Opinion
F039779.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. ANGELA MARIE THOMPSON, Defendant and Appellant.
Joan Isserlis, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Susan Rankin Bunting and Janet E. Neeley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Angela Marie Thompson was the adoptive parent of 12 children. Her five-year-old adopted daughter, Rachel, died on September 7, 2000. Defendants 17-year-old daughter, A., testified that defendant instructed her to sit on Rachel during an hours long car ride as punishment for Rachels failure to eat her food fast enough. A. complied and Rachel died as a result. Defendant was convicted of the second degree murder of Rachel (Pen. Code, § 187, count 1), as well as assault on Rachel causing her death (§ 273ab, count 2), and felony child abuse of Rachel (§ 273a, subd. (a), count 3). In addition, defendant was convicted of two misdemeanor counts of child abuse against two of her other children, E. (count 4) and M. (count 5.)
In an effort to protect the identities of the child victims, one of the child witnesses, and the minor child who was prosecuted as a juvenile for the death of Rachel, we refer to these children by their first initials. First names appear for the remaining children.
Further statutory references are to the Penal Code unless otherwise noted.
Defendant appeals, raising numerous issues, including evidentiary issues, instructional issues, a claim that some of her children were improperly coerced to not testify on her behalf, jury misconduct, and an assertion that the evidence does not support her murder conviction. We affirm.
FACTS
Over the course of several years defendant and her husband, Gerald, adopted 12 children. The oldest child was a daughter, A., born in 1983. Joshua, J., Matthew, Paul, and Micah were the oldest boys, with birthdates from late 1984 until 1986. E., a son and the victim in count 4, was born in 1991. M., a daughter and the victim in count 5, was born in 1992. Mark was born in 1993. The deceased child, Rachel, was born in 1995 and had a twin sister, Rebecca. The youngest child was Benjamin, born in 1995.
On September 7, 2000, defendant drove all 12 children in the family van from Travis Air Force Base to Porterville, approximately a five-hour drive. Rachel did not finish her food fast enough when they were at Travis Air Force Base. This angered defendant, and she instructed A. to sit on Rachel. To do this, Rachel had to bend over at the waist, A. sat on top of her with her legs spread so that Rachels head was between A.s legs. A. and Rachel were sitting in the back seat of the van. Rachel was crying. Defendant told Rachel to shut up or she would sit on her. A. tried to shift her weight so she would relieve the pressure on Rachel and allowed Rachel to get up once so she could attempt to urinate in the container kept in the van for that purpose. Defendant had A. put a towel over Rachels head so she would not garner any sympathy from the other children.
When the van arrived in Porterville, defendant took some of the children inside to see a doctor. J., Joshua, Rachel, M., E., and A. remained in the van. After the others had gone inside, A. got off of Rachel. A. noticed that Rachel was not moving. J. and Joshua moved Rachel to the front of the van and tried to get her to drink something. Joshua ran inside and got defendant.
Defendant ran out and began giving CPR to Rachel. A family nurse practitioner ran out and saw defendant giving CPR to Rachel. Defendant was frantic and asked him to do something. He began CPR. A doctor came out of the office and said the child needed to get to the hospital. Because the hospital was nearby, the nurse practitioner ran with Rachel to the emergency room.
Rachel arrived in the emergency room at approximately 5:50 p.m. Lisa Fitchpatrick, a licensed vocation nurse, took Rachel, started CPR, and ran with her to the trauma room. Rachel was not breathing and had no pulse. At the direction of the emergency room doctor, Fitchpatrick talked to defendant to find out how long Rachel had been without oxygen. Defendant told Fitchpatrick that she was inside the doctors office when this happened. Her son ran in and said something was wrong with Rachel. He said to defendant that he had pulled a bag off of Rachel. After reporting this conversation, the doctor directed Fitchpatrick to ask defendant if Rachel had been sick or had had any seizures recently. Defendant said that Rachel had not had any seizures. Others in the family had been sick, but Rachel had not.
Doctors attempted to revive Rachel. At 6:22 p.m. Rachels temperature was 103.4 degrees, at 6:33 p.m. her temperature was 105.6. She was pronounced dead at 6:33 p.m. On September 7, 2000, the outside temperature was 82.8 at noon, 89.1 at 5 p.m. and 87.7 at 6 p.m.
While medical staff attended to Rachel at the hospital, the 11 other children went to the home of Andrea Ruckman, arriving at approximately 6 p.m. The children had attended the church where Andreas husband was a youth pastor. Defendant called three times and spoke with J. and then A. Defendant also called Andrea and asked her to call Maureen Harold to come and pick up the children. Harold came by and picked up the children.
Detective John Hall contacted defendant and Gerald at the hospital. He asked where the children were; they refused to give any information about the childrens location. The police eventually located the children and brought them to the police station after 2 a.m. One of the older boys said they could not talk until they had spoken to their mother. Defendant was brought into the room and she told the children they could speak to the officer. The children reported that Rachel had choked on a plastic bag in the van and denied that any abuse occurred in their home.
The emergency room doctor noted that Rachel had multiple scars and abrasions. While choking on a bag could account for cardiopulmonary arrest, such a scenario would also result in other findings that were not present. If Rachel could not breathe properly, because she was being sat upon, this could have resulted in a high temperature. This is because breathing is part of the regulatory mechanism for temperature. The doctor also noted that Rachels vaginal opening was large and her hymen was notched. This is not normal for a five-year-old child. The emergency room doctor had worked on Rachel in November of 1999 when she was brought to the emergency room in an altered mental state. She had a subdural hematoma and was transferred to Valley Childrens Hospital.
X-rays of Rachels body were taken after her death. Dr. Frederick Young reviewed the X-rays. Rachel had a skull fracture. She had a broken left arm; the break was relatively fresh, having occurred within the previous two weeks. The fracture pattern of the arm was not typically associated with a fall, but was more consistent with a bending movement. Rachel had fractures at the base of the fingers on her right hand. These fractures were at least four to six weeks old. She had old fractures of her left hand fingers. She also had a fracture of the left fibula. An isolated fracture of the left fibula is not common and could have been caused from a hit or a kick. Dr. Young concluded that the combination of fractures were unexplained nonaccidental trauma.
Dr. Leonard Miller performed the autopsy on Rachels body. Rachel weighed 38 pounds and was 41 inches tall. She had burn scars on the top of her left foot. She had scarring from a healed surgery on her head. She had multiple small red-tan dots on the soles of her feet. Samples from Rachels feet were analyzed. It was Dr. Millers opinion that Rachel had puncture wounds on the bottom of her feet. Dr. Miller concluded that Rachel died from positional asphyxia. Her body had been compressed, leading to hypoxia and cardiac irregularity and death. She would have been struggling to breathe and that would have generated heat in her body. There was also an element of dehydration. There were changes to Rachels eyes that could have resulted from having her head downward and straining and struggling.
Dr. David Chadwick concluded that Rachels death was not accidental and she was a victim of battered child syndrome. It was his opinion that the fracture to Rachels arm occurred within a week of her death when a blunt object struck her forearm. The fracture to her left fibula occurred as a result of a blow to the leg. It was two to six months old. The fractures of the fingers were all less than six months old and occurred by direct blows or bending of the fingers. Rachel had swelling of the left leg that occurred within two days of her death. Her prior head injury in November of 1999 was a result of shaken infant syndrome. The head injury occurred within 24 hours of when she was taken to the hospital. Rachel had burn scars on her chest, leg and feet. The burns on the right side of her chest were not consistent with a child pulling water off of a stove and onto herself. Rachel had ligature marks around her ankles that indicated she had been tied up. She had puncture wounds to the soles of her feet. Rachel had 22 distinct injuries, and it was Dr. Chadwicks opinion that there is no possibility these injuries could all be accidental.
Dr. Ronald Gabriel, a specialist in pediatric neurology and neuroimaging, testified that the November 1999 hemorrhage on Rachels brain was massive. Because there was no scalp or bone injury there must have been an additional component of vigorous shaking to cause the injuries. If Rachel had fallen, she would have had a swelling of the skin on her head and almost certainly a fracture. The bleeding from her head injury would be accelerated if she performed jumping jacks after receiving the injury. Her head injury was not accidental.
In addition to testifying regarding Rachels prior head injury, Dr. Gabriel stated that the prior head injury would not have affected Rachels ability to regulate her temperature preceding her death. It was Dr. Gabriels opinion that if someone cannot breathe properly, his or her body will become hotter. Being sat upon could reduce the ability to circulate blood to ventilate the lungs. It was very unlikely that a five-year-old would choke on a bag because a five-year-old is intelligent enough to pull the bag out. In addition, the bag-choking scenario does not explain Rachels high temperature. If Rachel had suffocated she would have had a low body temperature, but with her ventilation and circulation compromised, she could develop a high temperature.
Deputy Sheriff Brian Clower investigated the head injury and burn on Rachels hand in November of 1999. In addition to her massive head injury, Rachel had a burn on her right palm, one tooth was broken, her mouth had been bleeding, her left hand was discolored and she had a small cut on her right leg. Defendant explained that the burn happened when Rachel grabbed a food sample at Costco. The cut occurred when Rachel fell out of a wagon. Defendant said that the family, except Rachel who was in bed, was worshipping in the living room when she heard Rachel scream. When defendant arrived in the bedroom, Rachel was on the floor. Deputy Clower tried to interview the children but they were unavailable.
Defendant was interviewed on September 8, 2000, after Rachels death and was asked about the prior injuries to Rachel. She stated that Rachel was burned when she pulled a pot of hot water off of the stove. Defendant said that Rachels head injury was accidental. The marks around Rachels ankles were explained as resulting from Rachels socks being too tight. In addition, defendant stated that Rachel was accident prone.
Following the death of Rachel, all of the children were removed from the care of defendant and Gerald and placed in foster homes. The older boys (Joshua, J., Matthew, Paul and Micah) were returned to live with defendant and Gerald in October and remained in the home until February 20, 2001.
In late November of 2000, M. began reporting instances of abuse in the home. E. and M. were interviewed in December of 2000. The officer who interviewed M. looked for injuries to her. M. had crooked fingers on both hands and 12 little pinpoint holes on the bottom of her feet. In addition, she had a scar on her back of two parallel lines. About the same time, A. revealed to her lawyer, child protective service worker, and psychologist her involvement in Rachels death, as well as other instances of abuse in the home. A. was charged with murder and pleaded to involuntary manslaughter in the juvenile court.
A doctor examined M., E. and A. There were scars on the hands of M. and E. M. said the marks on her fingers and hands were from being struck with a spoon. It was the doctors opinion that the marks were consistent with M.s explanation. The scars on A.s wrist were consistent with being cut with a knife. A. had 22 scars on her leg. The scars were consistent with A.s revelation that she had been hit with a spatula. An attorney representing the children looked at M.s feet and E.s feet after the children came forward with their revelations regarding abuse. M. and E. each had marks on their feet consistent with the marks on Rachels feet at the time of the autopsy. In addition M. had marks on her hands.
A. testified as a prosecution witness. Defendant and Gerald adopted her when she was approximately seven and a half years old. Defendant adopted her natural brother, Joshua, at the same time. There was no physical punishment in the house until A. was approximately 12 years old. Then she was spanked on the hands. She was not allowed to cry during the punishment or defendant would keep punishing her. When the family moved to Porterville the spankings expanded to the feet, knees, thighs, arms, shoulders, toes and stomach. Defendant would hit A. and the others with a "rod." A rod was a spoon. A. was home schooled and was required to do the bulk of the cleaning and chores around the house.
Another method of punishment defendant used on A. and the other children was "poking." Defendant would pour alcohol on the bottom of the childs feet. She would then poke a safety pin or other sharp object into the bottom of the foot. Sometimes she would wiggle the pin around. A. would sometimes have to hold the other children down while defendant poked them. Rachel was poked the most frequently because she did not eat her food. Sometimes defendant would poke the children in the mouth. A. held Rachel down when defendant poked her in the mouth.
A. testified that Rachel was burned two separate times. Defendant told A. to boil water and bring it to her. A. did so. Rachel was on the bed, A. left. Rachel was burned on the stomach, thighs, hands, and feet. Defendant told A. that she put the hot water on Rachel.
A. recounted the night in 1999 when Rachel was taken to the hospital with a head injury. Rachel had been sent to her room and instructed to do jumping jacks because she did not finish her food. (A. testified that they were made to do jumping jacks as punishment, sometimes they were required to continue the jumping jacks for two hours at a time.) The remainder of the family was in the living room. Defendant sent A. to check on Rachel. Rachel was on the floor in the closet. A. swatted her and told her to continue her jumping jacks. A. returned to the living room. One to two minutes later Rachel screamed. They all ran in the room and found Rachel on the floor.
Another method of punishment used in the household was "plunging." A. testified that the bathtub would be filled up and defendant would force the childrens heads down into the water. One time A. refused to be plunged. A. grabbed a pipe in the bathroom and held on. Defendant told J. to get a knife. He did and defendant cut A.s arm to get her to let go of the pipe. A. bled a lot. A. showed the jury her scar from the knife incident.
Other forms of punishment included defendants force-feeding the children when they did not finish their food or eat it fast enough. The children would be given time outs; the time-out position involved bending over from the waist and holding ones arms up behind ones back with their hands clenched together. They would have to do this for long periods of time. Defendant would also bend their fingers back. In addition, defendant would require one child to sit on another child as punishment. A. would help defendant administer punishments by holding the other children down when they were being punished. There was a rule in the house that A. could not be alone with other children because she was mean. This was known as the "[A.] rule."
A. testified regarding Rachels death. She stated that the family ate sandwiches at Travis Air Force Base. Rachel did not finish her food. Defendant told A. to sit on Rachel. A. sat on Rachel the entire trip from Travis Air Force Base to Porterville. One time Rachel got up to go to the bathroom in the bucket in the van. Rachel cried. A. would try to hold herself up to relieve pressure on Rachel. Defendant had Rachel put a towel over Rachels face so she would not garner sympathy from the other children. Defendant and A. both told Rachel to be quiet. When they arrived in Porterville defendant told A. to stay on Rachel. After defendant went inside the doctors office, A. got off of Rachel.
After getting off of Rachel, A. moved up towards the front of the van to talk to Joshua and J. She noticed Rachel was not moving and was limp. They moved Rachel to the front of the van. A. tried to give Rachel liquids but was unsuccessful. Joshua went inside to get defendant. Defendant and others came out to try and revive Rachel. Rachel was taken to the hospital.
Defendant told A. and the others to go to the home of the Ruckmans. Defendant called the Ruckmans three times and spoke to the children. She said, "this is big." She told A. a story to tell and to tell the boys to stick to the story. The story was that Rachel got a bag and put it in her mouth while A. and the boys were listening to music. Defendant also instructed A. to call the family attorney.
A. said she and the other children were taken to the police station in the early morning hours of September 8, 2000. The children would not talk to the police. Defendant came in and told the children they could tell the police the truth and everything would be all right. A. understood this message from their mother to mean they should tell the plastic bag story as they had been instructed to do earlier. A. testified she did not believe Rachel would die from getting sat upon.
Ten-year-old E. testified to the abuse in their home and the death of Rachel. E. stated that when the children got in trouble, they oftentimes were spanked with a "rod," which was a plastic or wooden spoon. Defendant hit him with the rod on his feet, knees, tummy, and hands. He would have to lay his hands out flat and she would hit him five or six times. It hurt. If E. cried, defendant would put a plastic bag over his face and it felt like he was going to die. A. would sometimes hit him with a rod after defendant told her to do so.
There were certain eating rules in the house. The smaller children had to finish their food before the big boys finished. If they did not finish their food according to the rules, they either got "poked" or "gurgled." Poking involved having a needle or safety pin poked into their feet. Sometimes A. would hold E. while defendant poked him. It hurt really badly and it would bleed. Sometimes E. was poked in the shoulder. He saw Rachel being poked. "Gurgling" involved getting into the bathtub with your clothes on. Your face would be positioned face up looking towards the faucet. Defendant would then turn the water on. It was very hard to breathe and made E. feel bad. If E. pulled away while he was being gurgled, defendant would call A. to hold E. down. In addition, you could not make noise while you were being gurgled or you would be gurgled longer. If A. would not hold E. down as she was told, she would get gurgled.
E. also testified regarding Rachels burns and the day of her head injury. He stated that Rachel was burned when defendant told her to get in the hot bathtub. Rachel cried while defendant and A. sat her down in the water. E. stated that one time defendant got angry at Matthew and put his hand on the hot stove. In addition, E. testified that sometimes when he got in trouble he would have to stand in the corner bent over with his hands behind his back. It hurt.
E. did not see Rachel incur her head injury. According to E., everyone was in the living room except Rachel. Rachel was in her room doing jumping jacks because she had not finished her food. (E. testified that he and other children had to do jumping jacks as a form of punishment. They could not stop if they got tired or else they would get gurgled.) Rachel screamed and everyone ran in to see if she was okay. E. stated that Rachel fell off the bunk bed, even though he did not see the incident.
E. testified regarding the day Rachel died. He said that A. sat on Rachel on the way back from Travis because Rachel did not finish her food and this angered defendant. At the direction of defendant, A. sat on Rachel all the way to Porterville. Rachel was crying; this made E. sad but he did not say anything because he might get sat on. (A. had sat on him before and it hurt.) A. told Rachel to be quiet. Rachel stopped crying. Defendant and some of the other children went inside the doctors office and A. finally got off of Rachel. Rachel spit up and was not moving. A. tried to give Rachel some water, but she would not drink it. Rachel took some orange juice from J. and then spit up. J. said "not again" and ran inside to get defendant.
Defendant tried to revive Rachel. Rachel was taken to the hospital and E. and the other children went to a friends house. Defendant told them to be good. Defendant told E. to tell the police that Rachel suffocated on a bag. When the police talked to E., he did not tell them the truth because he was afraid he would be gurgled. E. told the truth later when he knew he would not be sent back to defendant. On a visit with defendant at the jail, defendant whispered in E.s ear, "Dont tell on me."
E. testified that A. was mean to Rachel; she would call her names and hit her. There was an "[A.] rule" that A. was not to be alone with the younger children. E. showed the jury scars on his body from the various punishments.
Defendant was convicted of the misdemeanor child abuse of E. She was acquitted of felony child abuse of E.
Eight-year-old M. testified at trial. She stated that when she got in trouble she got a spanking with a metal rod. The spanking was administered by defendant and involved her feet, hands, back and stomach. If M. cried, defendant would put a plastic bag over her mouth. Sometimes her brothers would have to help with the punishment.
Other punishments were testified to by M., including poking, gurgling, doing jumping jacks, and having time outs in the bent-over position. M. also testified that if they did not finish their food, defendant would put gloves on and shove the food down their throat with two fingers. Additionally M. stated that A., Joshua, J., and Matthew sat on her. She said it hurt a lot and you cant move. Defendant would also pull their fingers back when they did something bad.
M. provided testimony regarding Rachels head injury. She stated that defendant told A. to check on Rachel. A. checked on Rachel and returned to the living room. Rachel screamed. Rachel was in her room because she had not finished her dinner. She was doing jumping jacks as her punishment. M. testified that Rachel was taken to the hospital and hurt her head because she fell off the bed.
M. testified regarding the burns to Rachel. She said that defendant had water on the stove. A. took it to the bathroom and defendant put Rachels hands in the pot of water. A. was helping and Rachel was screaming. After this Rachel could not move her hands; they were all "scrunched up."
Concerning the events leading to Rachels death, M testified that A. sat on Rachel the entire trip from Travis Air Force Base to Porterville. Defendant told A. to sit on Rachel because Rachel did not finish her food fast enough. Rachel cried, and defendant told her she had better shut up or defendant would sit on her. During this trip M. also had to "go down." M. stated that going down involves assuming the same position that Rachel was in when A. was sitting on her; the only difference is that no one sits on you.
After they arrived in Porterville, Matthew, Rebecca, Micah and Paul went inside with defendant. A. got off of Rachel. J. and Joshua found that Rachel was not breathing. They took her to the front seat and tried to give her water. Joshua went inside and got defendant. Defendant tried to get Rachel to breathe. Defendant told the children to say that Rachel had a plastic bag over her face.
Several friends and acquaintances of defendant testified regarding their observations of defendant and the children. Wyonah Rivera testified that the children never went anywhere unescorted. When she asked defendant why her children were so well behaved, defendant responded that she beat them. Kellie Coulter knew defendant and the family and babysat for the children several times. On one occasion she saw A. get a wooden spoon and hand it to defendant. A. then put her palms out. Coulter walked away. She reported that A. did a lot of the chores around the house. Phillip Duncan reported that he never saw A. being mean to the children and that A. did a lot of the childcare, cleaning, etc. At church the children were not allowed to use the toilet but had to go to the van to relieve themselves. Sandra Evans babysat for the children. Defendant would hit the children with a spoon. Defendant would place the older children in charge of the younger childrens punishments.
A neighbor of defendants once heard whipping sounds from defendants house. She heard a child scream an agonizing scream. Defendant once told Robin Noland that she would not want to be a licensed foster parent because she would not be allowed a free rein in discipline. A friend of defendants, Carolyn Noland, had dinner at defendants house. The children ate quickly and stuffed a lot of food in their mouths. Defendant would stuff the mouths of the little children when they ate. One time Rachel did not want to eat. Defendant directed A. to put food in Rachels mouth and defendant told Rachel she would plug Rachels nose until she swallowed if she did not eat. The pastor of the church had been to defendants house for a barbeque. Defendant forced food into the childrens mouths. A. waited on the guests "hand and foot." Defendant would cram food in the childrens mouths at church functions. Defendant would hold her hand over the childrens mouths until they swallowed. When cramming food in the childrens mouths, defendant would tell them they were going to eat the food and eat it on time.
Anne Descoteaux provided child care for defendant. She testified how defendant would have children stand in the corner and would put one child in charge of another child to make sure the child being punished did not get out of the corner. Defendant lived with Descoteaux for a period. Defendants demeanor changed. Defendant "beat the crap out of" the children. Defendant would hit the children with her hands, a belt, and a spoon. She hit them on the legs and hands. Defendant would have an older child sit on a younger child while the younger child was on all fours. Defendant would force feed the children by putting food in their mouths and holding their mouths shut with her hand.
Randy and Lawrence were foster children in defendants home in 1991. Randy testified that if defendant got mad she would put him in a corner with his hands behind his back; it was very uncomfortable. Defendant had dunked his head in water. He could not breathe and it hurt. He did not tell anyone because he was afraid. Lawrence testified that when he got in trouble he would have to stand in the corner with his hands held high behind his back. Sometimes defendant would sit on his head if he cried. It hurt and he would experience difficulty breathing. Defendant would also pour cold water on him in the bathtub as punishment.
Eric was a foster child in defendants home in 1991. Matthew, J. and Micah were in the home at the time, as well as two other foster boys. Defendant would make Eric and the others stand in the corner for four or five hours with their hands behind their backs. Defendant would strike them with a wooden spoon. Defendant asked Eric to rough up the other children.
Michael was a foster child in defendants care. Defendant would hit him with a spoon as punishment. He would be punished if he did not finish his food. He would be hit on the back of his hands. If he cried, he would get hit again. Michael was hit with a metal spoon wrapped in a towel. When defendant was away, she would give the spoon to an older child. Defendant expressed outrage over food not being finished. She would shove food down the childrens throats. Michael was required to stand in the corner with his hands clenched behind his back. One time defendant pinned Michael to the floor with her knees to keep him from helping his sister. When the social worker showed up at the house, the atmosphere changed. Michael intentionally misbehaved so he would be removed from defendants home.
Dr. Donald Hoaglund, a clinical psychologist, evaluated A. He testified that children who are abused detach from the pain. It is damaging to children to make them punish other individuals. A child might report abuse after been freed from a situation of abuse and given an absolute certainty that they would not be returned to the abusive environment. Abused children often delay reporting abuse. A. appeared to be extremely emotionally constricted. She felt guilty about Rachels death.
Defense
The defense was that A. committed all of the bad acts against Rachel and defendant did not direct A. to do any of the acts nor did she participate in the acts. In addition, the defense presented evidence that the rise in Rachels temperature at the time of her death and the spots on the sole of Rachels feet were a result of contracting Rocky Mountain Spotted Fever.
Joshua, A.s natural brother, testified for the defense. Regarding the burns on Rachel, Joshua reported that he heard a scream and heard a pot fall in the kitchen. Rachel was wet and pointing at A. Defendant came in to see what was going on. Defendant put Rachel in a bathtub of cold water.
Regarding Rachels head injury, Joshua testified that defendant asked A. to put Rachel to bed. A. did so. A. went back into the room to check on Rachel and within a minute of A.s leaving the bedroom, Rachel screamed and was found on the floor not breathing. Defendant asked A. what she did.
Joshua testified that A. did not get along with Rachel. A. had been the only girl in the house before Rachel arrived. Joshua stated that the only time they were poked with a needle was to remove a splinter. He testified that when they were in trouble, defendant would punish them by removing privileges. He denied any incidents of poking, plunging, gurgling, etc., occurred in the home. He said there were no special eating rules.
Joshua testified that on the trip from Travis Air Force Base to Porterville, Rachel was sitting in a car seat and A. was sitting next to her. Rachel, J., Joshua and A. were in the van while the rest of the children went inside with defendant for the doctors appointment in Porterville. Rachel had a plastic bag and was throwing it up in the air. A. said that Rachel did not look right. She was not moving. J. brought Rachel to the front of the van and tried to revive her. Joshua ran in to get help. Defendant tried to revive Rachel. Defendant did not tell A. to sit on Rachel.
Joshua did not speak with law enforcement when he was first questioned because he had been taught by defendant and their lawyer not to talk to others. He testified that the home had the "[A.] Rule," which was that A. was not allowed to be alone with the little children because she was mean.
He testified that when he and A. were foster children and living across the street from one another, A. told him to run across the street. A car hit him.
Matthew, who was adopted by defendant shortly after his birth, testified on defendants behalf. He testified that there was no poking or plunging in the household. It was his opinion that A. was mean to Rachel. A. would yell at her, hit her, and yank her around. On the day Rachel was burned, he heard her cry and then saw her wet in the hallway. Defendant came out of the bedroom and took her to the bathroom. A. came down the hall after Rachel. There was a pot and water on the floor in the kitchen.
On the day of Rachels head injury, A. was coming out of the bedroom after checking on Rachel. They heard Rachel scream. They went in the room and she was on the floor.
Matthew testified that on the trip from Travis Air Force Base to Porterville he heard Rachel say to A., "stop messing with me." When they arrived at the doctors office in Porterville, everyone went inside except Joshua, J., A., Rachel, and Matthew. Neither E. nor M. remained in the van. Joshua ran inside when they realized Rachel was having difficulties. Defendant came out and attempted to revive Rachel. It was Matthews testimony that no one sat on anyone in the van.
On cross-examination, Matthew stated that he initially told the detective that the burns to Rachel happened while he was away at camp with some of his brothers. At trial, he testified this was not accurate and he does not remember telling the detective he was away. He lied to officers previously when he told them he had been spanked; he lied because he was tired.
Friends and acquaintances testified that they never saw defendant doing anything inappropriate with the children. Janet Cameron testified that defendant and the children visited her in Oklahoma in late August of 2000. Rachel seemed normal. She reported that A. had been very controlling from age 10. Once Cameron saw A. masturbating. An eye doctor saw the entire family on May 26, 2000. The children were very polite and he did not notice any injuries on the children.
The children were in local theater productions. They acted fine and Rachel did not have any noticeable injuries.
Gail Hendershot, a psychotherapist, interviewed defendant many times. She concluded that A. has a conduct disorder that results in A.s violating the rights of others without caring about the other person. A. has serious problems with attachment and there is evidence of sexual abuse in A.s previous home. Hendershot testified that a child that has been sexually abused will sometimes resexualize by abusing others at the same age they were abused.
A nurse conducted a sexual assault exam on Rachels body after her death. She concluded that Rachel had been molested prior to her death.
Dr. Timothy McCalmont, an expert in pathology of the skin, looked at samples taken from the sole of Rachels feet. It was his opinion that the marks on the bottom of Rachels feet were not humanly inflicted. It was his opinion that Rachel had an infection at the time she died. A fever and a petechial skin rash are "very characteristic of Rocky Mountain Spotted fever." He did not think it was possible to cause a substantial elevation in temperature by having someone sit upon another individual.
DISCUSSION
I. Influences on Childrens Decision to Not Testify
Defendant asserts that the judgment must be reversed because prosecutorial and judicial misconduct ruined defendants ability to present her case to the jury. In particular, she argues the prosecutor improperly threatened the children who wanted to testify for her, the judge improperly sent the children signals that they should invoke the Fifth Amendment, the prosecutor and the judge erroneously claimed they could not grant immunity to the children who wished to testify for defendant, the court improperly appointed a guardian ad litem for the children to invoke their privileges whether or not the children wished to exercise those privileges, and the court abused its discretion when it struck the limited testimony of J.
A. Factual Background
During the prosecutions case, the court heard some in limine motions. At the conclusion of one of the motions, the district attorney said that a number of the older boys testified under oath at the dependency proceedings. It was her understanding that they would be testifying for the defense and might need an attorney to be present to advise them because there was a potential for perjury charges. The court did not think it should get involved at this point.
The People rested, and Joshua testified on behalf of defendant. After further defense testimony was presented, the district attorney informed the court that J. might be testifying. She further informed the court that charges might be filed against J. regarding his molestation of M. It was the district attorneys opinion that J. may need an attorney. The court said that J.s attorney needed to be there prior to calling J. to testify.
Prior to calling J. to the stand, defense counsel stated that Mr. Bartlett, J.s counsel, was present. Defense counsel stated that he believed it was prosecutorial misconduct to be talking about filing charges against J. right at the time he was about to testify, particularly when the allegations had been made several months before. The prosecutor stated that she did not have a hand in the decision of if or when to file charges against J. She stated that whether he was charged or not, he had the right to an attorney. Mr. Bartlett, J.s counsel, inquired whether either side was going to question J. regarding the allegations that he abused M. Defense counsel stated he would not get into that area on direct examination. The court indicated that if the allegations were not brought out on direct examination, then the prosecutor could not ask questions regarding them on cross-examination.
J. was called as a witness. Outside the presence of the jury the court asked J. if he had talked with his counsel about testifying. He said he had. The court then asked him if he understood that his counsel may interrupt the questioning; if his counsel did interrupt, J. was not to answer the question until he was directed to do so. J. said he understood. Mr. Bartlett, J.s counsel, agreed that the admonishment from the court was appropriate. Defense counsel had nothing to add.
J. began his testimony. After several questions, J. was asked if A. would hit Rachel. Mr. Bartlett asked to approach the bench. At this time Bartlett informed the court that he was not J.s counsel during the child protective services (CPS) action but that, if J. was about to testify to something inconsistent with what he said at that time, he may be subject to perjury charges. Bartlett said he believed J. wanted to testify in any event, but he wanted to advise him about it. The court allowed Bartlett to take J. outside the courtroom to discuss the matter.
The court questioned Bartlett regarding J.s decision. Bartlett told the court that he explained to J. that if he testified differently from his previous testimony he might expose himself to a perjury charge. Bartlett stated that J. understood this and wanted to go forward and tell the truth.
The following exchange took place:
"THE COURT: All right. So [J.], if you testify differently today than what you did before, then you understand that theres a possibility that the District Attorney will file charges against you for perjury.
"Understand, I am not trying to talk you out of telling the truth if you do testify because it is your obligation to testify truthfully under oath, but the bottom line is that if you decide to testify today, you are risking the possibility of being prosecuted for perjury, which is a felony and carries how long?
"MR. BARTLETT [counsel for J.]: Three years.
"THE COURT: Three years. You have the absolute right to not testify because thats your right. You cannot be put in a position where you by your own words put yourself in a position where you can go to prison or county jail or whatever; do you understand that?
"THE WITNESS [J.]: Yeah.
"THE COURT: I suggest you spend some more time with your attorney. You are how old?
"THE WITNESS: Sixteen."
After Bartlett had his discussion with J., he informed the court that he had told J. that since he did not represent him in the prior proceedings he could not be sure which questions he should object to, so he would be objecting to each question asked of him and if J. wanted to testify he would have to do so over each of Bartletts objections. J. had asked Bartlett if he could testify to certain questions and not to others. Bartlett told J. that it was Bartletts belief that if J. testified to some questions and not others, he might be forced to give up the privilege and answer all the questions. Bartlett then informed the court he believed that J. probably would not testify.
J. was brought into chambers and questioned. The court asked J. what he had decided and the following exchange took place:
"THE WITNESS [J.]: I think Im going to do it.
"THE COURT: Do what?
"THE WITNESS: Testify.
"THE COURT: This is what Im going to do: Youve kind of — this is a big decision for you to make, and understandably, youve — from what Mr. Bartlett has told me informally, you — it seems to me that really, when it gets right down to it, youre really not quite sure what you should do because just a minute ago, you told me that you had decided not to testify, and now youre saying youre going to go ahead and testify in spite of the risk of being prosecuted?
"THE WITNESS: Yeah.
"THE COURT: Do you want some time to think about this? Do you want to think about this overnight?
"THE WITNESS: No.
"THE COURT: Are you sure?
"THE WITNESS: Yeah.
"THE COURT: Now, let me understand. Youve talked with Mr. Bartlett, and you understand that there is a strong possibility that if you testified, you will be prosecuted for perjury, not necessarily because what you might say today is truthful or untruthful, I dont know, but youre in a position where youve testified before.
"So it might — if what you say today is the truth, if you testify, then it might be that you would be prosecuted for not telling the truth before; do you understand that?
"THE WITNESS: Yeah.
"MR. BARTLETT [counsel for J.]: Would the court consider meeting with the minor without counsel present?
"THE COURT: I dont think I can do that.
"MR. BARTLETT: Okay. Would the court consider meeting with the minor with counsel present but not the defendant?
"THE COURT: I dont think I can do that, either.
"MR. BARTLETT: Okay.
"THE COURT: Does anybody assert that I can? I dont think I can.
"MR. HIDDLESTON [counsel for defendant]: No. I would object to that, but I wanted to put on the record that his first indication today informally in chambers
"THE COURT: Well, Mr. Hiddleston, Im not — I just invited — I just asked a very specific question. I dont want to get into anything else. So excuse me for interrupting you, but Im talking with [J.].
"MR. HIDDLESTON: Okay.
"THE COURT: [J.], youre 16 years old. When it gets right down to it, this is going to be your decision, but I want to be sure that you make an informed decision, that you know exactly what youre doing, whatever your decision is and this is your life were talking about. Nobody elses life, your life.
"Youre a young man, and things like this age people quickly because they are so —theyre hard decisions to make.
"So Im not going to let you testify today. If you decide to testify after having time to think about it, talk with Mr. Bartlett further, and — do you have a foster parent?
"THE WITNESS: Yeah.
"THE COURT: Talk to your foster parent. Well have you come back tomorrow. Whatever decision you make, it will be respected, but its to be your decision, and its a decision that you make well aware of the risks involved.
"You have the absolute right to protect yourself. No one can think less of you if thats what you decide to do. On the other hand, if you decide to testify after understanding what the consequences are, then thats — thats your right, as well; okay?
"THE WITNESS: Yes.
"THE COURT: So you go on home, and well have you come back tomorrow at ten oclock? Sorry you have to miss school.
"THE WITNESS: Thats okay.
"THE COURT: Maybe you can make football practice.
"THE WITNESS: Yeah.
"THE COURT: Okay.
"..................................................................................
"THE COURT: Sure. Im going to let [J.] go. Thank you, Mr. Bartlett.
".................................................................................
"MR. HIDDLESTON: Okay. I just wanted to put on the record I believe the first indication from Mr. Bartlett was that he did want to testify. That was in chambers.
"Upon going outside and meeting at the bench, I think there was some indication that he was kinda going both ways or some questions he wanted to answer and some he didnt, and now the last indication is that he does want to testify, once again. So I just wanted to make that clear for the record.
"THE COURT: Thats — I believe thats an accurate representation. Does anybody want to add anything to that?
"MR. BARTLETT: No. The last time I met with him privately, it was my impression from him that he was not going to testify, but when he came back here, as the court heard, said he would, so —"
Defense counsel informed the court that he believed Paul and Micah (both 15 years old) would be testifying for the defense. Defense counsel was concerned with the process and with his witnesses "tumbling down here one after the other."
The court responded as follows:
"THE COURT: Well, each — each person, child or adult, has the privilege to not testify if the testimony is incriminating. These children have the right to have counsel advise them.
"Because theyre children, I believe the court has more of an obligation than it might to an adult to make sure that the child understands the possible ramifications and so the child can make an intelligent decision.
"If were talking — I dont — Im not setting a bright line, but if youre talking about a twelve-year-old child, I might consider appointing a Guardian ad Litem for the child in addition to appointing counsel, not to discourage them from testifying or encouraging them to testify.
"The bottom line is the ramifications are potentially serious if there is a prospect of a prosecution for perjury, and the person whose liberty is at stake has the right to make an informed decision.
"So its not just the People who have rights in this trial or Mrs. Thompson, the witnesses have rights, as well. The court must accommodate all those rights, and I intend to as best as I possibly can."
The following morning the court asked Bartlett what the status was of the four boys (J., Matthew, Paul and Micah) who were being called to testify on defendants behalf. Bartlett stated that he had met with the boys at length and they asked to have a private moment to discuss it among themselves.
After a recess, Bartlett informed the court that the minors were in a very difficult position but he did not think that any further thinking on their part or counseling on his part would help them. Bartlett suggested that defense counsel go ahead and call whomever he planned to call and that Bartlett would be invoking the Fifth Amendment right against self-incrimination on behalf of the four boys. He had informed the boys of this and explained that it would be up to them whether they answer the questions or not. Bartlett said the boys understood this.
The court stated its belief that it should admonish the boys on the record and there should be a discussion. The court stated: "It comes down to the witnesses rights under the 5th Amendment to claim the privilege and their understanding of that and their voluntariness of — or the assurance as much as possible that these young people have made an intelligent, informed choice."
J. was brought into the courtroom. The court questioned J. whether he had had enough time to talk with his counsel about his choices, his rights, and the consequences. J. said he had had enough time. The following discussion took place between the court and J.:
"THE COURT: Did you think about talking to your foster parents about this issue?
"[J.]: Nah.
"THE COURT: You decided to mull it over on your — on your own with your lawyer?
"[J.]: Yeah.
"THE COURT: All right. What do you intend to do?
"[J.]: Um, I was kinda not sure `cause — um, my lawyer has brought to my attention some serious, um, things.
"THE COURT: You understand that you have the right to not answer questions; understand?
"[J.]: Yeah.
"THE COURT: All right. And thats your absolute right?
"[J.]: Yeah.
"THE COURT: All right. So youre thinking that right now, that it wont be a good idea for you to answer questions?
"[J.]: Yeah.
"THE COURT: Okay. All right. Well see what counsel wants to do. Do you have any questions of me?
"[J.]: No."
J. was asked to wait outside.
Sixteen-year-old Matthew was brought into the courtroom. The court asked Matthew if he had a chance to talk to his attorney about his testimony. Matthew replied that he had. The following discussion took place:
"THE COURT: Hi, Matthew. I know that this is a bit of an awkward place to be in, but would you come on up, please, I just want to chat with your for a minute.
"MS. SMITH [district attorney]: Are you going to have the witnesses sworn in?
"THE COURT: This is preliminary. Mr. Hiddleston hasnt called them yet.
"Good morning.
"MATTHEW []: Good morning.
"THE COURT: Now, I understand youre 16.
"MATTHEW []: Yes.
"THE COURT: All right. Now, Mr. Bartlett, the gentleman to our right, have you met him before?
"MATTHEW []: Yes.
"THE COURT: All right. And hes your lawyer?
"MATTHEW []: Yes.
"THE COURT: All right. Have you had a chance to talk to him about your testimony?
"MATTHEW []: Yes.
"THE COURT: All right. I just want to tell you that — and most of this, if not all of this, you probably already know. Youve been subpoenaed as a witness.
"As a witness, certainly, if you choose, you have the right to testify. On the other hand, it may well be that if you testify, you might be putting yourself in a position where there would be a question as to whether or not the District Attorney could and would bring perjury charges against you, either for not telling the truth in the past or — or not telling the truth during the trial; do you understand that, just generally speaking?
"MATTHEW []: Yes.
"THE COURT: All right. Whats most — whats important that you understand and that I know that you understand is that if you choose, nobody can make you say anything today as a witness. Thats — thats your right; do you understand that?
"MATTHEW []: Yes.
"THE COURT: Okay. Do you need to spend any more time with Mr. Bartlett understanding your — the choices that you have and the rights that you have?
"MATTHEW []: What do you mean?
"THE COURT: Do you need to talk to Mr. Bartlett any — any more about getting guidance on your rights?
"MATTHEW []: No.
"THE COURT: All right. Have you decided whether or not youre going to testify?
"MATTHEW []: Yeah.
"THE COURT: All right. Whats your decision?
"MATTHEW []: Im not going to.
"THE COURT: Youre not going to; is that right?
"MATTHEW []: Yeah.
"THE COURT: All right. And thats — and thats because your testimony might tend to get you in trouble, incriminate you?
"MATTHEW []: Yes.
"THE COURT: All right."
Matthew was asked to wait outside.
Although Matthew indicated he was not going to testify, he later changed his mind and did testify.
Fifteen-year-old Paul was brought into the courtroom and asked if he had enough time to talk to his attorney about his choices, his right to testify, his right to not answer questions, and the possible consequences of testifying, particularly in the area of perjury. Paul said that he had had enough time. The court asked Paul if he had decided whether he was going to testify. Paul said he was not going to testify. Paul left the courtroom.
Fifteen-year-old Micah was brought into the courtroom. Micah was asked if he had had enough time to talk to his counsel and whether he understood his choices. Micah responded, "A little bit." The court then asked if Micah needed more time to talk to his attorney, stating that it was very important that he make an intelligent and informed choice. After a period of time, Bartlett informed the court that Micah had decided not to testify.
The People made a motion to strike J.s testimony. A discussion was held and the court indicated it did not think there had been a valid exercise of the privilege by J. The court proposed that J. be questioned under oath, outside the presence of the jury to see if he was going to validly invoke the privilege.
J. was brought into the courtroom and questioning by defense counsel resumed, this time outside the presence of the jury. Questioning began and Bartlett invoked on J.s behalf the right not to testify. The court asked J. if he was invoking his privilege and stated that J. needed to invoke the privilege himself if that is what he chose to do. J. and Bartlett had a discussion off the record. J. then stated he was going to have to invoke his Fifth Amendment right. The court asked if he was doing so because the answer may tend to incriminate him. J. said yes.
Defense counsel then asked J. a question about the time Rachel received her head injury. Bartlett conferred with J. off the record. The court asked J. if he had the question in mind. The following occurred:
"THE WITNESS [J.]: Yeah, I know the answer. Its just Im thinking about the invoke thing.
"THE COURT: Pardon me?
"THE WITNESS: Im thinking about the invoke thing.
"THE COURT: All right. Youre thinking about it or
"THE WITNESS: Yeah, `cause Im under the understanding that if I answer one question, then I answer them all.
"MR. BARTLETT: For the — to clear the record, what Ive told the minors is that if they answer some of Mr. Clarks — excuse me, Mr. Hiddlestons questions, depending on the nature of the question and the question and the subject matter of the question, it may be argued that that — their decision to answer a question may be a waiver of their 5th Amendment matter — right to other questions relating to the same subject matter or types of questions, and so Ive informed them that should they answer any questions, that it may constitute a waiver depending on the question and the subject matter.
"THE COURT: All right. Do you wish to have the question repeated, [J.]?
"THE WITNESS: No, but Id like to — for someone to clarify that; um, do I just answer the question — like if I answer this question, do I have to answer them all from both attorneys and not waive anymore?
"THE COURT: Are you advising him not to answer the question?
"MR. BARTLETT: If he wants to invoke his 5th Amendment right, Im advising him not to answer the question if that is
"THE COURT: Do you believe that his answer may tend to incriminate him?
"MR. BARTLETT: I believe that it may, yes.
"THE WITNESS: Um, what was the question again?"
Questioning continued and J. began answering the questions. Bartlett interjected that apparently J. had decided to answer questions. The court stated that Bartlett had not advised J. not to answer each and every question. Bartlett then told the court that his objection is to all the questions and thought the court was aware of his blanket approach. The court interjected that J. needed to understand what his options were. Bartlett and J. conferred. Questioning continued with Bartlett objecting and J. answering the questions over the objection.
The court then asked J. if he had decided to answer all of the questions despite the advice of his lawyer. J. replied, "I was answering some." When asked by the court if he intended to answer all questions, he stated "No, certain ones." The court advised J. to confer with Bartlett about what he was going to answer and what he was not going to answer.
The court commented that this was an unusual situation and it wanted to proceed cautiously. It stated that "if [J.] is going to claim the privilege as to certain questions, then its certainly within the realm of reasonable argument, if not a reasonable conclusion, that opposing counsel would be deprived of the opportunity to fully cross-examine." The court asked the parties to provide it with authority pertaining to the issue of a witnesss invoking the privilege for some questions and not for others.
The following day defense counsel stated that he thought the procedures had been unfair. He pointed out that M. and E. had given statements contradictory to their testimony at trial, yet they were not threatened with perjury. Defense counsel believed the "executive branch" was discouraging the children from testifying by making implied type of threats against the children who wished to testify for defendant. He claimed there was an equal protection violation. The court determined that it would go ahead with the issue of J.s testimony.
The district attorney commented that M.s and E.s statements were not given under oath, but were statements to law enforcement. Their testimony at the CPS hearings was consistent with their testimony at trial. Again the court did not comment.
Bartlett informed the court that J. still wanted to testify. He understood the implications, but was going to be answering defense counsels questions nevertheless. The court asked J. if it was his intent to testify about everything. J. replied, "Almost everything." Bartlett and J. conferred. Bartlett informed the court that J. would be asserting the Fifth Amendment as to what happened in the van on the day Rachel died.
The court altered the presentation of the evidence and allowed the People to question J. regarding the van incident. J. invoked his privilege not to testify several times. The People asked that J.s testimony be stricken in its entirety. Defense counsel objected because the questions regarding the van incident exceeded the scope of the defenses direct examination. Defense counsel also argued that by testifying to any area J. waived his right to assert the privilege to not incriminate himself. The court rejected the waiver argument, finding that waiver of an entire area of questioning only applies to a testifying defendant. Defense counsel then agreed that he would not venture into the van incident on his direct examination of J. The court noted that J.s testimony was relevant to counts that did not relate to incidents in the van, so J. would not be testifying as to part of an incident but not as to another part. He would be testifying completely about several incidents, relating to the abuse counts, but not testifying about the death of Rachel. The court noted that it did not have the power to grant the witness immunity or it would seriously consider exercising that power.
J. took the witness stand and direct examination was resumed. Almost immediately Bartlett asked to confer with the court. Bartlett wanted to be clear on how the questioning was going to proceed. Bartlett was under the impression that he would not be objecting to every question even though it was his opinion that J. should not be on the stand at all answering any questions. In light of Bartletts confusion and the passage of time, the court asked Bartlett to explain one more time how things would occur. Bartlett advised J. on the record that it was his opinion that J. should not be answering any questions, but that he would not be objecting to every question. He told J. that he would stand by him while he was testifying and J. could confer with him at any time. J. had some questions of how to invoke the privilege and/or confer with his attorney. After further explanation by Bartlett, J. stated he understood the procedures and the questioning continued. J. testified regarding the burn incident and the head injury incident.
The court told the jury that Bartlett was present to act as J.s counsel and that J. knew he could speak to Bartlett at any time. The court instructed the jury to not draw any inference from the fact that J. had a lawyer. J. continued his testimony and testified about A.s behavior towards Rachel and A.s sexual acting out.
The district attorney cross-examined J. J. invoked his right not to testify several times. The district attorney made a motion to strike all of J.s testimony. The court denied the motion. The district attorney continued to question J.; he answered some questions but also invoked his right not to testify. Defense counsel questioned him on re-direct. During the redirect questioning, defense counsel asked J. about discussions he had with a prior attorney, Mr. Rote. Bartlett asked for a sidebar. He advised J. that the questions relating to his conversations with his then attorney, Mr. Rote, could be privileged communications under the attorney-client privilege and that J. did not need to answer the questions. J. told Bartlett he wanted to answer the questions. J. answered the questions. The district attorney objected because J. was being questioned and rehabilitated in areas where he took the Fifth Amendment on cross-examination. The court indicated that it might strike some or all of J.s testimony, but it would wait to rule until it had heard everything. Questioning continued.
The district attorney renewed her motion to strike J.s testimony. The court invited both parties arguments on whether the court should take the drastic solution of striking all of J.s testimony.
Paul was called in and questioned. He exercised his Fifth Amendment privilege to all questions asked of him. The court and counsel then discussed if this was a proper invocation of Pauls Fifth Amendment rights. The matter was continued.
There was a question whether J. could properly waive the attorney-client privilege regarding questions he was asked about discussions with the attorney that represented him during CPS proceedings. Mr. Sheltzer, a public defender, appeared to represent Mr. Rote, the public defender who represented J. at earlier proceedings. Mr. Shetzer advised Rote to invoke the attorney-client privilege if he was called to the stand as a rebuttal witness. Shetzer also pointed out that J. is a minor and a ward of the court. As such he has a guardian. Under Evidence Code section 953 (attorney-client privilege), the guardian is the holder of the privilege, thus the guardian would have to waive the privilege for J. A lengthy discussion ensued and was continued.
The court began by stating it believed it should have appointed guardians for the minors and if it had done so the guardians would not have waived the minors right against self-incrimination and they would not have been allowed to testify. The public defender stated that the minors did have guardians. The court was not convinced that the minors had a guardian in the prior proceedings and, even if they did, questioned whether that guardianship carried over to these proceedings. The court stated it was convinced that they needed a guardian. He asked for any thoughts on the subject. Defense counsel did not object. The court stated that it was going to appoint Bartlett as the guardian ad litem for the minors (Joshua, J., Micah, Paul, and Matthew). The court ruled that it would be the guardians decision whether to invoke the privilege as to any future testimony. As to the testimony that had already been given by the minors, the court ruled that anything they already testified to could not be used against them in the future because they did not have a guardian acting on their behalf at the time they testified. Mr. Shetzer pointed out that Mr. Rote must still assert the attorney-client privilege because J. was not properly able to waive it—only his guardian was.
The court wanted Bartlett present to see if he was going to invoke the privilege for the minors who were under subpoena.
The trial court commented that if the attorney-client privilege were invoked by the guardian on behalf of J., the court might consider this in its decision whether or not to strike all of J.s testimony. The court might consider that the exercise of the privilege would keep prospective testimony (Rote) from being presented by the People in rebuttal.
The court then discussed whether Pauls prior invocation of the privilege against self-incrimination was proper. The court and Bartlett reviewed the transcript of Pauls prior testimony and found that Paul did give testimony in some of the areas in the CPS hearings that he sought to exercise the Fifth Amendment in these proceedings. Also, Paul gave statements to police that may be different from his testimony at trial. The court found Pauls exercise of his Fifth Amendment rights was proper.
The court returned to the subject of the invocation of the attorney-client privilege regarding J.s conversations with Rote and whether or not Rote could be called as a rebuttal witness to the conversations he had with J. The following exchange took place:
"THE COURT: — now.
"All right. Mr. Rote has been subpoenaed as a rebuttal witness to Matthew?
"MR. SHELTZER [Counsel for Mr. Rote]: [J.].
"MS. SMITH [District Attorney] [J.].
"THE COURT: Sorry. Im sorry, Im referring to some old notes, all right.
"All right. And you, Mr. Bartlett, are Guardian a Litem for [J.] in these proceedings?
"MR. BARTLETT: All right.
"THE COURT: Im so appointing you.
"You, I believe, attempted to invoke the 5th Amendment privilege before.
"MR. BARTLETT: Attorney-client privilege
"THE COURT: Yes.
"MR. BARTLETT: — you mean?
"THE COURT: Attorney-client privilege, Im sorry.
"Are you invoking that privilege?
"MR. BARTLETT: Yeah, on behalf of the minor, I would — I would invoke that privilege.
"THE COURT: I find that to be an effective invocation.
"So Mr. Rote separately asserted the privilege. You are joint holders, but certainly, the guardian is the holder of the privilege, and I find that to be an effective assertion of the attorney-client privilege. So Mr. Rote will not be testifying about his conversations, if any, with the minor."
The court and counsel then discussed the subject of Micah and whether he could properly invoke the privilege to not incriminate himself in certain areas. Bartlett stated he was asserting the privilege on behalf of Micah; the issue was whether the questions sought to be posed to Micah would subject him to punishment for a crime (perjury). The district attorney pointed out that there might be a conspiracy between the mother and the boys to withhold information regarding Rachels death. The court found that the only area Micah could not be questioned about was A.s treatment of Rachel, the A. rule, and spanking. Micah would not have a basis to invoke the privilege against self-incrimination regarding the head injury, the burn incident and the van incident.
The trial court granted the Peoples motion to strike all of J.s testimony.
B. Prosecutors "Threats" to the Children
"`Governmental interference violative of a defendants compulsory-process right includes, of course, the intimidation of defense witnesses by the prosecution. [Citations.] [¶] The forms that such prosecutorial misconduct may take are many and varied. They include, for example, statements to defense witnesses to the effect that they would be prosecuted for any crimes they reveal or commit in the course of their testimony. [Citations.] [Citation.] Threatening a defense witness with a perjury prosecution also constitutes prosecutorial misconduct that violates a defendants constitutional rights. [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 835.)
Defendant claims the prosecutor committed misconduct by threatening the older children who wanted to testify for the defense. The defendant chronicles the prosecutions various statements regarding the possibility that the boys may be subject to perjury because they testified under oath at previous proceedings, and the prosecutors statement that J. may be charged with child molestation. Defendant notes that none of the prosecutors comments, with the exception of one, was made in the presence of the children. Defendant claims that this does not excuse the behavior because clearly Bartlett relayed the information to the boys. Defendant faults the prosecutor for standing mute when the court made statements to the children or to Bartlett. Defendant contends that the prosecutors actions amounted to threats to the boys for prosecutions for past and future perjury. She states that the prosecutors threats are more serious because they were sent to minors. In addition, she argues that the prosecutors theory was that all the children refrained from telling the truth in fear that they would be returned to defendant and subject to retaliation. She concludes her argument as follows: "If the prosecutor genuinely believed her own theory of the case, then her threat of prosecutions for perjury, lying to police, conspiracy and accessory was itself an inexcusable act of cruelty to children. If, on the other hand, the prosecutor did not believe the theory she propounded, then in propounding that theory, she employed reprehensible means to persuade the judge and the jury of appellants guilt."
We first note that defendants reference to page 4330 in the reporters transcript as the instance where the prosecutor spoke about conspiracy charges in front of Micah is an incorrect page number, the correct number is page 4336. Next, we note that the record reflects that Micah was not present for this discussion. The court asked defense counsel to call his next witness. Defense counsel called Micah. Bartlett interjected "as to Micah — well, maybe before he comes in —" The court replied "Yes." The court and the parties then entered into a very lengthy discussion. In addition, during the discussion it appeared the parties were referring to Micah as if he was not in the courtroom. At one point the court stated to Bartlett, "Your client, if called as a witness, would be free to consult with you." From this interchange it reasonably appears that Micah never entered the courtroom and was not present to hear any of the prosecutors comments.
Defendant relies on People v. Hill, supra, 17 Cal.4th 800 to support her position. In Hill, Morton, the prosecutor, told Berry, a material defense witness, that if his testimony did not conform to an earlier taped interview, the prosecutor would file perjury charges against him. This particular witness was slow and had a serious health problem, sickle cell anemia. The Supreme Court found this was one of many instances of prosecutorial misconduct.
"Because Berry eventually testified for defendant, no prejudice flowed from this individual act of misconduct. [Citation.] Nevertheless, we cannot emphasize strongly enough that, although Morton could seek to impeach Berry at trial if he testified inconsistently with his pretrial statement, it was improper to have threatened him in advance of trial with a perjury prosecution. Had Berry succumbed to Mortons threat and refused to testify, Mortons blatantly unethical behavior would have threatened to undermine the entire adversarial process, as Berry, along with Delores Smith, was a key defense witness. Indeed, although Berry found the courage to testify for defendant, risking a threatened perjury prosecution, it is possible the added stress engendered by Mortons threat of prosecution affected Berrys emotional state and his demeanor on the stand, evidencing a hesitancy that Morton exploited in closing argument." (People v. Hill , supra, 17 Cal.4th at p. 835.)
We cannot characterize the prosecutors comments as outlined above as similar to the threat in Hill to the witness that he would be prosecuted for perjury. The prosecutor brought the matter up to the court outside the presence of the jury and the boys so the court was aware of the possibilities. The prosecutor should not be faulted for apprising the court of problems that may arise in the proceeding so that the court could act to protect the rights of the boys and the defendant, if necessary. Furthermore, the prosecutor should not be faulted for standing by when discussions occurred between the court and Bartlett. We are confident that, had the prosecutor intervened in these numerous discussions, counsel would now be claiming that the prosecutor should not have done so and was committing misconduct by doing so. Also, although the prosecutor brought up that J. may be charged with molesting M., again she was informing the court of matters that the court needed to be aware of. In addition, it was agreed that J. would not be questioned regarding this area.
Defendant also relies on People v. Bryant (1984) 157 Cal.App.3d 582 to support her position. In Bryant the defense called Harris as a witness. The prosecutor then informed the court, in the presence of Harris, that she was personally prosecuting Harris for perjury based upon his testimony at the preliminary hearing. She stated that she had no objection to Harris testifying and believed that his testimony would help her case. Defense counsel asked the court to discuss the issue with Harris. Harris was sworn as a witness. The prosecutor then stated he would like to inform Harris that if he testified as he did before he would be facing another count of perjury. "The prosecutors statement was couched in the form of a threat." (Id. at p. 589.)
This court found that the prosecutors comments deprived the defendant of his fundamental rights to due process and his constitutional right to a fair hearing. "The above statement went far beyond reminding the witness of the duty to tell the truth or advising him of the consequences of perjured testimony, and in fact revealed the prosecutors `expectation that the witness testimony would be perjurious if favorable to appellant, as was his preliminary hearing testimony. Moreover, the prosecutor was fully aware that Harris understood his duty to tell the truth and the consequences of committing perjury because of his [the prosecutors] explanations to the witness [regarding what perjury is and the nature of the punishment] at the preliminary hearing." (People v. Bryant, supra, 157 Cal.App.3d at p. 589.) The Bryant court noted that the prosecutors statements were made in the presence of the witness and the statements were intimidating. (Id. at p. 590.)
The Bryant case is not helpful to defendants argument because the prosecutor did not tell any witness directly that he would be prosecuted for perjury, nor did the prosecutor speak about perjury in the presence of the witnesses. It appears that the prosecutors comments were meant to inform the court of possible problems that may arise in the case. Unlike the prosecutor in Bryant, the prosecutor here had no way of knowing if the children were aware of their duty to tell the truth and the consequences of committing perjury. The prosecutor knew that the older boys had previously testified and it appeared they might be altering their testimony at trial. The prosecutor did not commit misconduct in advising the court of the situation or in standing silently by while the court and counsel for the minors discussed the issues.
Defendant relies on In re Martin (1987) 44 Cal.3d 1. In Martin, the prosecutor had witness Aguilar arrested in the hallway of the courthouse after he testified as the first witness for the defense. The arrest was publicized. The prosecutor told witness Rileys attorney that if Riley testified he would file charges against him. Prior to testifying, witness Riley was also asked to accompany the prosecution investigator for an interview. The investigator was "in his face" and told him if he testified as Aguilar had, the same thing that happened to Aguilar would happen to him. (Id. at pp. 36-37.) Riley did not testify. The court found that the prosecutor committed misconduct, even if the prosecutor did not directly deliver the threat to Riley.
"The Attorney General unpersuasively argues that the cases supporting the conclusion that Pippins [the prosecutor] statement amounts to misconduct are distinguishable on the ground they all involve statements made directly to the witness and not to his attorney alone. First, it is not true that all the cases involve statements made directly to the witness. (See United States v. MacCloskey [(4th Cir. 1982)] 682 F.2d [468], 476, 479.) Second, it is generally immaterial how such a statement is communicated to the witness: its potentially intimidating effect depends ultimately on its content and its original source, not on the identity of the person who delivers it to the witness. Certainly, the point may not legitimately be disputed when, as here, the prosecutor admits he expected and indeed hoped the witnesss attorney would communicate the statement to the witness." (In re Martin, supra, 44 Cal.3d at p. 41.)
Citing to reporters transcript pages 1315 and 3201 defendant claims the prosecutor admitted, as in Martin, that she wanted the attorney for the boys to tell the boys she was contemplating perjury prosecutions. To the contrary, at page 1315 the prosecutor told the court that the boys testified previously under oath and had now given statements that appear contrary. She was concerned that there may be issues about perjuring themselves and they may need an attorney to advise them of the "potentials of testifying under oath, considering they already have previous testimony under oath." The next citation to the record occurred after J. began his testimony and Bartlett stated, outside the presence of the jury, that J. might be facing perjury charges if he testified inconsistently with his prior testimony. To this the prosecutor stated, "I raised this issue last week or the week before...." The prosecutor did not state that she wanted the attorney for the boys to tell the boys she was contemplating perjury prosecutions; her comments indicated she wanted the court to be aware of the problem so the court could assure that it was handled properly. This did not amount to prosecutorial misconduct.
C. "Threats" Made to the Witnesses by the Court
Defendant asserts the trial court improperly sent the children signals that they should invoke the Fifth Amendment and not testify. While defendant acknowledges that the trial court acted with good intentions, she asserts that "[h]and in hand with the attorney for the boys, [the court] gave so many admonitions and conveyed such a strong preference for the boys exercising their privilege not to incriminate themselves that [J.] was induced to invoke the Fifth Amendment on the subject matter most vital to appellant and Paul and Micah were prompted to decline altogether to testify before the jury."
"In order to establish a violation of due process of law, a defendant must show (1) a governmental agent performed acts entirely unnecessary to the proper performance of his or her duties which were of such a nature as to persuade a willing witness not to testify; (2) this misconduct was a substantial cause in the witnesss change of mind; and (3) the potential witnesss testimony would have been `material. [Citations.] Under the federal standard of materiality, the defendant is required to make a plausible showing the testimony would have been material and favorable to the defense. The California standard requires only a reasonable possibility the witness could have given material and favorable testimony. [Citation.] The California standard of materiality is satisfied where the witness either participated in the charged crime or was an eyewitness in a position to observe the relevant events." (People v. Schroeder (1991) 227 Cal.App.3d 784, 788.)
Defendant relies on Webb v. Texas (1972) 409 U.S. 95 to support her argument. In Webb the petitioner called his only witness for his defense. The witness had a prior criminal record and was serving a prison sentence at the time of his proposed testimony. The court, on its own initiative admonished the witness as follows:
"`Now you have been called down as a witness in this case by the Defendant. It is the Courts duty to admonish you that you dont have to testify, that anything you say can and will be used against you. If you take the witness stand and lie under oath, the Court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood [sic] is that you would get convicted of perjury and that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on. If you get on the witness stand and lie, it is probably going to mean several years and at least more time that you are going to have to serve. It will also be held against you in the penitentiary when youre up for parole and the Court wants you to thoroughly understand the chances youre taking by getting on that witness stand under oath. You may tell the truth and if you do, that is all right, but if you lie you can get into real trouble. The court wants you to know that. You dont owe anybody anything to testify and it must be done freely and voluntarily and with the thorough understanding that you know the hazard you are taking." (Webb v. Texas , supra, 409 U.S. at pp. 95-96.)
Defense counsel objected that the court was exerting duress on the mind of the witness. He also pointed out that none of the Peoples witnesses had been admonished in the same fashion. When defense counsel stated he was going to ask the witness to take the stand, the court stated: "`Counsel, you can state the facts, nobody is going to dispute it. Let him decline to testify." (Webb v. Texas, supra, 409 U.S. at p. 96.) The United States Supreme Court found that the judges conduct deprived the defendant of due process of law by driving his sole witness off the witness stand. "The trial judge gratuitously singled out this one witness for a lengthy admonition on the dangers of perjury. But the judge did not stop at warning the witness of his right to refuse to testify and of the necessity to tell the truth. Instead, the judge implied that he expected [the witness] to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence, and that the result would be to impair his chances for parole." (Id . at p. 97.)
Defendant also relies on People v. Schroeder, supra, 227 Cal.App.3d 784. In Schroeder defendant attempted to call Ms. Semproch as a witness on his behalf. Semproch participated in discussions with defendant and had entered a conditional plea in connection with the events surrounding the charges against defendant. Semprochs attorney appeared and informed the court that Semproch had been advised of her Fifth Amendments rights and he had recommended to her that she not testify. She was willing to testify in any event. After the court received this information, it readvised her concerning her privilege against self-incrimination. "Semproch stated that she had had an opportunity to discuss the matter with her attorney, that she understood her rights, and that she nonetheless wished to testify." (Id. at p. 789.)
The court did not relent. It continued to ask Semproch if she understood what her attorney had told her. The court took a break and let Semproch and counsel discuss the issue. The court then had Semproch begin her testimony outside the presence of the jury to determine whether she should be called and questioned before the jury. The court interrupted the questioning and advised Semproch to consult with her lawyer before answering a question anytime he indicated he wanted to talk to her. Semproch indicated a willingness to testify, while her counsel stated he was advising her not to answer questions. The court again intervened, explaining that it had to protect the rights of the defendant as well as ensure that Semproch understood what her counsel was telling her. The court stated that it had never seen a witness disregard the advice of her counsel to not answer a question that might incriminate her. The court stated: "[s]omebody around here ought to have some understanding of what this Fifth Amendment is about and how it works. In this particular instance, Mrs. Semproch, how it may result in — I dont know if it means your plea being accepted or rejected, or whether or not you end up going to prison or not. I have no idea, but you better have some idea. So if you need more time to discuss this, Mr. Lasich [Semprochs counsel], you let me know now." (People v. Schroeder, supra, 227 Cal.App.3d at p. 790 .)
Counsel for Semproch stated he did not believe they needed more time. Semproch indicated that she wished to have the opportunity to tell the truth about what occurred. The court continued to reiterate to Semproch that her counsel believed that testifying was not in her best interests. After some questions from Semproch, the court and counsel advised Semproch that her only duty pursuant to the subpoena was to come to court: she could refuse to answer questions. The court stated, "`Youve got no burden to do anything beyond that." (People v. Schroeder, supra, 227 Cal.App.3d at p. 791 .)
The court advised Semproch that anything she said that day could be used against her in further proceedings. The court continued: "But the thing is you are going to decide one way or another whether or not you want to take a lawyers advice or handle it yourself. You know, you can also decide whether or not youre not going to have brain surgery, Mrs. Semproch, or leave it up to a neurosurgeon. You know, you can decide, well, you think youre okay so youre not going to have brain surgery, or you can leave it up to a neurosurgeon to advise you because theyre trained in that field. Its kind of similar to that." (People v. Schroeder, supra, 227 Cal.App.3d at p. 792.) Defense counsel objected to the analogy and suggested that the discussions could result in coercing or intimidating the witness.
The court suggested that Semproch reconfer with her counsel. Her counsel indicated they had discussed everything already. The court then asked Semproch if she wanted to follow her lawyers advice or not. She replied, "`I guess I dont want brain surgery, so yes, I do. I guess. If thats his strict advice then I have to follow it." (People v. Schroeder, supra, 227 Cal.App.3d at p. 793 .)
The appellate court found error:
"This lengthy interchange makes it clear that the trial court exceeded its duty simply to ensure the witness was fully apprised of her privilege against self-incrimination. She was so advised and expressed her desire to testify. At this point, the court had no duty, and no right, to prevent a willing witness from incriminating herself or to convince her to follow her attorneys advice not to testify. Yet, the trial court in essence became an advocate repeatedly cautioning Semproch about the folly of her decision. Even after defense counsel expressed concern that the courts comments were bordering on coercion and intimidation, the court persisted.
"Not only were the courts actions wholly unnecessary to the proper discharge of its duties, they unquestionably were coercive in context. Simply by the nature of the proceedings, the courts words carried an intimidating force. This is particularly so here since Semproch had entered a plea in her case and may have been wary of doing anything that might displease the court. By its frequent interruptions, admonishments and questions, the court inappropriately made clear to Semproch that it disagreed with her intended action and felt that she should not testify." (People v. Schroeder, supra, 227 Cal.App.3d at p. 793.)
We begin by finding that defendant has no viable argument relating to Joshua and Matthew. Joshua testified before the court had counsel brought in to advise J. regarding his right against self-incrimination. Similarly, although the court gave Matthew an admonition, he chose to testify and did not invoke his right against self-incrimination.
As to Micah and Paul, they both refused to testify. The trial court did not engage in any sort of conversation with them other then to ask if they understood their rights and had enough time to talk to their counsel. There is nothing erroneous about the courts comments to Micah or Paul.
We focus our attention on the interchanges between J., his counsel, and the court. Although some of the courts comments resemble some of the comments in Webb and Schroeder, we must view the entirety of what took place in order to determine if the courts statements were entirely unnecessary to the proper performance of its duties and were of such a nature as to persuade J. not to testify and, if there was misconduct, whether it was a substantial cause of J.s exercise of the privilege when questioned by the prosecutor.
We begin by noting that, although J. testified, he exercised his right against self-incrimination and refused to answer many questions asked by the prosecutor on cross-examination. Because of this, the court struck his testimony in its entirety. The end result is as if J. did not testify. We treat the issue as if it was presented to us in this posture. Respondent does not dispute this.
Defendant asserts the trial judge acted in the same manner as the misconduct condemned in Webb and Schroeder. She argues that, similarly to the court in Webb, the court singled out defense witnesses for admonishment while giving no warnings to prosecution witnesses. The court here did not gratuitously single out the defense witnesses for admonishments. Joshua testified without any admonishments. The next child to be called to the stand was J. J.s attorney was ordered to be present because there was a prospect that J. might be charged with child molestation. J. was allowed to take the stand without any admonishments from the court with the exception that the court asked J. if he understood that counsel may interrupt the questioning and if he did so J. was not to answer the question. After J. answered several questions, Bartlett asked to approach the bench and informed the court that J. might be subjecting himself to perjury charges. The courts discussions with J. and the other children did not occur independently but were precipitated by concerns raised by Bartlett.
Next, defendant argues the court overstepped its bounds when it advised J. that he probably would be prosecuted for perjury. In People v. Robinson (1983) 144 Cal.App.3d 962, the prospective witness was examined by defense counsel regarding the possibilities of her testimony being used against her in the future. The prosecutor then stated to the witness that "[a]s a representative of the District Attorneys Office, I need to advise you that charges not only can be charged against you, but they will be filed, should you take the stand." (Original italics.) (Id at p. 970.) The district attorneys statement was found to be an improper threat and/or coercion and held to violate due process.
In People v. Warren (1984) 161 Cal.App.3d 961 the prosecutor emphasized the likelihood of prosecution and advised the witness that he could use evidence to charge the witness with a crime and was more likely to do this than not. The district attorneys final statement to the witness was that if he testified, "`we are going to use everything against you that we have got." The witness immediately and without hesitation invoked his privilege not to testify. (Id. at p. 974.) The threats were found to be similar to the threats in Robinson. The appellate court found that having the warnings come from the prosecutor increased their coercive effect because the prosecutors office is the one that makes the decision to prosecute or not. "[I]t is this very power that infects a prosecutorial admonition of the right of a defense witness not to testify with a perilous potential for intimidation." (Ibid .)
Here the warnings regarding perjury came from the court, not the prosecutor. The warnings occurred after J.s counsel stated that he had explained to J. that he might be exposing himself to a perjury charge. During the warning the court stated, "theres a possibility that the District Attorney will file charges against you for perjury," and "you are risking the possibility of being prosecuted for perjury." The next exchange took place after Bartlett had a discussion with J.. Bartlett told the court that J. wanted to answer some questions but not others and that it was Bartletts belief that J. would not testify. When questioned by the court, J. stated he thought he was going to testify. In light of J.s confusion and changing positions on the issue, the court again tried to explain the dangers of testifying to J. The court stated, "there is a strong possibility that if you testified, you will be prosecuted for perjury," and "it might be that you would be prosecuted for not telling the truth." The court then advised J. to speak to his attorney and talk to his foster parents before he made the decision.
Although some of the courts comments were stronger in nature than others, as a whole the court was, out of concern for the minor, seeking to determine if J. was fully comprehending the nature of the decision he was about to make. The concern was justified by J.s apparent confusion and waffling on the decision whether he should take the stand or not. We note that J. was not swayed at this time by the courts admonitions because he continued to state that he wished to testify.
Defendant criticizes the information given to J. by the court that if J. took the stand and told the truth, he might be prosecuted for not telling the truth before. Defendant claims this statement put J. in a "wholly untenable situation, implying that any inconsistency between his future and past testimony would be sufficient ground for a perjury prosecution." Again, the court was trying to explain to J., who appeared confused, the different ways in which he could be exposing himself to charges.
Next, defendant takes offense at the judges failure to give J. advice when J. asked if he could answer some questions and refuse to answer other questions. We note that defendant appears to be taking opposite positions on the courts comments to J.. First, defendant argues the court should not be giving advisements to J., but next she argues the court did not fully advise J. In any event, on the first occasion Bartlett brought up the issue merely as information conveyed to the court. The second time J., appeared confused. Bartlett explained to the court what he had told J. about answering some questions and not answering others. We fail to see how the court was obligated at this point to step in and provide further explanations.
As her final point on this subject, defendant states that the trial court would not take yes for an answer when J. stated he wished to testify. We do not view the first comments by the court to J. as a rejection of J.s wish to testify. J. had just been informed by his counsel regarding the chances of perjury. The court questioned J. on his understanding of the situation and suggested that he talk to his attorney further. J. did so and Bartlett informed the court that J. had questions whether he could answer some questions and not others. Thus, the record demonstrates that J. was not clear on the issues surrounding his testimony. After this, J. equivocated and then stated he wanted to testify. Bartlett wanted the court to meet with J. privately without counsel present or meet with J. with counsel but without the defendant present. The court refused to do so, but in light of the concern by J.s counsel and the implication that J. might want to discuss the issue without counsel or the defendant present, the court did not err in proceeding with caution to ensure that J. was proceeding willingly and with complete understanding of the situation. Later during the proceedings when J. indicated that he thought he would not testify, the court asked J. if he had any questions he wanted to ask the court. We fail to see anything improper in this exchange.
We note that the court was in the best position to judge J.s demeanor and may have noticed nuances of behavior not present on the record that demonstrated J.s confusion.
Defendant takes issue with the courts directing Bartlett to explain to J. that Bartlett was advising J. not to answer questions. The court did this after a considerable amount of time had elapsed since the court had outlined for J. the procedures and after Bartlett stated it was unclear to him how the questioning was going to proceed. J.s questions during this advisement by his counsel indicate that the court correctly perceived that the procedures needed to be re-explained to J. before continuing.
In conclusion, defendant argues that the court "`performed acts entirely unnecessary to the proper performance of his or her duties which were of such a nature as to persuade a willing witness not to testify." (Citing People v. Schroeder, supra, 227 Cal.App.3d at p. 788.)
Although a great deal of time was spent on the subject of whether J. would testify and would invoke his right against self-incrimination, the initiation of these conversations was at the behest of J.s counsel. J. also indicated confusion at points. The trial court was obligated to ensure that J. had been properly advised. When it appeared that he did not understand, the court intervened. Given the entire picture of what occurred, we cannot say that the judge performed acts entirely unnecessary to the proper performance of its duties that persuaded J. not to testify.
Furthermore, contrary to defendants assertion, we do not find that the acts performed by the court were a substantial cause of the decision of J. to exercise his Fifth Amendment rights. To prove that the alleged misconduct violated a defendants right to compulsory process, a defendant must show "a causal link between the misconduct and his inability to present witnesses on his own behalf. To do so, he is not required to prove that the conduct under challenge was the `direct or exclusive cause. [Citations.] Rather, he need only show that the conduct was a substantial cause. [Citations.] The misconduct in question may be deemed a substantial cause when, for example, it carries significant coercive force [citation] and is soon followed by the witnesss refusal to testify [citation]." (People v. Martin, supra, 44 Cal.3d at p. 31.)
In People v. Schroeder, supra, 227 Cal.App.3d at page 793, the appellate court found that the trial courts conduct was a substantial cause of the witnesss decision not to testify. It found that the trial courts brain surgery analogy was what finally convinced Semproch to follow her attorneys advice.
A review of the record here shows that J.s expressed reluctance to testify occurred after speaking to his counsel and did not occur after the court spoke to him. Most telling is J.s reply to the courts question whether he intended to testify after he had a chance to mull things over with his attorney. J. stated "Um, I was kinda not sure `cause — um, my lawyer has brought to my attention some serious, um, things." The trial courts misconduct, if any, was not a substantial cause in J.s decision to invoke his privilege against self-incrimination.
D. Failure to Grant Immunity to the Children
Defendant cites a litany of actions by the prosecutor she claims were intended to thwart rather than further the factfinding process; additionally, claims defendant, the trial court was authorized to order the prosecutor to grant statutory immunity to J., and perhaps also the other boys.
A defendant does not have a right to compulsory prosecutorial immunity. "[A]lthough the prosecution has a statutory right, incident to its charging authority, to grant immunity and thereby compel testimony (Pen. Code., § 1324), California cases have uniformly rejected claims that a criminal defendant has the same power to compel testimony by forcing the prosecution to grant immunity." (In re Williams (1994) 7 Cal.4th 572, 609.)
Defendant goes on to assert that a grant of judicial immunity was also appropriate in this case because J. could offer testimony that was clearly exculpatory and essential to the defense case and the government had no strong interest in withholding use immunity.
Defendant relies on Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964 (Smith) to support her position. The California Supreme Court has noted that "the vast majority of cases, in this state and in other jurisdictions, reject the notion that a trial court has `inherent power to confer immunity on a witness called by the defense." (In re Williams, supra, 7 Cal.4th at p. 610.) It further noted the one case that recognized such a right was the Smith case. Our Supreme Court did not adopt the Smith position but applied its standards in finding that even if Smith was correct the facts before it did not meet the Smith standards. (Williams at p. 610.)
These standards are "`"the opportunities for judicial use of this immunity power must be clearly limited; ... the proffered testimony must be clearly exculpatory; the testimony must be essential; and there must be no strong governmental interests which countervail against a grant of immunity .... [¶] [T]he defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the defendants case. Immunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or it is found to relate only to the credibility of the governments witnesses." [Citation.]" (In re Williams, supra, 7 Cal.4th at p. 610.)
Although the court stated it might grant immunity if it had the power to do so, defendant never requested the court to do so. The courts comment was during a discussion of whether or not J. could testify to some subjects and not to others. At the completion of this discussion, the court stated that it had "stated what the law appears to be. Ill certainly give you the opportunity to do further research. Well go from there."
At no time did the defense express a disagreement with the courts interpretation of the law on immunity nor did the defense request immunity for J. or any of the other boys. "[B]ecause the issue was never raised at trial, the record is inadequate to determine whether a strong governmental interest would have weighed against a grant of immunity." (People v. Cudjo (1993) 6 Cal.4th 585, 619.) Because the issue of immunity was not properly raised at trial, it is not preserved for review on appeal.
E. Appointment of a Guardian ad Litem for the Children
Defendant claims the trial court improperly appointed a guardian ad litem for the children and empowered the guardian, Bartlett, to invoke the privilege against self-incrimination as well as the attorney-client privilege without consideration of whether or not the children wished to exercise the privileges. Defendant argues that once the court gave Bartlett his new powers, defense counsel had no reason to question the boys under oath. She asserts the courts actions deprived her of motivation to call Paul or Micah to the stand or to recall Joshua, J., or Matthew; she was therefore deprived of her constitutional right to call witnesses in her defense.
Respondent acknowledges that minors may be capable of waiving the privilege against self-incrimination in certain cases. But respondent maintains that defendant has failed to show how the trial courts actions created some detriment to defendant. We agree.
Joshua, Matthew, and J. testified before the court appointed a guardian to invoke privileges for the boys. Micah and Paul had already stated that they were going to invoke their privilege against self-incrimination before the guardian was appointed. Although defendant now claims she was deprived of all motivation to call Paul or Micah or to recall Joshua, J. or Matthew after the court made this ruling, she did not object at trial nor did she attempt to call or recall any of the boys. The trial court ruled that Micah could only assert the privilege as to certain areas; thus defense counsel could have called Micah in these areas, yet he did not do so. Defendant has not shown how the courts ruling had any real affect on her presentation of evidence.
F. Striking of J.s Testimony
On direct examination J. testified regarding the head injury to Rachel and the burn incident to Rachel, that A. was not nice to Rachel, that he saw A. make a poking motion to one of the childrens feet, that defendant did not poke them in the feet with a needle, and about the "A[] rule," and A.s sexual acting out in the dentists office.
On cross-examination J. was asked if he previously testified that he had not seen A. poke any of the children. J. exercised his Fifth Amendment privilege twice to similar questions on this subject. J. refused to answer questions regarding the content of his statements to Detective Hall and Detective Haynes in September of 2000. The statement to Detective Haynes involved the day of Rachels head injury. J. refused to answer questions about any agreements he had with defendant about talking about Rachel or discipline and abuse in the family. He refused to answer questions about an interfamily promise with defendant about his testimony at any time. J. was asked if he provided Detective Haynes with any information about A. He refused to answer. J. refused to answer the prosecutors question whether he testified previously that he had never seen A. punishing any of the younger children.
J. was questioned on re-direct about conversations with his attorney, Mr. Rote. He answered the questions. On cross-examination, he refused to answer a question regarding his conversations with Rote. The court held a hearing and stated that J. waived that privilege by answering previous questions. J. was ordered to answer the questions and he did.
The court considered the Peoples motion to strike and ruled as follows:
[THE COURT:] Ive given this issue considerable thought, and as Ive mentioned before, there is a clash of rights, if you will.
"The bottom line is — in this analysis is recognition of the District Attorneys right to engage in cross-examination. There has been an invocation of privilege, be it the 5th Amendment privilege, self-incrimination and the attorney-client privilege, asserted as to material portions of [J.s] testimony.
"I have considered striking portions of the testimony. Ive carefully read the transcript of his testimony, and taking into consideration those areas in which the privilege against self-incrimination was invoked, as well as the assertion of the privilege related to the agreement and the effective assertion yesterday of rebuttal testimony relating to attorney-client, that there is a deprivation, substantial deprivation of the right to cross-examine based upon the assertion of the privilege by the witness and the witnesss guardian, and on that basis, I am striking the entirety of [J.s] testimony. I will so direct the jury."
Defendant argues the trial court erred when it struck the testimony of J. She contends the harm from all of the above-asserted areas was compounded when the court forbade the jury to consider J.s testimony. Without discussion of the issue, she claims the prosecutor was not deprived of her ability to cross-examine J. adequately. Even if deprived, defendant asserts the trial court did not properly consider the less drastic alternatives to striking the testimony.
"Where a witness refuses to submit to cross-examination, or is unavailable for that purpose, the conventional remedy is to exclude the witnesss testimony on direct. As stated in Witkin: `In either a civil or criminal case, where a party is deprived of the benefits of cross-examination of a witness by refusal of the witness to answer, the trial court may strike out the direct examination. [Citations.] [Citation.] This rule applies even `where the refusal to answer is based on a valid claim of privilege. [Citation.] Where a witness refuses to submit to proper cross-examination regarding material issues, the striking out or partial striking out of direct testimony is common, and has been allowed even where the result was to deprive a criminal defendant of the fundamental constitutional right to testify in his own behalf. Striking a witnesss entire testimony is, of course, a `drastic solution, only to be employed `after less severe means are considered. [Citations.]" (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 735-736, fn. omitted.)
We reject defendants argument that the prosecutor was not deprived of her ability to cross-examine J. adequately. J. refused to answer any questions posed by the prosecutor that may have shown that he lied previously to the police and/or under oath. In addition, the prosecutor was deprived of questioning J. about an agreement previously made, and then altered, to not say anything bad about A. Credibility was an important issue in this trial pitting one group of children against another. J.s refusal to answer questions posed by the prosecutor crippled efforts to test J.s credibility. The prosecutor was deprived of her ability to cross-examine J. adequately.
Defendant argues that the trial court did not consider other alternatives to the "drastic solution" of striking J.s testimony. The court was well aware of the alternatives to striking J.s testimony as evidenced by its citation to People v. Reynolds (1984) 152 Cal.App.3d 42 (which sets forth the alternatives) during its discussion of the issue.
Defendant claims the trial court erroneously rejected the alternative of allowing the jury to consider the failure of the witness to respond to questions in evaluating the credibility of the witness.
The People asserted that if J.s testimony was only partially stricken, the court would have to give CALJIC No. 2.25, which states that when a witness relies on the constitutional privilege against self-incrimination, the jury must not draw any inference as to the believability of the witness from the exercise of the privilege. CALJIC No. 2.26 contains similar language relating to other privileges, such as the attorney-client privilege. The prosecutor claimed this would allow the jury to consider J.s direct testimony but not allow it to consider J.s refusal to testify on cross-examination. The problem with the prosecutors argument at trial is that once J. testified on direct examination to a subject, he could not properly invoke the Fifth Amendment privilege against self-incrimination on cross-examination. The right to invoke the privilege against self-incrimination no longer belongs to a witness when that witness gets on the stand and testifies to the matters in question on direct examination. (People v. Reynolds , supra, 152 Cal.App.3d 42, 48.)
We reject defendants argument on two grounds. First, defendant did not argue to the court that J. could not properly invoke the privilege against self-incrimination on cross-examination because he answered questions on direct and thus CALJIC Nos. 2.25 and 2.26 did not apply. Secondly, it appears the trial courts principal concern regarding J.s testimony was that the prosecutor could not effectively cross-examine J. It quoted from Reynolds that "`the greatest legal engine ever invented for the discovery of truth [is] cross-examination." (People v. Reynolds, supra, 152 Cal.App.3d at p. 46.) The court stated that it carefully considered the testimony and found a "substantial deprivation" of the right to cross-examine J. Thus it is clear the trial court felt the most drastic method of striking all of J.s testimony was the only way to remedy the "substantial deprivation" and it would not have considered the less drastic alternative of merely allowing the jury to draw inferences from his refusal to answer questions even if it had been properly informed on the law in this area. The trial court did not abuse its discretion when it struck J.s testimony entirely.
II. Admission of Other-Crimes Evidence
The prosecution filed a pretrial motion seeking to admit other-crimes evidence on the question of knowledge, motive, intent, and common design or plan. The defendant filed written opposition.
The court began hearing the motion pretrial and made some preliminary rulings; it then deferred further ruling on the case until after A., M. and E. testified.
The prosecution again proposed to present evidence from the foster children and others regarding prior criminal acts of defendant. She claimed the evidence was relevant on the issue of identity, intent, and common plan or scheme. She argued the evidence was relevant on the issue of identity because the defense was asserting that A. was responsible for all of the injuries to R. The defendant argued that the evidence was irrelevant and, in any event, under Evidence Code section 352 it was more prejudicial than probative. Defendant also argued that the past acts were remote in time.
First, the court ruled on the admissibility of any evidence relating to punishment being inflicted as a result of any food issues. The court ruled that the evidence was admissible under Evidence Code sections 352 and 1101. The evidence was found to be admissible on the issue of identity, intent, and common design or plan. On the issue of identity the court stated:
"THE COURT: The bottom line is the pattern of conduct relating to the food that runs like a thread, as I said before, through the proffered 1101(b) evidence goes right to the heart of the matter of the issue of identity, and while the type of discipline imposed is not the same, not like a signature, the reaction of the defendant from the 1101(b) evidence to noncompliance with defendants rules about food is extremely probative on the issue of identity and sufficiently similar to be admissible as to the — as to the identity issue, and so Im allowing it even under the identity component of 1101(b) for that reason.
"Certainly, there are lesser degrees of similarity required as to common design or plan, intent, purpose and so forth. Ive considered that, but Im finding that even as to the similarity standard under identity, that the evidence is sufficient for that purpose."
The court admitted evidence of prior bad acts relating to corporal punishment for noncompliance with rules. The court allowed evidence of prior belittling of children as part of a common plan or scheme to reduce the childrens self-esteem so they would comply with defendants demands. The court allowed evidence of prior incidents of children being sat upon as common design or plan.
The court allowed testimony of prior acts where the older children were compelled to administer punishments to the younger children. It found the acts to be highly probative and sufficiently similar to show common plan to force others to comply with defendants orders. The court allowed prior instances of children being hit with spoons or rods on the question of intent and purpose issues. The court allowed evidence that children were forced to lie about the source of their injuries when taken to the doctor and also to the events leading to the injuries. The court found the acts were relevant to motive, intent, plan, and absence of mistake or accident. The court allowed presentation of evidence relating to children being punished with water as evidence that defendant engaged in a variety of methods to force total compliance with her dictates. The court noted that the issue of compliance is one of the most controverted issues at trial. The evidence was admitted as relevant to show motive, intent and plan.
Although the court ruled on the types of evidence separately, it noted that another part of its analysis was looking at the total picture. It stated:
"THE COURT: Well, the evidence — certainly, the totality of the types of acts that Ive admitted insofar as taken together with the various witnesses, thats certainly also admissible under that generalized pattern as to each witness and the common thread that runs throughout on issues of intent, purpose and motive that permeate the controverted issues before the court.
"So Im really look — as to that 1101(b) type evidence thats categorized as such that I am allowing in, I want the record also to reflect that Im looking at it with — within those two separate contexts, the total commonness as to each witness and how it relates to the very issues before the court. So its on two different levels of analysis, ..."
The witnesses testified to prior bad acts, as previously set forth at pages 8-16. During the presentation of this evidence, the court informed the jury how it was to utilize the evidence of uncharged offenses. Included in this instruction was a caution that the evidence was not to be considered by the jury to prove that defendant is a person of bad character or that she has a disposition to commit crimes. This type of testimony continued, and the court reminded the jury of the instruction it had given limiting the evidence to a particular purpose.
The court placed on the record matters that had been discussed off the record regarding jury instructions. The court stated it was not going to allow the other-crimes evidence to be considered on the issue of identity and it had changed CALJIC No. 2.50 to reflect this. The court did not discuss any reasons for its change of position.
During jury instructions, the court instructed the jury on the other-crimes evidence as follows:
"[THE COURT:] Evidence has been introduced through the testimony of Anne Canton Descoteaux, [Michael], [Randy], [Larry], [Eric] and Sandra Evans for the purpose of showing that the defendant committed crimes other than that for which she is on trial.
"This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that she has a disposition to commit crimes.
"It may be considered by you only for the limited purpose of determining, if it tends to show, a characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of the intent, which is a necessary element of the crime charged, or a clear connection between the other offense and the one of which the defendant is accused so that it may be inferred that if defendant committed the other offenses, defendant also committed the crimes charged in this case, the existence of the intent, which is a necessary element of the crime charged, a motive — and a motive for the commission of the crime charged.
"For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose.
"Within the meaning of the preceding instruction, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed a crime other than those for which she is on trial. You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the other crime."
Defendant asserts the judgment should be reversed because the trial court erroneously admitted other-crimes evidence and then invited the jury to use it as propensity evidence. Defendant claims the evidence did not tend to prove the points for which it was admitted, but the thrust of her argument is that the other-crimes evidence was cumulative on the issue of her state of mind and cumulative on the issue of whether she sought and obtained total control over her children. Finally, defendant argues the court expressly invited the jury to infer that if she abused foster children, she also abused Rachel when it gave the instruction that stated, "if may be inferred that if defendant committed the other offenses, defendant also committed the crimes charged in this case." She contends that it would be wrong to assert that the instruction correctly applied to a question of identity, since the other-crimes evidence was not relevant to show identity.
Evidence Code section 1101, subdivision (a) prohibits the admission of uncharged offenses to prove a persons criminal disposition. But, evidence of prior uncharged acts may be admitted when relevant to prove a fact, "such as motive, opportunity, intent, preparation, plan, knowledge [or] identity." (Evid. Code, § 1101, subd. (b).) Even if relevant, the trial court must still determine if the evidence is admissible pursuant to Evidence Code section 352. "We review the trial courts determination for an abuse of discretion, examining the evidence in the light most favorable to the courts ruling." (People v. Catlin (2001) 26 Cal.4th 81, 120.)
"`Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.] In addition, `[t]o be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. [Citation.] The similarity, considering the degree of similarity and the number of common marks, should amount to a signature. [Citation.]
"In order to be relevant as a common design or plan, `evidence of uncharged misconduct must demonstrate "not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." [Citation.]" (People v. Catlin, supra, 26 Cal.4th at p. 111.)
First, defendant argues that the other-crimes evidence was cumulative on the issue of her state of mind and whether she sought and obtained control over children to get them to comply because the prosecution had already presented ample evidence concerning this through the testimony of E. M. and A.
In her brief on this point defendant states: "Even assuming the evidence tended to prove the above points (a proposition appellant disputes), these justifications were plainly insufficient." Although defendant states she is disputing the relevancy of the evidence, she does not engage in a legal argument on this point. Her brief, conclusory allegation is insufficient to raise the issue on appeal. She has thus waived this point on appeal. (People v. Gray (1998) 66 Cal.App.4th 973, 994.)
In People v. Ewoldt (1994) 7 Cal.4th 380 the court explained why evidence of common plan and scheme is often cumulative and should be excluded.
"In many cases the prejudicial effect of such evidence would outweigh its probative value, because the evidence would be merely cumulative regarding an issue that was not reasonably subject to dispute. [Citation.] This is so because evidence of a common design or plan is admissible only to establish that the defendant engaged in the conduct alleged to constitute the charged offense, not to prove other matters, such as the defendants intent or identity as to the charged offense. [Citation.]
"For example, in most prosecutions for crimes such as burglary and robbery, it is beyond dispute that the charged offense was committed by someone; the primary issue to be determined is whether the defendant was the perpetrator of that crime. Thus, in such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a common design or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidence is relevant to demonstrate that, assuming the defendant was present at the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value." (People v. Ewoldt, supra, 7 Cal.4th at pp. 405-406.)
The evidence offered here was not cumulative. It was disputed whether Rachel, E. or M. had been abused, i.e.whether the charged acts had been committed. Also, although it was not disputed that a homicide occurred, a critical dispute within the charged crime was whether there was an act committed by defendant that caused A. to sit on Rachel. These disputes made evidence of other crimes relevant and not cumulative on the question of common plan or scheme. Although E., M. and A. testified to acts of abuse by defendant, it was disputed whether these acts in fact occurred. The other-crimes evidence was highly relevant to assist the jury in determining if the charged acts here in fact occurred.
Defendants next argument is that the instruction given to the jury allowed them to infer that defendant had a propensity to commit crimes against children and that she acted in accordance with that propensity in this case. As part of this argument, defendant contends that it cannot be argued that the improper portion of the instruction was proper because the other-crimes evidence was relevant and admissible to show identity. She claims the other-crimes evidence was not relevant to show identity.
We need not discuss whether the instruction was wrong when the other-crimes evidence was admitted for intent and/or common plan or design because we find the other-crimes evidence was relevant and properly admitted to show identity. The trial courts decision to not include identity in the instruction (although ruling earlier that the evidence was admissible on this point) does not alter our decision. "`A decision right in result will not be reversed even though the reason stated is wrong." (People v. Evans (1967) 249 Cal.App.2d 254, 257.)
We find that the prior crimes were highly similar to the charged offenses, justifying their admission as evidence of identity. In People v. Robinson (1995) 31 Cal.App.4th 494, "Over defense objection, the trial court admitted the testimony of Mary Dixon that three nights before the subject arson she saw Ny Brown and appellant set fire to a car parked in front of the residence they burned three nights later. The trial court instructed the jury they could consider this evidence in determining identity. [Citation.]
"Although there was nothing particularly distinctive about either the subject arson or the earlier car arson, the trial court properly admitted this car arson evidence because it satisfied the stringent `identity standards promulgated by People v. Ewoldt (1994) 7 Cal.4th 380, 394 .... It did so because the two arsons shared `a mark whose distinctive nature tends to differentiate those offenses from other arsons. [Citations.] That `mark was Ny Brown `and his conjunction with defendant in [the] earlier [arson], ... [which] supports the inference that defendant and not some other person was his accomplice in [the] charged offense[ ]. [Citation.]" (People v. Robinson, supra, 31 Cal.App.4th at p. 503.)
In People v. Erving (1998) 63 Cal.App.4th 652 the defendant was charged with four counts of arson. The arsons occurred near where defendant lived. The trial court admitted evidence on the question of intent and identity that during the defendants lifetime 40 fires had occurred in neighborhoods where she lived. Defendant claimed the evidence was improperly admitted because the uncharged arsons were not sufficiently similar to the charged arsons. The appellate court disagreed: "To be sure, appellant did not throw pink gloves to the ground after committing the crimes like the thief in the Pink Panther (Mirisch Co. 1963), or leave the tap water running to flood a residence, like the burglars in Home Alone (20th Century Fox 1990). Here, the calling card or signature of the fires was more subtle: proximity to appellant. Each fire was set in the immediate neighborhood where appellant lived, either at her home or within easy walking distance of it. Few, if any, arson fires occurred in those immediate neighborhoods before appellant lived in them and they stopped when she moved. Appellants proximity to nearly 40 arson fires in these circumstances provides the `signature required for the uncharged fires to be relevant to prove her identity as the arsonist. This mark, standing alone, is sufficient to support the trial courts order of admissibility." (Id. at pp. 660-661, fn. omitted.)
The prior criminal acts were strikingly similar to the abuse here to warrant their admission on the question of identity. We will not detail the intricacies of all the evidence we have previously set forth, but note the similarities in the time-out positions, having older children punish other children, sitting on children, water punishment, hitting with spoons, and food issues. Standing alone, perhaps the similarities would not be so clear, but the entire constellation of punishments makes their similarity striking. The distinctive nature of the methods of abuse by defendant differentiates her abuse from other abuse.
Because the evidence was admissible to prove identity, the instruction given did not impermissibly allow the jury to consider the other-crimes evidence as propensity evidence. We further note that the instruction clearly informed the jury that they were not to use the evidence as propensity evidence and that the trial court instructed the jury regarding this concept not only at the end of trial but during the presentation of the evidence.
The trial court was not required to match each instance of a prior act with each issue to be proven. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1615.)
The trial court did not err in admitting other-crimes evidence nor was the instruction given to the jury erroneous.
III. Jury Misconduct
A defendant has a constitutional right to trial by an impartial jury. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16.) "The ability of a defendant, either personally, through counsel, or by the court, to examine the prospective jurors during voir dire is ... significant in protecting the defendants right to an impartial jury. Of course, the efficacy of voir dire is dependent on prospective jurors answering truthfully when questioned. As the United States Supreme Court has stated, `Voir dire examination serves to protect [a criminal defendants right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a jurors being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious. [Citation.]
"A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.]" (In re Hitchings (1993) 6 Cal.4th 97, 110-111, fn. omitted.)
Defendant filed a motion for new trial, claiming juror No. 6, the foreperson, concealed relevant facts during jury voir dire. The basis of the claim was the declaration from juror No. 11 that during deliberations juror No. 6 "talked about he himself being abused as a child and that he knew about child abuse. He indicated that his father was in the service and would swing his belt buckle, hitting him in the head and knocking him out." Prior to trial, each prospective juror was given a written questionnaire to answer. Question 19 posed the following question: "How were you disciplined as a child? Do you feel it was appropriate?" Juror No. 6 responded: "Normal type; grounded, no TV, no phone no toys. Must stay at home and yard only. Discipline was appropriate." Defendant claimed that the above facts demonstrated that juror No. 6 lied under oath during the voir dire process about serious prior abuse he had suffered as a child. Juror No. 1 stated that : "Juror #6, the foreperson, did talk about an incident of being hit with a belt buckle by his father. He spoke of this near the middle or end of deliberations. I recall him also talking about becoming unconscious as part of this incident. I do not recall, however, exactly how he explained this unconsciousness came about during the incident with his father."
Defendant also claimed that during deliberations jurors made improper remarks about defendants failure to testify. Defendant does not raise this as an issue on appeal.
The People countered the motion with several juror affidavits. In his affidavit Juror No. 6 stated: "During deliberations, we dealt with the issue of child abuse ... the degree and the level of child abuse was discussed...and I myself brought up an instance with my father where he spanked me one time with a belt on the buttocks. I did not say the brass buckle on the belt hit me on the head and knocked me out." (Emphasis in original.)
Juror No. 2 declared: "Juror #6, the jury foreman, never mentioned he was hit by his dad in the head with a belt buckle and knocked out when he was a child." Juror No. 8 stated in her affidavit: "I do not recall whether or not Juror #6, ever mentioned being hit with a belt. I do not remember Juror #6 ever saying anything about being hit with a belt buckle in the head and being knocked out when he was a child." Juror No. 5s declaration stated: "I recall Juror #6, the foreman, mentioned during deliberations being hit with a belt one time."
Defense counsel argued to the court that Juror No. 6 had a bias and hid his bias in voir dire and on the jury questionnaire. He claimed this was misconduct requiring reversal.
The court asked the parties what the standard was for it to determine the question. In particular, the court asked if the standard was that "a party must first demonstrate that a juror failed to answer honestly a material question on voir dire and then further show that a correct response would have provided a valid basis for a challenge for cause." Defense counsel replied "Well, that standard sounds fine to — to me."
The trial court ruled as follows:
"[T]he question as to whether or not the issue relating to belt buckle came up; is that a figment of someones imagination, a faulty memory or did it, in fact, happen, and if it did, how that relates to the standard about a failure to answer honestly a material question and then show a correct response. It would have provided a valid basis for a challenge for cause.
"The evidence is somewhat in dispute. The overwhelming weight of the evidence is that juror number 6 did not state that, and we can only look to juror number 6 as to whether or not it actually happened, and he denies it.
"While the evidence is somewhat in dispute, given the overwhelming weight of the evidence, I see no purpose in conducting an evidentiary hearing, and I decline to do so.
"The motion for new trial as to that particular issue is denied. I am not persuaded that there was misconduct. I am not close to being persuaded that juror number 6 failed to answer honestly a material question, and I am denying the motion on that basis."
Defendant asserts the judgment should be reversed because the jury foreperson concealed material information during voir dire, thus depriving her of an impartial jury. Defendant argues that the questionnaire clearly called for disclosure of the belt incident and Juror No. 6s failure to disclose this information supports the inference that he intentionally withheld information he was asked to provide. Defendant claims the trial court should have decided if Juror No. 6 was subjected to corporal punishment that he failed to disclose, rather than if he was hit with the buckle of his fathers belt. Furthermore, defendant contends the court chose the wrong legal standard: rather than deciding if the juror was not honest in answering a material question on voir dire the court should have determined if the juror concealed material information that deprived the defendant of the ability to exercise peremptory challenges intelligently. She asserts the concealment was prejudicial.
We first note that defense counsel expressly agreed to the standard utilized by the trial court and should not now be heard to complain. We further note that under the question presented here to the trial court, the courts finding that juror No. 6 did not fail to honestly answer a material question is necessarily equivalent to a finding that the juror did not conceal material information.
The question asked of juror No.6 on the questionnaire was how he was disciplined as a child. The question asked for a general response. It did not ask for specific instances of discipline but asked for a general overview of discipline as a child. Juror No. 6 was hit with a belt one time. From the answer it is clear this was not a usual method of discipline in the household, but a one-time instance. We agree with the trial court that defendant did not show that juror No 6 was not honest in answering a material question, and that it follows that he did not conceal material information. "Of necessity, not every aspect of every potential jurors background can be explored during voir dire." (People v. Majors (1998) 18 Cal.4th 385, 420.)
IV. Instruction on Accident
Defendant contends the trial court committed prejudicial error when it failed to instruct the jury on the defense of accident. Defendant asserts there was substantial evidence that Rachel died as a result of choking on a plastic bag, and that her head injury and serious burns happened by accident. Given this evidence, defendant claims the trial court had a sua sponte duty to instruct the jury on the defense of accident.
CALJIC No. 4.45 is the instruction on accident and misfortune. It provides: "When a person commits an act or makes an omission through misfortune or by accident under circumstances that show [no] [neither] [criminal intent [n]or purpose,] [nor] [[criminal] negligence,] [he] [she] does not thereby commit a crime."
The claim that a homicide or other crime was committed by accident and misfortune "amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime." (People v. Lara (1996) 44 Cal.App.4th 102, 110.)
In People v. Bohana (2000) 84 Cal.App.4th 360 defendants "trial theory of the case was that Jackson [the homicide victim] voluntarily entered the deep end of the swimming pool and `accidentally drowned because she suffered a seizure, passed out from drinking or had some other, unknown ailment. Appellant testified Jackson might have sustained some injuries because he hit her with the pool poles during his rescue attempts." (Id at. p. 371, fn. omitted.) On appeal defendant argued the trial court erred in not instructing the jury on accident or misfortune. The appellate court rejected the argument. "This factual scenario provides no substantial evidentiary support for an accident instruction because appellant denied committing any act at all which could be characterized as accidental. Under his theory of the case, appellant only failed to prevent an accidental drowning. He did not accidentally cause Jackson to enter the deep end of the pool and drown. The instruction he now claims was erroneously omitted would have contradicted his theory of the case because it would have implied that some `accidental conduct by appellant caused Jackson to enter the deep end of the pool. In this situation, the trial court had no duty to give the traditional `misfortune by accident CALJIC No. 4.45 instruction sua sponte." (Ibid .)
Although there was evidence presented at trial that Rachel may have choked on a bag, may have fallen and injured her head, and may have pulled a pot of boiling water onto herself, none of the defense evidence supported a theory that defendant committed any act that resulted in these occurrences. To the contrary, all of the defense evidence to support these theories was that defendant was not present during any of these occurrences. The trial court was not required to give an accident instruction.
V. Instructions on Lesser Offenses
Defendant was convicted in count 2 of a violation of Penal Code section 273ab. It provides in pertinent part: "Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the childs death, shall be punished by imprisonment in the state prison for 25 years to life."
Defendant contends the trial court committed prejudicial error when it failed to instruct the jury on the lesser included offense of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), or the lesser related offense of involuntary manslaughter (Pen. Code, § 192, subd. (b)).
"The general rule is that in a criminal case the trial court must, on its own motion, even without request, instruct the jury on all general principles of law relevant to the issues raised by the evidence. [Citation.] Further, because [Penal Code] section 1159 provides that a jury may find a defendant guilty of any offense, the commission of which is necessarily included in the charged offense, the court must also sua sponte instruct fully on all lesser necessarily included offenses supported by the evidence." (People v. Stewart (2000) 77 Cal.App.4th 785, 795.)
A lesser included offense instruction need only be given when the evidence warrants such an instruction. (People v. Hawkins (1995) 10 Cal.4th 920, 954.) "It is error, however, to instruct on a lesser included offense when a defendant, if guilty at all, could only be guilty of the greater offense, i.e., when the evidence, even construed most favorably to the defendant, would not support a finding of guilt of the lesser included offense but would support a finding of guilt of the offense charged." (People v. Stewart, supra, 77 Cal.App.4th at pp. 795-796.)
The only difference here between a violation of section 273ab and assault by means of force likely to produce great bodily injury is that section 273ab requires that the act result in death. There is no dispute that Rachel died. There is also no dispute that when she died, her death was caused by an assault by means of force likely to produce great bodily injury. The record does not support defendants argument that the jury could have found that Rachel was assaulted by means of force likely to produce great bodily injury, yet it did not result in death because her death was accidental. The evidence did not support a theory that Rachel was assaulted by means of force likely to produce great bodily injury and that she then accidentally suffocated on a bag. The trial court did not err in giving the lesser included instruction of assault by means likely to produce great bodily injury.
We shall assume for the sake of argument that assault by means of force likely to produce great bodily injury is a lesser included offense of the charged offense.
Defendant also argues the court should have instructed the jury that they could find defendant guilty in count 2 of the lesser related offense of involuntary manslaughter. She acknowledges that the jury was instructed on the lesser included offense of involuntary manslaughter as to the murder charge, but argues that the jury might have chosen to find her not guilty of both murder and child assault if it knew it could find her guilty of only involuntary manslaughter as to both counts. "`"Our courts are not gambling halls but forums for the discovery of truth." [Citation.]" (People v. Lopez (1998) 19 Cal.4th 282, 288.) The jury considered involuntary manslaughter in the context of the murder charge and rejected it. The jury was properly instructed on count 1 and count 2; defendant was not entitled to a lesser related instruction for count 2 on the hope that the jury would consider it as a compromise on both counts.
VI. Sufficient Evidence of Second Degree Murder
Defendant was convicted of second degree murder.
"`Second degree murder based on implied malice is committed when the defendant does not intend to kill, but engages in conduct which endangers the life of another, and acts deliberately with conscious disregard for life. [Citation.] An essential distinction between second degree murder based on implied malice and involuntary manslaughter based on criminal negligence, is that in the former the defendant subjectively realized the risk to human life created by his conduct, whereas in the latter the defendants conduct objectively endangered life, but he did not subjectively realize the risk. [Citations.] [Citation.]
"Implied malice, like all other elements of a crime, may be proven by circumstantial evidence. [Citation.] `Whether the evidence presented at trial is direct or circumstantial, ... the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.] [Citation.]" (People v. Klvana (1992) 11 Cal.App.4th 1679, 1704.)
Defendant argues that her second degree murder conviction must be reversed because it is not supported by legally sufficient evidence. Defendant contends that the evidence fails to show she had a subjective awareness of the risk to human life caused by the conduct. She points to several facts to support this assertion. She argues that sitting on children was a method of punishment in the household and had been used in some form for quite some time. While being used as a regular form of punishment, it never caused death or anything close to it. A. was clearly not aware of the danger because she got off of Rachel believing she was unhurt and when she realized something was wrong she only thought Rachel was dehydrated. Also, defendant was frantic when she saw Rachels condition.
We disagree and adopt with few changes and additions the factual argument of the respondent.
"The circumstantial evidence that appellant understood the risk to Rachel and acted in conscious disregard of that risk by forcing [A.] to stay on Rachel for such a long period of time was as follows. In addition to forcing [A.] to sit on Rachel, appellant directed [A.] to cover Rachels head with a blanket or towel for part of the trip. Appellant also denied numerous requests by Rachel for water.... The van was hot, even to a person not covered by a blanket.... [A.], although just a teenager, understood the danger of refusing Rachel water for this length of time and under the circumstances, so that when it was discovered that Rachel was dead, [A.] at first thought it was due to dehydration....
"Appellant understood very well that using children to sit on others was a punishment which hurt the child sat upon. Once, Anne Desconteaux was present when appellant made her daughter, age six or seven, sit on a three-year-old boy.... The three-year-old was crying and struggling to stay up, to hold up the older child. When he collapsed, appellant told the boy, `Ill make her sit on you if you do it over. ... Appellant told Desconteaux it was `better than being spanked. In other words, appellant knew that it was painful.
"[Lawrence] testified that appellant sometimes sat on him as punishment.... She would tell him to stop crying and if he did not, she sat on his head. [Lawrence] could not breathe when this happened, and it hurt. The first time appellant did this to him, he struggled, and appellant would not get off of him until he stopped.... This incident with [Lawrence] also demonstrated that appellant clearly had knowledge that sitting on someone could cause pain and suffering.
"Unlike criminal negligence, the implied malice determination entails a subjective assessment of whether the defendant actually appreciated the risk involved. (People v. Watson (1981) 30 Cal.3d 290, 296-297.) Implied malice has physical and mental components, `the physical component being the performance of "an act, the natural consequences of which are dangerous to life," and the mental component being the requirement that the defendant "knows that his conduct endangers the life of another and ... acts with a conscious disregard for life." (People v. Hansen [(1994)] 9 Cal.4th 300, 308.)
"Just as there is no need to prove via statements made by a defendant that he understood that shooting in a crowded room endangered the lives of those in the room, the prosecution here did not have to prove by direct statements made by appellant that she understood the danger to a small child posed by having a much heavier teenager sit on her in such a position for several hours. Appellants own behavior was sufficient evidence that she understood immediately her culpability for Rachels death.
"The same night Rachel died, appellant was on the telephone to her children numerous times to induce them to tell a fabricated story about Rachel playing with a plastic bag. Additionally, the nurse who received Rachel into the emergency room that night testified that appellant claimed her son had told her he took a plastic bag off of Rachel in the van ..., a statement so patently false that even the sons who testified on appellants behalf at trial failed to substantiate it. If appellant had not understood that her own behavior had recklessly caused Rachels death, she would not have taken immediate steps to cover up her own actions.
"Initially, at appellants behest, the children did not disclose that [A.] had sat on Rachel.... The story initially told to law enforcement by the children was the one appellant told them to tell.... [(M.) was told to lie to law enforcement, but refused to say anything]; ... Appellant later twisted the story in an attempt to put the blame on [A.]. For example, [J.] testified (though the testimony was later stricken) that there was a family agreement not to talk about [A.s] actions and mental problems.... [Matthew denied such an agreement].) At trial, Joshua denied that [A.] ever sat on Rachel ... but repeated the story that Rachel was playing with a plastic bag....
"Additional evidence that appellant well understood that it was her action in causing [A.] to sit on Rachel for this period of time which caused Rachels death was that when appellant came out to the van to see what was wrong with Rachel, she never asked what had happened in the van or why Rachel was not breathing.... Her lack of interrogation of the children remaining in the van speaks volumes to her understanding of the reason for Rachels death. Also telling was appellants insistence that the hospital could not keep Rachels body, but that appellant would take it home with her the night Rachel died.... Appellant knew that an autopsy would disclose the many other injuries which Rachel had suffered at her hands.
"The pattern of serious injuries Rachel suffered prior to her death also indicated that appellant acted with implied malice. The jury found appellant guilty of felony child abuse (Pen. Code, § 273ab) as to Rachel. Although felony child abuse pursuant to section 273ab does not require a finding of malice, and is therefore not a murder statute (People v. Albritton [(1998)] 67 Cal.App.4th [647, 656]), the pattern of continuing abuse inflicted on Rachel was another piece of circumstantial evidence indicating that appellant acted with wanton disregard for Rachels life on this occasion, because she had done so on other occasions. In particular, the record disclosed that Rachel nearly died of head injuries suffered the year before her death. It could reasonably have been inferred that appellant was the person who nearly killed her on that occasion, since there was testimony that appellant had abused Rachel on other occasions, as well as medical testimony that it was impossible for the many fractures and other injuries disclosed by the autopsy to have all been accidentally inflicted. [Defendant was well aware that abusing a child could endanger the childs life, as evidenced by the incident involving Rachels head injury.]
"The evidence demonstrated that appellant did not hold her daughter Rachels life in high regard. [A.] testified that appellant `punished (tortured) Rachel more than any of the other children, because Rachel was a slow eater.... Although Rachel suffered serious burns for which most parents would have sought medical care, appellant did not seek medical treatment for Rachels burns, but instead covered them up by making Rachel wear gloves to conceal them, and pulling her from the play in which she had been scheduled to appear. The evidence showed that appellant herself deliberately inflicted those serious burns on Rachel. Her disregard for Rachels well-being in doing so, and her cover-up afterward, were similar to the circumstances of Rachels death, and additional circumstantial evidence of her conscious disregard for the consequences of her treatment of Rachel the day she died.
"There was substantial, credible evidence that appellant forced [A.] to sit on Rachels back, while Rachel was bent forward with her head between her knees and her little feet sticking straight out in front of her for five hours, with implied malice, i.e., with conscious disregard for human life."
VII. Evidence of Refusal to Talk to Police
Prior to trial defendant made a written motion to exclude any evidence regarding the childrens refusal to speak to police in the hours following Rachels death. She asserted that the children had Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) even though they were minors.
The trial court and counsel discussed the issue. The trial court stated to defense counsel that it understood the argument of defense to be one pursuant to Evidence Code section 352. The court then overruled the objection, finding the probative value outweighed the prejudice.
Defendant argues the trial court erred in admitting this evidence at trial and the error was prejudicial.
Evidence of a defendants silence during police questioning is normally excluded because its prejudicial effect outweighs its probative value. "The danger is that the jury is likely to assign much more weight to the defendants previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest." (United States v. Hale (1975) 422 U.S. 171, 180.)
Although evidence of a defendants silence is normally excluded, this same analysis does not apply to the silence of the children here. The children were not under arrest at the time they invoked their silence nor did it appear that they were all suspects; the questioning appeared to be purely investigatory. Thus, the prejudice is not apparent. Also, it is quite different to have a suspect refuse to answer questions versus having a suspect tell others not to answer questions. The probative inferences of guilt from the latter situation are strong. Furthermore, defense counsel argued in his opening statement to the jury that A. told the children not to say anything to the police. Defense counsel argued that the children had been told before not to talk until they spoke to their attorney and that A. spoke to their attorney the night of Rachels death. Furthermore, defense counsel asked Matthew if the children were not talking to the police when they got to the police station. Matthew said that was right. Defendant had a theory for the childrens silence that assisted her defense theory, thus any error was not prejudicial.
As an extension of this argument, defendant contends the trial court erred in admitting evidence of her refusal to disclose the whereabouts of her children.
During the questioning of Detective Hall, the prosecutor asked him if he had made any attempt to interview the children. He answered that he had contacted defendant and Gerald and asked them for the location of the children and they had refused to give any information. Defense counsel objected to this on hearsay without foundation grounds and asked that the answer be stricken. The court sustained the objection and the answer was stricken. The district attorney then asked a series of questions of Detective Hall about whom he contacted at the hospital and what they said. Hall testified that defendant and Gerald refused to provide any information regarding the whereabouts of their children. This questioning occurred without any objection from defense counsel. Also, defendant did not raise an objection to this evidence in her pretrial motions in limine.
Defendants failure to object waives the issue for purposes of appeal. Defendant asserts that her counsel was ineffective for failing to object. This argument fails; defendant argued that she and the others did not disclose anything because they wished to protect A. She also presented evidence that the family was very circumspect in revealing family information to others. Thus there was clearly a tactical reason to not object to the questioning regarding defendants refusal to disclose the whereabouts of her children.
VIII. Telephone Conversation Between E. and Matthew
Defendant claims the trial court erred when it admitted evidence of a telephone conversation between Matthew and E. while E. was in foster care at Carl Nolands house. Defendant asserts that the evidence was inadmissible pursuant to Penal Code section 632 because it was obtained by eavesdropping on a confidential communication made over the telephone. She also asserts that her counsel was ineffective in failing to object to the admission of the evidence.
Rebecca Bigham, the social worker assigned to the children after Rachels death, was a prosecution witness. On cross-examination defense counsel asked her numerous questions regarding possible problems in the relationship between the Nolands and defendant relating to a report by defendant that Carl Nolands mother had mental problems. In addition, defense counsel asked her if there was a time when Carl Noland was listening in on telephone conversations between some of the children. She was asked if there was an issue that he should not be doing that; she replied yes. The issue was pursued on re-direct with the prosecutor asking Bigham if the call was between Matthew and E. She said the call was between Matthew and E. Bigham explained that Noland had previously been told that all contact between the children was to be supervised, but that order was no longer in effect at the time of the telephone call. Defense counsel questioned whether a declaration had been signed by Carl Noland regarding the telephone conversation. Defense counsel also sought to tie the timing of the declaration into the dispute between the Nolands and defendant.
Matthew was called as a witness for the defense. On cross-examination he was asked if the contacts with his brothers and sisters were monitored. He said yes. He was asked if it was his understanding that the telephone calls would be monitored. He said yes. He was asked if he remembered calling E. in October of 2000. He said yes. He denied ever telling E. that when he was taken to the doctor the next day he should scream and yell and not let them take his clothes off or touch him. He denied telling E. to relay the same message to the girls.
Carl Noland was called as a rebuttal witness for the People. He testified that E. got a telephone call from Matthew on October 8, 2000. Noland said he monitored the call and Matthew told E. that E. was going to be taken to the doctor the next day. Matthew told E. to scream and yell but not to let the doctors take his clothes off or touch him, and to tell the girls the same thing. On cross-examination by defense counsel Noland was asked if he was aware that defendants attorney claimed Noland was engaged in the crime of eavesdropping. Noland said he was aware of that. He was also asked about the dispute between defendant and himself regarding her statements that Nolands mother was not mentally fit. He said he had heard of that.
Defendant did not object to the admission of the evidence pursuant to Penal Code section 632 . She has waived the issue. Furthermore, the record clearly demonstrates a tactical reason for not making the objection. Defense counsel was the first to bring up the issues of the telephone conversations and utilized the conversations, as well as defendants accusations about Nolands mother, in an effort to show that Noland and his wife had a grudge against defendant. Defense counsel also brought up that eavesdropping is a crime. Clearly, defendant had a tactical reason to seek to impugn the credibility of Noland. The trial court did not err in admitting evidence of the telephone conversation between Matthew and E.
Defendant did make foundational and hearsay objections to some of the testimony on this subject.
Even if the objection was not waived, Matthew testified that it was his belief that his telephone conversations with his siblings were monitored. Thus, defendant cannot show the parties to the conversation thought they were having a confidential communication.
IX. Probation Report
In the statement of the facts contained in the probation report, it states that there was physical evidence that Rachel had been the victim of severe sexual molestation. It described the injuries as the "victims vagina was large and her hymen was notched, consistent with an object being inserted into her vagina."
Defendant begs this court to order the probation report to be amended to state that there is no evidence that it was defendant who sexually molested Rachel. Defendant claims that she is currently being denied visits with all of her children because the probation report has misled prison officials into believing she is guilty of sexual molestation.
First defendant has waived the opportunity to object to items contained in the probation report by failing to object below. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 725; People v. Scott (1994) 9 Cal.4th 331, 351-352.) Next, although this court has the inherent power to correct clerical errors in a record (People v. Mitchell (2001) 26 Cal.4th 181, 185), the statement in the probation report that Rachel had been sexually molested was in evidence at trial; it is not an incorrect statement. Also, defendant has not cited any authority to this court that would require us to act to delete correct factual information contained in the probation report. In addition, there is nothing in the record before this court, other than defendants assertion in her brief, for this court to conclude that prison officials are unfairly denying defendant visitation. We do note that the probation report does not state that defendant was convicted of sexual molestation. This is correct; defendant was not charged with nor found guilty of any sexual misconduct.
DISPOSITION
The judgment is affirmed.
WE CONCUR: DIBIASO, Acting P. J., BUCKLEY, J.