Opinion
A145098
04-19-2018
THE PEOPLE, Plaintiff and Respondent, v. [REDACTED], 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H55302)
Defendant [REDACTED] appeals a judgment entered on a jury verdict finding him guilty of three counts of committing sexual intercourse or sodomy with a child of 10 years of age or less (Pen. Code, § 288.7, subd. (a)) (counts 1, 4, and 5), two counts of oral copulation or sexual penetration with a child of 10 years of age or less (Pen. Code, § 288.7, sub. (b)) (counts 2 and 7), two counts of lewd act upon a child (Pen. Code, § 288, subd. (a)) (counts 3 and 8), and one count of attempted sexual intercourse or sodomy with a child of 10 years of age or less (Pen. Code, §§ 288.7, subd. (a), 664, subd. (a)) (count 6). [REDACTED] contends that his conviction on one of the counts must be reversed because two pages were missing from the third amended information. He also contends that the trial court abused its discretion in making certain evidentiary rulings. Finally, he contends that his convictions were not supported by substantial evidence. We reject [REDACTED]'s arguments and affirm the judgment.
FACTUAL BACKGROUND
The parties are familiar with the evidence and procedural background of the case. We discuss only those limited facts necessary to explain our ruling.
[REDACTED] was convicted of repeated acts of sexual abuse against his daughter, referred to as Jane Doe, when she was seven and eight years old. Doe testified to multiple incidents of abuse that began when she was as young as three or four years old, and that included [REDACTED]: touching Doe's breasts with his hands and mouth; touching Doe's vagina with his hands, mouth, and penis; putting his penis in her mouth; having her masturbate him to ejaculation; and engaging in vaginal intercourse to ejaculation. Doe testified that this type of thing happened every few days when the family was living in Florida. She testified that after they moved to Hayward, [REDACTED] often did the same things to her that he did in Florida.
Doe was born in June 2004. She was 10 years old when she testified at trial.
[REDACTED] showed Doe pornographic movies on his laptop, two of which she described at trial. According to Doe's testimony, one movie was a story about a father, a mother and a girl. The girl, who appeared to be about 11 or 12, went into the bedroom while her parents were sleeping and had sex with her father while her mother slept. Doe testified the other movie began with a teenage girl sleeping. According to Doe, the father came into the girl's room and asked how big her breasts were. Doe testified the girl told her father that if she showed him her breasts he could not tell her mother. Doe testified the girl then lifted her shirt, and the father touched the girl's vagina. Doe testified that [REDACTED] told her she needed to be cooperative with him like the girls in the movies.
The abuse was discovered on September 23, 2012, when Doe's mother, G.W., found pictures Doe had drawn of couples engaging in sexual activity; in response to her mother's questions, Doe identified her father as the man depicted in the drawings. G.W. testified that after she took Doe and her sisters out of the house, [REDACTED] called and asked where they went. G.W. testified that she then asked [REDACTED], "Did you touch my daughter?" [REDACTED] responded, "I am not a monster. I need help." According to G.W., [REDACTED] then called and texted her several times asking for help, explaining that his sister had molested him as a child and that was why he needed help. In the calls and texts, [REDACTED] never denied molesting Doe and never told G.W. Doe was lying.
Later the same day, G.W. took Doe to the Hayward police to report what Doe had told her. The next day, G.W. took Doe to Children's Hospital of Oakland for an examination and an interview at the Child Abuse Listening and Interview Center (CALICO). Doe's interview at CALICO was admitted into evidence and played for the jury. During the interview, Doe provided a detailed account of the various incidents of abuse to which she had been subjected, both in Florida and in California, including an incident of attempted sodomy that Doe was unable to recall at trial.
Dr. James Crawford-Jakubiak, a child abuse pediatrician at Children's Hospital of Oakland, testified as an expert witness for the prosecution. He testified that most abuse examinations are non-acute in that they happen well after the incident. Most abused children report the abuse well after the event, often because the abuser is a family member or someone else known to the child. By the time they report it, all forensic material has been washed away.
Dr. Crawford-Jakubiak testified that abused children may manifest the abuse in what they say or draw. He described Doe's drawings as "profoundly graphic and sexual in nature." They would be a "red flag" for abuse because "they are so atypical" and "so beyond the scope of what an eight-year-old child typically understands about sexuality and sexual activity."
Dr. Crawford-Jakubiak testified that abused children generally are able to provide a "clear, credible and consistent description of what happened to them," something he found in Doe's statements.
[REDACTED] testified in his defense at trial. He denied touching Doe in the ways she described. He stated that the only time he touched Doe or his other daughters in those areas was when he was changing diapers. He testified that as the girls got older, he told G.W. it should be her job to clean them when they needed their diapers changed, but she refused. He also denied showing Doe pornography.
[REDACTED] saw the video of Doe's interview at CALICO. He testified he believed her story was simply a product of her imagination.
DISCUSSION
[REDACTED] raises a number of issues on appeal. None has merit.
A. The Third Amended Information Was Not Incomplete.
[REDACTED] contends first that his conviction on count 2 must be reversed because two pages in the third amended information in which that count was pled were missing from the original clerk's transcript. The contention is meritless. The two pages in question apparently were inadvertently omitted in the course of copying the record. On March 24, 2016, pursuant to rule 8.155(b) of the California Rules of Court, the clerk of the superior court filed an augmented transcript containing the two missing pages.
B. The Trial Court Did Not Abuse Its Discretion in Admitting the CALICO Video.
On September 24, 2012, Jane Doe was interviewed at CALICO regarding her allegations of abuse by her father, and her interview, which lasted approximately one hour and 20 minutes, was videotaped and audio-recorded. The People moved before trial to admit that videotape pursuant to section 1360 of the Evidence Code, and the trial court granted that motion. [REDACTED] argues that the trial court abused its discretion in admitting the videotape. We disagree.
All further statutory references are to the Evidence Code unless otherwise indicated.
Section 1360 creates a limited exception to the hearsay rule in criminal prosecutions for statements made by a minor victim when under the age of 12 describing acts of child abuse or neglect, including statements describing sexual abuse. (§ 1360.) It safeguards the reliability of such statements by requiring that: (1) the court find, in a hearing conducted outside the presence of the jury, that "the time, content, and circumstances of the statement provide sufficient indicia of reliability" (id. § 1360, subd. (a)(2)); (2) the child either testifies at the proceedings, or, if the child is unavailable to testify, other evidence corroborates the out-of-court statements (id. § 1360, subds. (a)(3)(A),(B)); and (3) the proponent of the statement gives notice to the adverse party sufficiently in advance of the proceeding to provide him or her with a fair opportunity to defend against the statement (id. § 1360, subd. (b)).
[REDACTED] admits that the second and third elements of the statute were satisfied. He does not dispute that the first element was also satisfied. The record reveals that in a hearing before trial, the trial court viewed the entire videotape and, after doing so and hearing argument from counsel, expressly found that the time, content, and circumstances of Jane Doe's statements provided sufficient indicia of reliability for the videotape to be admitted and played to the jury. That ruling was based on the trial court's careful and detailed factual findings, which fully addressed each of the pertinent factors. (See, e.g., People v. Eccleston (2001) 89 Cal.App.4th 436, 447-449; People v. Brodit (1998) 61 Cal.App.4th 1312, 1330.)
Although [REDACTED] did contest the issue in the trial court, he has not renewed that challenge here, and has therefore forfeited it.
[REDACTED] argues that because Jane Doe described several incidents or details in the videotape that she did not testify about in trial, admission of the videotape violated his right to confront the witnesses against him. But contrary to [REDACTED]'s contention that "he was unable to cross examine the witness", Jane Doe testified at trial and was cross-examined. As the People correctly observe, the confrontation clause of the Sixth Amendment is not implicated when a witness testifies. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1118 ["Where the witness is available at trial for cross-examination, the principal danger of admitting hearsay evidence is not present [citation], and neither the federal nor the state constitutional right of confrontation is violated. [Citations.]".) Nothing prevented [REDACTED] from cross-examining Doe on the asserted discrepancies between her trial testimony and her statements in the videotaped interview, which was conducted approximately two years before trial. In fact, his counsel did cross-examine her on that subject, as well as about her inability to remember some of the incidents and various details that she related in her videotaped interview. As a result, as [REDACTED]'s trial counsel correctly conceded, there was no confrontation clause violation.
It is unsurprising, given Doe's age and the passage of time, that she was unable at the time of trial to remember certain details or incidents which she had previously related to interviewers. That did not violate [REDACTED]'s rights, as the confrontation clause "includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion." (Delaware v. Fensterer (1985) 474 U.S. 15, 21-22; see also United States v. Owens (1988) 484 U.S. 554, 559 [holding that confrontation clause does not bar testimony concerning a prior, out-of-court identification when the identifying witness is unable, because of memory loss, to explain the basis for the identification].)
We reject [REDACTED]'s alternative argument in his reply brief that his trial counsel's concession constituted ineffective assistance of counsel. As discussed in text, that concession was compelled by controlling authority.
In his reply brief, [REDACTED] asserts that section 1360 is unconstitutional because it violates the confrontation clause and the due process clause of the Fourteenth Amendment. However, " 'points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. [Citations.]' [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) [REDACTED] offers no excuse for his delay here. In any event, as [REDACTED]'s trial counsel conceded, and the trial court concluded, the claim is contrary to governing law. (See People v. Eccleston, supra, 89 Cal.App.4th at p. 448 ["In upholding the constitutionality of section 1360, we join the clear majority of other states where no violation of confrontation rights have been found. [Citations.]"].)
[REDACTED] does not provide any separate argument or authority to support his due process argument, and has therefore forfeited it. In any event, it too is contradicted by controlling authority. (See People v. Brodit, supra, 61 Cal.App.4th at pp. 1323-1327 [rejecting due process challenge to section 1360]; see also Brodit v. Cambra (9th Cir. 2003) 350 F.3d 985, 989-990 [affirming denial of federal habeas petition, rejecting contention that application of section 1360 denied the defendant due process of law].)
C. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Prior Sexual Offenses Under Evidence Code Sections 1108 and 1101.
The People moved before trial to admit evidence of prior uncharged misconduct, specifically that [REDACTED] had: (a) sexually abused Doe beginning when she was three years old in Florida; (b) sexually abused Doe when she was seven in Tracy, California; and (c) while in Florida, he had shown Doe pornographic videos depicting children having sex with adults. The motion was brought under section 1108, which permits the prosecution to prove a defendant's propensity to commit sex crimes through specific instances of conduct. In the alternative, the motion was brought under section 1101 to show intent, common scheme or plan, and absence of mistake. The trial court granted the motion on both grounds.
Section 1108, subdivision (a) provides,
"In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Section 1101, subdivision (a) generally bars evidence of a person's character or trait of character from being admitted when offered to prove conduct on a specified occasion. However, subdivision (b) provides an express exception to that prohibition:
"Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act."
In his opening brief, [REDACTED] challenges that ruling on the ground that because prior uncharged offenses need only be proven by a preponderance of the evidence, the admission of such evidence unfairly lowered the prosecution's burden of proof and thereby violated his due process rights. He also appears to contend that such evidence should have been excluded under Evidence Code section 352. In his reply brief, he shifts his position, arguing only that testimony that he showed his daughter pornographic movies should not have been admitted to show intent. None of his arguments has any merit.
At the outset, [REDACTED]'s argument that permitting the prosecution to prove the prior uncharged offenses by a preponderance of the evidence unfairly lowered its burden of proof is irreconcilable with controlling authority.
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), our high court rejected an identical due process challenge to the admission of evidence of uncharged crimes under section 1108. There, the defendant in a prosecution for sexual offenses challenged section 1108 on due process grounds, arguing among other things that allowing proof of other sex offenses to prove disposition weakened the presumption of innocence and "reduc[ed] the prosecution's burden of proving its case beyond a reasonable doubt." (Falsetta, at p. 919.) The Supreme Court disagreed: "Nor does section 1108 improperly alter or reduce the prosecutor's proof burden. As stated in [People v. Fitch (1997) 55 Cal.App.4th 172], 'While the admission of evidence of the uncharged sex offense may have added to the evidence the jury could consider as to defendant's guilt, it did not lessen the prosecution's burden to prove his guilt beyond a reasonable doubt.' [Citations.]" (Falsetta, at p. 920.) The Court went on to observe that a properly instructed jury will be given the usual instructions regarding the presumption of the defendant's innocence and the prosecutor's burden of proof and, at the defendant's request, "may be told that evidence of his other sexual offenses is not sufficient by itself to prove his commission of the charged offense, that the weight and significance of the evidence, if any, is for the jury to decide, and that unless otherwise instructed, the jury may not consider this evidence for any other purpose. (See CALJIC No. 2.50.01 (1999 rev.) (6th ed. pocket pt.).)" (Ibid.)
Here, the jury was properly instructed with CALJIC No. 2.90, the general instruction on the presumption of innocence and proof beyond a reasonable doubt, and with CALJIC No. 2.50.01, the instruction referred to in Falsetta. The latter instruction stated, "However, even though you find by a preponderance of the evidence that the defendant committed other sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the crimes charged you are determining. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider along with all other evidence in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crimes that you will determine." "We conclude that there was no reasonable likelihood under the instructions given that the jury would conclude it could convict appellant of the current offense solely because it found he had committed a similar prior sexual offense. Nor was there any possibility that the jury would convict appellant without finding the prosecution proved every element beyond a reasonable doubt." (People v. Hill (2001) 86 Cal.App.4th 273, 276-279.)
[REDACTED] did not object in the trial court to the admission of evidence regarding the prior incidents of sexual abuse, but only to the evidence that he showed his daughter pornography. He has therefore forfeited the former contention, including the specific objection that the evidence should not have been admitted because "it was possible for the jurors to confuse the uncharged conduct in Florida with the charged conduct in California." (§ 353, subd. (a); People v. Miramontes (2010) 189 Cal.App.4th 1085, 1099 [defendant forfeited argument regarding application of section 1108 by failing to raise it before the trial court]; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [because defendant did not specifically object to evidence on grounds set forth in section 352, issue was not preserved for review].)
[REDACTED] made no mention in his opening brief of his argument that the trial court erred in admitting evidence that he showed his daughter pornography. As a result, he has also forfeited that argument. (See People v. Smithey, supra, 20 Cal.4th at p. 1017, fn. 26.)
In any event, even had any of these issues been preserved, we would find no error. The prior uncharged incidents, which involved the same victim and closely similar conduct, were sufficiently similar to tend to show [REDACTED] did in fact commit the charged offenses; the proffered evidence was no stronger and no more inflammatory than the testimony concerning the charged offenses; they were not remote in time; and the trial court reasonably could have found that the proffered evidence was not likely to confuse or distract the jurors from their main inquiry. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405, superseded by statute on other grounds as stated in People v. Robertson (2012) 208 Cal.App.4th 965, 991; People v. Hernandez (2011) 200 Cal.App.4th 953, 966-967 [no abuse of discretion in admitting evidence of uncharged sexual offenses]; People v. Soto (1998) 64 Cal.App.4th 966, 991-992 [same].)
Finally, [REDACTED] asserts that evidence that he showed his three-year-old daughter pornographic films depicting prepubescent children engaging in sexual activity with adults should not have been admitted because it "had no bearing on the current charges," and therefore was not probative of his intent under section 1101, subdivision (b). We could not disagree more. A jury could reasonably draw two conclusions from such evidence: that [REDACTED] had an abnormal sexual interest in children, and that he was attempting to "groom" his daughter for abuse by exposing her to depictions of sexual activity between children and adults. (See In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547 [discussing expert testimony in juvenile dependency case regarding "sexually provocative behavior between [father] and his children which could be considered sexual grooming, i.e., manipulation of a child for sexual exploitation"].) Indeed, Doe testified that [REDACTED] told her that she needed to cooperate with him like the girls in the videos. The trial court did not err in admitting the evidence in question, which was strongly probative of [REDACTED]'s intent.
Although the trial court granted the People's motion under both sections 1108 and 1101, the heading and authority cited in [REDACTED]'s opening brief refer only to the former provision. [REDACTED]'s first discussion of section 1101 and of authority construing that section comes in his reply brief. [REDACTED] forfeited the section 1101 issue by failing to raise it in his opening brief. That provides yet another independent basis for our decision. (See People v. Britt (2002) 104 Cal.App.4th 500, 506 ["Since the trial court correctly admitted the testimony concerning the uncharged offenses under section 1108, we need not reach the question of its admissibility under section 1101."].)
D. The Trial Court Did Not Abuse Its Discretion in Admitting [REDACTED]'s Song Lyrics on Cross-examination to Impeach His Direct Testimony.
[REDACTED] claims to be "a music engineer who also writes, produces and sings his own lyrics." After he testified on direct examination at trial, the People sought to use the sexually explicit lyrics of several songs found on [REDACTED]'s website to impeach him on cross-examination. The trial court, after reviewing a transcript of the lyrics and hearing argument from counsel, permitted them to do so. The People later referenced the lyrics in their closing argument. [REDACTED] now claims the trial court abused its discretion in allowing this evidence because the song's lyrics were "not related to the case in any way" and were more prejudicial than probative. We disagree.
It is well established that song lyrics authored by a criminal defendant are admissible if they are relevant to the charges, including the defendant's state of mind and criminal intent. (People v. Zepeda (2008) 167 Cal.App.4th 25, 35 [trial court did not abuse its discretion in admitting two tracks of gangster rap songs credited to defendant where songs showed that defendant's gang had the motive and intent to kill rival gang members]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373, overruled on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3 [same]; see also People v. Murillo (2015) 238 Cal.App.4th 1122, 1129 [trial court erred in deciding as a matter of law that lyrics of rap song were protected speech and did not constitute a criminal threat where the song could be understood to convey a serious expression of intent to commit an act of unlawful violence].)
[REDACTED] misconceives the purposes for which the People offered the evidence in question, the grounds for the trial court's ruling, and applicable law. [REDACTED] falsely contends (without any citation to the record) that the People argued in closing that the lyrics were a "confession and, with no proof, that the lyrics were about Jane Doe." Not so. Rather, in closing argument, the People argued that the lyrics were evidence of [REDACTED]'s intent.
[REDACTED] also contends that the lyrics had "no probative value." We do not agree. The lyrics contained statements that the jury reasonably could have interpreted as references to sexual contact between the adult narrator/singer and a minor. Thus, the lyrics of the first of three songs included the following: "She be calling me daddy, because I am a father figure. I put her in a fetal position, armed with good love, believing I am leaving a message, power of respect. I am bringing a lesson. I don't like to talk, I just like to do things. If you wants to go there, you need to tie your shoestrings." The second song included the following lyrics: "Snatch up your little angel and have her sipping and sinning. Got her kissing on bitches and bitches sucking her titties. First she was antsy, but when we got her panties off, she was ass out, popping her fancy." A lengthy third song entitled "Switch Position" contained explicit descriptions of various sexual activities including oral copulation and sodomy. As the prosecutor pointed out in closing argument, the quoted lyrics from the second song contained a phrase ("sucks titties") that Doe wrote on one of her sexually explicit drawings, and Doe told the CALICO interviewers, "these are things that my daddy would say."
The trial court's ruling was well within its discretion. "The permissible scope of cross-examination of a defendant is generally broad. 'When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. [Citation.] A defendant cannot, by testifying to a state of things contrary to and inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, but without testifying expressly with relation to the same facts, limit the cross-examination to the precise facts concerning which he testifies. [Citation.]' [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 382.) On direct examination, [REDACTED] denied that he was sexually attracted to young girls; and he denied Doe's assertion that he had sung a sexually suggestive song to her, and testified instead that he had attempted to shield his children from hearing such songs. In so doing, as the trial court correctly ruled, he opened the door to impeachment with the song lyrics.
In any event, any error was harmless. The prosecutor's cross-examination of [REDACTED] regarding the song lyrics covered only two pages of transcript, out of more than seventy pages of cross-examination, and [REDACTED] denied on redirect examination that the songs referred to his daughter or that he ever played them for her. Given the strength of the other evidence, there is no reasonable possibility that the jury would have reached a different verdict, had the lyrics been excluded. (People v. Nelson (2011) 51 Cal.4th 198, 224 [no reasonable possibility that admission of rap lyrics about shooting police officers in penalty phase of capital murder case was prejudicial to defendant].)
E. The Convictions Are Supported by Substantial Evidence.
Finally, [REDACTED] devotes three pages of his opening brief to his argument that his convictions were not supported by substantial evidence. We disagree. " 'We do not reweigh evidence or reevaluate a witness's credibility. [Citations.]' 'Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.' [Citations.]" (People v. Brown (2014) 59 Cal.4th 86, 106.) As discussed above, there was ample evidence of [REDACTED]'s guilt of the charged offenses, including Doe's CALICO interview, Doe's live testimony, Doe's drawings, [REDACTED]'s admissions in his calls and texts with G.W., and the expert testimony. No more was required.
Two of [REDACTED]'s arguments regarding the evidence that he showed Doe pornography warrant correction. First, [REDACTED] argues—without any citation to the record—that his computer was searched and no evidence of the pornography Jane Doe described was found. Given Doe's testimony, however, no such physical evidence was required. (See People v. Mendoza (2015) 240 Cal.App.4th 72, 85-86 [substantial evidence supported defendant's conviction for possession of child pornography although the actual images were not found].) Second, [REDACTED] argues that Jane Doe admitted to watching pornography by herself. He fails, however, to disclose: (i) that she testified that she did not do so until she was nine years old, years after the abuse began; and (ii) that the expert witness testified that it is common for children who have been abused to display behavioral changes, including becoming hyper-sexualized.
DISPOSITION
The judgment is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Reardon, J. /s/_________
Streeter, Acting P.J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.