Opinion
H043225
05-11-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL STEVEN PHILLIPS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1364552)
A jury convicted defendant Daniel Steven Phillips of orally copulating and committing a lewd act on four-year-old L. Doe, the daughter of friends who rented a room in his home. The trial court sentenced defendant to a 15-year-to-life prison term. On appeal, defendant challenges the court's response to a jury question, the admission of L.'s statements during a recorded police interview on confrontation clause grounds, and the denial of his new trial motion. We reverse and remand for a new trial.
I. BACKGROUND
A. Factual Background
L. was born in 2009. In August 2013, L. lived with her mother, Rosa, and her father, Jose, in a house in Santa Clara. The family rented a room from defendant, one of Jose's high school friends. Defendant, who was 22 years old at the time, also lived in the house, as did his sisters, Chantel and Monica, and their children. L. referred to defendant as "Tio." L.'s family shared a bathroom with defendant, Chantel, and Chantel's daughter.
L. went to bed at 9:00 p.m. on August 28, 2013. Later that night, Rosa and Jose drove to the Quik Stop, which was a 10- or 15-minute drive away. Defendant was watching television and drinking wine in the living room; Rosa asked him to listen for L. in case she woke up. When Rosa and Jose returned home, defendant told them L. had woken up "hysterically crying," apparently because she heard one of his nieces was crying. Shortly after Rosa and Jose returned, L. came out to the living room and said she was scared. Rosa took L. back to the bedroom and they both went to sleep.
The following morning, L. used the toilet once by herself. She used it again while Rosa was in the bathroom preparing to bathe her. While undressing L., Rosa noticed a rip in the front of L.'s underwear and the girl volunteered "my Tio touched me." Rosa asked where and L. responded "down there" and pointed to her vagina. Rosa asked what else he did and L. said that he spit and kissed her down there. L. seemed calm to Rosa. Rosa testified that she brought Chantel into the bathroom and asked L. to repeat herself, which the girl did. Rosa took L. to the emergency room.
Lance Longaker, a deputy sheriff with the Santa Clara County Sheriff's Office, spoke with L. at the hospital. He asked her what she had told her mom and L. said "Tio kissed me down there" and placed her hand on her crotch. When Longaker asked if anything else happened, L. said "Tio spit on me." Longaker then tried to determine whether L. understood the difference between the truth and a lie but she stopped answering his questions.
Pediatric SART examiner Kathy Prows testified that she examined L. at the hospital on the evening of August 29, 2013. Prows asked L. what happened "but she was not cooperative." L. did, however, point to her vaginal area when asked where she had been touched. Prows testified that she "swabbed from just below [L.'s] bellybutton and her entire genital area, her rectal area, her thighs." Specifically, Prows explained that she took one swab from "the genital area called the mons," which she described as "outside of the whole genital area on top." On cross-examination, defense counsel asked whether what Prows referred to as "the mons swab" encompassed "more than just the mons . . . the mons and above"? Prows responded "On a little child, it would probably include the lower abdomen." Prows marked on a diagram where she swabbed for the rectal swab. Based on her examination, Prows was unable to confirm or negate sexual contact.
SART is an acronym for "Sexual Assault Response Team." (People v. Uribe (2011) 199 Cal.App.4th 836, 840.)
The prosecution called L. as a witness. The prosecutor asked "Do you remember telling your mama that someone touched you in a place you didn't like?" L. responded "Yeah." However, she then became non-responsive to substantive questions. After a brief recess, L. identified pictures of her bed and her mom's bed, denied ever taking a bath or shower in the bathroom, and testified that she recalled talking to police officers and that she told them the truth. The prosecutor asked no further questions and defense counsel opted not to cross-examine. At the prosecutor's request, counsel approached for a sidebar with the judge, which was not reported.
Noe Cortez, a sergeant with the Santa Clara County Sheriff's Office, testified that he interviewed L. on August 29. A recording of the interview was played for the jury. L. identified "Tio" as "Daniel." Sergeant Cortez had trouble getting L. to focus and answer his questions; she was frequently distracted by the toys and books in the room. Eventually, when Sergeant Cortez asked "So, [L.], can we talk about what you told your Mommy? Tell me about that," L. responded "He kissed me." She explained that she was referring to her Tio. When Sergeant Cortez asked where he kissed her "she pointed to her vagina area." In response to further questioning, L. said her pants and underwear were off at the time and that defendant kissed her bare skin.
After Sergeant Cortez testified and outside the presence of the jury, the prosecutor stated: "I'd like to go briefly on the record just to memorialize our conversation we had at the Bench when I was done questioning [L.] and counsel had the opportunity that the court found L. incompetent. That's why I was able to bring in the detective and then the video."
Brooke Barloewen, supervising criminalist with the Santa Clara County Crime Laboratory, testified as an expert on forensic DNA analysis. She testified that lab analyst Alvin Bradford Dixon performed DNA analysis on the swabs taken from L. Barloewen performed an administrative review of Dixon's work for compliance with lab policy.
Defendant moved in limine to prevent Barloewen from testifying to Dixon's conclusions on confrontation clause grounds but subsequently withdrew that motion.
According to Barloewen, both L.'s DNA and a male DNA profile were found on the mons swab. Defendant was the "source" of the male DNA profile, meaning the chance that a random person would match that DNA profile was "greater than 1 in 300 billion." "There [also] was foreign DNA [on the mons swab] which indicates a potential third contributor" who was not identified. Defendant also was "a potential contributor to the minor component of the DNA mixture found on the rectal swab. Barloewen explained that the chance that a random person would match that minor DNA component was "1 in 7 billion in the African American population, 1 in 32 billion in the Caucasian population, and 1 in 3.6 billion in the Hispanic population."
Presumptive testing for semen was performed on the vaginal, perineal, right upper thigh, and left upper thigh swabs and the results were negative. Testing for saliva was inconclusive for the mons, perineal, rectal, right upper inner thigh, left upper inner thigh, left labia, and right labia swabs. The vaginal swab tested negative for saliva. Barloewen explained that the saliva test looks for amylase, an enzyme that is present in various bodily fluids but is found in the highest concentration in saliva. A saliva test result is inconclusive where amylase is detected but in too low a concentration to trigger a positive presumptive result for saliva. Barloewen testified that the amount of amylase and the amount of DNA do not necessarily correlate. On cross-examination, Barloewen explained that DNA can be transferred from one item to another item through contact. She opined that if two individuals used the same towel, then DNA from both people likely would be found on the towel. She thought it "less likely," though not "impossible," that one person would carry the other person's DNA off the towel.
Defendant's sister Chantel testified for the defense. She recalled looking out her bedroom window and seeing Jose and Rosa leave the house on the evening of August 28 at about 10:30 p.m. Sometime later, she went to the shared bathroom. On her way, she saw defendant standing in the doorway of L.'s room "because [L.] was crying." Chantel testified that defendant has a skin condition that causes painful boils on his skin that sometimes bleed or puss. She had seen blood residue on the toilet in the shared bathroom from defendant's boils.
Christopher Hakshaman Gunasekera, M.D., a doctor of internal medicine at the Santa Clara Valley Medical Center, testified that he began treating defendant for a skin condition in February 2014. Dr. Gunasekera testified that defendant had pink to red bumps on his abdomen and on the front of his thighs on February 19, 2014. In June 2014, Dr. Gunasekera observed "the same red lesions" on defendant's abdomen and on the front of his thighs, as well as on his chest and mouth. That day, the lesions were oozing and tender. Dr. Gunasekera diagnosed defendant with hidradenitis suppurativa, which the doctor described as a condition affecting the sweat glands. He prescribed antibiotics because defendant's lesions were infected. On August 14, 2014 and December 17, 2014, defendant had lesions on his stomach only. Dr. Gunasekera testified that hidradenitis suppurativa often causes lesions on the buttocks and the backs of the thighs, although he did not observed lesions in those locations on defendant.
Gina Meredith, a social worker and mental health clinician, testified for the defense that she was counseling one of defendant's sister Monica's daughters prior to defendant's arrest. Following the arrest, she did a therapeutic intervention with both of Monica's daughters regarding body awareness and good and bad touches. Meredith did not ask the girls whether defendant had touched them, but the girls reported no inappropriate touching.
Among other things, defense counsel argued in closing that the mons is above the vagina and not part of the sexual organ. He further argued that the presence of DNA from three people on the mons swab provided reasonable doubt because "[i]f a third person's DNA got there innocently, couldn't [defendant's] have gotten there innocently as well?" The prosecutor responded that defendant's DNA should not "be anywhere near [L.'s] vagina" and sought to downplay the presence of DNA from a third person "on her stomach," suggesting it could be from her mother or father.
B. Procedural History
By information filed on March 13, 2014, the Santa Clara County District Attorney charged defendant with oral copulation of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) and committing a lewd or lascivious act on a child under 14 (§ 288, subd. (a)). The information alleged that both counts occurred on or about August 29, 2013 and involved four-year-old L. Doe. The case went to trial in May 2015.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury returned guilty verdicts on both counts May 19, 2015 after deliberating for one afternoon and one morning. Defendant moved for a new trial on the ground of newly discovered evidence, specifically medical records. On January 8, 2016, the court denied that motion and sentenced defendant to a total term of 15 year to life in prison: 15 to life on count 1 and the midterm of six years on count 2, stayed under section 654. Defendant timely appealed.
II. THE COURT PREJUDICIALLY ERRED BY PROVIDING A MISLEADING AND NONRESPONSIVE ANSWER TO A JURY QUESTION
The jury submitted four requests to the trial court during the first afternoon of deliberations. Defendant maintains the court's response to the jury's fourth question constituted prejudicial error. We agree and reverse.
A. Factual Background
The first two jury notes were submitted at the same time. In the first, the jury requested "[t]estimony by crime lab supervisor Brooke [Barloewen regarding the percentage] of population that DNA matches Mr. Phillips DNA from swabs taken in mons area and rectal area." In the second, the jury asked "[w]here is the diagram prepared by the lab supervisor showing on [L.'s] body where the swabs were taken?" and "[w]hat is meant by mons area?" Before the court responded to the first two inquiries, the jury submitted a third note with three requests: (1) "Can we hear Chant[el]'s testimony when she came into the bathroom and [L.] repeated . . . that Tio had kissed her down there?" (2) "We want to watch the video of Cortez." (3) "Can we have Longaker's testimony reread to us."
As to the first request, the court reporter read back the requested testimony of the DNA expert. The trial court responded to the second note by directing the jury to the requested diagram and defining "mons area" as "rounded prominence of fatty tissue over the pubic symphysis, covered with hair after puberty."
The diagram showed only the area swabbed for the rectal swab; it does not show the mons area as the Attorney General asserts.
The source of this definition is not evident from the record.
At the end of the first day of deliberations, the jury submitted its fourth note asking "Is the area where the mons swab was taken a sexual organ or part of a sexual organ as stated in . . . CALCRIM No. 1128 . . . [?]" As provided to the jury in this case, CALCRIM No. 1128 defined "oral copulation" as "any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required."
The following morning, the court discussed the third and fourth jury notes with counsel. The parties did not object to the court's proposed response to the first part of the third jury question. That response was given as follows: "Chantel did not testify about hearing [L.] say anything in the bathroom. Rosa testified that she called Chantel into bathroom and had [L.] tell Chantel where Tio kissed her. Do you want Rosa's testimony regarding this?"
As to the fourth question regarding whether the mons swab was taken from a sexual organ, defense counsel argued that the jury should simply be told to refer to the evidence and the jury instructions. He noted that the evidence indicated that the mons swab incorporated an area greater than just the mons. The trial court rejected that argument, saying "I think, really, what their question is referring to is, they're asking whether or not the mons, he says 'the mons swab,' but they're asking whether it's part of the sexual organ. . . . [So giving the jury definitions of 'mons'] is the way to go."
Both the prosecutor and defense counsel submitted definitions or descriptions of the mons area to the court. The prosecutor submitted a page from "Gray's Anatomy" stating "The External Organs of Generation in the Female are: the mons Veneris, the labia majora and minora, the clitoris, the meatus urinarius, and the orifice of the vagina. The term 'vulva' or 'pudendum,' as generally applied, includes all these parts. [¶] The Mons Veneris is the rounded eminence in front of the pubic symphysis formed by a collection of fatty tissue beneath the integument. It becomes covered with hair at the time of puberty." Defense counsel submitted excerpts from "Clinical Anatomy For Lawyers by Hodge and Hubbard and Steadman's Medical Dictionary". The first states, under the heading "External Genitalia," "[t]he mons pubis is a mound of adipose (fatty) tissue located at the top of the vulva, just above the clitoris and pubic bone." The second defines "mons pubis" as "a rounded fleshy protuberance situated over the pubic bones that becomes covered with hair during puberty." Defense counsel also submitted the definition of "vulva" from "Steadman's Medical Dictionary", which—unlike Gray's Anatomy—does not define vulva as including the mons. Defense counsel argued that if the court was going to provide the definitions of mons to the jury it should provide them with that definition of vulva as well to demonstrate the existence of discrepancies in the medical literature.
It appears counsel submitted those definitions at the court's request, but whether that is the case is unclear as much of the discussion regarding the jury's questions was done in chambers and then summarized for the record.
The court responded to the jury's fourth question by providing them with photocopies of the three definitions of mons set forth above and telling them to refer to CALCRIM No. 1128. The court declined to provide the jury with Steadman's Medical Dictionary's definition of vulva as defense counsel requested.
B. Legal Principles
" 'When a jury asks a question after retiring for deliberation, "[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law." [Citation.]' [Citation.] 'This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. . . . It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.' [Citation.] 'We review for an abuse of discretion any error under section 1138. [Citation.]' [Citation.]" (People v. Hodges (2013) 213 Cal.App.4th 531, 539, fn. omitted (Hodges).)
C. Analysis
The court's response to the jury's fourth request was misleading and not responsive to the question. The jury asked whether "the area where the mons swab was taken [is] a sexual organ or part of a sexual organ as stated in . . . CALCRIM No. 1128 . . . [?]" (Italics added.) The court responded by providing the jury with excerpts from three medical texts, one defining "mons pubis," one describing female genitalia as including "the mons Veneris" and defining that phrase, and a third describing female genitalia as including "[t]he mons pubis" and defining that phrase. In doing so, the court implied that the mons was "the area where the mons swab was taken." But, in fact, the evidence indicates that "the area where the mons swab was taken" may not have been limited to the mons. SART examiner Prows testified that she took the mons swab "from the genital area called the mons," which she described as "outside of the whole genital area on top." On cross-examination, she said the area of the mons swab "would probably include the lower abdomen" on a small child. Therefore, the court's answer was misleading and constituted an abuse of discretion. (People v. Eid (2010) 187 Cal.App.4th 859, 882 [finding section 1138 violation where "the court's answer misled the jurors and did not provide them with the information they requested"].)
Apparently based on that testimony, in rebuttal closing, the prosecutor sought to downplay the presence of DNA from a third person on the mons swab by saying the third person's DNA was found on L.'s stomach.
D. The Error Was Prejudicial
The parties disagree as to the applicable harmless error standard. Defendant contends that the standard for federal constitutional error set forth in Chapman v. California (1967) 386 U.S. 18, 24, applies on the theory that the court's response reduced the People's burden of proof in violation of his federal due process and jury trial rights. The Attorney General notes that section 1138 error generally is subject to the state harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Hodges, supra, 213 Cal.App.4th at p. 539.) Under Watson, reversible error exists where "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, at p. 836.) In this context, " ' "probability" . . . does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' " (People v. Wilkins (2013) 56 Cal.4th 333, 351.)
We need not determine which standard applies here because the error was prejudicial under even the more forgiving Watson standard. Both charges were premised on the theory that defendant's mouth made contact with L.'s sexual organ or anus. Our analysis therefore applies equally to both convictions.
In closing, the prosecutor argued the charges were based on the same act. In rebuttal closing, he argued "the only way you get to count 2 is if you believe what she said about the mouth being in that area in the first place. Count one. It's count one and [count] two or its nothing."
The jury's questions show it focused on the DNA evidence. As discussed above, the court's challenged response erroneously implied that the mons swab, on which defendant's DNA was found, was taken only from L.'s mons and not her abdomen as well. Thus, the response suggested the DNA evidence, on which the jury apparently relied, was more favorable to the prosecution than it was. It is reasonably probable that, absent the court's error, at least one juror would have harbored reasonable doubt as to whether defendant's mouth made contact with L.'s sexual organ or anus.
This is not a case where "the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Breverman (1998) 19 Cal.4th 142, 177.) The evidence supporting the existing judgment consists of L.'s accusation, which she made to her mother and, with prompting, repeated to Chantel, Longaker, and Cortez. L.'s statements lacked detail and, in the case of Cortez, were made only after considerable encouragement. While the circumstances of L.'s statements are unsurprising given her young age, jurors reasonably could have questioned her credibility. Longaker's inability to discern whether the girl knew the truth from a lie likewise cast doubt on her reliability. The presence of defendant's DNA on the mons and rectal swabs is certainly suspicious. But jurors may have entertained reasonable doubt as to whether defendant's DNA was present because his mouth made contact with L.'s sexual organ or anus given the inconclusive saliva tests, the fact that the mons swab may have encompassed more than the sexual organ, and the presence of a third person's DNA on the mons swab, suggesting innocent DNA transfer is possible. In short, "there exists 'at least such an equal balance of reasonable probabilities as to leave [us] in serious doubt as to whether the error affected the result.' " (People v. Mower (2002) 28 Cal.4th 457, 484.) Accordingly, the error is prejudicial under Watson.
We are not persuaded otherwise by the Attorney General's harmless error theory. The Attorney General insists the error was harmless under any standard because, having rejected the defense's DNA transference theory, the jury necessarily would have convicted on the theory that defendant orally copulated L.'s anus based on the presence of his DNA on the rectal swab. But, as defendant points out, the evidence that defendant orally copulated L.'s anus was quite weak. Indeed, it consisted only of the presence of his DNA on the rectal swab, and the DNA expert was unable to say that saliva was the source of that DNA. Importantly, L. never accused defendant of touching her backside with his mouth, whereas she did make such an accusation as to her vagina.
Because the court's error in responding to the jury's inquiry requires reversal, we need not reach defendant's other appellate arguments.
III. DISPOSITION
The judgment is reversed and the matter is remanded for retrial.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.