Opinion
7-31-2003
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY PINA, Defendant and Appellant.
Anthony Pina (appellant) appeals his conviction, following a jury trial, of continuous child molestation, committing a lewd and lascivious act on a child under 14 years of age, oral copulation and attempted oral copulation with a minor, penetration with a foreign object on a minor, and annoying and molesting a child. On appeal, appellant contends (1) the evidence is insufficient to support his conviction of continuous child molestation, (2) the prosecutor was erroneously permitted to cross-examine a witness about her opinion as to appellants guilt and about her own prior bad acts, and (3) the trial court erred in instructing the jury pursuant to CALJIC Nos. 2.50, 2.50.01, and 2.50.1. We shall affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by information with continuous child molestation (Pen. Code, § 288.5-count one); committing a lewd and lascivious act on a child under the age of 14 (§ 288, subd. (a)-count two); two counts of participating in an act of oral copulation with a child under the age of 14 and more than 10 years younger than appellant (§ 288a, subd. (c)(1)-counts three and four); penetration with a foreign object of a child under the age of 14 and more than 10 years younger than appellant (§ 289, subd. (j)-count five); and a misdemeanor charge of annoying and molesting a child under 18 years old (& sect; 647.6-count six). Count one also alleged that appellant had committed "substantial sexual conduct" with his victim.
All further statutory references are to the Penal Code unless otherwise indicated.
On August 15, 2001, a jury found appellant guilty on all counts except count four, on which it found him guilty of the lesser included offense of attempted oral copulation with a minor (& sect; 664/288a).
On October 15, 2001, the trial court struck the convictions on counts two through five and sentenced appellant to sixteen years in state prison. Appellant filed a notice of appeal on December 14, 2001.
FACTUAL BACKGROUND
Prosecution Case
The prosecutions case focused on the sexual abuse of appellants biological daughter, N. (counts one to five), and his stepdaughter, A. (count six).
N., who was 11 years old at the time of trial, testified that she lived with appellant, her biological father, and his daughter from another relationship, N. II, in Oakland for 11 months from the time she was four years old until she was five years old. She had not lived with him previously. One to three months after N.s biological mother, Mary, left her to live with appellant, he began sexually abusing her.
He put his finger in her vagina almost every night and also rubbed the outside of her vagina with his hands. He also rubbed his penis on her vagina approximately four different times. Appellant also licked the outside of her vagina and put his hands on her breast area; he also put her hand on his penis and made her hold it. One time, he tried to put his penis in her mouth, but N. put her hands by her mouth so he could not do it. The abuse took place in appellants bedroom in the house and also in a playhouse in the back yard. Once, he tied her down in the bedroom.
Appellant told N. he would hurt her if she told anyone what he did to her; he told her not to tell anyone every time he touched her. The first person she told about the abuse was her adoptive mother, R.C. She was afraid to tell anyone before that; she told R.C. because appellant did not know where her adoptive family lived.
R.C. testified that she and her husband had adopted N. in May 2001; N. had lived with them as a foster child since June 1998, when N. was eight years old. From early on, N. was afraid to sleep by herself and expressed a fear that a man would come in the house at night to get her. N. also was distrustful of men and knew an unusual amount about sex
N. would get upset at the mention of appellant; on two occasions, she hid and felt sick when she saw a man she thought was her father. On February 8, 2000, R.C. asked N. if she had any idea why she disliked her father so much, to which N. responded in the affirmative. A couple of minutes later, she whispered in R.C.s ear, "my father tried to rape me." N. then told R.C. that appellant had women over every night and that, "if they didnt do it right, he would throw them outside without their clothes, or if no one was there, if he didnt have a girl over, then she said he would come after me." N. said that appellant made her sleep with him and tied her down on the bed.
N. did not recall telling R.C. that appellant threw women out without their clothes and did not recall that happening.
When R.C. asked if appellant ever touched her private, N. said, "yes, with his finger, he put it inside me." R.C. did not question her further because N. then leaned over and moaned, saying her stomach hurt. R.C. then called N.s caseworker about N.s statements. N. told R.C. that she had not told anyone else about the abuse, but said she thought her biological mother knew about it because whenever Mary and appellant would get in an argument, Mary would call him a child molester.
A., who was 17 years old at the time of trial, testified that she first met appellant when she was nine years old. Appellant knew A.s mother, M.P., for several months before they got married. Within a month of the wedding, appellant began sexually abusing A.
The testimony regarding the sexual abuse of A. was admitted as uncharged sexual offense evidence pursuant to Evidence Code section 1108, except for the last act, in 2000, which constituted the misdemeanor charged in count six.
The first time, appellant sat A. on his lap while he was in his underwear; she felt his partially erect penis. He told her not to tell anybody, that this was their secret. She knew this was wrong, and she managed to get away from him and go to her room. A. did not tell anyone what appellant had done because she was scared of him; she had seen him beat her mother since shortly after they got married.
At some point after the lap incident and also after appellants daughter, N. II, started living with them, A. was asleep in her bedroom and woke to find appellant on top of her, "humping" her. She could feel his erect penis between her legs. A. had a shirt and underwear on, but appellant was naked. She was very scared and she rolled over, pretending she was still asleep. Appellant got up and walked out of the room.
In 1993 and 1994, while they lived in San Leandro, appellant continued touching A. She would wake up in the night and he would be over her bed touching her private parts or her chest. Sometimes the abuse would stop for a few weeks, and she would think it was over, but then he would start again. Never more than a month went by without him touching her. The incidents all happened at night. Often, A. would wake up and appellant would be rubbing her vagina through her underwear. He also rubbed her chest on at least three occasions. A.s mother was usually out when appellant abused her; her mother worked nights as a bartender.
In 1994, while they still lived in San Leandro, A.s mother kicked appellant out of the house. That same night, A. told her mother about the abuse. The next day, A.s mother had her confront appellant about the abuse on the telephone. Appellant acted like nothing had happened. Shortly thereafter, A.s mother got back together with appellant. A. could remember three times that appellant touched her inappropriately while they were living in a house appellant had rented. Then, A.s mother and appellant both went to jail after A.s mother fought back against appellant, and A. was sent to Los Angeles to live with her grandmother for a few months until her mother got out of jail. At that time, A. and her mother went to live with her mothers new boyfriend for close to a year. After they broke up, A. and her mother moved to a motel. Appellant came often to visit the daughter he had with A.s mother, and said he was a changed man and wanted a family. Appellant admitted molesting A., but said that it was because of drugs and that he would never do it again.
A.s mother eventually took appellant back because she could not pay the bills. At first he seemed to have changed. But, in about May 2000, when they were living in another motel, A. woke up to find appellant moving his hands up between her legs, over her clothing, to her vaginal area. She got very angry, jumped up, and pushed him away from her. He said he was just trying to wake her up to baby-sit the younger children. When her mother returned, A. told her what had happened and they left appellant.
Soon after that, A. was staying at a womens shelter with her mother and they got into an argument, and her mother called the police. A. told the officers about the molestation. She then was interviewed at the Calico Center. She was on drugs at the time, but gave a truthful account of what had occurred.
A.s mother, M.P., testified that she and A. moved in with appellant in San Leandro shortly before she and appellant married, and lived there for almost a year, from 1993 to 1994. Appellant started beating M.P. after they had been married for about a month; the beatings continued throughout their marriage. They also used methamphetamine together frequently. She generally worked nights and he worked days. A. never wanted to stay alone with appellant; she would cry when her mother left the house.
In the summer of 1994, while appellant was in jail for domestic violence, A. told M.P. about the molestation. He had called from jail and M.P. was going to take him back. A. told her that appellant had been "putting his hands in my shirt and down my pants," that he had sat her on his lap while he had an erection, and that he had said not to tell anyone. M.P. did not want to believe A. because she was dependent on appellant financially for housing and drugs. When appellant called from jail that night, M.P. had A. confront him on the telephone. M.P. recalled that A. mentioned the incidents she had already told M.P. about; she also said something to appellant about him coming to her bed naked and rubbing up against her between her legs. She then heard A. say, "youre lying, youre a liar, you know it happened." M.P. finally told A. to stop because she did not want to hear any more. M.P. recorded the conversation, but had lost the tape. She recalled listening to the tape afterwards, however, and heard appellant say that if A. felt he had done anything to hurt her, he was very sorry. He did not admit or deny the abuse.
Over A.s objections, M.P. eventually moved back in with appellant due to her financial and drug dependence, and because she did not want to be alone. M.P. and A. lived with appellant for about another year and A. continued to not want to be left alone with him. M.P. stopped living with appellant at some point, but continued seeing him until she found out that appellant was seeing another woman, C.R. Then, in spring of 1996, appellant broke up with C.R. and wanted to reconcile with M.P. because they had a baby (A. II). A. asked M.P. to confront appellant about the abuse, so she did. Appellant admitted to molesting A.; he was crying. M.P. kicked him out of the motel room she was staying in at the time.
M.P. got back together with appellant again shortly after that incident because she had no money and needed to support her drug habit. After C.R. moved out of appellants house in Oakland, M.P. moved in with him for about two weeks. She stayed until N.s mother, Mary got out of jail; Mary was going to move in with him then. Appellants daughters N. II and N. lived there at that time, along with M.P. and her daughters, A. and A. II. N. II was not around much, but N., who was five or six years old, was there.
A. testified that N. was not at appellants house when they stayed there. N. testified that M. P. and C.R. were at the house for part of the time N. was there, but that they did not live there.
During the two weeks M.P. was at the house, N. always clung to her, and seemed very happy to have a mother in her life. N. did not want M.P. to leave; she cried and was terrified, and wanted to go with M.P.
In May 2000, appellant, M.P., A., A. II, and their youngest child, C., were living at a motel when A. told M.P. that appellant had tried to molest her again, putting his hand under the blanket and between her legs, but she had kicked him and pushed him away. On May 10, 2000, A. and M.P. disclosed the sexual abuse to the authorities.
L.R., who was 23 years old at the time of trial, testified that when she was 13 or 14 years old, appellant and his daughter, N. II, stayed with her family for a few months. Early every morning, appellant would come into the bedroom where L.R. and N. II were sleeping and kiss N. II goodbye before he left for work. N. II slept on the floor and L.R. slept in her bed. One morning, L.R. woke up when she felt someone rubbing her behind for at least 30 to 45 seconds. She pretended to turn over and wake up. As she opened her eyes, she saw appellant jump and move quickly from the bed to the floor where N. II was sleeping, and wake N. II up to give her a kiss. L.R. told her mother what appellant had done to her. Her parents confronted appellant and he left the house that night. L.R. never had contact with him again. The week before trial, however, N. II called her for the first time in 10 years to discuss the case and the fact that L.R. might testify.
L.R.s testimony was admitted as uncharged sexual offense evidence pursuant to Evidence Code section 1108.
Defense Case
K.D., who was 17 years old at the time of trial, testified that her cousin N. had lived with K.D.s family in Colorado for two years starting when N. was six years old. N. told K.D. that she was afraid of appellant, and K.D. wondered why. She therefore asked N. whether her father had ever molested her. N. denied that he had done so.
Appellants daughter, N. II P., who was 22 at the time of trial, testified that she had lived with both A. and N., along with her father, at different times. Neither girl ever told her that appellant had touched her inappropriately. N. stayed with N. II and appellant in Oakland for three or four months. When C.R. moved out, N. was given the choice of sleeping with N. II, on the couch, or in appellants bed. After N. had been there for a while, her mother, Mary, came and took her away for about a week. They then returned for another couple of weeks until Mary got a restraining order against appellant, and N. II and appellant moved out of the house.
N. II had seen Mary visiting appellant in jail five or six times and had discussed his case with her. Before appellant was arrested, Mary had also tried to help appellant get an attorney.
B.R., the aunt of N. IIs mother, testified that she was once at the apartment where appellant, M.P., and A. were living, when she heard appellant and M.P. screaming angrily at each other in the bedroom. She heard M.P. call appellant a child molester. A. then shouted from the bathroom, "Shut up, Mom. Why dont you take your drug self back to bed." B.R. also testified that in late 1995 and early 1996, she sometimes watched N. while appellant was at work. N. never complained to B.R. about appellant, nor did she ever appear to be afraid of him.
C.R. testified that in late 1995, she and her toddler daughter, Marin, were living with appellant and N. II in Oakland. At least two to three weeks before Christmas of 1995, N. came to live with them while her mother, Mary, was in jail. N. was still living there when C.R. moved out in January 1996. C.R. never left N. alone at the house with anyone except N. II while C.R. was living there because she did not think it was a good idea to leave her alone with anyone else. She did not believe appellant had engaged in any inappropriate conduct with N. during the time they lived at the Oakland house together; she made sure never to leave N. alone with him or any man.
C.R. acknowledged that she keeps in contact with N. II by telephone and letter and that she had always had a close relationship with N. II. She had talked to N. II about the facts of the case and knew that appellant had been accused of molesting N. while C.R. was in the home. N. II had picked C.R. up at the airport that morning and they had had lunch together; they had not talked about their testimony.
Mary testified that she and appellant had separated when N. was nine months old. On December 5, 1995, Mary was incarcerated. N. was placed in foster care briefly, and was then placed in appellants care within a couple of days. Mary was released from custody on February 28, 1996. The following day, she picked up N. from appellants house in Oakland and took her to Discovery Bay for about six days. She and N. then returned to appellants house, where they lived with him until May 8, 1996, at which time Mary obtained a restraining order against appellant. Appellant moved out, and Mary and N. remained at the house for three more months.
While Mary was at the house with appellant, she did not have a romantic relationship with him. Mary had several fights with appellant, and N. told Mary she did not like appellant because he was mean. N. never said anything to Mary about appellant touching her inappropriately. Mary took care of N. while at the Oakland house with appellant and never left her with others.
Mary acknowledged telling a police officer that N. was in fear of appellant from the time Mary reunited with her after she was released from custody, but said she was on a drug at the time she made the statement. Mary did not recall telling the officer that N. had not told Mary about the allegations because N. thought Mary had an allegiance with appellant. She also did not recall telling the officer that she believed N. when she indicated that she had been molested.
Appellant testified that N. was born in 1990. He and Mary separated when N. was three months old, and he went to stay with L.R. and her parents. With respect to L.R.s testimony, appellant said he went into the bedroom to kiss N. II goodbye when he accidentally stepped on N. II, who was on the floor, and tripped. His hand went forward and he touched the person on the bed when he pushed off of the bed. His hand was on her for less than five seconds.
In October 1992, appellant began a relationship with M.P. They lived together in San Leandro, along with A. and N. II, before marrying in July 1993. Appellant was uncomfortable about how close A. wanted to be to him; for example, she would lie down on top of him when he was lying on the couch. At times, appellant would be asleep in the bedroom and A. would come in and get into bed with him without waking him up. A. would sometimes wet the bed and appellant would change the bed and sometimes try to change his own underwear (which he slept in) and A.s pajamas without waking her up. She would sometimes wake up while he was changing her or his clothes. Appellant never touched or fondled A., nor did he ever lie on top of her.
Both A. and M.P. testified that A. wet her bed during this time period, but neither testified that appellant would ever help clean up.
As to the last incident A. testified about, appellant touched A. over the blanket to wake her up because he and M.P. were going out and he wanted A. to watch the younger children.
After appellant separated from M.P. in 1995, he moved into a house in Oakland with his girlfriend, C.R., and her daughter. While C.R. was there, N. came to live with him. C.R. left on January 9, 1996. Mary came and took N. away on February 29, 1996. M.P. and A. then came and stayed with him for about five days. Mary and N. then returned to the house. Appellant left the house on May 20, 1996, after Mary got a restraining order. After that, appellant lived again with M.P. until May 2000.
Appellant never touched N. in a sexual way. He has no sexual interest in children and has never had any sexual contact with children.
Appellant acknowledged that Mary had visited him many times in jail since his arrest, and he had talked with her in detail about the charges against him.
Lee Coleman testified as an expert in child psychiatry. He believed that the investigative techniques used with N. were suggestive and pressured N. to make more and more accusations against appellant.
DISCUSSION
I. Sufficiency of the Evidence of Continuous Molestation
Appellant first contends there is insufficient evidence that he molested N. over at least a three-month period, as is required by section 288.5. ""When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence-i.e., evidence that is credible and of solid value-from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." [Citations.] [Citations.]" (People v. Butler (2000) 85 Cal.App.4th 745, 752.)
Section 288.5, subdivision (a), provides in relevant part: "Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years . . . is guilty of the offense of continuous sexual abuse of a child . . . ." This statute is violated "if the defendant (1) resided with, or had recurring access to, a child under fourteen, and (2) committed three or more acts of sexual molestation of the child, and (3) three or more months passed between the first and the last act of molestation, regardless of whether the defendant resided with or had access to the child continuously throughout the three-or-more-month period." (People v. Vasquez (1996) 51 Cal.App.4th 1277, 1287, emphasis in original.)
In the present case, N. testified that she lived with appellant for 11 months and that, beginning between one month and three months after her arrival, appellant began sexually abusing her almost every night. She was able to describe what appellant did and where the abuse occurred.
Appellant first argues that N. could not have stayed with him for 11 months because C.R. testified that N. began living with appellant in Oakland in early December 1995, after Mary went to jail. Moreover, Mary testified that after she got out of jail and came for N. on February 29, 1996, they stayed with appellant almost continuously until May 8, 1996, when Mary obtained a restraining order and appellant left the house. Thus, according to appellant, N. could only have lived with appellant for a maximum of five months, not the 11 months to which she testified.
In addition, according to appellant, the molestation could not have started until at least January 9, 1996-when C.R. testified that she moved out-since C.R. said she made sure never to leave N. alone with appellant during the time she was at the house. Appellant asserts, moreover, that the molestation could not have continued after Mary moved in since Mary testified that, during that period, N. was always with her. Thus, appellant argues, the molestation could have taken place for, at most, one and one-half months between January 9 and February 29, 1996, which does not satisfy the "not less than three months in duration" requirement of section 288.5, subdivision (a).
We disagree with appellants analysis, much of which consists of an impermissible attempt to reweigh the evidence presented and reassess the credibility of witnesses that testified at trial. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103.) We find that the evidence is sufficient to support a finding that appellants sexual abuse of N. occurred for at least three months. Even assuming, as appellant says we must, that N.s testimony that she lived with appellant for 11 months is insufficient in light of C.R.s testimony that N. arrived in early December 1995 and Marys testimony that appellant left in early May 1996, there is still evidence that N. lived with appellant for a five-month period. (But see People v. Ochoa, supra, 6 Cal.4th at p. 1206 .)
Appellant testified that he moved out of the Oakland house on May 20, 1996.
There is also substantial evidence of sexual abuse during some four months of that period. N. testified that the abuse did not begin for at least a month after she arrived and C.R. testified that she never left N. alone with appellant between early December 1995 and January 9, 1996, when C.R. moved out. Thus, assuming the molestation did not begin until January 9, 1996, there is only the testimony of Mary that N. was always with her when they stayed together with appellant for all but about a week of February 29, 1996 to May 8, 1996. N., on the other hand, testified that the molestation was nearly continuous until she stopped living with appellant. Again, appellant would have us reweigh the evidence. (See People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
We find that Marys testimony does not invalidate that of N., especially in light of the evidence of Marys apparent bias in favor of appellant. Mary had visited appellant numerous times in jail and, according to appellants daughter, N. II, had tried to help him find an attorney to defend against the charges in the present case. In addition, appellant testified that his relationship with Mary was not sexual during this time period, and N. II testified that, after C.R. moved out, N. was given the choice of sleeping with N. II, on the couch, or in appellants bed. Thus, Marys testimony that N. was never alone with appellant when Mary was at the house does not undermine the substantial evidence in the record of continuous sexual abuse.
In conclusion, viewing the evidence in the light most favorable to the verdict, substantial evidence supports the jurys conclusion that appellant sexually abused N. over at least a three-month period between January 9, 1996 and May 8, 1996. (See People v. Butler, supra, 85 Cal.App.4th at p. 752.)
II. Allegedly Improper Opinion Evidence
Appellant contends that, either through ineffective assistance of counsel or trial court error, improper evidence of Marys opinion as to appellants guilt was placed before the jury.
A. Trial Court Background
Before Mary testified, the trial court ruled, at defense counsels request, that Marys opinion as to whether N. was telling the truth was irrelevant. The court also stated, however, that if Mary testified on direct examination regarding her opinion on this matter, the prosecutor "may find herself with an open door" on cross-examination.
Mary testified on direct examination that N. never said anything to her about appellant touching her inappropriately. On cross-examination, Mary testified that N. was afraid of appellant toward the end of their stay in the Oakland house. When she said she did not recall telling an officer that N. expressed fear of appellant from the time Mary came for her in February 1996, the prosecutor read the a statement to that effect that Mary had given to an officer. Mary acknowledged the statement, but said she was on a drug that caused her to forget things at the time she made it.
The prosecutor then asked: "Do you remember telling the officer that N. did not tell you about the allegations because N. thought that you had an allegiance with the defendant?" Mary said she did not remember. The following exchange then took place:
"THE COURT: . . . . I understand you dont remember saying it to the officer. My question is did N. tell you about the allegations that the defendant had molested her?
"THE WITNESS: No.
"THE COURT: And in your opinion would she not have told you that because she felt you had an allegiance with the defendant?
"MR. EVANS [defense counsel]: May we approach?
"THE WITNESS: N. tells me everything.
"THE COURT: No, you cant approach. The answer will stand. So that wouldnt, if you did say that, that would be the truth.
"THE WITNESS: I think it was speculation on my part.
"MS. ORTEGA [the prosecutor]: You said N. tells you everything?
"A. Yes, she does.
"Q. But N. never told you about what had happened with Anthony, did she, at the time that you went back to the house on 48th Street?
"A. There was nothing to tell.
"Q. Thats in your opinion.
"A. Well, she didnt tell me anything.
"Q. In your opinion she had nothing to tell?
"A. Yes, she doesnt have anything to tell.
"Q. Isnt it true that you told Officer Mahanay, the officer that you spoke [with], the opposite of what you just indicated right now?
"MR. EVANS: Objection. Calls for an opinion.
"THE COURT: Overruled.
"THE WITNESS: Whats the opposite?
"MS. ORTEGA: Isnt it true that you told Officer Mahanay that you believed N. when she indicated she had been molested?
"MR. EVANS: Objection. Speculation.
"THE COURT: The question is whether she told the officer that. Did you tell Officer Mahanay that you believed N. when you first heard this?
"THE WITNESS: I dont remember that.
"MS. ORTEGA: You dont recall telling Officer Mahanay that you believed N. was molested?
"A. No."
. . . .
"MS. ORTEGA: Well, we can go back in regard to the prior question whether or not you believed that she didnt tell you because it might be scary for her to think that mom may want to get back with him again.
"MR. EVANS: Objection. Calls for speculation.
"THE COURT: Overruled. Did you tell the officer that?
"THE WITNESS: Its speculation.
"THE COURT: What?
"THE WITNESS: Probably I was speculating.
"THE COURT: Its not my question. My question is did you tell the officer that?
"THE WITNESS: Its there. I guess I did.
"THE COURT: I dont know. She could have written that up herself for all I know.
"THE WITNESS: Well, I dont remember anything.
"THE COURT: The question is did you tell the officer that it might have been scary for N. to tell you that because you would get back with the defendant.
"THE WITNESS: It sounds like something I would say, yes.
"THE COURT: So you might have said that?
"THE WITNESS: Yes."
Then, later in the cross-examination, the following colloquy took place:
"Q. . . . . Did you tell the officer that you did not think that the defendant should be around children at all?
"MR. EVANS: Objection. Calls for an opinion.
"THE COURT: Overruled. Did you tell the officer that?
"THE WITNESS: I believe I did.
. . . .
"Q. Isnt it true that you blamed CPS [Child Protective Services] for giving N. over to a sexual predator or pedophile?
"A. They made the allegations. Theyre the ones that handed her over.
"Q. Did you blame CPS for giving N. over to the defendant?
. . . .
"MR. EVANS: Objection to the form of the question, in the past tense. What she did sometime in the past is not relevant unless she still does.
"THE COURT: Overruled. Did you?
"THE WITNESS: I blamed CPS for not doing a background check on who my daughter goes with.
"MS. ORTEGA: Q. So you believed CPS should have done a background check on the defendant.
"A. I think theyre the professionals, they should.
"Q. Did you blame CPS for what happened to N.?
"A. Nothing happened to N.
"Q. But thats not what you told Officer Mahanay.
"A. I dont remember.
"Q. You dont remember telling Officer Mahanay that now after thinking about all the things that happened, N. must have been molested.
"MR. EVANS: Objection. Opinion and conclusion.
"THE COURT: Overruled. Did you tell him that?
"THE WITNESS: At that point when I didnt know anything about the case I might have.
"MS. ORTEGA: Q. But now since youve been talking to the defendant youve changed your opinion; is that right?
"A. No. Now that I have asked my Public Defender to send me the whole file from Contra Costa and what the allegations were against the defendant and all the medical reports did I come to a different decision."
Finally, on rebuttal, the prosecutor questioned Officer Mahanay as follows:
"Q. Did you have an occasion to speak with Mary[], N.s biological mother, on or about September 7th[, 2000]?
"A. Yes, I did.
"Q. And on September 7th when you spoke with [Mary], did she indicate to you her belief that N. had been molested?
"MR. EVANS: Objection. Calls for conclusion.
"THE COURT: Overruled.
"MR. EVANS: To be more precise, its hearsay, but it calls for the conclusion of the hearsay declarant.
"THE COURT: I understand. Overruled.
"You can answer that.
"THE WITNESS: Yes."
B. Analysis
Pursuant to Evidence Code section 800, a lay witnesss "testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [P] (a) rationally based on the perception of the witness; and [P] (b) helpful to a clear understanding of his testimony." Pursuant to section 780 of the Evidence Code, "except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [P] . . . (f) the existence or nonexistence of a bias, interest, or other motive[;][P] . . . (h) [a] statement made by him that is inconsistent with any part of his testimony at the hearing[;][P] . . . (j) his attitude toward the action in which he testifies or toward the giving of testimony. . . ." (See also People v. Humiston (1993) 20 Cal.App.4th 460, 479 ["Unless precluded by statute, any evidence is admissible to attack the credibility of a witness if it will establish a fact that has a tendency in reason to disprove the truthfulness of the witnesss testimony."].)
Lay opinion regarding the veracity of particular statements by another, however, is generally inadmissible on that issue. (People v. Melton (1988) 44 Cal.3d 713, 744, 244 Cal. Rptr. 867, 750 P.2d 741.) Likewise, opinion testimony as to the guilt or innocence of the defendant is inadmissible. (People v. Torres (1995) 33 Cal.App.4th 37, 46-47; People v. Clay (1964) 227 Cal. App. 2d 87, 98-99, 38 Cal. Rptr. 431.) The reason for these rules is that it is for the trier of fact to determine witnesses credibility as well as to come to a conclusion as to the defendants guilt. (See People v. Torres, supra, 33 Cal.App.4th at p. 47; People v. Sergill (1982) 138 Cal. App. 3d 34, 41, 187 Cal. Rptr. 497.) "A lay witness is occasionally permitted to express an ultimate opinion based on his perception, but only where helpful to a clear understanding of his testimony [citations], i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. [Citations.]" (People v. Melton , supra, 44 Cal.4th at p. 744.) "Admission of lay opinion testimony is within the discretion of the trial court and will not be disturbed unless a clear abuse of discretion appears." (People v. Mixon (1982) 129 Cal. App. 3d 118, 127, 180 Cal. Rptr. 772.)
The present case does not involve the prosecutor simply asking a lay witness her opinion about the guilt of the defendant or the credibility of the victims statements. Rather, it concerns primarily clarification and impeachment of testimony offered both on direct and cross-examination, regarding whether N. would have told Mary about the molestation, assuming it was true. In light of Marys testimony on direct examination that she never left N. alone while they were staying at the Oakland house and that N. never told her that appellant had touched her inappropriately, as well as her volunteering the opinion on cross-examination that "nothing happened to N." and that N. "had nothing to tell," the questioning on cross-examination regarding what Mary previously had told police was relevant to her credibility. (See Evid. Code, § 780, subds. (h) and (j).)
Moreover, to the extent it was opinion testimony, the testimony in question was rationally based on Marys perceptions and assisted the jury in understanding her testimony at trial. (Evid. Code § 800, subds. (a) and (b); see People v. Brown (2001) 96 Cal.App.4th Supp. 1, 33.) Since Mary did not volunteer any testimony regarding the perceptions she had about N.s silence at the time of the initial accusations, arguably, "the concrete observations on which the opinion [was] based [could not] otherwise be conveyed." (People v. Melton, supra, 44 Cal.3d at p. 744.)
Unlike People v. Sergill, supra, 138 Cal. App. 3d 34, a case cited by appellant in which two police officers were improperly allowed to testify that they found the victim in a sexual abuse case credible, this was not a straightforward case of the prosecutor requesting Marys opinion on appellants guilt or N.s credibility. Rather, Marys testimony both on direct and cross-examination justified further questioning regarding what she had said in the past, to clarify her testimony and to explore her credibility. This is also true, to a lesser degree, of Officer Mahanays testimony on rebuttal, since " rebuttal testimony . . . may be proper when it is offered as impeachment to meet evidence on a point put in dispute, i.e., specific statements of fact to which the defense has testified." (See People v. Senior (1992) 3 Cal.App.4th 765, 778.) Mahanays testimony that Mary had told him that she believed N. had been molested responded to Marys testimony at trial that implied that N. was lying about the molestation. (See Evid. Code, § 780, subds. (h) and (j).)
The testimony in this case thus did not usurp the jurys fact-finding function, but instead elucidated Marys testimony and assisted the jury to more fully understand her biases and attitude toward the case. (See People v. Sergill, supra, 138 Cal. App. 3d at p. 41; see also People v. Brown, supra, 96 Cal.App.4th Supp. at p. 33; Evid. Code, §§ 780, subds. (i) and (j), 800, subd. (b).)
Moreover, even assuming arguendo either that counsel was ineffective for failing to properly object to the prosecutors questioning of Mary and Officer Mahanay or the trial court abused its discretion in permitting the questioning, looking at the record as a whole, any such ineffectiveness or error was harmless. (See Strickland v. Washington (1984) 466 U.S. 668, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
We reject appellants argument that the alleged error violated his federal constitutional rights to due process because we find that this claim is not supported by the facts of the case. We therefore follow our Supreme Court in applying Californias standard of review for evidentiary error, as set forth in People v. Watson, supra, 46 Cal.2d at p. 836; accord People v. Melton, supra, 44 Cal.3d at p. 745.)
First, Marys testimony mainly involved denials of recollection and expression of her current belief that N. in fact was not molested. There was additional evidence of Marys bias, including the evidence that she had visited appellant numerous times in jail and had tried to help him find an attorney. Furthermore, the trial court instructed the jurors with CALJIC No. 2.20, which told them, inter alia, that they were "the sole judges of the believability of a witness and the weight to be given the testimony of each witness."
In addition, even if the disputed testimony caused the jurors to believe that Mary thought appellant was guilty and was now lying to protect him, the evidence of guilt was quite strong. Three separate victims, with no current relationship with each other, testified that appellant had touched them inappropriately when they were young girls, and N. and A. both testified in some detail to long-term molestation by appellant. (See People v. Melton, supra, 44 Cal.4th at p. 745.) Mary simply was not, as appellant maintains, a central or crucial witness in this case. Rather, the crucial witnesses were the victims, whose independent testimony provided powerful evidence of appellants guilt.
Given the extreme unlikelihood that the jury relied on Marys and Officer Mahanays allegedly improper testimony to convict appellant, there is no reasonable probability that the outcome of the trial would have been different absent the questionable testimony. (See Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Watson, supra, 46 Cal.2d at p. 836.)
III. Cross-Examination of Mary Regarding Prior Bad Acts
Appellant contends that, again either through ineffective assistance of counsel or trial court error, Mary was improperly cross-examined concerning prior bad acts.
A. Trial Court Background
Before Mary testified at trial, the prosecutor indicated a desire to impeach her with the conduct underlying a December 1995 charge of child endangerment, which was dismissed after her trial apparently resulted in a deadlocked jury. After Mary had completed her testimony on direct examination, during a discussion with counsel, the trial court recognized that child endangerment did not constitute a crime of moral turpitude and that, therefore, "the prior conviction [sic] is not available for classic impeachment purposes." (See People v. Sanders (1992) 10 Cal.App.4th 1268, 1274-1275.) The court did find, however, that in light of Marys testimony on direct examination, the incidents on which the charge was based were relevant, and permitted the prosecutor to ask questions about the previous child endangerment on cross-examination.
On cross-examination, the prosecutor elicited testimony from Mary regarding the fact that she was arrested for allegedly physically endangering N., for failing to provide heating or refrigeration in her house, and for leaving her children unattended at a neighbors house while she was away from home for hours at a time. Mary disputed most of the claims of neglect about which the prosecutor asked her. She did acknowledge that she eventually sent N. to live with relatives in Colorado for two years because she could not care for N. and was fighting the child endangerment charges.
B.Analysis
Appellant argues that the prosecutors questions about Marys prior bad acts were nothing more than an attempt to place before the jury propensity evidence, which is barred by Evidence Code section 1101 , subdivision (a). Respondent, on the other hand, asserts that after Mary testified on direct examination that while she was staying with appellant, she alone took care of N. and did not ever leave her with others, the questioning on cross-examination about Marys previous negligent conduct with her children was relevant to the credibility of her direct examination testimony. Thus, according to respondent, the purpose of the evidence was not to show that Mary had a propensity to endanger her children, but, rather, to show that a statement Mary had made on direct examination was false. (See Evid. Code, § 780, subdivision (i).)
Appellant replies that impeachment pursuant to subdivision (i) of Evidence Code section 780 (establishing "the existence or nonexistence of any fact" testified to by a witness) would involve evidence showing that between February and May 1996, Mary left N. alone at appellants house. It would not, according to appellant, involve evidence that Mary was negligent sometime before December 1995 by failing to provide necessities for her children or by leaving them with a neighbor, which was nothing more than inadmissible propensity evidence. (See Evid. Code, § 1101, subd. (a).)
"Although "evidence of a specific instance of a witness conduct is inadmissible under Evidence Code section 787 to impeach the witness as proof of a trait of his character [it] may become admissible to impeach the witness pursuant to Evidence Code section 780, subdivision (i), by proving false some portion of his testimony." [Citations.] Thus, a witness who makes a sweeping statement on direct or cross-examination may open the door to use of otherwise inadmissible evidence of prior misconduct for the purpose of contradicting such testimony. [Citation.]" (Andrews v. City and County of San Francisco (1988) 205 Cal. App. 3d 938, 946, 252 Cal. Rptr. 716, emphasis in original.)
We find that, in this case, the trial court did not abuse its discretion in permitting the prosecutor to ask questions about the child endangerment incidents. Although the questioning concerned a different time period, the prior incidents were nonetheless relevant to impeach Marys claim on direct examination that she took sole care of N. and never left her with others while at appellants house, and its implication that appellant could not have molested N. during that time period. (See Evid. Code, § 780, subd (i) [permitting jury to consider "any matter that has a tendency in reason to prove or disprove the truthfulness of [a witnesss] testimony at the hearing, including . . . the existence or nonexistence of any fact."].)
In any event, even assuming the evidence in question were improperly admitted, appellant cannot show the prejudice required to succeed either on a claim of ineffective assistance of counsel or abuse of the trial courts discretion. (See Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Watson, supra, 46 Cal.2d at p. 836.) As already discussed in section. II., ante, there was evidence of Marys bias in favor of appellant and the evidence of appellants guilt was quite strong. (See § II.B., ante.) Thus, there is not a reasonable probability that the result would have been different absent the questioning regarding the child endangerment charges against Mary. (See Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Watson, supra, 46 Cal.2d at p. 836.)
IV. Trial Courts Instruction pursuant to CALJIC No. 2.50.01
Appellant contends the trial court erred by instructing the jury pursuant to CALJIC Nos. 2.50, 2.50.01, and 2.50.1. Appellant argues that these jury instructions erode the due process principle that each element of the charged offense must be proved beyond a reasonable doubt by impermissibly lowering the burden of proof to a preponderance of the evidence with respect to other crimes evidence.
The trial court admitted evidence of uncharged offenses appellant had allegedly committed against A. and L.R. under Evidence Code sections 1108 and 1101, subdivision (b). The court therefore instructed the jury with CALJIC No. 2.50 (pertaining to Evidence Code section 1101) and 2.50.01 (pertaining to Evidence Code section 1108). Both instructions permit the jury to consider the uncharged offenses if it finds by a preponderance of the evidence that the defendant committed them, but the instructions also state that an uncharged offense "is not sufficient by itself to prove beyond a reasonable doubt that [the defendant] committed the charged crimes. The weight and significance of the evidence, if any, are for you to decide." The jury was also instructed with CALJIC No. 2.50.1, which explains that the prosecution has the burden of proving that the defendant committed the uncharged offenses by a preponderance of the evidence and that the jury cannot consider evidence of uncharged offenses unless it finds by a preponderance of the evidence that the defendant committed them.
After briefing in this case was completed, the California Supreme Court confirmed that "the 1999 version of CALJIC No. 2.50.01 correctly states the law." (People v. Reliford (2003) 29 Cal.4th 1007, 1009s.) The court rejected contentions that the instruction was likely to mislead the jury regarding the prosecutions burden of proof, that it implies that prior sex offenses proved beyond a reasonable doubt are sufficient to prove the charged offense beyond a reasonable doubt, and that it is too complicated for jurors to apply. (Id. at pp. 1014-1016.)
That this case involves the 2001 revision of CALJIC No. 2.50.01 does not change the result on this issue.
Based on our Supreme Courts analysis, we reject appellants claims of error with respect to CALJIC No. 2.50.01, as well as CALJIC Nos. 2.50 and 2.50.1.
DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Ruvolo, J.