Opinion
E066947
07-09-2018
THE PEOPLE, Plaintiff and Respondent, v. SOON PARK, Defendant and Appellant.
Susan L. Ferguson for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1600414) OPINION APPEAL from the Superior Court of San Bernardino County. Shahla S. Sabet, Judge. Affirmed. Susan L. Ferguson for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Soon Park, sexually assaulted Jane Doe during acupuncture treatment. Defendant was charged with sexual penetration by a foreign object, defendant's hand. (Pen. Code, § 289, subd. (a)(1)(A).) During the first trial, the jury deadlocked and the court declared a mistrial. After a second trial, the jury found defendant guilty as charged. The trial court sentenced defendant to three years in prison.
Unless otherwise noted, all statutory references are to the Penal Code. --------
Defendant appeals his conviction for sexual penetration by a foreign object. He contends Doe's out-of-court statements to her mother, Officer Hackett, and nurse practitioner Farbelow were inadmissible hearsay. Defendant also argues Officer Coughlin's opinion testimony was improper and prejudicial. Defendant further argues the cumulative errors require reversal. We reject defendant's contentions and affirm the judgment.
II.
FACTS
On January 14, 2016, about 4:30 p.m., Doe received acupuncture treatment from defendant for pain on the right side of her neck, arm, and fingers caused by a right shoulder injury. Doe, who was 28 years old, had always brought her mother with her, but came alone on January 14, 2016, the day of the charged crime. Doe had been seeing defendant for acupuncture treatment for four years, about six times a year. During treatment, Doe removed her clothing, with the exception of her bra and underwear. The treatment lasted 30 to 45 minutes, beginning with acupuncture and ending with a massage.
Doe testified to the following facts. After the acupuncture treatment on the day in question, Doe turned over on her back. As usual, defendant massaged her neck, shoulders, and breasts. While massaging Doe's stomach, defendant abruptly reached underneath her underwear and penetrated her vagina with his fingers. Doe immediately sat up and closed her legs. Defendant "shoved his hand" in her vagina, causing her pain. When defendant pulled his hand out, he had blood on his fingers. There was a lot of blood. Afterwards, defendant left the room. Doe got dressed. Defendant returned with wipes, asked twice if Doe was okay, and then left the room. Doe wiped the area outside her vagina and her hand. She saw blood on the wipes, which she left on the acupuncture table and then left.
Doe drove straight to the Rialto police station. While in front of the police station, she called 911 and was told to go to the Fontana police station. Doe waited at the Fontana police station for 20 or 30 minutes. While waiting for the police to assist her, Doe texted her mother. Doe told her mother that defendant put his hand in her underwear, that she was at the police station reporting the incident, and that she was going to Kaiser Permanente Hospital to be examined. A printed copy of the text messages between Doe and her mother was provided to the jury.
While at the Fontana police station, Officer Hackett took Doe's recorded statement describing the incident. During the interview, Officer Hackett asked Doe to go over what had happened a second time. Doe again described what had happened. Doe's statement was played for the jury. Doe's description of the incident provided in her statement was for the most part consistent with her trial testimony. After Doe gave her statement, Officer Hackett told her to get a Sexual Assault Response Team (SART) exam.
Lisa Farbelow, a nurse practitioner at Kaiser Permanente Hospital, administered a SART exam on Doe. Ms. Farbelow testified that Doe was not menstruating at the time. Doe had two lacerations to her genitalia, consistent with having been caused by blunt force trauma. Ms. Farbelow stated that Doe's injuries could have been caused by fingers and would have occurred within the past two or three days. Ms. Farbelow said that the wounds would have bled. Ms. Farbelow observed dried blood on Doe's genitalia. Ms. Farbelow testified that Doe told her that while she was getting a massage, defendant put his fingers inside her vagina. She closed her legs and defendant went in deeper. Doe told defendant it hurt and he took his fingers out and walked out of the room. Ms. Farbelow examined Doe's clothing and did not find any visible blood on Doe's underwear.
Fontana Police Officer Coughlin testified he arrested defendant. He did so based on Doe reporting the incident immediately after it happened and because there was strong physical evidence corroborating Doe's description of the incident, which was "so extremely rare." Officer Coughlin further stated that "it was a really solid case compared to what I have had to deal with in the past." Defense counsel objected on the grounds of "improper opinion."
During presentation of defendant's case, three of defendant's acupuncture patients testified. M.K. testified defendant had treated her 25 to 50 times, for more than a year. He treated her lower back, knees, and arms. M.K. said she never took her clothes off during the massage portion of the treatment. M.K. stated defendant never made any sexual advances toward her and never massaged her breasts.
G.H. testified defendant treated her for three or four years for shoulder and neck pain. G.H. removed her shirt during treatment. Defendant massaged her neck, shoulders, back, and stomach. G.H. also testified defendant never made any sexual advances toward her and never massaged her breasts.
Defendant treated M.E. on January 14, 2016, shortly after Doe had left the office. M.E. testified that defendant had not acted strange or out of character. She had seen him approximately 20 times over two years for neck and back pain. She normally removed her shirt. Defendant had never made any sexual advances toward her and never massaged her breasts.
III.
OUT-OF-COURT STATEMENTS
Defendant contends the trial court abused its discretion in admitting inadmissible prejudicial hearsay statements by Doe to (1) her mother, (2) Officer Hackett, and (3) Ms. Farbelow.
A. Procedural Background
Midway through Doe's trial testimony, outside the presence of the jury, the prosecutor requested the trial court to allow the jury to hear an audio recording of Doe's statement given to Officer Hackett. Defense counsel noted that the audio recording might be admissible as a prior consistent or inconsistent statement, depending on Doe's trial testimony, but Doe had not finished testifying. Therefore, the circumstances were not ripe for a determination on admissibility of the statement. The trial court agreed the evidentiary matter was not ripe for a determination of whether the evidence was admissible as a prior consistent or inconsistent statement. However, the court concluded that the entire audio recorded statement was admissible under the fresh-complaint doctrine.
The prosecution resumed questioning Doe. At the end of direct examination, the trial court permitted the prosecutor to play the audio recorded statement of Doe's interview by Officer Hackett. Transcript copies of the recording were distributed to the jurors and collected after the jury listened to the recording. Defense counsel then cross-examined Doe. During cross-examination, out of the presence of the jury, defense counsel renewed his objection to the prosecution playing Doe's audio recorded statement and providing the jury with a copy of the transcript of the statement (exhibits 11-A & 11-B). Defense counsel argued that under People v. Brown (1994) 8 Cal.4th 746 (Brown), the recorded statement and transcript were not admissible under the fresh-complaint doctrine. The trial court again overruled defense counsel's objection and cross-examination of Doe resumed.
As to Doe's out-of-court statement to Ms. Farbelow, the prosecutor asked Ms. Farbelow what Doe had said had happened. Defense counsel objected on hearsay grounds. The trial court overruled the objection. Ms. Farbelow testified that Doe told her that when defendant was giving her a massage, he put his fingers inside her vagina. When his finger went in deeper she said it hurt, he removed his fingers from her vagina, and he walked out of the room.
As to Doe's out-of-court text messages to her mother, the prosecutor showed Doe a copy of the text messages (exhibit 2) and the court granted the prosecutor's request to enter the copies into evidence. The prosecutor then asked Doe questions about the text messages. Defense counsel did not object to entering into evidence the text messages or Doe's testimony regarding them.
Doe testified that in one text message she asked her mother if she could go to the acupuncturist. There was then a thread of text messages beginning at 7:13 p.m., in which Doe told her mother she was at the Fontana police station and would call her later. Doe's mother sent a text message asking if Doe was with the police and if the police went to arrest defendant. Doe testified that by that time she had called her mother. Doe texted back, "no, mom. I'm just waiting." Her mother asked what she was waiting for. Doe texted that she was waiting for the police to take her statement. Doe later texted that she had finished reporting the incident and the police were going to take her to Kaiser Permanente Hospital for an examination. Doe testified she also texted that she did not "have a lot of battery" and was on her way to the hospital. Doe sent her mother a picture of the hospital room at 9:17 p.m. and said, "Just waiting, mom."
Doe testified that her mother texted her that she wanted to know what was going on and what had happened. Doe texted back that the massage had been normal but then defendant put his hand underneath her underwear. Doe testified that that was all she told her mother about the incident.
B. Fresh-complaint Doctrine
Defendant argues the statements by Doe to her mother, Officer Hackett, and Ms. Farbelow were inadmissible hearsay and did not fall within any recognized hearsay exception or under the fresh-complaint doctrine.
In Brown, supra, 8 Cal.4th 746, the court clarified the parameters of the fresh-complaint doctrine. The court stated that, "under principles generally applicable to the determination of evidentiary relevance and admissibility, proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred." (Id. at pp. 749-750.)
The Brown court explained that evidence the victim made a complaint and the circumstances surrounding her disclosure are ordinarily admissible because the evidence "frequently will help place the incident in context, and may assist the jury in arriving at a more reliable determination as to whether the offense occurred. When introduced for that purpose, evidence of the circumstances surrounding a victim's reporting or disclosure of an alleged crime clearly falls within the bounds of 'relevant evidence,' i.e., evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' [Citation.]" (Brown, supra, 8 Cal.4th at p. 760; see also id. at p. 763.)
Under Brown, the portions of Doe's statements to her mother, Officer Hackett, and Ms. Farbelow regarding Doe reporting or disclosing the charged crime, and the surrounding circumstances of the disclosure, fall within the bounds of relevant evidence under the fresh-complaint doctrine. (Brown, supra, 8 Cal.4th at p. 749.) Defendant argues that the trial court failed to instruct the jury as to the limited purpose for which the evidence was admitted. But such instruction was only required upon request, and there was no such request. (People v. Manning (2008) 165 Cal.App.4th 870, 880.) Doe's other statements to Officer Hackett, Ms. Farbelow, and her mother, such as the details and substantive content of Doe's complaint, exceeded the scope of the fresh-complaint doctrine. Nevertheless, as discussed below, those out-of-court statements were admissible for a purpose other than to prove the truth of the facts stated or constituted harmless error.
C. Expert Testimony
During Ms. Farbelow's testimony, she provided a brief summary of Doe's description of the incident. Ms. Farbelow testified that Doe told her during the SART exam that, while receiving a massage, defendant put his fingers inside Doe's vagina. She closed her legs and defendant went in deeper. Doe said she told defendant it hurt and he took his fingers out and he walked out of the room. This testimony was admissible as generally accepted background information, admissible under the latitude afforded experts, for the purpose of showing the basis for Ms. Farbelow's exam findings.
"While lay witnesses are allowed to testify only about matters within their personal knowledge [citation], expert witnesses are given greater latitude. . . . An expert may express an opinion on 'a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' [Citation.] In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc. . . . An expert's testimony as to information generally accepted in the expert's area, or supported by his own experience, may usually be admitted to provide specialized context the jury will need to resolve an issue. When giving such testimony, the expert often relates relevant principles or generalized information rather than reciting specific statements made by others." (People v. Sanchez (2016) 63 Cal.4th 665, 675.)
An expert normally cannot testify to case-specific facts relating to the particular events and participants alleged to have been involved in the case being tried unless the expert has independent knowledge of the facts. (People v. Sanchez, supra, 63 Cal.4th at p. 676.) "Generally, parties try to establish the facts on which their theory of the case depends by calling witnesses with personal knowledge of those case-specific facts. An expert may then testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge. [Citation.]" (Ibid.) "It has long been the rule that an expert may not '"under the guise of reasons [for an opinion] bring before the jury incompetent hearsay evidence."' [Citation.]" (Id. at p. 679, quoting People v. Coleman (1985) 38 Cal.3d 69, 92; see also People v. Meraz (2016) 6 Cal.App.5th 1162, 1174-1175.)
In the instant case, Ms. Farbelow's testimony as to Doe's complaints and how they occurred was relevant to Ms. Farbelow's expert testimony as a nurse practitioner administering a SART exam. Furthermore, Doe had already testified to more detailed facts of the crime, and Ms. Farbelow's testimony as to what Doe had told her provided relevant admissible background information and a basis for Ms. Farbelow's SART exam findings.
D. Harmless Error
Even if there was error in admitting portions of Doe's out-of-court statements made to her mother, Officer Hackett, and Ms. Farbelow, admission of such evidence was harmless error. First, the information disclosed in these statements regarding the charged crime was the same as provided in other evidence introduced at trial, such as Doe's testimony. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1526.) Defendant argues that repetition of the details of the crime was prejudicial. While evidence of Doe's out-of-court statements may have reinforced her trial testimony, it is not reasonably probable that had they been excluded, the jury would have disbelieved Doe's trial testimony and the trial outcome would have been different.
Second, it is probable the statements would have been permitted after completion of Doe's testimony under the consistent statement, hearsay exception. Under Evidence Code section 1236, which codifies the consistent statement, hearsay exception, "[e]vidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 791." Evidence Code section 791, provides, in relevant part: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] . . . [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
Defendant's defense was that Doe was not a credible witness. Defendant argued during closing argument that Doe's statements and her testimony was inconsistent in various respects. During defense counsel's cross-examination of Doe, defendant's attorney attacked Doe's credibility by raising minor inconsistencies between her testimony and statements made to Officer Hackett and Doe's mother. Had not the prosecution introduced Doe's statement to Officer Hackett, it is probable that defense counsel would have introduced portions of the statement or challenged Doe's credibility and veracity of her testimony in other ways. Doe's out-of-court statements therefore would have been admissible and admitted after completion of her testimony under the consistent statement exception.
Third, there was strong evidence supporting defendant's conviction for sexual penetration with his hand. The jury had the opportunity to hear directly from Doe during the trial and judge her credibility. The statements Doe made to her mother, Officer Hackett, and Ms. Farbelow were merely cumulative to Doe's trial testimony, which the jury believed. There was also physical evidence that supported Doe's version of the events, including Doe's injury, the SART exam results, and Ms. Farbelow's expert testimony regarding the exam and her findings. In addition, there were statements Doe made to her mother, Officer Hackett, and Ms. Farbelow, which were properly admitted as fresh complaints. The fact that Doe complained about the incident soon after the incident bolstered Doe's credibility. Officer Coughlin testified that when Doe came to the Fontana police station to report the crime, she cried, which Officer Coughlin stated was consistent with "what she described was done to her." He further testified that she was very believable and there was physical corroborating evidence. This testimony supported Doe's version of the incident.
"When the court abuses its discretion in admitting hearsay statements, we will affirm the judgment unless it is reasonably probable a different result would have occurred had the statements been excluded." (People v. Pearch (1991) 229 Cal.App.3d 1282, 1293; accord, People v. Ramirez, supra, 143 Cal.App.4th at p. 1526.) Here, it is not reasonably probable the outcome would have been more favorable to defendant had the trial court excluded evidence of Doe's out-of-court statements made to her mother, Officer Hackett, and Ms. Farbelow regarding defendant's unlawful acts. (Ramirez, supra, at p. 1526; People v. Watson (1956) 46 Cal.2d 818, 836.)
Fourth, defendant forfeited his objection to the text messages by not raising it in the trial court. (People v. Blacksher (2011) 52 Cal.4th 769, 819, 821.) Defendant likewise forfeited his objection to Doe translating the text messages into English at trial rather than having an independent and certified court reporter translate the messages. Furthermore, defendant has not established any prejudice.
Defendant alternatively argues that his trial attorney's failure to object to the text messages in the trial court constituted ineffective assistance of counsel. To secure the reversal of a conviction based on ineffective assistance of counsel, a defendant must show (1) his counsel's performance was deficient when measured against the standard of a reasonably competent attorney, and (2) counsel's deficient performance so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The appellate court must presume counsel's conduct fell within the wide range of reasonable professional assistance and accord great deference to counsel's tactical decisions. (People v. Lewis (2001) 25 Cal.4th 610, 674.) Further, because it is inappropriate for a reviewing court to speculate about the tactical reasons for counsel's actions, when the reasons are not readily apparent in the record, the court will not reverse unless the record discloses no conceivable tactical purpose. (Id. at pp. 674-675.)
In the instant case, any error in allowing evidence of Doe's text messages was harmless beyond a reasonable doubt. Doe's text message describing defendant's criminal acts provided a very brief summary of what occurred and was much more general than Doe's trial testimony. It is not likely that had defense counsel objected to the text messages and the court excluded them, the outcome would have been any different. Because defendant has not shown any prejudice from the text message evidence, we reject his claim that his attorney was ineffective for failing to object to the text message evidence. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Mendoza (2000) 24 Cal.4th 130, 158-159.)
In addition, there were conceivable tactical reasons for defense counsel not objecting. Defense counsel may have reasonably concluded the evidence was admissible for the reasons discussed above, and therefore objecting would have been futile. (People v. Lewis, supra, 25 Cal.4th at pp. 674-675.) Defense counsel also may not have objected because the evidence was only minimally adverse and defense counsel did not want to draw attention to it by objecting. Because the record sheds no light on the reasons for counsel's actions and there were valid tactical reasons for not objecting, it is inappropriate for this court to find ineffective assistance of counsel. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
We thus conclude any error by the trial court allowing evidence of Doe's out-of-court statements describing defendant's alleged criminal acts was harmless error.
IV.
OFFICER COUGHLIN'S TESTIMONY
Defendant contends the trial court abused its discretion in allowing improper personal opinion testimony by Officer Coughlin during the following redirect examination by the prosecutor:
"Q. And you went and arrested Mr. Park on February 2nd?
"A. Yes.
"Q. Why?
"MR. TUCKER [defense counsel]: Objection, Your Honor; vague.
"THE COURT: Overruled. You may answer.
"A. We had a Jane Doe [come] right to the police department after the incident. There was physical evidence found. You know, there were tears which were matched 17 what she described was done [to] her. There was nothing to indicate that it didn't happen. I mean it was very believable. And there was physical evidence, which to be honest, in these kind of cases, is so extremely rare. To me, it was
"MR. TUCKER: Objection; narrative. Improper personal opinion as to the last part.
"THE COURT: Overruled. Complete your answer. To me, it was what?
"A. To me, it was a really solid case compared to what I have had to deal with in the past.
"MR. TUCKER: Objection improper opinion, Your Honor, as to the.
"THE COURT: Overruled. You opened that door, counsel."
Defendant objects to the above testimony on the grounds Officer Coughlin conveyed his opinion regarding defendant's guilt, Doe's credibility, and the strength of the case, and such opinion testimony was improper. Defendant argues Officer Coughlin was not designated as an expert witness and therefore was testifying improperly as a lay witness. Defendant further argues that even if Officer Coughlin qualified as an expert witness, he could not testify as to defendant's guilt, the strength of the case, or Doe's credibility, because doing so invaded the province of the jury as fact finder and deprived defendant of his right to a fair jury trial.
"'The extent of the redirect examination of a witness is largely within the discretion of the trial court. . . . It is well settled that when a witness is questioned on cross-examination as to matters relevant to the subject of the direct examination but not elicited on that examination, he may be examined on redirect as to such new matter.' [Citation.] The prosecution was also entitled to inquire into the facts that might influence this opinion. [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1247-1248.)
In an attempt to assail Officer Coughlin's investigation and basis for arresting defendant, defense counsel asked Officer Coughlin questions during cross-examination regarding his investigation leading to defendant's arrest on February 2, 2016. Officer Coughlin was asked what he did during his investigation, from January 19, 2016, to February 2, 2016, and then asked whether he reviewed Doe's recorded statement given to Officer Hackett. Officer Coughlin said he did not review the statement. Defense counsel asked Officer Coughlin what he was looking for when he executed the search warrant, and then asked whether Officer Coughlin found the form Doe filled out before she was treated by defendant. Officer Coughlin acknowledged he did not find the form. Defense counsel then said, "So you didn't do a very thorough search as far as the records go?" Officer Coughlin replied, "I didn't go through every one of them. That's for sure."
During cross-examination, defense counsel attempted to discredit Officer Coughlin's investigation by showing it was not sufficiently thorough, thereby suggesting there was insufficient evidence to arrest defendant. By opening the door to the issue of whether Officer Coughlin's investigation produced sufficient evidence to arrest defendant, the prosecutor on redirect properly attempted to rebut any such adverse inferences raised during cross-examination by asking Officer Coughlin to explain why he arrested defendant. The trial court therefore did not abuse its discretion in allowing Officer Coughlin to provide rebuttal testimony explaining the basis for arresting defendant.
V.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.