Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF053841, Harold W. Hopp, Judge.
William Flenniken, Jr., under the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant, Jose Serrano, of forced oral copulation of a minor at least 10 years his junior (Pen. Code, § 288a, subd. (c)(1)) and committing a lewd and lascivious act on a minor (§ 288, subd. (a)), during which he engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8)) He was sentenced to prison for eight years. His appellate attorney submitted a Wende brief to this court, stating that he found no arguable issues. However, after review of the record, we asked the parties to address defense counsel’s failure to object to numerous pieces of evidence. In his response to our request, defendant contends that his trial attorney’s failure to object to some of this evidence constitutes incompetency of counsel, requiring reversal of his convictions. We conclude that the evidence of defendant’s guilt is such that reversal of defendant’s convictions is not appropriate based on the errors in admission of evidence defendant, in his appeal, calls to our attention.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
Defendant, the victim’s mother (hereinafter, “the mother”), the 10-year-old victim and the couple’s five-year-old son (hereinafter, “the brother”) lived together. On July 18, 2004, the mother called the police, reporting that she believed defendant had molested the victim. The officer who responded testified as follows: The mother told him that during the previous April, the brother had told the mother that he had seen defendant and the victim running around the house naked. The mother said that she confronted the victim, who denied it. In July, the mother again asked the victim about it and this time the victim said that defendant had touched her while both had their clothes on, but she denied that they had been naked. However, then the victim cried and said that on three occasions, including the time the brother had seen them in April, defendant had her perform oral sex on him, both were naked, defendant climbed on top of her and tried to put his penis inside her but she struggled and pushed defendant off and he stopped. The mother confronted defendant who got nervous and said he was sorry and that he was a “stupid punk.” He did not deny having the victim perform oral sex on him and he apologized again. Defendant then panicked, got scared and left the house. When defendant left, the mother called the police. She told the responding officer that she wouldn’t allow defendant back in the house and she would divorce him and file for custody of the children and protective orders against defendant for her children. The officer testified that in his twenty-five years as a police officer, he had found that some people were less than truthful with him, but he did not get that impression from the mother that day. He also testified that the mother appeared to be very truthful in what she had reported to him about what the victim had told her and how defendant had reacted to being confronted with this information. He also testified that he believed the victim and the brother were safe based on the mother’s statement that if she saw defendant near her home she would call the police and she would be filing for divorce from the defendant and she would seek custody of the children and protective orders against defendant. At the end of this statement of facts, we will set forth what the case agent testified to about the initial reports by the victim and her brother.
At trial, the mother denied on the stand that the brother had told her in April that he saw defendant and the victim naked together and she variously testified that she did not recall telling the responding officer this and that she did tell him, but it was a lie. She testified that she told the officer that she had asked the victim about the brother’s statement, but this was also a lie. She thought she told the officer that the victim told her that defendant had touched the victim and had had oral sex with her, but she denied telling him that defendant and the victim were naked or that defendant attempted to penetrate the victim and she pushed him off and he stopped. She acknowledged telling the officer that she confronted defendant and he was shaking and scared and told her he was sorry, that she asked defendant why he would have the victim perform oral sex on him when she, herself, did not, and that defendant did not deny having the victim perform oral sex on him and defendant then left. She said she told the officer that she was going to file for divorce from defendant and not let him around her children. She denied telling the officer that the sexual interaction between defendant and the victim happened three times; she told him it happened once. However, she testified that everything she told the officer that day was a lie because she was angry at defendant for cheating on her. She said she told the officer that the brother had told her that he saw defendant and the victim naked, but she did this because of defendant’s cheating and she told the brother to say this. She testified that she called the police in July because she knew if she accused defendant of molesting the victim, the police would remove defendant from the house, which she wanted, because he had been unfaithful to her. She testified that she told the victim to lie and say that defendant touched her genitals and had her put his penis in her mouth because defendant was cheating on the mother.
The victim was interviewed first on July 26, 2004. During that interview, the victim consistently and at length denied that anything inappropriate had happened between her and defendant and she denied that she had told her mother it had. Finally, after repeated questioning from the social worker who was conducting the interview, the victim, without changing her demeanor and affect, admitted that a police report, stating that she had told her mother that defendant touched her and climbed on top of her and tried to insert his penis into her three times, was true. However, later she said that defendant tried to insert his penis into her only once. She variously stated that this activity began when she was 10 and 8. Later, she said that it began and ended when she was 8, and she denied that it happened when she was 9 or 10. She said of the April incident the brother reported to the mother that she and defendant had their clothes on and she tried to kick defendant off her before her brother saw them, but was only able to do so after. She was unable to recall what happened during their first sexual encounter. She indicated that the defendant had touched her genitals over and under her clothes. She also said that defendant forced her to touch his penis once. She denied that she had touched defendant’s penis with her mouth. She said that defendant had apologized to her. A social worker who was present at the first interview opined at trial that the victim was credible during this interview. At the end of this statement of facts, we will set forth what the case agent testified to about this interview.
She would have been 10 during the April 2004 incident.
She did this by pointing to an anatomical drawing.
After the victim’s July 26, 2004 interview, the case agent sent a report to the prosecutor, but the latter did not file a complaint against defendant or have him arrested. The case agent went into the military and did not return until March 2006, when he went to the family home, only to discover that defendant was once again living there. The following day, the victim was taken into protective custody and placed in a foster home, as was the brother. This made the victim very angry.
During a subsequent interview, which took place when she was 12 and still in foster care, the victim did not expressly acknowledge that anything inappropriate had happened with defendant although she expressed displeasure with her mother allowing defendant to return to the family home, which, of course, had resulted in her going into foster care. She also said that defendant told her he was sorry “for what he did[,]” which she claimed she could not remember or did not occur, and that he had given her and the brother gifts to show this. She said she felt safe at home and wanted to return to it. At the end of this statement of facts, we will set forth what the case agent testified to about this interview.
At trial, the victim testified that she recalled during the first interview saying that defendant had touched her many places and done other things to her but this was a lie which her mother told her to tell because defendant had cheated on the mother. She added that her mother had told her to testify that everything she said during the first interview was a lie. She did not remember saying during the first interview and it did not happen that the brother walked in on her and defendant while the latter was on top of the victim, who tried to kick him off. She could not recall testifying at the preliminary hearing in May 2006, that she put her mouth on defendant’s penis and she testified variously that her mother did not tell the victim to say this and her mother did tell her to say this during the first interview. She said that she lied when she said during the preliminary hearing that defendant had touched her. She testified that her statement during the second interview, that defendant had apologized to her for what he had done to her, was not true. She said that her mother had also told her to testify that everything she said during the second interview was a lie, but, in fact, it was a lie. She said she lied during the first and second interviews and at the preliminary hearing and lied at trial, saying she lied on those earlier occasions, because her mother told her to. Despite this, she claimed she was telling the truth on the stand. At the end of this statement of facts, we will set forth what the case agent testified to about the victim’s trial testimony.
The brother, during his first interview, on July 26, 2004, had initially denied telling his mother that he had seen defendant and the victim naked, then said he saw them partially clothed and told his mother. He reported seeing defendant on top of the victim and he claimed that he tried to get defendant off her, but could not. In response to leading questions, the brother appeared to say that he saw defendant touch the victim twice with his penis. The social worker opined at trial that the brother was credible during this interview. At the end of this statement of facts, we will set forth what the case agent testified to about this interview
None of the other accounts of this incident included this “fact.”
During his second interview, which took place on March 24, 2006, when he was seven, the brother said that the mother did not care about the victim—just about defendant. However, he twice denied that anything happened to the victim or that his mother told him what to say, although she did tell him not to talk to the police. The brother was in foster care during this interview. At the end of this statement of facts we will set forth what the case agent testified to concerning this interview.
At trial, the brother did not recall telling the mother about seeing defendant and the victim naked and he denied that this happened. He denied that the mother told him to say anything to anyone about defendant. He said he was unhappy in foster care, wanted to go home and would do anything for his mother. At the end of this statement of facts, we will set forth what the case agent testified to about the brother’s trial testimony.
Continuing with the chronological narrative, on July 20, 2004, two days after the mother first called the police, the case agent called her to schedule the first interviews of the victim and the brother. The case agent testified that the mother told him that defendant had left the family home, but she was concerned about defendant going to jail because he was the sole support of the family and she did not want to go on welfare. At trial, the mother denied expressing concern to the case agent.
A social worker testified that after the first interview of the victim and the brother, she and the case agent told the mother that both had been credible during their interviews and the mother responded, saying she believed the molestation had occurred because she “watches Oprah.” The mother said she wanted to protect her children and she did not say that she had told them to lie about defendant.
The mother testified that during this post-interview conversation, she told the case agent and the social worker that despite the victim’s acknowledgement during the latter’s interview that defendant had molested her, this was not true and the mother had either told the victim to say things about defendant because she was mad at him for cheating on her and looking at a women at the gas station or she told the case agent and social worker that children lie. She did not recall commenting to the case agent about defendant’s crucial financial position in the family, but she admitted saying she was worried about finances. She denied telling them that she knew defendant could have abused the victim because she “watches Oprah.”
However, she did admit that she told the social worker during subsequent contacts with her that she was concerned about finances because defendant had paid for everything.
The case agent testified that just after the first interviews, he showed the victim on a stuffed bear a part that represented her genitals and he asked her if defendant’s penis ever touched it and she whispered that it had, while both were naked.
The case agent testified that hours after the first interviews, defendant called him and he confirmed the mother’s statement that he was getting counseling and he was going to accept responsibility for his actions, although he never made reference to child molestation or sexual assault. Defendant said the victim was truthful in her statements. He volunteered to turn himself in to the police; he made an appointment to do so and then did not appear. Then followed the eighteen month period during which the case agent was abroad, serving in the military.
The social worker testified that during this time, the mother was less than diligent in getting counseling and victim services for the victim. When the social worker confronted the mother about this, the mother responded that kids can lie. The social worker told the mother that the victim was very credible in her account of the molestation and she implied that the brother was also when he “disclosed something.” The mother did not tell the social worker that she had fabricated the story of the abuse or told the victim to lie. The social worker also testified that she would have removed the children from the family home initially had she known that the mother would not follow through with her promises to protect the children, that she would allow defendant to move back in and that she would claim she told the victim to lie about the molestation.
When the children were taken into protective custody in March 2006, according to the testimony of the social worker who took the brother, the mother was defensive, uncooperative and would not allow the social worker to interview her son. The social worker testified that the mother said she felt the sex abuse allegations were untrue and she had told the victim to lie about them.
The case agent testified that when the victim was taken into protective custody in March 2006, the mother was not concerned for her, but for defendant. The mother refused to give the agent information about how defendant could be located.
The social worker who had conducted both interviews of the victim and the brother (hereinafter, “the interviewer”) testified about the stages of disclosure a child sex abuse victim can experience and why some recant. She opined that the victim was closed off during the first interview when initially asked about the abuse. The victim was completely shut down during the second interview; however, she never said that the mother had told her to say bad things about defendant. The interviewer opined that the second interview shows that after victims reveals abuse, they struggle to deal with the people who do not want to believe their accounts and reject them. She added that the victim’s desire to escape foster care could influence her willingness to be honest. She opined that the fact that the brother, in his second interview, said that the mother had told him not to talk to the police suggested that the victim had been told the same thing and that was why she was closed off during her second interview.
The case agent began his testimony at trial by describing his training and experience in child abuse cases, which included “hav[ing] to [determine the] credibility of suspects.” He added twice that it was part of his job to determine whether the statements of victims, witnesses and suspects were true or not. He said that in 1998, he attended classes “specifically interviewing children to tell the truth telling styles, victims, witnesses, suspects.” He said in 2006 (which postdated these offenses), he had further training in “juveniles recanting, truth telling styles, micro expressions[,] which means after you interview somebody for a certain amount of time, you ask specific questions to see if they are telling the truth.” He described another course he took which dealt with “suspects, victims, witnesses, and truth telling styles, what’s true and what’s not.” In explaining why police do not initially interview victims of child abuse, the case agent explained, “[T]he initial statement from juveniles are most truthful or are found to be most truthful and if they are subjected to multiple interviews and questioning, their stories will begin to change over a period of time.” The prosecutor repeated the italicized portion of the case agent’s statement adding, “[T]he first statement they make is the most truthful statement and... sometimes they can be influenced as they go along with people telling them or talking to them about things....” The case agent testified that the brother’s first interview began with what the case agent opined were “rehearsed statements which I anticipated. [¶]... [¶] Rehearsed statements aren’t spontaneous statements. They are statements that are told to an individual and especially with younger individuals,... they want to get it out quickly. After you get past the rehearsed statements, they’re more spontane[ous], that will indicate truthfulness. As an investigator supervisor, taking numerous classes, I know there’s no guaranteed way to say if somebody is telling the truth, but there are indicators when somebody makes a truthful and untruthful statement, some indicators are spontaneous, appear to be rehearsed, repeating the same question if they’re lying.... [T]here’s a lot of stress in children when they are told to lie, told to remember something, when they’re not being spontaneous.” He then offered his opinion that when the brother said during the first interview that he was there because his mother got mad at defendant for looking at another woman, the boy’s statement was “parent rehearsed.” However, when the brother began reporting during the interview that defendant got naked with the victim, the case agent opined that the boy had been told not to talk about it, but the statement was unrehearsed and spontaneous, the implication being that it was truthful. He further opined, twice, that what the victim said during her first interview was a “rehearsed denial” and that her behavior indicated that “she was told to say something. She wasn’t going to be spontaneous. She was rehearsed on what she was supposed to say and what she was not supposed to say.” He added that the fact that the victim said numerous times, after reporting the abuse, that defendant did not do that anymore indicated to him that defendant had been confronted by the mother and was told that the police would be called. The case agent went on to testify that after such interviews, he determines whether the victim is credible and, in this case, he and the social worker told the mother that they believed the victim was telling the truth about defendant abusing her. The mother got upset and said she could not believe that the molestation happened—that defendant was a good provider and she needed him to maintain the family financially. She said she was having problems with defendant because he looked at another woman just before she had called police on July 18, 2004. However, she also said that defendant was going to counseling and was going to “face this like a man.”
He repeated this opinion twice during cross-examination.
Of the many opinions the case agent offered about the credibility of the victim, brother and mother (or lack thereof), the People single out this one and claim it was proper because it was introduced only to show the mother’s reaction to it. However, the jury was given no instruction to consider it for this limited purpose, and was, as a consequence, free to use it for any purpose.
During cross examination, the case agent offered his opinion that the victim was lying during the first part of her first interview (during which she denied any sexual contact between her and defendant). Also during cross-examination, he opined that the victim had not lied when she told him, after the first interview, that defendant had touched her genitals. Finally, still during cross examination, the case agent opined that the victim and the brother lied when they testified at trial, but both were truthful during portions of their first interviews. He testified that after the first interview of the victim and the brother, he did not take custody of them under Welfare and Institutions Code section 300 et seq. because the mother told him that she was going to divorce defendant and keep him away from the victim. Also, he conveyed to the jury that this belief was shared by the prosecutor’s office. Finally, he testified that after he found defendant living at the family home, he “effected the protection of [the victim]” by taking her into protective custody.
Defense counsel stated that the case agent had put his opinion about the victim’s credibility during the first interview in his report. Therefore, defense counsel was on notice that the prosecution might try to get this before the jury and could have moved, pretrial to exclude it.
Additionally, during direct examination, he opined that defendant had continued to molest the victim after returning to the family home, thusly, “Through my training and experience, I know if the defendant has continual contact with the victim and... unless there is law enforcement intervention, the victim will be continually victimized, and she will not report it a second time because the trauma of her reporting the first time turns her into... an enemy of her family.” Remarkably, defense counsel repeated this assertion during his cross-examination of the case agent, who replied, “I believe she was continuously victimized [from July 2004 to March, 25, 2006].” Defense counsel’s next question to the agent was, “So did you really believe that [defendant] committed these crimes... ?” The case agent replied, “There’s not a doubt in my mind that he committed these crimes.” Defense counsel then asked why, then, did the case agent not arrest defendant. The agent had already testified, on cross-examination, that he did not arrest defendant in 2004 because defense counsel had told him that he would bring defendant to his office and he did not. When asked the second time about this on cross, the agent repeated his response that defense counsel did not keep the appointment to turn defendant in. Defense counsel persisted, asking why the defendant could not be located in their relatively small community. The case agent responded, “[Defendant] has 12 brothers and sisters in the Coachella Valley. He’s also not [an] American national.” Defense counsel asked the case agent if he had information that defendant had fled to Mexico. The agent responded that the mother had told him that defendant “was probably hiding out with one of this 12 brothers[.]”
The Information alleged that the incidents had occurred on or about April 2004 and defendant did not return to the home until sometime after July 27, 2004, and was not discovered to be living there until late March 2006.
During cross-examination, defense counsel elicited from the case agent the fact that the latter included in his March 25, 2006 report his opinion that it is not uncommon for a child abuse victim to continue to be abused if the abuser is allowed to have further contact with the victim. Therefore, trial counsel for defendant could have moved pretrial to prohibit the potential use of the case agent’s testimony in this regard.
In discussing the victim’s second interview, he testified, “She didn’t disclose any sexual abuse but when she was asked if she would disclose it, she looked away and said[, ‘]I guess.[’] Not very believable.” He also testified that her statements during the second interview about wanting to go home and feeling safe there were made “in a rehearsed manner.” The case agent twice testified that the brother, during his second interview, responded to the question why he was there in a “rehearsed manner[,]” but, spontaneously (and, therefore, truthfully) said that the mother loved defendant more than the victim and the mother did not want the brother talking to the police.
Defendant was represented by retained counsel, Craig Thomas Wormley, from his first appearance in this case on March 28, 2006 to the rendering of the verdicts on September 12, 2007. According to the defendant’s motion for a new trial, and documentation supporting that motion, on May 23, 2007, the State Bar of California had issued an order that defense counsel be enrolled as “inactive”effective September 15, 2007. Trial in this case began on August 29, 2007 and, as already stated, the verdicts were rendered three days before the effective date of the order placing defense counsel on inactive status.
However, defense counsel was not relieved until November 2, 2007, long after he was temporarily removed from active membership in of the State Bar of California.
The document is entitled, “Order Enrolling Respondent Inactive Pursuant to Business and Professions Code section 6233; Further Orders[.]”
Contrary to the assertion of appellate counsel for defendant, both in his supplemental opening brief and at oral argument, Wormley was NEVER disbarred. As of the date this opinion was filed, he was still practicing law, albeit with numerous complaints by the State Bar pending against him.
According to the motion, defense counsel did not inform defendant of this fact although the order required that he do so.
Issue and Discussion
We begin by examining the law on the admissibility of opinion evidence that the statements of another witness are or are not credible, because that serves as one of the bases of defendant’s assertion that trial counsel was incompetent for failing to object to certain testimony and therefore acted incompetently, requiring reversal of his convictions.
Defendant asserts that opinion testimony about the veracity of another witness is inadmissible, citing People v. Sergill (1982) 138 Cal.App.3d 34 (Sergill) and People v. Alva (1979) 90 Cal.App.3d 418 (Alva). The People claim that both opinions are distinguishable from this case. We disagree.
The People incorrectly cite this as People v. Avila.
In Sergill, two police officers opinioned as to the veracity of the minor victim. (Sergill, supra, 138 Cal.App.3d 34, 38.) The trial court overruled the defense’s objection to the first on the basis of lack of foundation, saying, “this officer has had... seven years of experience, and has written... a thousand or more reports,... and I think [in] the course of that he would be normally expected to judge whether a person, in his opinion, is telling the truth or not.” (Ibid.) The appellate court held, “[W]e find no basis for admitting this opinion evidence as expert testimony. We find no authority to support the proposition that the veracity of those who report crimes to the police is a matter sufficiently beyond common experience to require the testimony of an expert. Moreover, even if this were a proper subject for expert testimony, nothing in the record establishes the qualifications of these officers as experts. The mere fact that they had taken numerous reports during their careers does not qualify them as experts in judging truthfulness. [¶] Nor was this testimony admissible as the opinion testimony of a lay witness. A lay witness may testify in the form of an opinion only when he cannot adequately describe his observations without using opinion wording. [Citation.]... Both these officers were able to describe their interviews with the [victim] in concrete detail and their opinions or conclusions as to her truthfulness were not ‘helpful to a clear understanding of [their] testimony.’ [Citation.] [¶] We also conclude that this opinion testimony was inadmissible because it was not relevant. [Citation.]... [¶]... [T]hese officers neither knew the [victim], nor knew her reputation for truthfulness. [Citation.] Instead, their conclusions that she was telling the truth were based on their own self-proclaimed expertise in assessing victim veracity, but the record is devoid of any evidence to establish their qualifications in this regard.” (Id. at pp. 39, 40.)
The People assert that Sergill is inapplicable here because in Sergill, the trial court vouched for the expert opinion that the victim was credible. However, that fact was relevant only to the appellate court’s determination that the prejudicial impact of the opinion testimony was such that reversal was required. It had nothing whatsoever to do with the court’s holding that the evidence was inadmissible, as quoted above. Additionally, Sergill disproves the People’s assertion that the testimony of the officer who responded to the mother’s call to police on July 18, 2009 was admissible based on his bare assertion that he had twenty-five years experience as a police officer and he had gone out on calls where he has found that people he has interviewed have been, in his opinion, less than truthful with him. The record does not show that he was particularly accurate in his assessment of the truthfulness of people he interviewed. Absent this, his opinion, like that of the officers in Sergill, was based on his own self-proclaimed expertise in assessing victim veracity, with no evidence to establish his qualifications in this regard.
The People get it wrong by asserting that the expert in Sergill, for whom the trial court vouched, opined that the victim was not credible. In fact, the officer testified that she was credible. (Sergill, supra, 138 Cal.App.3d. at pp. 38, 41.)
The People’s asserted basis for the officer’s so-called expertise makes no sense. They point out that the mother was angry; a little excited and upset when the officer responded to her report of abuse on July 18, 2004. She said she would not allow defendant around the home, the victim and the brother and she would file for divorce, child custody and protective orders to keep him away from them. These facts provide no basis whatsoever for the officer’s opinion that the mother was telling the truth when she reported that defendant had sexually abused the victim. The People also point to the officer’s testimony that he had previously responded to calls reporting child molestations, including calls leading to interviews in which he found people were being less than truthful with him. However, without any way to gage the accuracy of his conclusion that those people were, in fact, not truthful, the assertion is meaningless and does nothing to establish his ability to judge the veracity of the mother, or anyone else.
In Alva, the People sought admission of the opinion of a court appointed psychiatrist that the minor victim of sexual abuse perpetrated by her father could be lying about the abuse or not telling everything she knew. (Alva, supra, 90 Cal.App.3d at p. 422.) The doctor had not examined the victim and concluded that she suffered from any psychiatric condition that would prevent her from being truthful. (Ibid.) Rather, he had merely interviewed her and concluded, on the basis of her report that she felt only pain and no other sensation due to the abuse and on the conflicts between her brother’s statements and hers that there was a possibility that she was unreliable. (Id. at pp. 422-423.) The appellate court upheld the trial court’s exclusion of this evidence because the doctor was not opining that the victim suffered from a mental or emotional condition that effected her ability to tell the truth, which would have been admissible, at that time, under Ballard v. Superior Court (1966) 64 Cal.2d 159, 171-77. (Alva, supra, 90 Cal.App.3d. at p. 426.) Rather, the appellate court concluded that the doctor’s opinion “ha[d] the tendency to decide [the issue of the victim’s credibility] rather than to inform” the jury that she had a mental or emotional condition that effected it, and was, therefore, inadmissible. (Id. at p. 427.) The appellate court added that the doctor’s opinion “usurp[ed] the jury’s function. Thus the possible prejudicial effect of such testimony outweighed any probative value present....” (Ibid.)
The holding in Ballard has since been superseded by the provisions of section 1112.
The People seek to distinguish Alva on the basis that, here, there was no psychiatrist offering an opinion based on the victim’s mental or emotional condition. However, the holding of Alva is that because the doctor was basing his opinion about the victim’s credibility on matters other than the latter’s mental or emotional condition, which would have, at that time, been admissible, his opinion, not based on either, was inadmissible because it did not assist the jury in determining her credibility. The opinion, in fact, actually usurped the jury’s function in this regard, and this fact made it more prejudicial than probative. Thus, as defendant asserts, Alva supports his position that opinion about the credibility of the victim, the mother and the brother is inadmissible.
The People cite People v. Riggs (2008) 44 Cal.4th 248 (Riggs) and People v. Chatman (2006) 38 Cal.4th 344 (Chatman) in support of their assertion that credibility opinion evidence is admissible. However, these cases are distinguishable.
In Riggs, during the penalty phase of a capital trial, the prosecutor asked the defendant whether he thought his former wives and girlfriends were lying about the abuse they claimed he had inflicted on them and why they would lie. The California Supreme Court held, “Although it is true that to ask one witness for an opinion regarding another witnesses’ credibility [the so-called, “Were they lying” question] may be improper, in that such... questions might merely call for speculation from that witness, in the present case, defendant, who had personal knowledge of whether he abused these women in the manner to which they testified, opened the door to the prosecutor’s questions by testifying in his direct examination that these witnesses were untruthful.” (Riggs, supra, 44 Cal.4th at p. 318.) Here, in contrast, none of the witnesses who opined about the veracity of the victim, the mother, and the brother had any personal knowledge of either the abuse or of their credibility.
In Chatman, the California Supreme Court addressed “are they lying” questions asked of a defendant as follows: “If a defendant has no... personal knowledge of the events, or of a reason that a witness may be lying or mistaken, he might have no relevant testimony to provide. No witness may give testimony based on conjecture or speculation. [Citation.] Such evidence is irrelevant because it has not tendency in reason to resolve questions in dispute. [Citation.] [¶]... A party who testifi[ed] to a set of facts contrary to the testimony of others may be asked to clarify what his position is and give, if he is able, a reason for the jury to accept his testimony as more reliable. [¶]... [¶] A defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken. When, as here, the defendant knows the other witnesses well, he might know of reasons those witnesses might lie. Any of this testimony could be relevant to the credibility of both the defendant and the other witnesses. There is no reason to categorically exclude all such questions. Were a defendant to testify on direct examination that a witness against him lied, and go on to give reasons for this deception, surely that testimony would not be excluded merely because credibility determinations fall squarely within the jury’s province. Similarly, cross-examination along this line should not be categorically prohibited. [¶] Here, defendant [testified]... that a number of witnesses should not be believed, but that he should be.... Defendant was not asked to opine on whether other witnesses should be believed. He was asked to clarify his own position and whether he had any information about whether other witnesses had a bias, interest, or motive to be untruthful. [¶]... [¶] Defendant had personal knowledge of the conversations he had with the other witnesses, and they were all friends or relatives. He could provide relevant, nonspeculative testimony as to the accuracy of their information and any motive for dishonesty.... [¶]... At least when, as here, the defendant knows the witnesses well, we think questions regarding any basis for bias on the part of a key witness are clearly proper.” (Chatman, supra, 38 Cal.4th at pp. 382, 383, italics added.)
Chatman noted that the holding in People v. Melton (1988) 44 Cal.3d 713, 744 (Melton) that “[l]ay opinion about the veracity of particular statements by another is inadmissible on that issue” involved lay opinion from those who had no personal knowledge of the facts. The Chatman court pointed out, “Such opinions are of little assistance in deciding credibility of testimony by percipient witnesses who do have personal knowledge. There is a difference between asking a witness whether, in his opinion, another is lying [which is not proper] and asking that witness whether he knows of a reason why another would be motivated to lie.” (Chatman, supra, 38 Cal.4th at p. 381.)
In Melton, the prosecutor asked a defense investigator questions designed to suggest that the investigator had concluded that things another witness had told him were not true. (Melton, supra, 44 Cal.3d at pp. 742, 744.) Citing Sergill, the California Supreme Court held, “Lay opinion about the veracity of particular statements by another is inadmissible on that issue.... [T]he reasons are several. With limited exceptions, the fact finder, not the witnesses, must draw the ultimate inferences from the evidence. Qualified experts may express opinions on issues beyond common understanding [citation] but lay views on veracity do not meet the standards for admission of expert testimony. 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’ [citation] i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. [Citation.] Finally, a lay opinion about the veracity of particular statements does not constitute properly founded character or reputation evidence [citation], nor does it bear on any of the other matters listed by statute as most commonly affecting credibility [citation]. Thus, such an opinion has no ‘tendency to reason’ to disprove the veracity of the statements. [Citation.] [¶] The instant record does not establish that [the defense investigator] is an expert on judging credibility, or on the truthfulness of persons who provide him with information in the course of investigations.” (Melton, supra, 44 Cal.3d at p. 744.)
Melton was more recently summarized in People v. Zambrano (2004) 124 Cal.App.4th 228, 239, 240, “Our... Supreme Court has recognized that a lay witness’s opinion about the veracity of another person’s particular statements is inadmissible and irrelevant on the issue of the statements’ credibility. [Citation.] The high court reasoned that such lay opinion testimony invades the province of the jury as the ultimate fact finder, is generally not helpful to a clear understanding of the lay witness’s testimony and is not ‘properly founded character or reputation evidence,’ and does not bear on ‘any of the other matters listed by statute as most commonly affecting credibility’ in Evidence Code section 780, subdivisions (a) through (k). [Citation.] The high court therefore concluded that ‘such an opinion has no “tendency in reason” to disprove the veracity of the statements. [Citations.]” (Zambrano, at pp. 239, 240, italics omitted.)
In People v. Smith (1989) 214 Cal.App.3d 904, 915, a police officer testified that he believed the victim when the latter, while dying, identified the man who had shot him. The appellate court held this testimony was inadmissible, saying, “‘Lay opinion about the veracity of particular statements by another is inadmissible on that issue. As the Court of Appeal recently explained [citation], the reasons are several. With limited exception, the fact finder, not the witness, must draw the ultimate inferences from the evidence... [citation] but lay views on veracity do not meet the standards for admission of expert testimony. A lay witness is occasionally permitted to express an ultimate opinion based on his perception, but only where “helpful to clear understanding of his testimony” [citations], i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. [Citations.]’ [Citation.] [¶] Although [the police officer’s] opinion of [the victim’s] veracity may have been rationally based on his perceptions of the victim’s physical condition and mental state, it was not necessary to elucidate his testimony. On the contrary, it also tended to invade the province of the jury on this issue. ‘[T]he credibility... which shall be given to a dying declaration is solely a question for the jury, that they may apply the same tests and principles in determining its truth that they apply in the consideration of the evidence of the witnesses[.]’ [Citations.]” (Smith, at p. 915.)
Finally, in People v. Coffman and Marlow (2004) 34 Cal.4th 1, the California Supreme Court concluded of the opinion of an expert on battered women’s syndrome that the codefendant’s accounts of defendant’s abuse of her were credible, “[T]he... opinion that [she] was credible should have been excluded.... The general rule is that an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert’s opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful.... [The expert] testified she believed [the codefendant’s] claims of abuse and domination by [the defendant] were true.... [An] objection... should have been sustained.” (Id. at p. 93.)
Having concluded that opinion evidence that a witness’s statements were true is inadmissible, we examine the number of times during this trial that such statements were admitted without objection by the defense as now identified by appellate counsel for defendant.
To reiterate, the officer who responded to the mother’s July 18, 2004 call testified that in his twenty-five years on the force, he had gone out on calls where interviewees were being less than truthful with him, but he did not get that impression from the mother. The social worker opined at trial that the victim was credible during her first interview. Finally, the case agent testified that he and the social worker told the mother after the victim’s first interview that they believed the victim was telling the truth. Defendant is correct that his trial counsel should have objected to this testimony, as it was inadmissible.
Defendant also asserts that the following testimony was objectionable: the case agent stated that, based on his training and experience, almost 100 percent of victims of domestic violence who are financially dependent on the abuser will, on the stand, recant their accusations of abuse. He tied this training and experience with domestic violence victims to this case by going on to state that when the mother began expressing concern about the financial position she would be put in if defendant was incarcerated, the case agent believed “100 percent” that she would recant her accusations against defendant, which, as stated, she did on the stand. The People’s reliance on People v. Bowker (1988) 203 Cal.App.3d 385 to support their position that evidence concerning recantation in domestic violence cases is relevant to child molestation cases is misplaced. Bowker dealt with the admissibility and limited use of CSAAS (Child Sexual Abuse Accommodation Syndrome) evidence, which the case agent was not addressing. This evidence was irrelevant and should have been objected to by trial counsel for the defendant.
Finally, defendant asserts that his adoptive admission to the case agent should have been objected to by his trial attorney. The agent testified that on July 26, 2004, defendant called him and the agent “asked him what [the mother] told me that he said” (which was that he was going to go to counseling and face this “like a man”) and whether he was seeking counseling and defendant said he was. The agent said defendant said he was going to accept responsibility for his actions. The agent also asked defendant if he had apologized to the victim and if the victim was truthful “with her statements” and defendant said yes. Defendant here asserts that his declaration that the victim was truthful “with her statements” was not an adoptive admission because there was no evidence that he was aware what she had said to the police. However, he misreads the testimony, which made no reference to what the victim had said to the police. The victim had made statements to her mother about the molestation, which the mother told the police she repeated to defendant. Therefore, there was a basis for the declaration to be viewed as an adoptive admission, and the evidence was admissible.
We next determine prejudice based on the admission of the testimony of the responding officer that the mother was credible, of the social worker that the victim was credible during her first interview, of the case agent that he and the social worker told the mother that the victim was credible during her first interview and of the latter that 100 percent of domestic violence victims have recanted in cases he has handled and he fully expected the mother to do the same here.
1. Prejudice
“To prevail on a claim of ineffective assistance, a defendant must show both that counsel’s performance was deficient—it fell below an objective standard of reasonableness—and that defendant was thereby prejudiced. [Citation.] Such prejudice exists only if the record shows that but for counsel’s defective performance there is a reasonable probability the result of the proceeding would have been different. [Citation.] To prevail on a claim of ineffective assistance on appeal ‘“‘the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission’ [Citation.]”’ [Citation.]” (People v. Cash (2002) 28 Cal.4th 703, 734.) As in Cash, it is difficult to perceive a tactical purpose for defense counsel not objecting to the opinion evidence of the responding officer, the social worker and the case agent that were, as we have already concluded, inadmissible, as was the case agent’s testimony about recantation by domestic violence victims and his prediction that the mother would recant. We agree with the trial court’s assessment, during the motion for a new trial, that they constituted ineffective assistance of counsel. However, like the trial court, we are persuaded that reversal is not appropriate. There was strong evidence that defendant committed these crimes. The victim reported three incidents of molestation to her mother. She repeated this during the first interview. Both she and her brother gave similar accounts of the incident during which the latter walked in on the victim and defendant. It was clear that both the victim and her brother had been coached to lie at various times, including at trial, by their mother. The victim twice reported that defendant had apologized to her and given her and her brother gifts to compensate for what he had done to her. When confronted by the mother with the victim’s account of the molestations, defendant did not deny them, apologized twice, admitted that he had been stupid and took off. The mother reported to the police that defendant intended to go to counseling and “face this like a man.” Defendant confirmed this in a phone conversation with the case agent, during which he confirmed that he was going to get counseling and accept responsibility for what he had done. He confirmed to the case agent that what the victim had initially told her mother he had done was true and he offered to turn himself in to the police, only to change his mind and disappear. Given this, we are not persuaded that if trial counsel for defendant had objected to the testimony of the responding officer, the social worker and the case agent as outlined above, there is a reasonable probability defendant would have been acquitted.
Disposition
The judgment is affirmed.
We concur: McKINSTER, J., KING, J.
The case agent had already testified, without objection from defense counsel, that he set up the second interview of the victim and the brother to “determine if there may have been continuing abuse[.]”