Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct. No. RIF125589. W. Charles Morgan, Judge. Affirmed.
Terrence Verson Scott, under appointment by 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, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
A jury found defendant guilty of two counts of committing a lewd or lascivious act with a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) The jury found defendant not guilty of five other charged offenses. The court sentenced defendant to state prison for a term of six years. Defendant makes two contentions: (1) the trial court erred by sustaining the prosecutor’s objection to an expert testifying about hearsay statements he relied on in forming his expert opinion; and (2) the trial court erred by stopping his trial counsel’s inquiry into the victim’s possible dishonesty because the questions were designed to impeach the victim. We affirm the judgment.
FACTS
Defendant was charged with seven offenses and found guilty of two. We limit our facts to the two counts for which defendant was found guilty. In the two counts, J.H. was the named victim. The crimes were alleged to have occurred between January 7, 1997, and January 7, 1999.
Defendant was the boyfriend of J.H.’s mother. J.H. lived with her mother and defendant in Moreno Valley. When J.H. was 11 or 12 years old, defendant drove J.H. home from her bus stop. On the way home, J.H. asked defendant if she could attend a dance at her middle school. Defendant told J.H. she could attend the dance if she masturbated him. Defendant demonstrated for J.H. how to masturbate a male. While in the car, J.H. masturbated defendant. When J.H. stopped, defendant exited the car and ejaculated.
On a separate occasion, when J.H. was around 12 years old, defendant instructed J.H.’s siblings to go outside. Defendant played a pornographic video on the television. Defendant asked J.H. to lie partially on the hallway floor and partially on the floor of the bathroom, which she did. Defendant took off J.H.’s pants and underwear and pushed up her shirt. Defendant pulled down his pants and underwear. Defendant spread J.H.’s legs open and rubbed her vaginal area with his hand. Defendant then rubbed his penis on J.H.’s vaginal area and touched her breasts.
During a third incident, defendant was sitting on the front porch of their home. Defendant called J.H. to come to him. J.H. sat down next to defendant and defendant placed a jacket over J.H.’s legs. Defendant placed his hand underneath J.H.’s clothes, rubbed her vaginal area with his fingers, and penetrated her with his finger. J.H. was uncomfortable outside so she went inside the house, hid in her bedroom, and sat against a wall near a window. Defendant, still outside, went to the window, reached through the window, placed his hand underneath J.H.’s clothing, and began to touch her breasts.
On a fourth occasion, J.H. was alone in the house with defendant. Defendant asked J.H. to lie on the kitchen floor. Defendant pushed up J.H.’s dress and pulled down her underwear. Defendant pulled down his pants, rubbed his penis on J.H.’s vaginal area, and penetrated her labia. J.H. pushed defendant off of her.
During a fifth incident, when J.H. was 11 or 12, defendant placed his hand underneath J.H.’s clothes and rubbed her back. On a sixth occasion, defendant showed J.H. his penis and told her, “[G]irls are supposed to suck on it.” Defendant also said, “[P]ut [your] mouth on it and just choose an area and just suck on it.” J.H. did not do as defendant instructed.
J.H. did not tell her mother about the incidents with defendant because defendant threatened to throw J.H. and her family out of the house if she told anyone what he had done. When J.H. was 12 years old, she moved in with her father and her stepmother.
When J.H. was about 16 or 17, her stepmother read J.H.’s diary because J.H. “was doing things that weren’t normal. And she was getting real out of hand and [J.H.’s stepmother] knew something was wrong.” While reading the diary, J.H.’s stepmother discovered that J.H. had been engaging in intercourse. J.H.’s stepmother confronted J.H. J.H. explained to her stepmother that she was engaging in intercourse “[b]ecause of what the defendant did to [her].” J.H. told her stepmother that she had been molested by defendant.
Dr. Craig Lareau, a forensic psychological consultant at Patton State Hospital was an expert witness called by defendant. Dr. Lareau testified that he evaluated defendant. Dr. Lareau stated that his evaluation was based upon an interview of defendant, psychological tests, and over 600 pages of information that had been given to him by defendant’s trial counsel, such as preliminary hearing transcripts, e-mails, police reports, medical reports, and divorce records. Dr. Lareau said that defendant scored very low on the “Hare Psychopathy Checklist,” which indicates defendant is not a psychopath. On the “Static 99” test, which measures the likelihood a person will engage in sexually violent behavior, defendant received a low score indicating that it is not likely that he is a sexually violent offender.
DISCUSSION
A. Expert Testimony
1. Facts
Defendant’s contention regarding expert testimony concerns the following exchange that took place during the redirect examination of Dr. Lareau:
“[Defendant’s trial attorney]: Now, respecting [the prosecutor’s] question about your knowledge of allegations involving [J.H.’s sister, S.H.], you did know of those allegations?
“[Dr. Lareau]: Yes.
“[Defendant’s trial attorney]: And you reviewed documentation related to those allegations; didn’t you?
“[Dr. Lareau]: Yes, I did.
“[Defendant’s trial attorney]: And one of those documents was the letter from [Child Protective Services (CPS)] saying they dropped [the allegations] as unsubstantiated; correct?
“[Prosecutor]: I’m going to object as improper opinion.
“The Court: You know something? That is, and you know that. And you know that. No matter how much you want to be an advocate for your client— [¶] Ladies and gentlemen, not only is a question not evidence, do not consider that for any purpose. Do you understand me? [¶] . . . [¶] It would be unfair, as I told you at the outset of the trial, 100 percent unfair. Now we have to be fair to both sides, both parties. Understood?
“(The jurors indicated in the affirmative.)
“The Court: Thank you.
“[Defendant’s trial attorney]: I have no further questions.”
2. Analysis
Defendant contends the trial court erred by sustaining the prosecutor’s objection to Dr. Lareau’s testimony concerning the CPS report he relied on in forming his expert opinion. We disagree.
Throughout his argument, defendant complains that the trial court’s comments, when sustaining the prosecutor’s objection, were unduly harsh. To the extent defendant is raising an issue of judicial misconduct, we conclude such an argument is waived because defendant did not make a proper objection in the trial court. (People v. Samuels (2005) 36 Cal.4th 96, 114.)
“[E]xperts may rely upon and testify to the sources on which they base their opinions (Evid. Code, §§ 801, 802), including [inadmissible] hearsay [if it is] of a type reasonably relied upon by professionals in the field. [Citations.]” (People v. Cooper (2007) 148 Cal.App.4th 731, 746-747; see also People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley).) “Although experts are thus given considerable leeway as to the material on which they may rely, the rules governing actual communication to the [trier of fact] of any hearsay matter reasonably relied on by an expert are more restrictive.” (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1524; see also Gardeley, supra, 14 Cal.4th at p. 619.) A trial court “‘has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.’ [Citation.] A trial court also has discretion ‘to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.’ [Citation.]” (Gardeley, supra, 14 Cal.4th at p. 619.)
We review the trial court’s ruling for an abuse of discretion. (People v. Coleman (1985) 38 Cal.3d 69, 93.)
The information charged defendant with committing various crimes against two victims, J.H. and H.P. Defendant was not charged with any crimes involving S.H. The CPS finding that S.H.’s claims of abuse were unsubstantiated constituted hearsay. (Evid. Code, § 1200.) The probative value of the CPS finding was minimal because (1) the jury was already aware that Dr. Lareau relied on 600 pages of documents in forming his expert opinion; (2) Dr. Lareau testified that he was aware of the allegations involving S.H. when he formed his opinion; and (3) S.H. was not a named victim. The risk that the jury might improperly consider the hearsay as independent proof of the fact recited was high because the hearsay statement was made in a letter by a government agency, which some triers of fact may believe is sufficient to constitute independent proof. Accordingly, the trial court did not abuse its discretion in sustaining the prosecutor’s objection to Dr. Lareau’s testimony because the risk that the hearsay would be improperly applied outweighed the probative value of the hearsay.
B. Impeachment Evidence
1. Facts
Defendant’s contention regarding impeachment evidence concerns the following exchange that took place during the cross-examination of J.H.’s stepmother:
“[Defendant’s trial attorney]: Now, you mentioned that [J.H.] had certain behavior that you had witnessed that led to you deciding that you needed to read the diary; correct?
“[Stepmother]: Yes.
“[Defendant’s trial attorney]: Can you describe that behavior?
“[Prosecutor]: Objection. Irrelevant, Your Honor.
“The Court: Sustained.
“[Defendant’s trial attorney]: Did that behavior involve dishonesty?
“[Prosecutor]: Objection. Vague.
“The Court: Sustained.
“[Defendant’s trial attorney]: Did that behavior involve dishonest statements that you personally heard?
“[Stepmother]: I don’t know
“The Court: Sustained. Sustained. We’re not going to do this. There’s not a young person alive that has not told a lie. I’m in that group.”
2. Analysis
Defendant contends the trial court erred by stopping defense counsel’s inquiry into J.H.’s possible dishonesty because the questions were designed to impeach J.H. We disagree.
Our Supreme Court discussed the admissibility of impeachment evidence in criminal trials in People v. Sapp (2003) 31 Cal.4th 240, 289 (Sapp). The Sapp court explained: “‘The voters [in enacting Proposition 8] have decreed . . . that in proper cases . . . conduct involving moral turpitude should be admissible to impeach a criminal witness. [¶] [But Proposition 8’s] section 28[, subdivision] (d) does preserve the trial court’s discretion to exclude evidence whose probative value is substantially outweighed by its potential for prejudice, confusion, or undue consumption of time. (Evid. Code, § 352.)’ [Citation.] ‘The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues . . . . [¶] . . . Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.’ [Citation.]” (Sapp, supra, 31 Cal.4th at p. 289.) We review the trial court’s ruling for an abuse of discretion. (See Id. at p. 290 [discussing trial court’s exercise of discretion].)
The possibility that J.H. was dishonest with her stepmother had little probative value because, as noted by the trial court, “There’s not a young person alive that has not told a lie.” Due to the slight probative value of such evidence, the trial court was within the bounds of reason in concluding that examining J.H.’s stepmother about the possible lies J.H. may have told would have consumed an undue amount of time. Accordingly, we find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J. KING J.