine's breast.
SECOND TRIAL
Serena's Testimony
At defendant's second trial, Serena testified when she was about seven and a half years old, defendant took off her clothes, orally copulated her, and touched her genitals. When she was eight or nine years old, defendant had intercourse with her. Serena estimated this occurred about 100 times. On at least one occasion, defendant penetrated her anus with his penis, and on other occasions, defendant forced Serena to orally copulate him. She also stated defendant used two sex toys on her genitals, and he had penetrated her with one of them.
When Serena would not comply with defendant's directives, he would threaten to hurt her and her younger brother. Serena was fearful of defendant. Defendant told her the incidents were "our little secret" and instructed her not tell anyone.
The last occasion of sexual activity occurred the night before Serena reported the abuse. On this occasion, defendant had intercourse with Serena and he forced her to orally copulate him. Defendant struck Serena on her thigh so she would comply with his directives.
Physical Evidence
Pursuant to a search of defendant's home, police seized a pair of girl's underwear Serena identified as her own, a drawer full of women's and girl's underwear, two bottles of flavored personal lubricant, a penis pump, sex toys, condoms, and towels. At trial, Serena identified many of the items seized and described how defendant would use the items during various sex acts.
Male DNA was found on a pair of underwear Serena had worn during the last incident of sexual abuse. The DNA matched defendant's reference sample. Serena also identified two towels defendant would use to clean semen off of her after the commission of various sex acts. The towels contained semen stains consistent with defendant's DNA profile.
Other Evidence
Jasmine recalled several instances when Serena did not want to go back to defendant's house prior to Serena's disclosure of the abuse. Virginia, Serena's other aunt, testified when she was about 16 years old, defendant offered her money for sex and got on top of her on her bed.
On August 20th, 2010, the same day Serena reported the abuse, defendant left his motorcycle with Serena's mother and left town. Defendant was arrested in Tijuana, Mexico in August 2011, almost a year later. He was turned over to federal marshals at the international border and then transported to Fresno County.
DISCUSSION
I. The Court Did Not Err by Declining to Instruct the Jury on CALCRIM No. 306
Defendant claims the trial court erred by refusing to instruct the jury pursuant to CALCRIM No. 306 in light of the testimony of one of the witnesses at defendant's second trial. The Attorney General contends the trial court exercised its discretion appropriately in declining to give CALCRIM No. 306, and in any event, any error was harmless. We find no error, nor prejudice assuming error.
A. Background
At defendant's second trial, forensic nurse practitioner Margie Jessen testified she had conducted a sexual assault examination on Serena on August 20, 2010. It appears Jessen found no physical injuries on Serena. Jessen explained no injuries are found on children reporting vaginal penetration about 95 percent of the time. This figure was based on medical literature, Jessen's training and experience, the experience of Jessen's medical director, and peer-reviewed articles.
Jessen testified a child may experience pain during intercourse and yet there may be no physical signs suggesting intercourse had occurred. The prosecutor asked Jessen why, in her opinion, this might occur. Defense counsel objected and conducted voir dire of Jessen. During voir dire, Jessen testified she specializes in examining children 12 years of age and under. Jessen stated only 5 percent of the children she has examined have had physical injuries. The court overruled defense counsel's objection.
Jessen testified that among children who report vaginal penetration, examiners do not find physical injuries 95 percent of the time. This number is supported by medical literature. Jessen referred to an article by the American Academy of Pediatrics about girls who became pregnant yet showed no other physical signs of intercourse. When the prosecutor attempted to question Jessen further about the article, defense counsel objected because the article had not been provided during discovery. The court overruled defense counsel's objection.
Shortly thereafter, the court excused the jury and Jessen and discussed Jessen's testimony with counsel. The court expressed concern the prosecutor was submitting Jessen as an expert, which was beyond the scope of her involvement in the case. Defense counsel remarked that when Jessen had testified at defendant's first trial, she had testified anecdotally and based on her own personal knowledge. Further, Jessen had not previously mentioned the American Academy of Pediatrics article.
The court ruled that if Jessen was going to rely on articles, the prosecutor needed to advise defense counsel of what articles she was relying on. The court directed the prosecutor to complete his examination of Jessen and to either provide the article to defense counsel or not go into that area any further.
Jessen provided defense counsel with a copy of the article and Jessen's resume (CV). Because the article was only about two pages with two or three pages of references, the court stated defense counsel could review it during the lunch recess. Following the lunch recess, defense counsel cross-examined Jessen about the article and Jessen's CV. After the conclusion of redirect examination by the prosecutor, defense counsel agreed Jessen could be excused as a witness.
Defense counsel later requested the jury be instructed on CALCRIM No. 306 (Untimely Disclosure of Evidence). CALCRIM No. 306 provides in relevant part:
"Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose: __________ <describe evidence that was not disclosed> [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure."
Defense counsel explained she was requesting the instruction because based on the witness list and discovery, she believed Jessen was going to testify as a percipient witness. However, Jessen testified as an expert witness at trial, and as a result, counsel was blindsided by Jessen's testimony.
The court denied defense counsel's request for CALCRIM No. 306. It acknowledged Jessen's posture as a witness had changed during trial. Nonetheless, defense counsel had been given Jessen's CV and the article Jessen had referred to, and defense counsel was given time to review both items. The court had asked defense counsel if she needed additional time for her review, but defense counsel elected to move forward with her examination of Jessen. Moreover, the court noted defense counsel could have recalled Jessen as a witness, if necessary, but she elected to dismiss Jessen as a witness. The court held any remedies available to defense counsel had been made available. As a result, defense counsel's request to instruct the jury on CALCRIM No. 306 was denied.
B. Discovery Violations in Criminal Cases
Discovery in criminal cases is strictly governed by sections 1054 to 1054.10. These provisions are "the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys ...." (§ 1054.5, subd. (a); see People v. Tillis (1998) 18 Cal.4th 284, 294 [courts may not broaden scope of discovery mandated by these provisions].)
In criminal cases, the prosecutor must disclose "[t]he names and addresses of persons the prosecutor intends to call as witnesses at trial," and "[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial." (§ 1054.1, subds. (a), (f).) These disclosures must be made at least 30 days before trial. (§ 1054.7.)
If a party fails to comply with these disclosure requirements, "a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order." (§ 1054.5, subd. (b).) The court has broad discretion to fashion a remedy in the event of a discovery violation. (People v. Jenkins (2000) 22 Cal.4th 900, 951.) A trial court's ruling on matters concerning discovery are generally reviewed under an abuse of discretion standard. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.)
C. Legal Analysis
Defendant does not argue it was improper for Jessen to rely on published literature in forming her opinions. Rather, he contends it was improper for the prosecution to fail to disclose the nature and basis of Jessen's opinions prior to trial. According to defendant, Jessen was a retained expert, and as a retained expert, the People were required to disclose the general substance of the testimony she was expected to give. Because the People did not timely disclose the extent of Jessen's testimony, and the court declined to instruct the jury with CALCRIM No. 306, defendant contends the convictions from his second trial must be reversed. We disagree.
Preliminarily, we reject defendant's assertion that Jessen was a retained expert. Jessen conducted the forensic examination of Serena following Serena's disclosure of the sexual abuse. Although Jessen received payment for conducting the examination, she was not retained for the purpose of forming and expressing an opinion in preparation for trial.
We do, however, agree with defendant's assertion that Jessen should have been disclosed as an expert witness given the prosecutor's line of questioning at trial and the nature of Jessen's testimony. Jessen had previously testified as a percipient witness, and the prosecutor did not notify defense counsel he had intended to elicit testimony from Jessen in the form of an expert opinion.
Nonetheless, defense counsel was given the opportunity to review Jessen's credentials as well as the article Jessen referred to during her testimony on direct examination. Defense counsel conducted voir dire of Jessen and was willing to stipulate to Jessen's status as an expert, and she was given the option of cross-examining Jessen at a later date if she needed additional time. She declined this opportunity and agreed Jessen could be excused as a witness. In light of the remedy provided to defense counsel to ameliorate the effect of any harm from Jessen's unanticipated testimony as an expert, we find no error with respect to the fact the court did not also instruct the jury pursuant to CALCRIM No. 306.
Insofar as defendant appears to suggest the American Academy of Pediatrics article should have been disclosed in discovery, he fails to direct us to sufficient legal authority to support his assertion. Section 1054.3 provides for the production of "reports or statements of experts made in connection with the case ... which the defendant intends to offer in evidence at the trial." (Id., subd. (a)(1).) Under section 1054.3, "[t]he report of a nontestifying expert which is in some way utilized by a testifying expert is not a document, at least in ordinary circumstances, which the defendant will intend to offer in evidence. It is not, therefore, literally embraced within the description of the statute." (Hines v. Superior Court (1993) 20 Cal.App.4th 1818, 1823 [discussing defendant's mandatory disclosure requirements under § 1054.3, subd. (a)].) We do not read the prosecutor's mandatory disclosure requirements under section 1054.1 to necessarily include the disclosure of a published article such as the one at issue here.
Rather, Jessen's disclosure of the article during the prosecutor's examination of her appears to be consistent with the Evidence Code. If a testifying expert relies upon the report of a nontestifying expert as a basis of his or her own opinion, then opposing counsel has a right to obtain that information on cross-examination (Evid. Code, § 721, subd. (b)), and to use it to examine the testifying expert. That is precisely what occurred here.
Defendant contends none of the remedies provided by the trial court were sufficient to address the discovery violation that occurred below because Jessen was an uncooperative witness. Following her cross-examination of Jessen, defense counsel remarked Jessen was "not cooperative." The record does not support counsel's assertion. In any event, assuming this were true, it does not explain why the court's remedy here was insufficient to cure any harm from the unanticipated nature of Jessen's testimony.
Nonetheless, assuming the trial court erred in failing to instruct the jury on CALCRIM No. 306, we find no prejudice as a result. First, Jessen made clear the article was consistent with her own experience in examining children. Jessen's experience alone provided ample evidence of the fact that children who are sexually abused may not show physical injuries from abuse.
Second, there was strong evidence admitted against defendant at trial. Notwithstanding Serena's testimony at trial and her prior statements to police, there was substantial physical evidence supporting defendant's convictions. Not only was defendant's semen found on a pair of towels he had used to clean Serena following the commission of various sex acts, a pink sex toy he used on Serena had DNA evidence matching Serena's and defendant's DNA samples. DNA consistent with defendant's DNA was also found on a pair of underwear Serena had worn during the last incident of sexual activity. This highly incriminating evidence casts considerable doubt on defendant's claim of prejudice.
Finally, the trial court undertook extensive measures to ensure defendant was not prejudiced by Jessen's reliance on the article or the unanticipated nature of her testimony at trial. The court permitted defense counsel an opportunity to review the article and to cross-examine Jessen about it. While defense counsel did not have much time to review the article beforehand, the article was only a few pages long. Moreover, the court advised defense counsel she could have more time to review the article if she needed it. Counsel chose to proceed with her cross-examination of Jessen, and she elected to excuse Jessen as a witness. In our view, these remedies were sufficient.
We further note the court instructed the jury on CALCRIM No. 332, which addresses the testimony of an expert witness. CALCRIM No. 332 advised the jury, in part, to consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. This instruction also advised the jury to decide whether information the expert relied on in reaching his or her opinion was true and accurate. Thus, CALCRIM No. 332 gave the jury a framework to evaluate Jessen's testimony and her reliance on the article.
While the court denied defense counsel's request to instruct the jury on the untimely disclosure of evidence under CALCRIM No. 306, the language of the requested instruction does not meaningfully advance defendant's claim of prejudice. CALCRIM No. 306 provides the following:
"Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose: __________ <describe evidence that was not disclosed> [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure."
While the instruction informs the jury that an untimely disclosure was made, it does not provide meaningful guidance as to the significance of such a discovery violation. Instead, the jury is left to decide what weight or significance to ascribe to a late disclosure. As a result, it is unclear how defendant was demonstrably prejudiced by the court's failure to instruct the jury pursuant to CALCRIM No. 306. Given the vague guidance provided by the instruction, it is unclear whether the jury would have placed any significance at all on the untimely disclosure of the nature of Jessen's testimony.
We conclude the trial court exercised its discretion appropriately in declining to give CALCRIM No. 306. The trial court's remedy was appropriately tailored to addressing any prejudice possibly resulting from Jessen's testimony as an expert and her reliance on the published article.
II. The Court Did Not Prejudicially Err in Excluding Evidence of Financial Assistance the Police Gave to Serena and Her Family
Defendant claims the convictions from his first trial—count 6 and count 10—must be reversed because the trial court improperly excluded evidence of donations made by the police to Serena and her family. The Attorney General contends the trial court did not err by excluding evidence of the donations. We find no prejudice from the exclusion of this evidence.
A. Background
Following Serena's Multi-Disciplinary Interview Center interview, the local police officers' association donated dance classes to Serena, as well as clothes, shoes, and other items. Officer Gaines explained the donations were motivated by the fact multiple articles of Serena's clothing had been seized as evidence. She also explained Serena's grandmother would not allow Serena or her brother to have any of their clothing back after the sex abuse allegations arose. Defense counsel disputed whether this had occurred.
Defense counsel argued evidence of the donations was relevant because the donations were reflective of bias on the part of the police in favor of Serena. The court opined interactions between law enforcement and victims could lead a child to conform his or her behavior and statements to please law enforcement. However, Serena had made statements to the police about the abuse before the donations had occurred. As such, there was no possibility her statements to police could have been influenced by bias. The court excluded all reference to the donations.
Prior to the second trial, a new judge held evidence of the donations would be admissible. Defense counsel argued the bias at issue was not Serena's bias toward law enforcement, but Officer Gaines's bias toward Serena. The court acknowledged the donations may show the officer believed the veracity of Serena's statements, even though police officers are neutral fact-finders, and Officer Gaines "would vouch for [Serena] ...." The prosecutor submitted on the issue with the understanding that if evidence of the donations were adduced at trial, Gaines would be permitted to explain why the donations were made. Defense counsel did not elicit evidence of the donations.
B. Legal Analysis
In determining the credibility of a witness, the trier of fact may consider, among other things, the "existence or nonexistence of a bias, interest, or other motive." (Evid. Code, § 780, subd. (f).) Nonetheless, trial courts retain wide latitude to impose reasonable limits on defense inquiry into potential bias of a prosecution witness. (People v. Price (1991) 1 Cal.4th 324, 422, superseded on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1162.)
Here, while the donations could show Officer Gaines was biased toward Serena, in our view, this is very weak evidence of bias, particularly in light of Gaines's stated purpose for the donations. Assuming, arguendo, defense counsel should have been permitted to adduce evidence of the donations at defendant's first trial, we find no prejudice from the exclusion of this evidence. The erroneous exclusion of proffered evidence would require reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Cudjo (1993) 6 Cal.4th 585, 611; People v. Watson (1956) 46 Cal.2d 818, 836.) We find no such probability here.
Although we have omitted considerable details from our recitation of the facts about the sexual abuse described by Serena, her testimony and statements to police were descriptive, consistent, and were corroborated by substantial physical evidence. As discussed, the physical evidence admitted at trial strongly implicated defendant in the charged offenses. The record also shows defendant fled the country when he discovered police were searching for him, evincing a consciousness of guilt. Further, while the jury hung on a number of counts in defendant's first trial, it was hung 11 to 1 in favor of a guilty verdict. Contrary to defendant's assertions, defendant's first trial was not a particularly close case.
Serena's testimony at trial, her prior statements to police, the physical evidence corroborating her allegations, and Jasmine's testimony describing a prior incident where defendant had groped her provided strong incriminating evidence against defendant. In light of this evidence, we conclude there is no reasonable probability defendant would have received a more favorable verdict had the court allowed evidence of the donations to be admitted at defendant's first trial.
DISPOSITION
The judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
FRANSON, J.