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holding that a SART examiner was part of the prosecution team where "[the exam] was clearly spearheaded by the police," a "major purpose of the examination was to determine whether the allegation could be corroborated with physical findings [that the victim had been sexually abused]," the examiner "collected and preserved physical evidence, consistent with statutory protocol," and "according to her practice—after completion of the SART examination and after she and Dr. Kerns reach concurrence as to their findings as contained in the written report—[the examiner] provided a copy of the forensic report to the police"
Summary of this case from IAR Sys. Software, Inc. v. Superior Court of San Mateo Cnty.Opinion
No. H030630.
April 24, 2008. [CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rule 8.1105(c)(2), this opinion is certified for publication with the exception of the Factual Background, parts I. and II.; Procedural Background; and Discussion, parts I. and II.C.3.
Appeal from the Superior Court of Santa Clara County, No. CC598686, Paul Bernal, Judge.
George O. Benton and David D. Martin, under appointments by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Gerald A. Engler, Assistant Attorneys General, Seth K. Schalit and Sharon Wooden, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Defendant Agustin Santillah Uribe was convicted following a jury trial of two counts of aggravated sexual assault of a child (Pen. Code, §§ 269, 261, subd. (a)(2)), and two counts of lewd or lascivious acts on a child (§ 288, subd. (a)). The sex crimes involved defendant's granddaughter, Anna Doe (Anna). The court denied defendant's two separate motions for new trial and sentenced defendant to a term of 30 years to life, consecutive to eight years in prison.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant contends that his first new trial motion should have been granted because the prosecution's nondisclosure of a videotape of a medical examination of Anna — an examination commonly (and hereafter) referred to as a SART (sexual assault response team) exam — constituted prejudicial Brady error ( Brady v. Maryland (1963) 373 U.S. 83 [ 10 L.Ed.2d 215, 83 S.Ct. 1194]). (Hereafter, this videotape is sometimes referred to as the SART video.) He contends further that, irrespective of whether the nondisclosure constituted Brady error, the SART video constituted newly discovered evidence that warranted the granting of defendant's first new trial motion.
Defendant also argues that Anna's posttrial execution of a declaration recanting her claims that her grandfather sexually assaulted her constituted newly discovered evidence that required the granting of his second new trial motion. A further claim of error concerns the court's preclusion of defense counsel's cross-examination of Anna as to whether her therapist had coached her testimony. Defendant also urges that the trial court erred by permitting the testimony of a prosecution investigator concerning child sexual abuse accommodation syndrome (hereafter CSAAS). Lastly, defendant contends that there was an insufficient basis for giving an instruction concerning CSAAS.
We conclude that nondisclosure of the SART video by the prosecution constituted prejudicial Brady error. We therefore reverse the judgment and remand the matter for a new trial.
In his separate petition for habeas corpus that we ordered to be considered with this appeal ( In re Uribe (H032506)), defendant raises factual material outside of the record at trial in support of his contention that he did not receive effective assistance of counsel with respect to a failure to obtain an evaluation of the physical evidence by a SART examiner expert both at trial and in connection with the first motion for new trial. Because we conclude in the appeal that the judgment must be reversed, the issues in the habeas corpus petition are moot. Accordingly, by separate order of this date, we deny the petition for habeas corpus on that basis.
FACTUAL BACKGROUND
Because our evaluation of defendant's claim of Brady error requires us to give significant consideration to the totality of the evidence adduced at trial in the context of determining the potential significance of the omission of the SART video, we necessarily recite the testimony in detail here.
1. Direct examination Anna, testifying through a Spanish-speaking interpreter, was 12 years old and was attending the seventh grade at the time of the trial in February 2006. At the time, she was living with her father in San Pablo, California, along with two of her sisters, Kimberly (age 14) and Eileen (age 10). Anna has two other sisters, Leticia (age 20) and Esmeralda (age 15), with whom she was not living at the time of trial. Anna's maternal grandfather is defendant. Prior to July 2005, Anna lived in Milpitas with her mother. Anna testified that she stopped living with her mother at that time "[b]ecause [she] was told that [she] had to go to the police and after that [she] would have to go to a shelter." She was saddened by this because it made her feel like "[she] was never going to be able to see [her] mother again." Anna had not seen her mother since July 2005. Anna testified that her grandfather had done things in the past to her that made her feel uncomfortable. One occasion (hereafter, sometimes referred to as the Milpitas incident) took place in the home of her aunt and uncle on Selwyn in Milpitas when Anna was five. Anna was sleeping by herself on a mattress in the living room. Defendant came into the room and lay down next to Anna. He was behind her. He removed her pajama bottoms and panties; Anna resisted and asked defendant to stop, but he was able to pull them down because he was stronger than she. Defendant used his hands to bring Anna close to him and he put his penis into her vagina. His penis was hard and he moved his body "a little" behind her. She testified that it hurt "[a] little." Anna testified that after her grandfather had finished, she felt something that "was wet, something really dirty" in the area of her legs. She did not recall whether she noticed any blood in her panties afterward. Approximately three times before the Milpitas incident, Anna's grandfather kissed her on the mouth and put his tongue in her mouth while doing so. He did this when no one else was around. This made Anna feel uncomfortable; she thought it was "really dirty" and "sort of disgusting." There was also an occasion at a party in San Jose when defendant "was drunk and then he just got on top of [her]" and was kissing her. Anna's relatives, including her mother, "were just laughing at [her]." Anna pushed her grandfather off of her and ran into the kitchen crying. This was why Anna felt like she could not tell anyone what defendant was doing to her. Although she did not specifically remember at trial either the incident or her prior testimony, the prosecution asked Anna whether she recalled testifying at the preliminary hearing that before she was in kindergarten, her grandfather had gone into her room and inserted his finger into her vagina. Anna testified at the preliminary hearing that defendant had inserted his finger about one-half to three-quarters of an inch inside of her and that she had struggled to get away but he had held on to her. She also previously testified that it had hurt and that she had been scared at the time it had happened. Anna took two car trips to Tijuana, Mexico with her relatives, including her grandfather. Five to seven people went to Tijuana in defendant's van on the first of the two trips; Anna was nine at the time. (Hereafter, this trip is sometimes referred to as the Tijuana trip incident.) The passengers included Anna, her uncle (Rubin), two of her sisters (Leticia and Kimberly), and her five-year old cousin (Abel). Anna was in the back lying down on a bench approximately three feet off the floor that was a makeshift bed with a blanket covering her. Her cousin, Abel, lay next to her asleep. While Anna's uncle was driving, her grandfather came to the back of the van and lay down next to and behind her. Defendant pulled Anna's pants and underwear down together; although Anna resisted, defendant was successful. He then put his penis into her vagina "a little bit" and it hurt "a little." When Anna was 11 years old, she wanted to prove to her younger sister, Eileen, that she was not lying about her grandfather's having molested her. Anna asked Eileen to call defendant into the kitchen and then Eileen hid herself. Defendant had Anna sit on his lap and he put his hand under her pants and panties and placed his finger inside her vagina. This occurred in Milpitas when Anna was living with her mother. Anna told her sister, Kimberly, about the Milpitas incident some years after it happened. Anna testified that two of her sisters had at various times made her feel bad about saying what their grandfather had done to her. At a previous court hearing, Kimberly sat in the back and glared at Anna. And Leticia scolded Anna, told her she was "stupid," and said that she thought that Anna was lying. Anna admitted at trial that when she had been cross-examined by defense counsel during the preliminary hearing, she had said that she had lied about everything that she had told the prosecutor during his questioning of her. She testified that she had told defense counsel that she had been lying because Kimberly, when they were at the shelter, had asked Anna to tell the social worker that her grandfather had not raped her but had only bothered her. Anna also testified that she had told a social worker, at Kimberly's urging, that she had been lying about her grandfather. Kimberly had been afraid at the time that they would be sent to foster care. Anna also admitted that when a police officer picked her up from social services to see a nurse, she asked the officer whether, if she changed her story, she and her sister would still have to go to foster care. Anna also told that nurse that what she had previously told the police about her grandfather had not really happened. She did so because she "was thinking we were going to be taken to foster care." In addition, Anna told Officer Corpuz on one occasion that she was worried about the consequences that defendant's imprisonment would have on her grandmother who lived in Mexico; she was worried about her grandmother because defendant was her sole means of support.
When asked initially by the prosecution what had happened after defendant had pulled her pants and panties down, Anna testified "Well, I guess I must have fallen asleep after that, so I don't remember." Anna then admitted that she had told several people affiliated with law enforcement that defendant had penetrated her with his penis. Immediately thereafter in the questioning, Anna testified that defendant put his penis inside her vagina.
To be completely accurate, although Anna originally testified that she did not recall the testimony at the preliminary hearing in which she described the incident, she later responded that she remembered "a little" so testifying. Also, after initially saying that she did not recall the incident, after her prior testimony was read, Anna — in response to the question, "Do you remember it happening?" — said "Not much" and nodded affirmatively that she remembered it "[a] little." And during cross-examination at trial, Anna testified that she recalled that when she "was very little," defendant put his finger in her vagina.
Anna had originally testified that Kimberly had asked her to tell the social worker that her grandfather had only "molested" her. After a bench conference in which the trial judge noted to counsel that the Spanish word used by Anna, molestar, "could mean two things, bothering or sexually molest[ing]," Anna clarified that Kimberly had asked her to say that her grandfather had been bothering her. During cross-examination, Anna testified that Kimberly had told her to "tell the police that [defendant] had only been molesting [her]." It appears that Anna was referring in this testimony to a conversation she had with her sister immediately before meeting with Carl Lewis.
2. Cross-examination Anna testified that she "was confused with the issues" when she testified in court previously at the preliminary hearing. She also said that she was "confused" when she testified earlier in the trial (but did not explain what she was confused about). With respect to the Milpitas incident, Anna testified that she did not actually see the face of the person who raped her because it was very dark. She knew that it was her grandfather because "he was the only one that used to touch [her]," and "[she] just knew it was him." Anna admitted that she had responded at the preliminary hearing with "`Yeah'" to the question by defense counsel, "`Is that [the Milpitas incident] a lie?'" She recalled her testimony that she made up the charges against her grandfather "`[b]ecause [she] was just mad at [her] sisters'" because "`[t]hey were treating [her] all mean.'" Anna also admitted that she told Carl Lewis in October 2005 that she had made up the Milpitas incident. She also agreed that she had told Lewis that she could not remember whether the Milpitas incident occurred. But she testified at trial that her claim about her grandfather concerning the Milpitas incident was the truth — that the incident did occur. Anna testified at trial that she had denied during the preliminary hearing that the incident had occurred because her sister, Leticia, had told her that it had not happened because they were living in a shelter when Anna was five. And she explained that she had told Lewis that she had lied about the Milpitas incident because "[her] sister[,] Kimberly[,] told [her] to say things so that [they] could go back to [Anna's] mother." Anna testified at trial that she was wearing sweatpants when defendant lay down next to her during the Tijuana trip incident. She admitted that she had testified during the preliminary hearing that she had been wearing jeans. Anna explained that she had changed from jeans to sweatpants at some time during the car trip but admitted that she had not testified to this at the preliminary hearing. Although she testified at trial that she was facing her cousin and that therefore her grandfather was behind her when he lay down next to her in the van, Anna was read her preliminary hearing testimony in which she stated that defendant was facing her. She was also shown a diagram of the van that was drawn during her preliminary hearing testimony that confirmed her previous testimony that she and her grandfather were facing each other. Anna explained that she had been confused when she testified at the preliminary hearing and that "[defendant] was just looking at the back of [her] head." During the Tijuana trip incident, Anna cried when defendant put his penis into her vagina. She believes that the rest of her family — other than her uncle, who was driving — was asleep at the time. However, later during cross-examination, Anna testified that her family was watching television at the time, and that she had been confused when she had previously testified that her family had been sleeping. Anna testified that she did not scream to call attention to what her grandfather was doing because she was "afraid that [her family members] wouldn't listen to [her]." Later during defense counsel's cross-examination, she testified that "[she] thought maybe if [she had] scream[ed,] no one would pay attention to [her] or they would think [she] was crazy, because they would say[,'h]ow could this happen, he's your grandfather.[']" She testified later that she didn't scream because she didn't want to get her grandfather in trouble and because she feared that she would be separated from her mother. Regarding the kitchen incident when she was 11 and wanted to prove to Eileen that her grandfather was molesting her, Anna initially testified on cross-examination that "[w]hen [her] little sister passed by and then . . . [defendant] was putting his finger in [Anna's] vagina and then [Eileen] passed by and [Anna] stood up and then [she] left." She later testified on cross-examination that she told her sister to lie about defendant putting his hand down Anna's pants. She stated that she had wanted to get her grandfather in trouble; she made up the fact that her grandfather had put his hand down her pants, and she tried to get Eileen to agree with her. Anna recalled that she had testified at the preliminary hearing that there was an instance in which defendant — at a time when he lived with her uncle downstairs from her — pulled his pants down in her presence. She admitted at trial that she had lied about the incident and that she did so because she did not like the way that defendant gave her a hug and a kiss. When she had a medical examination in July 2005 related to the case, she was told at the beginning by Mary Ritter that she would be examining Anna because of what she had said about her grandfather having raped her. Anna testified that she did not recall having told Ritter that defendant had never raped her. Anna testified that on one occasion in 2005 sometime after Ritter's examination, she had blood that came out of her vagina that was related to her period. She had no vaginal bleeding at any time prior to the Ritter examination. Anna did recall telling Officer Corpuz that "it was not true that [defendant] had raped [her]." She testified that she had told him that she had made up the claim about her grandfather because her sisters had been mean to her. But she testified that her statement to Officer Corpuz "was a lie." She also recalled telling a policewoman that defendant had never raped her, but she testified that she did not recall having said the same thing to Sergeant Candelaria. She also admitted that she had lied when she had testified at the preliminary hearing that she had made up the charges about her grandfather because her sisters had been mean to her. B. Sergeant Armando Corpuz Sergeant Armando Corpuz with the Milpitas Police Department interviewed Anna at the children's shelter on July 21, 2005. She was staying at the shelter with at least two of her sisters. He had received a report from a Child Protective Services social worker, Taylor Tran, that Anna had reported a sexual assault but she "had changed her story and [the sergeant] needed to interview her . . . to see what she had to say." Sergeant Corpuz observed that Anna appeared to be shy and scared. She indicated that she was sad because her sisters had been crying and her grandmother was no longer receiving support because her grandfather was in custody. Anna recanted her prior charges against defendant, saying that nothing had happened and she did not want her grandfather being held in custody. She initially told Sergeant Corpuz that she had made up the charges against her grandfather because she had been upset with her older sisters because they had been mean to her; had yelled at her; had told her that she was not part of the family; and had told her that she had been adopted. Sergeant Corpuz told Anna that it didn't make sense that she would have falsely accused her grandfather of criminal conduct because she was upset with her sisters but had not said that her grandfather had been mean to her. Anna did not have an answer to this question. Later during the interview, Anna said that she had been upset with defendant because "he would give her hugs and kisses and she didn't like that." At the very end of the interview (that lasted approximately one-half hour), Anna asked Sergeant Corpuz whether "she and her sisters would still have to go to foster care" "if she changed her story again." Sergeant Corpuz referred the matter to Sergeant Joseph Candelaria for a follow-up interview.
She similarly did not recall that she told a social worker, Taylor Tran, that her grandfather had molested her.
C. Sergeant Joseph Candelaria Sergeant Joseph Candelaria of the Milpitas Police Department interviewed Anna on August 4, 2005. He conducted a multi-disciplinary interview (MDI) at the Children's Interview Center in San Jose. (An MDI is a videotaped forensic interview conducted by a police officer, deputy district attorney, and a social service worker.) The interview lasted about 45 minutes to an hour. Anna said that her grandfather had raped her. She then (still at the beginning of the interview) told Sergeant Candelaria "that it didn't really happen" and that her grandmother would be angry at her for the rest of her life. Anna told him repeatedly that she had lied. Sergeant Candelaria continued to question Anna and "she disclosed to [him] several incidents where she [had been] sexually abused and raped." Anna told the sergeant that when she lived in San Jose and was about four or five, she was with various family members. Defendant was drunk and kissed her on the face and lips and "she felt very, very bad about that and that even some adults in the room had seen this happen and . . . everyone in the room was laughing at her." She also related to Sergeant Candelaria that when she was about six (while she was in kindergarten), she visited her aunt in Milpitas on Selwyn Drive. While she was sleeping in the living room, she awoke to see her grandfather standing over her. Anna said that defendant removed his clothes, lay down next to her, and pulled her pajama bottoms down. She struggled unsuccessfully to pull them back up. Defendant put his penis in her vagina and she said that it hurt very much and she cried. She told the sergeant that she felt a white, very sticky substance (that she "learned later [in school] . . . was sperm"). Sergeant Candelaria did not recall if he asked Anna if there had been any blood, but "[s]he did not mention blood." Anna also reported to Sergeant Candelaria another incident that occurred in the summer when she was about eight years old. Her grandfather, uncle, mother, and sisters were traveling in defendant's van to Tijuana, Mexico. Anna said that she was in the back of the van asleep on the floor covered by a blanket while the rest of her family was watching television. Defendant lay down next to her and "inserted his penis into her and it hurt her very badly. . . . [S]he began to cry. . . . She said there was a white sticky substance which she said was sperm in her private area near her underwear." Anna told the sergeant that the incident lasted about 10 to 15 minutes. She did not mention that there had been any blood. Sergeant Candelaria testified that Anna also reported another incident when she was eight and living in Milpitas. When she went to the apartment downstairs (where her grandfather was living with other relatives), defendant approached her, tried to remove her bra, and rubbed her breast with his hand. Lastly, in 2005, Anna told the sergeant about an incident in her apartment when she set up a plan with her younger sister, Eileen — who did not believe Anna's allegations — to have her observe defendant touching Anna improperly. Anna's grandfather placed her on his lap in the kitchen and reached under her pants and inserted his finger into her vagina. Anna said that she had reported to her mother on two occasions in 2005 — in February and May — that her grandfather had been molesting her. Anna said that she didn't think her mother believed her. D. Carl Lewis Carl Lewis, senior investigator with the Santa Clara County District Attorney's Office, had investigated hundreds of cases involving child sexual abuse. He testified that CSAAS is not a diagnosis in the sense that a child may be said to suffer from CSAAS; rather, it describes "conditions and behaviors" that may be present in child sex abuse cases that might otherwise make persons generally skeptical of the reported abuse. According to Lewis, there are five conditions or behaviors identified with CSAAS; not all five are present in each case of child sexual abuse. First, there is secrecy, in that child molestation "occurs almost exclusively when the sex offender is alone or isolated with the child." Second, there is helplessness in that there is "the basic subjugation of children in our society and the fact that . . . they don't have the same coping skills that adults do." Third, "the child is trapped by the circumstances . . . [and] needs to find a way to get by day-to-day, needs to accommodate the situation that he or she finds [himself or herself] in." The fourth CSAAS category "is delayed, conflicted, unconvincing disclosure." Lewis testified that "it's not uncommon for a child to wait before making a disclosure." And the disclosure is often made in a way and at a time that makes it less likely to be believed. Fifth, there is retraction, in which a child who has disclosed abuse "either succumbs to an internal pressure . . . or external pressure to take it back. Lewis interviewed Anna on October 24, 2005, after the preliminary hearing. Anna told Lewis that she understood that she was seeing him "to tell [him] about something that her grandfather did that made her feel uncomfortable." She told him that she had recanted during her testimony at the preliminary hearing because "her sister [had been] sitting in the courtroom staring at her in a bad way . . . [and] was communicating . . . something to the effect of `You know that's a lie, that never happened.'" On cross-examination, Lewis testified that when Anna initially spoke about the Tijuana trip incident, she said that she was lying down in the van and her grandfather lay on top of her. She did not mention being covered by a blanket but said that defendant was touching her all over her body. Also during the interview, she told Lewis that she didn't really recall what happened or who was present on the trip to Tijuana. Lewis initially said during defense counsel's questioning that Anna had "wavered" in her description of the events with her grandfather but had not denied them. He later testified that after Anna described the Milpitas incident to him, she said that it had not happened and that she had made the incident up. After Lewis asked Anna why she had made up the Milpitas incident, she told him that she did not really remember it and thought that she had dreamt it. During the interview, Anna communicated in a way that made Lewis believe that she might not be completely understanding him; he therefore suggested that a Spanish-speaking interpreter be used to assist in the interview. Lewis testified that Anna explained that she was having trouble remembering because "her sisters were telling her that, for example, she never spent the night in Milpitas and . . . that a person . . . was on the Tijuana trip that Anna could not remember." Anna told Lewis that her sisters had called her stupid and had told her that the things that she had described could not have happened. II. Defense Witnesses A. Alisia Alisia, defendant's daughter, testified that defendant was, in her opinion, honest, decent, and had good morals. She testified that she traveled with her father in his van about two years earlier to Tijuana. Anna was present on the trip. The van had two seats in the front and a mattress in the back. Defendant sat the entire trip either on an ice chest or in the front passenger seat; he did not lay down next to Anna at any time during the trip. There were six people present on the trip down to Tijuana: Alisia, defendant, three of Alisia's nieces (Anna, Kimberly, and Leticia), and Rubin (Alisia's brother), who was the driver. B. Patricia Patricia, defendant's daughter, also opined that defendant was decent, honest, and had good moral character. In the times that she observed Anna interacting with her grandfather, Anna never appeared to be at all fearful of him. Patricia previously lived in an apartment on Selwyn Drive in Milpitas. Defendant lived with her there for a few months in 2000. There was no occasion in which Patricia's niece, Anna, stayed overnight at her Milpitas apartment because it was too small and she had five people living there. C. Leticia In approximately 2003, Leticia (age 20), went on a trip to Tijuana with her sister, Anna, their grandfather (defendant), Rubin, and Alisia, in defendant's van. Her uncle, Rubin, drove the entire way to Tijuana. Defendant rode in the front of the van, alternating between the front passenger seat and an ice chest between the front seats, for the entire trip south. He never went to the rear of the van. Leticia never heard Anna cry during the trip south. She never observed that Anna was scared of their grandfather. Leticia testified that Anna has "lied before." She described an instance about two months before trial in which Anna was playing with Leticia's two-year-old son: "[H]e wanted to hug her. He threw himself against Anna and that's when she said that [Leticia's son] wanted to rape her." It appeared to Leticia that Anna was serious when she said this. After Anna told Leticia that their grandfather had molested her, Leticia did not report the matter to the police. She didn't do so because "[she] knew it wasn't true." Leticia told Anna that she had never spent the night at their aunt's house. D. Kimberly Kimberly (age 14) went to Tijuana in around 2004 with her grandfather (defendant), her aunt and uncle (Alisia and Rubin), and her sisters (Anna, Leticia, and Esmeralda). Her uncle, Rubin, drove defendant's van on the trip south. Defendant sat the entire trip to Mexico on either an ice chest or in the front passenger seat and never went to the back of the van. She did not notice that Anna appeared to be scared of her grandfather during the trip. On cross-examination, Kimberly testified that they drove all night to Tijuana and that she slept on the trip down. Kimberly testified that she did not believe the claims that her sister made against her grandfather. Anna told Kimberly that defendant had molested her a couple of weeks before they were both taken to foster care. Anna did this after Kimberly had called her names; she didn't believe Anna and thought that she had made the charges up to make her mad. At the time, Kimberly ignored Anna; a couple of days later, she asked Anna if she had been lying. Anna denied that she had been lying. When Kimberly and her sisters, Anna and Eileen, were taken to foster care, Kimberly and Eileen were very upset and cried all night. They were upset because they thought they were going to be taken away from their mother because of Anna's claims against their grandfather. (Anna did not seem to be sad as well.) Kimberly is still upset with Anna because she would rather be living with her mother. E. Taylor Tran Taylor Tran, a social worker for the Department of Family and Children Services, interviewed Anna in July 2005. Anna initially told Tran that her grandfather had raped her. The next day, she left a message for Tran saying that the rape had not happened. On cross-examination, Tran testified that the rape allegation had not been reported by her family. He also testified that Anna recanted her claim that she had been raped after she had spent the night in the children's shelter with her sisters.
We refer to defense witnesses, relatives of the alleged victim of sexual abuse, by their forenames only in order to preserve the anonymity of Anna in these proceedings.
Patricia's husband, Juan Jaime, also testified that Anna never spent the night with his family except for the time she accompanied his family to Tijuana in his van. Lorena, whose father is defendant's cousin, testified that defendant, in her opinion was decent, honest, and of good moral character. (Three other witnesses provided similar testimony.)
Anna admitted that she had made the statement about her young nephew, but said that it had been a joke and she "was just playing around."
III. Medical Testimony
Mary Ritter was the first witness called for the prosecution. Defense expert Dr. Theodore Haritan and prosecution expert Dr. David Kerns did not testify until seven days and 15 days after Ritter testified, respectively. We present the medical evidence together here in order to provide a more cohesive recitation of the facts.
A. Testimony of Mary Ritter (Prosecution)
Mary Ritter is a physician assistant, clinic coordinator, and the primary examiner at the Center for Child Protection (Center) in the department of pediatrics at Santa Clara Valley Medical Center (Valley Medical). As of the time of trial, she had been employed at Valley Medical for over 18 years and had been the primary examiner for nearly that entire time. In that capacity, Ritter saw the majority of children brought to the Center at Valley Medical in the daytime by the police or child protective services for sexual abuse examinations, known as SART exams. She received her training in performing these examinations from Dr. David Kerns, medical director of the Center. As of the time of trial, Ritter had performed roughly 4,000 SART exams. The trial court qualified her as an expert in the field of child sexual assault and the examination of children alleged to have been sexual assault victims.
A SART exam occurs as a result of an initial contact to the Center at Valley Medical by the police or social services. Ritter routinely takes a history from the investigative officer. After performing a physical examination of the child head to toe, Ritter, in the case of a girl, would perform a genital examination, using a special instrument called a colposcope. The colposcope has a camera attached to it that permits the examiner to take magnified photographs. The child is examined while she is lying on her back with her feet in stirrups (supine position). After this portion of the genital examination is completed, "a real[ly] important part of the examination" involves turning the child over so that she is positioned on her hands and knees with her knees brought up to her chest (knee-chest position). Because (1) "[t]he most common place for a penetrating injury is the bottom portion of the . . . hymen," and (2) "gravity" often makes it more difficult to get a clear view of the hymen when the child is in the supine position, it is often easier for the examiner to observe evidence of injury when the child is in the knee-chest position. If the SART exam occurs within 72 hours of the alleged assault and there is any chance of getting forensic evidence for the crime lab, Ritter would swab the alleged victim for DNA. Even if the alleged assault were not recent, the SART examiner might obtain cultures to test for sexually transmitted diseases. After the completion of the examination, Ritter would get the photographs from the SART exam developed, obtain any laboratory studies, prepare a report, and send the report to the investigator on the case.
Ritter explained that for prepubescent girls, the results of SART exams fall within a spectrum. At one end, there would be no objective evidence of injury. At the other end of the spectrum, there would be evidence of "absolute tears of the vaginal opening, the hymenal opening. And then . . . in the middle of that spectrum, . . . there would be bruises and abrasions." Ritter testified that it would often be the case that a child victim of sexual assault would present with normal findings after a SART exam. This would be explained by the fact that, in her experience, between 85 to 90 percent of alleged child victims do not report assaults immediately and are examined at least three days and as long as years after the alleged assault. Thus, injuries resulting from sexual penetration, such as bruising and tearing, may have had enough time to heal because of the victim's delayed reporting of the assault.
Ritter estimated that of the approximate 4,000 SART exams she had performed, she found "definite evidence of penetrating trauma in about 10 percent of those cases."
On July 28, 2005, Ritter performed a SART exam of Anna. She was accompanied by a counselor from the children's shelter. Anna chose to have the counselor wait in the reception area rather than to have her present during the SART exam. Ritter interviewed Anna to obtain a history that would be relevant for the medical examination. She told Anna that she was examining her because she had heard that Anna's grandfather had sexually assaulted her. Ritter asked whether Anna, around the time of the sexual assault, had experienced pain when she urinated. Anna responded in the negative "and then she proceeded to say that never really did happen."
Ritter conducted a SART exam of Anna. She examined Anna in the supine position; Ritter did not note an injury but felt that there was too much tissue for her to get a complete view of the hymenal opening. After this portion of the examination, she had Anna position herself in the knee-chest position. From this position, Ritter determined that there was evidence of an old injury. "[I]nstead of having [a] nice smooth broad hymen, . . . [Ritter] saw . . . a V-shape configuration that went up at 1:00 o'clock almost . . . to the fossa." It "[was] not a recent tear." She opined that this V-shaped configuration was evidence that "the hymen tissue that was here has been torn and when hymen tears it doesn't heal by knitting together like cutting a skin. . . . It doesn't come over and smooth over like nothing happened. When hymen tissue tears[,] it's essentially going to stay, that's going to stay there." "[T]here was nearly no hymen at all at the point of the V."
During the examination, Ritter observed a small red area at the edge of the hymen. She did not believe that it represented an injury, but swabbed it to determine if it was an infection, possibly herpes. Ritter also took a culture of Anna's vaginal area to rule out the existence of any sexually transmitted diseases. The test results were negative for any infection or sexually transmitted diseases.
Ritter concluded that there was physical evidence "consistent with a penetrating event occurring." Both Ritter and her superior, Dr. Kerns, signed off on a written report containing Ritter's findings as described in her testimony.
On cross-examination, Ritter confirmed that it was her opinion that the V-shaped configuration represented a hymenal tear that was evidence of penetrating trauma. She testified that "it certainly is a deep tear. It's not the deepest kind of tear that we have seen." There would be severe pain associated with the type of tearing Ritter concluded had occurred in this instance. In response to questioning as to whether the condition she had observed could have been consistent with a normal variation as opposed to evidence of a penetrating event, Ritter testified that she had never seen any studies or instances in which such a V-shaped configuration was within limits of a normal condition. She also testified on cross-examination that she would not necessarily expect that there would have been heavy observable bleeding at the time of the penetrating event that resulted in the tearing of the hymen as she concluded had occurred with Anna. There might have been observable bleeding, or, alternatively, the blood might have "essentially [been] absorbed back into the tissue and sitting in the vaginal canal." Ritter testified that she had "seen lots of [hymenal] tears that bled and the child didn't seem to be aware that [she was] bleeding."
In response to the court's questioning as to "whether it is possible that that V-shape narrowing at the end . . . could be a normal variation in Anna Doe," Ritter responded: "I have to- . . . in medicine you can't ever say that anything is impossible so I suppose it's possible. I've never seen anything in scientific literature saying that that is normal, but she could be the one example."
B. Dr. Theodore Hariton (Defense)
Defendant called an expert, Dr. Theodore Hariton, a retired medical doctor specializing in obstetrics and gynecology who had practiced for 40 years. He reviewed the Valley Medical records, including photographs, concerning the July 2005 SART exam of Anna. Dr. Hariton did not examine or interview Anna and did not speak with Ritter. Although he had sat through a course concerning SART exams, he had never performed or observed one. He testified that he had performed between 150,000 to 250,000 gynecological examinations; of those examinations, approximately 15,000 to 25,000 involved patients under 16 years old and about 250 to 300 were of prepubescent girls. However, Dr. Hariton had never examined a prepubescent girl who had asserted that she had been a sexual assault victim.
From his review of the records and photos, Dr. Hariton arrived at the conclusion that "with reasonable medical certainty this [penetrating trauma] did not happen." After referring to unidentified photographic exhibits he stated that they depicted a condition "consistent with a partial tear and . . . also consistent with a normal variant of what hymens look like." He pointed in particular to one defense exhibit (exhibit I) as depicting what "can well be a normal hymen." He also testified that two photos from the SART exam that he looked at (exhibits H J) appeared to reflect the examiner's, as part of standard procedure, stretching out the hymen in order to get a better view.
Dr. Hariton also based his disagreement with Ritter's opinion that there was physical evidence of penetrating trauma on the absence in the record of a report of pain and bleeding. He testified that there would be severe pain and bleeding associated with an adult male's putting his penis in the vagina of a five-year-old girl. Dr. Hariton testified that it would not have been possible for the blood associated with such trauma to have been simply reabsorbed inside the vagina. He also opined that he would expect that such a trauma would have resulted in the transection of the girl's hymen. From a review of the Valley Medical records and photographs from Anna's SART exam, Dr. Hariton concluded that Anna's hymen was not completely transected.
On cross-examination, Dr. Hariton stated that it was possible that the photos of Anna's SART exam did depict a hymenal tear and that such a tear may have been caused by a sexual act. He added, however that he didn't think that that was the case.
After Dr. Kerns testified on rebuttal, Dr. Hariton was recalled as a witness by the defense. He reiterated that, after hearing Dr. Kerns's testimony, he was still of the opinion that there was "no real evidence that the penetration occurred in [Anna]." He also repeated that one of the photographs (exhibit I) depicted a normal-looking hymen in which one could "see a significant rim of hymen all the way on the top."
C. Dr. David Kerns (Prosecution Rebuttal)
As of the time of trial, Dr. David Kerns — a pediatrician, medical director of the Center at Valley Medical, and a clinical professor of pediatrics at Stanford University School of Medicine — had approximately 30 years of experience in the subspecialty of the medical aspects of child abuse. Over the years, he had performed personally or "100 percent review[ed]" nearly 6,000 SART exams at Valley Medical.
Dr. Kerns did not personally perform the SART exam of Anna, but he did review the photos and the report of that examination performed by Ritter. In his opinion, Ritter did not do anything that resulted in the hymen falsely appearing on the photos to have had a V-shaped configuration. His medical opinion — which confirmed the opinion in the report — was "that there was definite physical evidence of penetrating trauma to [Anna's] hymen." Dr. Kerns described Anna's condition as being a complete transection of the hymen.
Dr. Kerns singled out one particular photograph of Anna in "the knee-chest position" (exhibit 4) as being the "critical" photograph supporting his conclusion. (He explained that the knee-chest position "gives the best exposure of . . . the hymenal anatomy.") Dr. Kerns noted that, in that photo, there was a V-shaped area of the hymen that evidenced the absence of hymenal tissue that was in such a "position and [to such a] degree of severity [as to not represent a] congenital variation[]." In Dr. Kerns's opinion, the finding of the existence of physical evidence of penetrating trauma in this instance was "not a close call."
According to Dr. Kerns, the most frequent type of hymenal tearing as a result of a penetrating trauma is posterior tearing of the type found in the case of Anna. On cross-examination, he agreed that, if an adult penis were forced into a nine-year-old girl's hymenal ring, it would be more likely than not that tearing, severe pain, and bleeding would result. Dr. Kerns testified "that the acute injury that led to these changes [in Anna's hymen] would have . . . likely [resulted in] bleeding." But "the absence of bleeding in a history is a little bit . . . problematic" because in some instances, the child who suffered a hymenal tear that resulted in bleeding would not be aware of the bleeding.
Also on cross-examination, Dr. Kerns testified that he was familiar with a California form (No. 925; exhibit L), labeled "Forensic Medical Report: Non-acute . . . Child/Adolescent Sexual Abuse Examination." He did not specifically recall whether the form was used for Anna's SART exam. It probably was not used, however, because Valley Medical's general policy was not to use such forms in nonacute cases; the information sought in the form was redundant to that provided in Valley Medical's SART exam reports.
That form has spaces in which the examiner can identify the nature and extent of any photographic, colposcopic, or videographic methods used to document the examination of the body and genitals of the patient.
Dr. Kerns also testified that one of the photo exhibits (exhibit I) that Dr. Hariton relied on to conclude that Anna did not have a damaged hymen was a bad photo. He did not believe that the hymen was even depicted in the photo.
PROCEDURAL BACKGROUND
See footnote, ante, page 1457.
Defendant was charged by a second amended information with five felony sex offenses against Anna, namely, three counts of aggravated sexual assault of a child (violation of § 269; counts 1 through 3), and two counts of lewd or lascivious acts on a child (violation of § 288, subd. (a); counts 4 and 5). In count 1, defendant was charged with violating section 269 by digital sexual penetration (§ 289, subd. (a)(1)) when Anna "was 4, 5, 6 years old" at the time. The amended information charged further that defendant violated section 269 by committing rape (§ 261, subd. (a)(2)) when Anna "was 5, 6 years old" (count 2), and when she "was 8, 9, 10 years old" (count 3). Counts 4 and 5 charged defendant with the commission of lewd and lascivious acts on a child when Anna was "4, 5 [years old]" and "11 [years old]," respectively. On March 3, 2006, the jury acquitted defendant on count 1 (as well as on the lesser-included offense of violating section 289, subdivision (j)), and it convicted defendant on counts 2 through 5. Defendant filed a motion for new trial on the basis of newly discovered evidence (the SART video); he alleged that the prosecution should have disclosed the video pursuant to Brady, supra, 373 U.S. 83. The court denied the motion by written order on July 26, 2006. The next day, defendant filed a second new trial motion (captioned "SUPPLEMENTAL RESPONSE FOR MOTION FOR A NEW TRIAL PURSUANT TO PC 1181 (8)") on the basis that Anna had signed a declaration completely recanting her charges of molestation. On August 18, 2006, the court denied defendant's second motion for new trial and imposed a sentence of 30 years to life (consecutive 15 years to life sentences for both the count 2 and count 3 convictions), consecutive to eight years (based upon the imposition of six years for the count 4 conviction [the mid term for the principal count], and two years for the count 5 conviction [one-third of the mid term]). Defendant filed a timely notice of appeal. We will consider defendant's challenges to the orders denying his new trial motions in conjunction with his challenge to the judgment. (§ 1237, subd. (a): "Upon appeal from a final judgment the court may review any order denying a motion for a new trial.")
To avoid repetition, details concerning defendant's first new trial motion are provided in the discussion, post.
DISCUSSION
I. Issues on Appeal Defendant's challenges on appeal may be summarized as follows: 1. The prosecution's nondisclosure of the SART video constituted Brady error that compelled the granting of defendant's first new trial motion. 2. The court abused its discretion by denying the first new trial motion because the SART video was newly discovered material evidence. 3. Anna's posttrial declaration in which she recanted the sexual assault charges against her grandfather constituted newly discovered material evidence that required the granting of defendant's second new trial motion. 4. The court erred by precluding defense counsel from cross-examining Anna on the subject of whether her therapist had coached her testimony. 5. The trial court erroneously permitted Lewis's testimony concerning CSAAS because that testimony was not probative of any material fact. 6. The court erred in instructing the jury concerning CSAAS because there was an insufficient basis for the CSAAS testimony or any instructions regarding CSAAS.
See footnote, ante, page 1457.
II. The Videotape of the SART Exam" Claimed Brady Error
A. Background
On June 23, 2006, defendant filed a (first) motion for new trial. This motion was founded upon defendant's, after the trial, learning of the existence, and obtaining a copy, of a videotape of Anna's SART exam. Defendant argued that the new trial motion should be granted because the videotape constituted "new evidence . . . discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial" under section 1181, subdivision 8. He also contended that he was denied due process because the nondisclosure of the SART video constituted a Brady violation.
In an accompanying declaration, defense counsel stated that after the trial — in a conversation that apparently took place on March 28, 2006 — he had spoken with Ritter, who advised him that she was in possession of a videotape of the SART exam. He noted that prior to trial, on behalf of defendant, he had made a discovery request to the prosecution, inter alia, for all photographs and other documentation concerning Anna's SART exam; and had filed a motion to release documents previously produced by Valley Medical in response to a subpoena duces tecum issued by his office for all medical records concerning Anna.
Prior to filing the first new trial motion, defense counsel brought a motion for issuance of a subpoena duces tecum directed to the custodian of records of Valley Medical in which he sought production of the SART video. That motion was accompanied by a declaration in which defense counsel noted that he learned about the SART video as a result of a March 28, 2006 conversation with Ritter. After obtaining an order from the trial court requiring Valley Medical to produce the videotape, defendant filed the first motion for new trial.
The motion was also accompanied by the declaration of the defense trial expert, Dr. Hariton. After summarizing in his declaration the substance of his testimony at trial as well as the testimony of the prosecution's experts, Dr. Hariton stated that (1) there had been "one photo . . . not centered and slightly out of focus that supported [his] opinion regarding [the absence of] penetrating trauma"; (2) "Dr. Kerns testified that this single photo [Dr. Hariton] used to support [his] opinion had no forensic value because it was out of focus and the flash did not work properly in that photo"; (3) Dr. Kerns's "testimony was highly important and crucial to the case because said single photo contradicted Dr. Kerns['s] and Mary Ritter's testimony that the alleged victim sustained a transection of her hymen"; (4) he had viewed the SART video following the trial; (5) after isolating the portion of the video that corresponded with the photo on which he relied in his trial testimony, he concluded "[t]hat Dr. Kerns was incorrect when he testified that the picture [Dr. Hariton] referred to . . . did not depict the [hymenal] opening of the alleged victim"; (6) the "video clearly shows a circular [hymenal] opening that is clear, in focus, and similar to the photo [he] referred to in support of [his] opinion"; (7) he had obtained several additional photos from the video that also "clearly show an intact hymen with no evidence of a prior transection or trauma"; (8) although no photos had been available showing an examination of Anna in the supine position, the "video of the [hymenal] area in the supine position again shows an intact hymen with no evidence of a prior transection"; and (9) the "video is extremely important and necessary in this case," it fully supported his opinions given at trial, and contradicted the opinions of Dr. Kerns and Ritter.
The prosecution opposed the new trial motion, arguing that there was no Brady error because (1) the video evidence was cumulative; (2) the SART video did not support Dr. Hariton's previous testimony; (3) it could not be concluded that, had the video been shown to the jury, a not guilty verdict would have been probable; (4) Valley Medical was not part of the "prosecution team" in that the videotaping was not performed for an investigative purpose; and (5) the SART video was not exculpatory evidence. The opposition was not accompanied by any declarations.
The trial court, in a lengthy written order, denied the motion for new trial on July 26, 2006. There was no hearing on the first motion for new trial that preceded the order. The court concluded that there was no Brady error because "[m]edical or psychiatric evidence in the possession of a county hospital or clinic are not in the possession of the `prosecution team' for purposes of the Brady rule." To the extent defendant's new trial motion was based upon newly discovered evidence, the court found Dr. Hariton's testimony to have not been credible; attached little weight to his declaration as a result; and, after its own review of the SART video, concluded that "[t]he existence of an intact hymen as described in the Defendant's moving papers and in the defense expert's declaration is not found in the videotape." The court therefore concluded that "[t]here is nothing exculpatory in the video-tape. In fact, the videotape refutes the defendant's trial position that the SART nurse manipulated the vagina into a position that created the look of a hymenal tear that did not exist." The court thus concluded that the videotape, if it had been produced before trial, "would not have made a difference to the outcome."
The record furnishes no explanation as to why there was no hearing on the first motion for new trial. There was initially a July 21, 2006 hearing date that was postponed one week. At the hearing on July 28, 2006 (two days after entry of the court's order), there was no reference to defendant's first new trial motion; rather, discussion concerned only the filing of the People's opposition to, and the scheduling of a hearing on, the second new trial motion that defendant had filed on July 27, 2006.
B. Brady Error Generally
In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." ( Brady, supra, 373 U.S. at p. 87.) Thus, under Brady and its progeny, the state is required to disclose to the defense any material, favorable evidence. ( Ibid.; see also United States v. Bagley (1985) 473 U.S. 667, 674-678 [ 87 L.Ed.2d 481, 105 S.Ct. 3375] ( Bagley).) Favorable evidence includes both evidence that is exculpatory to the defendant as well as evidence that is damaging to the prosecution, such as evidence that impeaches a government witness. ( Bagley, supra, at p. 676; see also In re Sassounian (1995) 9 Cal.4th 535, 544 [ 37 Cal.Rptr.2d 446, 887 P.2d 527].)
Further, irrespective of whether the defendant made a request for discovery from the prosecution, "favorable evidence is material, and constitutional error results from its suppression by the government, `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" ( Kyles v. Whitley (1995) 514 U.S. 419, 433-434 [ 131 L.Ed.2d 490, 115 S.Ct. 1555] ( Kyles), quoting Bagley, supra, 473 U.S. at p. 682.) But the presence or absence of a specific request at trial is relevant to whether evidence is material under this test. "`[A]n incomplete response to a specific request not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence does not exist. In reliance on this misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued. [Citation.] [¶] We agree that the prosecutor's failure to respond fully to a Brady request may impair the adversary process in this manner. And the more specifically the defense requests certain evidence, thus putting the prosecutor on notice of its value, the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist, and to make pretrial and trial decisions on the basis of this assumption.' [Citation.] Accordingly, in determining whether evidence was material, `the reviewing court may consider directly any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case.' [Citation.]" ( In re Steele (2004) 32 Cal.4th 682, 700-701 [ 10 Cal.Rptr.3d 536, 85 P.3d 444], quoting Bagley, supra, at pp. 682-683.)
The Supreme Court in Kyles has identified four aspects to the materiality (i.e., prejudice) component of a Brady violation. ( Kyles, supra, 514 U.S. at pp. 434-437; see also In re Brown (1998) 17 Cal.4th 873, 886-887 [ 72 Cal.Rptr.2d 698, 952 P.2d 715] ( Brown).) First, "[a]lthough the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). [Citations.] Bagley's touchstone of materiality is a `reasonable probability' of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A `reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression `undermines confidence in the outcome of the trial.' [Citation.]" ( Kyles, supra, 514 U.S. at p. 434, quoting Bagley, supra, 473 U.S. at p. 678.)
Second, "it is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." ( Kyles, supra, 514 U.S. at pp. 434-435, fn. omitted.)
Third, "once a reviewing court applying Bagley has found constitutional error there is no need for further harmless-error review. Assuming, arguendo, that a harmless-error enquiry were to apply, a Bagley error could not be treated as harmless, since `a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,' [citations] necessarily entails the conclusion that the suppression must have had "`substantial and injurious effect or influence in determining the jury's verdict,'" [citation]." ( Kyles, supra, 514 U.S. at p. 435.)
Fourth, "while the tendency and force of undisclosed evidence is evaluated item by item, its cumulative effect for purposes of materiality must be considered collectively. ( [Kyles, supra, 514 U.S.] at pp. 436-437 fn. 10 . . .; see also [United States v.] Agurs [(1976)] 427 U.S. [97,] 112 [ 49 L.Ed.2d 342, 96 S.Ct. 2392, 2402], fn. omitted [omission `must be evaluated in the context of the entire record].)" ( Brown, supra, 17 Cal.4th at p. 887.)
We utilize independent review in deciding whether Brady error occurred. ( People v. Salazar (2005) 35 Cal.4th 1031, 1042 [ 29 Cal.Rptr.3d 16, 112 P.3d 14] ( Salazar).)
"We have not previously addressed the standard of review applicable to Brady claims. [Citation.] Conclusions of law or of mixed questions of law and fact, such as the elements of a Brady claim [citation], are subject to independent review. [Citation.] Because the referee can observe the demeanor of the witnesses and their manner of testifying, findings of fact, though not binding, are entitled to great weight when supported by substantial evidence. [Citation.]" ( Salazar, supra, 35 Cal.4th at p. 1042.)
We apply the above principles in our evaluation of defendant's claim that the nondisclosure of the SART video constituted Brady error.
C. Whether Brady Violation Occurred
Although the term " Brady violation" is often broadly used to refer to any failure on the part of the prosecution to disclose favorable information to the defense, a true violation occurs only if three components coexist: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." ( Strickler v. Greene (1999) 527 U.S. 263, 281-282 [ 144 L.Ed.2d 286, 119 S.Ct. 1936] ( Strickler); see also Banks v. Dretke (2004) 540 U.S. 668, 691 [ 157 L.Ed.2d 1166, 124 S.Ct. 1256].) The court below did not directly address — at least in the context of a claimed Brady violation" either the first or third elements. Rather, it concluded there was no Brady violation because "the SART nurse was [not] part of the `prosecution team' within the meaning of Brady." We will address each of the three elements of a Brady violation below.
1. Whether SART video evidence was favorable to defendant
In establishing a potential Brady violation, "[e]vidence is `favorable' if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses. [Citation.]" ( In re Sassounian, supra, 9 Cal.4th at p. 544.) Although neither party specifically addresses this element, we do so here.
Dr. Hariton in his declaration in support of the first new trial motion specifically stated that the portion of the SART video that corresponded with the photo (exhibit I) he relied on in his trial testimony contradicted Dr. Kerns's testimony that that photo did not depict Anna's hymen at all. The defense expert declared further that several photos he obtained from the SART video — including ones taken while Anna was in the supine position" offered additional evidence to support his trial testimony that Anna had "an intact hymen with no evidence of a prior transection or trauma." Dr. Hariton concluded that the SART video constituted "extremely important and necessary [evidence] in this case" that fully supported his opinions given at trial, and contradicted the opinions of Dr. Kerns and Ritter.
The People's opposition contained no evidence to refute the statements in Dr. Hariton's declaration. Rather, the People in their points and authorities simply argued that Dr. Hariton's trial testimony and his subsequent declaration were entitled to no credence whatsoever. They made the unsupported assertion that "[a] viewing of the SART exam video does not support the previous testimony of Dr. Hariton."
Dr. Hariton's declaration established that the SART video was favorable both because it offered potential evidence impeaching a prosecution expert's testimony, and it was supportive of the opinions of defendant's expert. We have little difficulty concluding from the record presented here that the SART video constituted "favorable" evidence under Brady. (See Salazar, supra, 35 Cal.4th at p. 1048 [evidence allegedly withheld was favorable to the defendant, and real issue was whether its omission was prejudicial to establish Brady violation].)
2. Whether SART video was suppressed
The prosecution need not affirmatively suppress evidence favorable to the defense in order for there to be "suppression" under Brady. A good faith failure to disclose, irrespective of the presence of a defense request for the materials, may constitute the "suppression" necessary to establish a Brady violation. ( People v. Zambrano (2007) 41 Cal.4th 1082, 1132 [ 63 Cal.Rptr.3d 297, 163 P.3d 4].) Nor does the evidence necessarily have to be in the direct possession of the prosecution. As the Supreme Court has explained, "[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith, [citation]), the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable." ( Kyles, supra, 514 U.S. at pp. 437-438; see also Strickler, supra, 527 U.S. at p. 281.)
We use the term "suppression" advisedly and because it is the term used by the Supreme Court to identify the second element of a claimed Brady violation. (See Strickler, supra, 527 U.S. at pp. 281-282.) We acknowledge, however, that in light of the fact that a Brady violation may be proved without a showing that the prosecution intentionally concealed the evidence from the defense, the term "suppress" in this context may be somewhat misleading in that it might incorrectly suggest affirmative misconduct by the prosecution. (See Merriam-Webster's Collegiate Diet. (10th ed. 2001) p. 1181 ["suppress: . . . 2: to keep from public knowledge: as a: to keep secret b: to stop or prohibit the publication or revelation of . . ."].)
"[A]ny favorable evidence known to the others acting on the government's behalf is imputed to the prosecution. `The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation.' [Citations.]" ( Brown, supra, 17 Cal.4th at p. 879; see also Youngblood v. West Virginia (2006) 547 U.S. 867 [ 165 L.Ed.2d 269, 126 S.Ct. 2188] [nondisclosure of note from prosecution witnesses read by state trooper but not shared with prosecutor constituted suppression for purposes of asserted Brady error].) Conversely, "the prosecution cannot reasonably be held responsible for evidence in the possession of all govern-mental agencies, including those not involved in the investigation or prosecution of the case." ( In re Steele, supra, 32 Cal.4th at p. 697.) The "prosecution team" for purposes of Brady thus includes both investigative and prosecutorial agencies and personnel. ( Ibid.; see People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1314-1315 [ 96 Cal.Rptr.2d 264]; see, e.g., Brown, supra, at p. 880 [holding crime laboratory assisting the district attorney's office in prosecution of cases "part of the investigative `team'"].) "Courts have thus consistently `decline[d] "to draw a distinction between different agencies under the same government, focusing instead upon the `prosecution team' which includes both investigative and prosecutorial personnel."` [Citation.] `A contrary holding would enable the prosecutor "to avoid disclosure of evidence by the simple expedient of leaving relevant evidence to repose in the hands of another agency while utilizing his access to it in preparing his case for trial," [citation].' [Citations.]" ( Brown, supra, 17 Cal.4th at p. 879, fn. omitted.)
We acknowledge that the parties have cited no authority — and our independent research has disclosed none — addressing whether a SART examiner (or the equivalent person or facility examining alleged sexual assault victims) is a member of the "prosecution team" for purposes of establishing the suppression element of a Brady violation. We therefore consider the circumstances presented here to ascertain whether the knowledge of the SART video gained by the personnel conducting Anna's SART exam at the Center at Valley Medical (Ritter and Dr. Kerns) will be imputed to the prosecution. As stated by the Fourth District Court of Appeal, "[t]he important determinant is whether the person or agency has been `acting on the government's behalf ( [Kyles], supra, 514 U.S. at p. 437 . . .) or `assisting the government's case.' ( [Brown], supra, 17 Cal.4th at p. 881.)" ( People v. Superior Court (Barrett), supra, 80 Cal.App.4th at p. 1315.)
Dr. Kerns is the director of the Center, which he founded in 1985. The Center is "recognized as the place for evaluation in Santa Clara County in virtually 100 percent of the cases that come to [it]."] Ritter is the daytime person in the Center "who sees the majority of the children when the police . . . or Child Protective Services bring children to the hospital for child sexual abuse examinations." The police or social services initiate a SART examination to be performed by Ritter; an "officer or a social worker calls the Center and says they have a child to bring." In advance of the examination, Ritter obtains a history from the investigating officer who had previously interviewed the child. "All of [Ritter's] patients are essentially there because there is a concern of nonconsensual intercourse. . . ." Ritter's practice after completing the SART exam, and after obtaining photographs and any laboratory results from the exam, is to write a report and send that report to the investigating officer in the case. In this instance, Anna was brought to the Center by someone from the children's shelter for a SART exam. Prior to that visit, Ritter had spoken to a police officer concerning the reason Anna was being referred to the Center for a SART exam (i.e., the nature of Anna's allegations against her grandfather).
Section 13823.9, subdivision (b) provides: "Each county with a population of more than 100,000 shall arrange that professional personnel trained in the examination of victims of sexual assault, including child molestation, shall be present or on call either in the county hospital which provides emergency medical services or in any general acute care hospital which has contracted with the county to provide emergency medical services. In counties with a population of 1,000,000 or more, the presence of these professional personnel shall be arranged in at least one general acute care hospital for each 1,000,000 persons in the county." Although not explicitly found in the record, it is apparent that the Center at Valley Medical has been designated by the County of Santa Clara under section 13823.9, subdivision (b) as the county hospital in which personnel trained to examine sexual assault victims are present or on call to perform such services.
There is a statutory scheme addressing the function of SART exams in connection with the criminal investigative process. By legislative enactment, one hospital training center in the state was established for the purpose of, inter alia, "train[ing] medical personnel on how to perform medical evidentiary examinations for victims of child abuse or neglect, sexual assault, . . . [and] shall provide training for investigative and court personnel involved in dependency and criminal proceedings, on how to interpret the findings of medical evidentiary examinations." (§ 13823.93, subd. (b), italics added.) Section 13823.93 was enacted in 1995 because of the Legislature's recognition that adequate training of medical professionals was essential both to provide for the medical needs of victims of domestic violence, child abuse, elder abuse, and sexual assault "and to provide comprehensive, competent evidentiary examinations for use by law enforcement agencies" (Stats. 1995, ch. 860, § 1, p. 6541, italics added.)
In addition, the agency designated by the Department of Finance (as provided in § 13820) is responsible for establishing sexual assault examination training courses for qualified health professionals with curricula that include training in the collection and documentation of physical evidence (§ 13823.13, subd. (b)(2)), and in "[p]resent[ing] testimony in court" (§ 13823.13, subd. (b)(4)).
The findings and declarations of the Legislature relative to the enactment of section 13823.93 were as follows: "The Legislature finds and declares all of the following: [¶] (a) The response of California's health care system to victims of violence, especially women and children, is inconsistent, in terms of both access to services and competence of health care workers. While services provided in some metropolitan centers may be excellent, access to trained medical practitioners is restricted and unevenly distributed throughout the state. [¶] (b) Many rural, midsized counties and geographically large urban areas lack health professionals who are properly trained in providing evidentiary examinations, collection, preservation, and documentation of evidence, and interpretation of findings, and who are experienced in collaborating with law enforcement agencies and investigating social workers. This results in victims being improperly examined and law enforcement agencies lacking critical evidence. [J] (c) To appropriately respond to the medical care needs of victims of domestic violence, child abuse, elder abuse, and sexual assault, and to provide comprehensive, competent evidentiary examinations for use by law enforcement agencies, it is necessary to take immediate steps to ensure there are appropriately trained medical professionals throughout California." (Stats. 1995, ch. 860, § 1, p. 6541.)
Under section 13823.9, subdivision (a), any public or private acute care hospital conducting an examination of a sexual assault victim (including a child molestation victim) "shall comply with the standards specified in Section 13823.11 and the protocol and guidelines adopted pursuant to Section 13823.5." The "minimum standards" under section 13823.11 for such examinations and for "the collection and preservation of evidence" include that "[l]aw enforcement authorities shall be notified" (§ 13823.11, subd. (a)); consent for the examination and collection of evidence be obtained in advance (§ 13823.11, subd. (c)(1)); the evidence collection conform to specified procedures (§ 13823.11, subd. (g)); and the physical evidence is to be preserved (§ 13823.11, subd. (h)) and "shall be turned over to the proper law enforcement agency" (§ 13823.11, subd. (h)(4)). The protocol adopted under section 13823.5 includes, inter alia, the collection of physical evidence and other medical specimens of the assault (§ 13823.7, subds. (e), (f)); specific procedures for preserving and disposing of such physical evidence (§ 13823.7, subd. (g)); and "[n]otification of injuries and a report of suspected child sexual abuse to law enforcement authorities" (§ 13823.7, subd. (a)). And none of the costs associated with a SART exam may be charged to the alleged victim; rather, they "shall be treated as local costs and charged to the local governmental agency in whose jurisdiction the alleged offense was committed." (§ 13823.95; see also § 1203.1h, subd. (b) [court may require a defendant convicted of sex crime, including child molestation, to reimburse cost incurred by county, local agency, or law enforcement agency "of any medical examinations conducted on the victim for the collection and preservation of evidence"].)
In their opposition to the first motion for new trial, the People argued, inter alia, that Valley Medical was not part of the "prosecution team" because the videotaping was not performed for an investigative purpose. They asserted that, while the written report containing the findings of the SART exam "is provided to the investigating police agency," Dr. Kerns and his staff "do not perform their examinations with the intention of aiding law enforcement." The factual assertions in the opposition were unsupported by either citation to the record or by an accompanying declaration of any kind. In response to defendant's initial opening brief, the Attorney General again argues that Valley Medical is not part of the "prosecution team" for purposes of establishing a potential Brady violation. He argues that Ritter, in performing Anna's SART exam, "was not working on the government's behalf or assisting its case."
This assertion is not supported by any citation to the record. Instead, the Attorney General states in a footnote that Ritter's duties at Valley Medical included matters other than SART exams, i.e., performing physical examinations of girls detained in juvenile hall. This fact does nothing to negate the essentially investigative function that Ritter and others at the Center played in performing SART exams on children referred by the police or social services based upon reports of child sexual abuse. Furthermore, defendant, in his supplemental opening brief, included some six pages of further argument on the suppression issue. While we do not assume that the issue is conceded, it is perhaps of some significance that the Attorney General, neither in the supplemental respondent's brief nor in oral argument, even addresses the legal question of whether the Center was part of the "prosecution team." Rather, the Attorney General argues only that defendant failed to establish the materiality element of a Brady violation.
We reject any suggestion that the SART exam here was not investigative. It was clearly spearheaded by the police, who advised Ritter of a report of alleged sexual abuse in which Anna was the victim. A major purpose of the examination was to determine whether the allegation could be corroborated with physical findings. Ritter collected and preserved physical evidence, consistent with statutory protocol. (See §§ 13823.11, 13823.7, subds. (e), (f).) And according to her practice — after completion of the SART examination and after she and Dr. Kerns reach concurrence as to their findings as contained in the written report — Ritter provided a copy of the forensic report to the police. (See §§ 13823.11, subds. (a), (h)(4), 13823.7, subd. (a).)
We believe that the circumstances presented in this case are aligned with those in Brown, supra, 17 Cal.4th 873, where the court held that the crime laboratory responsible for assisting the district attorney's office in the prosecution of its cases "was part of the investigative `team.'" ( Id. at p. 880.) There, as here, the defense received some but not all of the potentially relevant data from an agency assisting the prosecution, i.e., a crime laboratory. In Brown, the petitioner sought habeas corpus relief under Brady based upon the nondisclosure of a portion of the toxicology results of tests on his blood — a radioactive immunoassay (RIA) that was positive for phencyclidine (PCP) — where other results presented at trial (gas chromatography mass spectrometry [GC/MS]) were negative for PCP. ( Id. at p. 877.) Although the crime laboratory sent the prosecution and the defense a copy of the "`result sheet'" containing the GC/MS results, "for reasons of laboratory protocol," a copy of a "`worksheet'" containing the RIA results was not routinely sent by the lab. ( Ibid.) The Supreme Court held that the lab was part of the "prosecution team" for Brady purposes, concluding that "[t]he prosecutor thus had the obligation to determine if the lab's files contained any exculpatory evidence, such as the worksheet, and disclose it to petitioner. Whether or not he actually did examine the files, the lab personnel's knowledge is imputed." ( Brown, supra, at p. 880.) It reasoned, "Any other rule would leave the defendant's due process rights to the fortuity of a subordinate agency's procedural protocol, which the Supreme Court has squarely rejected." ( Id. at pp. 880-881, citing Kyles, supra, 514 U.S. at p. 438.)
The court below cited People v. Webb (1993) 6 Cal.4th 494, 517-518 [ 24 Cal.Rptr.2d 779, 862 P.2d 779] ( Webb) in support of its conclusion that the SART video was not suppressed because "[m]edical or psychiatric evidence in the possession of a county hospital or clinic [is] not in the possession of the `prosecution team' for purposes of the Brady rule." But the circumstances in Webb were very different from those we confront here. In Webb, the issue was not a claimed Brady violation. Rather, the defendant claimed that the trial court had erred in refusing to release subpoenaed psychiatric records pertaining to the treatment of his girlfriend, Sharon, and that this error had prevented him from effectively cross-examining her at trial. ( Webb, supra, at p. 517.) After the Webb court acknowledged that under Pennsylvania v. Ritchie (1987) 480 U.S. 39, 56-58 [ 94 L.Ed.2d 40, 107 S.Ct. 989], "the due process clause requires the `government' to give the accused all `material' exculpatory evidence `in its possession,' even where the evidence is otherwise subject to a state privacy privilege, at least where no clear state policy of `absolute' confidentiality exists," it questioned as a threshold matter "whether records stemming from Sharon's voluntary treatment by private and county therapists can be deemed `in the possession' of the `government' in the manner assumed by Ritchie. The records were not generated or obtained by the People in the course of a criminal investigation, and the People have had no greater access to them than [the] defendant. Given the strong policy of protecting a patient's treatment history, it seems likely that [the] defendant has no constitutional right to examine the records even if they are `material' to the case." ( Webb, supra, at p. 518.)
In contrast to Webb, here the SART exam performed by Ritter did not constitute "private treatment" of Anna; the examination was initiated through a referral by the police in their investigation of a report of criminal conduct. And the prosecution had greater access to the records generated from the exam than defendant since Ritter, in compliance with the law (see §§ 13823.11, subds. (a), (h)(4), 13823.7, subd. (a)), forwarded the report to law enforcement. Webb therefore does not support the conclusion that either Ritter or the Center, in conducting the SART exam here, was not part of the "prosecution team" for purposes of establishing a Brady violation. (See State v. Farris (W.Va. 2007) 656 S.E.2d 121 [knowledge of Kentucky forensic psychologist retained by West Virginia police to interview the defendant's cousin and possible victim of sexual abuse imputed to prosecution under Brady].)
In opposition to defendant's first new trial motion, the People argued that the videotaping of SART exams was not done by the Center at Valley Medical for any investigative purpose but was simply for the training of potential SART examiners. The People offered no evidentiary support for these claims. And it is readily apparent that the photos taken from the SART video here were used by Ritter and Dr. Kerns for the investigative purpose of arriving at their findings concerning Anna's SART exam. Thus, since the photos were used for an investigative purpose, it would make no sense to conclude (particularly where there is no evidence to support the conclusion) that the source material for the photos was not used for an investigative purpose.
We thus conclude that, when it performed Anna's SART exam, including the collection of data necessary for the report, the Center at Valley Medical was, in fact, "`acting on the government's behalf "or "`assisting the government's case.'" ( People v. Superior Court (Barrett), supra, 80 Cal.App.4th at p. 1315, citations omitted.) In this instance, the personnel in the Center at Valley Medical responsible for conducting SART exams — namely, Ritter and Dr. Kerns — were part of the "prosecution team" for Brady purposes. (Cf. Medina v. State (2006) 122 Nev. 346 [ 143 P.3d 471] [holding that a duty of sexual assault nurse examiner is to gather evidence for possible prosecution and that nurse was thus a "police operative" for purposes of determining whether Crawford v. Washington (2004) 541 U.S. 36 [ 158 L.Ed.2d 177, 124 S.Ct. 1354] applied to victim's statements made to her].) Their knowledge of the existence of the SART video was thus imputed to the prosecution.
3. Whether SART video was material (prejudice) We now address the critical third issue of whether "prejudice ensued," i.e., whether the suppressed evidence was sufficiently material that "in its absence [defendant] received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A `reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression `undermines confidence in the outcome of the trial.' [Citation.]" ( Kyles, supra, 514 U.S. at p. 434, quoting Bagley, supra, 473 U.S., at p. 678.) The Supreme Court has explained that a defendant establishes the materiality of the suppressed evidence for Brady error by "showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." ( Kyles, supra, 514 U.S. at p. 435, fn. omitted.) This contextual approach requires that we consider the case presented by the prosecution and then assess the impact the SART video may have had on the medical evidence in the case. Our review of the entire record compels our conclusion that the evidence against defendant, while sufficient to support a conviction, was far from overwhelming. It consisted of (1) Anna's often contradictory testimony and statements to law enforcement officials, and (2) medical testimony by Ritter and her supervisor, Dr. Kerns, concerning the SART examination of Anna. We will discuss separately this lay and expert testimony as it bears on the question of the materiality of the SART video. a. nonmedical evidence Of significance in our contextual approach to assessing materiality is our view that, medical testimony aside, the prosecution's case was a relatively weak one. While any attempt to say what a jury would have done under different circumstances is always to some degree an exercise in speculation, it is unlikely that defendant here would have been convicted absent convincing medical testimony. The prosecutor placed significant emphasis on the medical evidence. Indeed, a reading of the jury arguments presented by the People suggests (without there having been a direct concession by the People) that, without the testimony of Ritter and Dr. Kerns, the case would not support a conviction. In opening argument, the prosecutor acknowledged that, at the commencement of the trial, he had no idea whether Anna would testify that the instances of rape and sexual abuse that were charged actually occurred. He readily acknowledged that Anna repeatedly contradicted herself, explaining that she felt the weight of her family on her and was afraid of the consequences of her grandfather being convicted. In both of his arguments, the prosecutor repeatedly stressed the importance of the physical evidence as being supportive of Anna's allegations of rape and sexual abuse. He said in opening argument that "the physical evidence in this case is clear that this girl was raped." In his closing argument, he told the jury: "Anna's testimony is confusing. Anna's statement[s] in the past can be confusing, but what this case is about is the physical evidence, ladies and gentlemen. Because there is one thing[:] that the physical evidence can't lie and the physical evidence shows that this little girl has had sex." The prosecutor argued further that "the physical evidence proves to you that Anna is not lying." And he ridiculed defense counsel's closing argument by asserting that it focused on "other [i]rrelevant issues" in order "[t]o distract you from the fact that Anna has always said it was her grandfather that did this and to distract you from the physical evidence that she's not lying." At the risk of appearing overly critical of the prosecution's case or of the credibility of the alleged victim, the weaknesses in the nonmedical evidence that we believe are readily apparent from the record include the following: Delayed reporting. The principal crimes (the two rapes) occurred according to Anna's testimony when she was five or six and nine years old. There was no evidence presented that defendant ever instructed Anna not to report the molestation or that he otherwise intimidated or threatened her if she were to tell anyone what defendant had done to her. (See People v. Martinez (1995) 11 Cal.4th 434, 445 [circumstantial evidence supporting lewd act charge may include "any coercion, bribery, or deceit used to obtain the victim's cooperation or to avoid detection"].) Anna did not report the alleged sex crimes until she was almost 12 years old. "Child victims [of sexual abuse] . . . commonly are reluctant to report such incidents and delay in doing so" ( People v. Brown (1994) 8 Cal.4th 746, 758), and "evidence of the fact and circumstances surrounding the delayed complaint also may be relevant to the jury's evaluation of the likelihood that the offense did or did not occur" ( id. at p. 761). Prior complaints by Anna. There was little evidence — except for Anna's testimony about telling her sisters and (in 2005) her mother about the abuse — that she had ever complained to anyone about her grandfather's conduct or that she had told anyone that something he did made her feel uncomfortable. And the record is less than clear as to the circumstances surrounding her reporting of defendant's alleged conduct that ultimately prompted the investigation and prosecution of defendant. Outward signs. There was no evidence (e.g., testimony from other family members) that Anna exhibited any discomfort or other outward negative signs when she was around her grandfather. Defendant submitted contrary evidence from three family members who observed no signs from Anna's interactions with defendant that she was uncomfortable around, or scared of, him. Milpitas incident. With respect to the Milpitas incident, Anna testified that she never saw defendant's face but that she had known that it was he. During her direct testimony, Anna needed prompting that defendant had raped her; she initially testified that after defendant pulled down her pants and panties, she fell asleep and did not remember what had happened afterward. It was only after further questioning by the prosecutor that Anna testified that her grandfather put his penis inside of her vagina. Anna also admitted that she had told Lewis that she had made up the Milpitas incident and that she had testified during cross-examination at the preliminary hearing that the incident was a lie. Both Anna's aunt (Patricia) and uncle (Juan Jaime) testified that Anna had never stayed overnight at their apartment because it was too small and they had a large family. Tijuana trip incident. Anna presented some potentially significant contradictions in her account of what occurred during the Tijuana trip incident. At one point during cross-examination, she testified that her family was all asleep when the rape occurred in the back of defendant's van. When defense counsel later asked her if she recalled testifying at the preliminary hearing that her family was watching television when defendant raped her, Anna said that she did; she agreed that her family was watching television. She said that she had been confused when she had testified previously at trial that her family had been sleeping. Anna also testified that she had her back to defendant and that he penetrated her from behind; but she admitted that she had testified at the preliminary hearing that she and defendant were facing each other when the rape occurred. Despite being shown a diagram prepared during her preliminary hearing testimony that illustrated that defendant and she had been face-to-face when the rape occurred, Anna insisted that "[defendant] was just looking at the back of [her] head" and that she had been confused at the preliminary hearing. In addition, Anna offered various explanations for not crying out to her family while defendant was raping her. She explained that she did not cry out because she was afraid that (1) her family wouldn't listen to her; (2) her family would think that she was "crazy"; (3) she would get her grandfather in trouble; and (4) if she complained, she would be separated from her mother. Further, despite the crowded confines of the van and Anna's testimony that members of her family were awake at the time, there was no corroboration of the Tijuana trip incident. And defendant presented testimony from several family members (i.e., Alisia, Leticia, and Kimberly) that contradicted Anna's claim that he raped her on the trip to Tijuana in his van. No known bleeding/minimal pain. According to the prosecution's medical experts, there was a significant tear to Anna's hymen. A tear of such a nature, Dr. Kerns and Dr. Hariton agreed, would likely result in bleeding. Although the prosecution and defense experts differed as to the degree of likelihood that the victim would be aware of resultant bleeding, it seems at least a reasonable point in favor of the defense that Anna never noticed any bleeding after any of the alleged assaults. Additionally, according to expert testimony from both sides, it is likely that the pain associated with the penetration would have been significant. While it is a point of less strength to the defense — because Anna might have naturally discounted the pain due to feelings about testifying against her grandfather — Anna testified that it hurt only "a little" after each rape. Numerous recantations/contradictions. There were numerous instances in which Anna recanted, in whole or in part, her claims that her grandfather sexually abused her. There were a number of contradictions in her testimony brought out by defense counsel during lengthy cross-examination. These could be explained away by such matters as Anna's age, the intimidating aspects of testifying in a public courtroom, and the awkward phrasing of some questions posed during cross-examination circumstances; but the recantations and contradictions were weaknesses in the prosecution's case nonetheless. Defense witnesses. Defendant presented a series of witnesses (family members) who addressed defendant's character for honesty, good morals, and decency. Some of them also to one degree or another contradicted Anna's testimony (primarily regarding the Tijuana trip incident). While we do not give this testimony, individually or collectively, a great deal of weight, it was nonetheless some evidence favoring the defense. Other matters. Although "California law does not require corroboration of the testimony of a child sexual abuse victim" ( People v. Harlan (1990) 222 Cal.App.3d 439, 454), it is nonetheless true here that there was no percipient witness who offered corroboration for Anna's testimony. Further, unlike many other child sexual abuse cases, there was no evidence of prior acts of sexual misconduct by defendant. (See Evid. Code, § 1108; see also People v. Yovanov (1999) 69 Cal.App.4th 392, 405: "In enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101.") And there was no evidence of any statements made by defendant that were inculpatory. (See People v. Gutierrez (1978) 80 Cal.App.3d 829, 836 [false or deliberately misleading statements by the defendant accused of child sex crimes could be considered as evidence of consciousness of guilt].) b. medical evidence We have summarized the medical evidence in some detail, above. As we have observed, it is clear that the prosecution relied heavily on the "physical evidence" — presented through the expert testimony of Ritter and Dr. Kerns — to bolster its case. Based upon the expert testimony and argument of counsel presented at trial, there are a number of concerns that arise with respect to the suppressed SART video that weigh on our decision as to its materiality. Importance of photos. It is obvious from reading the medical testimony and the arguments of counsel that the photos taken from the SART exam were key evidence in the case. Stated another way, the prosecution's case was admittedly weak absent the medical evidence, and a key aspect of the medical testimony (on both sides) was the photographic evidence. For instance, Ritter emphasized in her testimony the importance of the photos in the SART exam; she stated that it was often difficult to do a complete evaluation at the time of the exam and that the final evaluation appearing in the report was based in part upon her post-exam review of the photos. Likewise, Dr. Kerns explained that his practice was to review the photographic evidence before signing off on SART exam reports. And Dr. Hariton admitted that his conclusions were based solely on the report and the photos and that he did not examine or interview Anna. At one point, Dr. Hariton testified, "All I [had were] the photographs." In argument to the jury, the People brought up the photos both as a way of emphasizing their importance relative to the opinions of the People's experts and as a way of minimizing Dr. Hariton's due diligence in forming his opinions. Toward the end of his closing argument, the prosecutor told the jury that it would have for its deliberations the charts and photos "that proves that Anna is telling you the truth." And he — in an argument that was improper but to which defendant did not object — emphasized to the jury that Dr. Hariton did not interview or examine Anna, thereby stressing that all the expert was relying on were the photos (and, in particular, one allegedly "bad" photo, exhibit I) in forming his opinions. Number of photos. There were essentially three photos that were utilized by the experts at trial, exhibits 4, 5, and I. Considering the photographic evidence used to convict defendant, the trial photos represented a very small segment of the potential photographic evidence the experts could have considered had the suppressed, over-five-minute-long SART video been available. Exhibit I. The controversy surrounding exhibit I was unquestionably an important aspect of the trial. Dr. Hariton relied on it significantly in rendering his opinion that Anna's hymen was not torn; exhibit I showed "a normal hymen." Dr. Kerns attacked that opinion by testifying that exhibit I "is a bad picture; technically, this is not a good photograph. We wouldn't rely on this. It's just not a good enough photograph, technically." He stated that because of its poor quality, it was his belief that the hymen was not even depicted in exhibit I. The prosecutor characterized exhibit I in closing argument as a "bad photo" that "was taken by mistake." In response to defense counsel's summation concerning Dr. Hariton's opinions, the prosecutor reminded the jury (twice) that Dr. Kerns had testified, "`No, this [exhibit I] isn't a good photo. There is a shadow. Nothing is there[. Y]ou can't see it.'" Since exhibit I was obtained from the prosecution (through Valley Medical), the defense was unable to refute the assertions that exhibit I was a bad photo and that it did not even depict Anna's hymen at all. The defense obviously could not go to the source of exhibit I to respond to Dr. Kerns's contentions, because it did not know that the SART video existed. There is inherent unfairness to the defense that resulted from it being unable to respond to the attack upon the opinion of its expert, where the source for a response (i.e., the SART video) was controlled by the prosecution and not disclosed to the defense. Implicit representation to defense by video's nonproduction. As we have noted above, while Brady error may occur even where there was no pretrial discovery request by the defense ( Kyles, supra, 514 U.S. at p. 434), suppression of evidence following a specific discovery request may constitute an implied representation to the defense that may affect its trial strategy. ( Bagley, supra, 473 U.S. at pp. 682-683.) Accordingly, as a reviewing court, we may consider the impact, if any, that the prosecution's nondisclosure of the SART video had on the defense presentation of its case. ( Ibid.) Here, defendant made a pretrial request to the prosecution for "[a]ll photos of the alleged victim taken during the July 29, 2005, SART exam including notes and any other documentation regarding said exam." This request plainly encompassed the SART video. Further, defendant also caused to be issued before trial a subpoena duces tecum directing Valley Medical to produce "all medical records, laboratory results, conclusions, findings, diagnosis, follow up treatments . . . for Anna . . . who was examined by Mary Ritter, . . . on or about July 29, 2005." The SART video was included within the scope of the Valley Medical subpoena. Thus, the nonproduction of the SART video by either the prosecution or Valley Medical in this instance constituted an implicit representation by the People to defendant that there existed no photographic evidence concerning the SART exam beyond the photos produced. ( Bagley, supra, 473 U.S. at pp. 682-683.) In essence, the defense was left to assume (reasonably) that the photos were the best and only pictorial evidence of Anna's SART exam and that there was no way to scrutinize further the photos that were so heavily relied on by the experts in reaching their opinions regarding the existence (or absence) of physical evidence of a penetrating trauma. Under the circumstances here, given the importance of the medical testimony, the impact of the implicit representation on the defense's trial preparation and presentation is of some significance in establishing the materiality element of defendant's claim of a Brady violation. Absence of evidence refuting defendant's showing in new trial motion. The prosecution's opposition to defendant's first new trial motion contained no evidence. Thus, aside from failing to explain the nonproduction of the SART video, the opposition did not refute anything in Dr. Hariton's declaration, including that (1) after isolating the portion of the SART video that corresponded with exhibit I, he concluded "[t]hat Dr. Kerns was incorrect when he testified that [exhibit I] . . . did not depict the [hymenal] opening of the alleged victim"; (2) the "video clearly shows a circular [hymenal] opening that is clear, in focus, and similar to [exhibit I that Dr. Hariton] referred to in support of [his] opinion"; (3) he had obtained several additional photos from the video that also "clearly show an intact hymen with no evidence of a prior transection or trauma"; (4) although no photos had been available showing an examination of Anna in the supine position, the "video of the [hymenal] area in the supine position again shows an intact hymen with no evidence of a prior transection"; and (5) the "video is extremely important and necessary in this case," fully supported his opinions given at trial, and contradicted the opinions of Dr. Kerns and Ritter. In our view, it is troubling that the prosecution made no evidentiary showing (e.g., declarations from Ritter and/or Dr. Kerns) in response to any of these technical matters. That silence leaves unrebutted the sworn statements of Dr. Hariton that the SART video fully supported his trial opinions, supported his conclusion that an intact hymen was depicted in exhibit I, and offered significant evidence to refute the opinions of the prosecution's experts. Thus, unless it can be objectively determined that Dr. Hariton's declaration in reality offers little or nothing to support the claim that the SART video was important to the defense — either by reasonably finding that Dr. Hariton's trial testimony was inherently untrustworthy, or by reasonably concluding that the SART video objectively offers nothing to support Dr. Hariton's opinions — we must credit defendant's evidentiary showing in support of the new trial motion. It is obvious from the order that the court gave no credence to Dr. Hariton. From our careful review of all of the medical testimony, while it appears that the prosecution's experts provided testimony that was more persuasive than Dr. Hariton's testimony — in part because Ritter personally conducted the SART exam and in part because of the superior qualifications of the prosecution's experts in the field of conducting SART exams — we cannot simply reject Dr. Hariton's testimony out of hand. While the prosecution attempted to portray him as an expert for hire with no practical experience in SART exams, Dr. Hariton was a qualified expert with approximately 40 years of experience as a practicing gynecologist. Nor can we from the record before us reject out of hand (as the trial court did) all of Dr. Hariton's opinions rendered at trial and posttrial. The SART video. The court below after viewing the SART video concluded that it contained nothing exculpatory to defendant. In rejecting Dr. Hariton's assertions that the video was very important and offered significant support for his trial opinion that there was no physical evidence of penetrating trauma, the court observed, "Except for the motion, number of frames, and the occasional loss of focus, the video images are the same as the still images. Whether one sees 1000 frames of a hymen or 2 frames of the same hymen, it is still the same hymen. . . . Whether the jurors saw video images of the hymen or still photo images of the hymen does not substantially change the evidence that would have been presented at trial." This court has viewed the SART video a number of times. We have attempted without success to reach the same detailed conclusions that the trial court did when it viewed the video (as referenced in its order). This court simply cannot reach the unwavering conclusion (as the trial court did) that the SART video offered nothing that would have been helpful to the defense. Moreover, we are concerned that the court disregarded — without receiving any evidence from the prosecution — Dr. Hariton's sworn statements that the video, in fact, presented significant pictorial material beyond the photographs introduced at trial and that this additional evidence (from multiple views) demonstrated that Anna had an intact hymen with no prior transection. We are also somewhat troubled by the trial court's suppositions as to what either the prosecution's experts or Dr. Hariton would have testified in light of the SART video. In its order, the court stated: "Seeing a sharp video image of the still image depicted in Exhibit I would only lead the SART examiner to conclude that `Now that this one shot of the hymen is in focus (along with numerous other sharp images and contemporaneous SART drawings we already have as Exhibits), my opinion remains that the hymen was torn.' The best the [d]efendant would get from the sharper image is the same testimony adduced at trial through the defense expert: `The hymen is not torn, but rather manipulated to look torn.'" It seems very problematic to suppose the outer limits of what Dr. Hariton would have testified with the benefit of the SART video, particularly in light of his declaration in which he stated that a number of new images — including ones taken when Anna was in the supine position — supported his trial opinion that her hymen had not been previously transected. It also appears very problematic to suppose what the prosecution's experts would have testified had they been allowed to review the SART video because (1) they submitted no responsive evidence in opposition to the new trial motion, and (2) the court's supposition as to what Ritter would have said contradicts Dr. Kerns's testimony that exhibit I did not even depict Anna's hymen. c. conclusion re materiality As we have noted above, unless it is reasonable to find Dr. Hariton's trial testimony inherently untrustworthy, or to conclude that the SART video objectively offers nothing to support Dr. Hariton's opinions, the defense made a good showing in its new trial motion as to the materiality element of a potential Brady violation. While we acknowledge that the trial court's findings of fact on issues related to a claimed Brady violation are, if supported by substantial evidence, entitled to great weight ( Salazar, supra, 35 Cal.4th at p. 1042), we cannot reach the conclusion that the trial court did here that the SART video had no value to the defense. In our assessment of the materiality of the SART video, we find the contrasting circumstances of Salazar, supra, 35 Cal.4th 1031 (cited by the Attorney General) instructive. The Supreme Court there rejected the defendant's claim of Brady error, concluding that the suppressed information — evidence that prosecution's expert (medical examiner) had changed his testimony in another case — was not material. ( Id. at p. 1052.) The Salazar court reached this conclusion, inter alia, because there was significant expert testimony that corroborated the opinions of the medical examiner ( id. at pp. 1050-1051); the same testimony provided by the medical examiner could have been supplied by other witnesses ( id. at p. 1051); there was other evidence, including the defendant's own statements, that supported the guilty verdict ( ibid.); and the undisclosed impeachment evidence did not offer strong support for the defendant's theory that the medical examiner "was a mere puppet of the prosecution and thus should have been disbelieved in this case." ( Id. at p. 1052, fn. omitted.) Furthermore, in Salazar, the nature of the impeachment evidence that was suppressed — in stark contrast to the circumstances here — was collateral to the substance of expert's opinions. We have evaluated the potential impact of the omitted SART video in light of the entire record. ( United States v. Agurs, supra, 427 U.S. at p. 112.) In doing so, we have made assessments of the nonmedical testimony and the potential significance that the SART video might have had in the presentation of the medical evidence. Based upon those assessments, we conclude that the suppressed evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." ( Kyles, supra, 514 U.S. at p. 435, fn. omitted.)
See footnote, ante, page 1457.
Additionally, after trial, the People argued that Anna's declaration recanting her trial testimony was insufficient to warrant the granting of defendant's second new trial motion because, unlike other cases relied on by defendant in his motion, here "there is significant and convincing physical evidence that Anna Doe suffered a penetrating trauma consistent with sexual abuse to her hymen."
Although the record is not completely clear, it appears that in July 2005, Anna initially told a friend from school that her grandfather had molested her, and that an official investigation commenced shortly after this revelation.
Sergeant Candelaria, however, did testify that Anna told him that it was very painful when defendant penetrated her during both the Milpitas incident and the Tijuana trip incident.
Although exhibit 3 was referred to by Ritter in her testimony and she circled a red area at the edge of the hymen that represented an area of possible infection, that photograph was not relied on by her or by the other experts concerning the presence or absence of physical evidence of penetrating trauma. Other exhibits marked for identification and introduced were essentially duplicates of blowups. The record is silent as to whether the four photographs introduced at trial (exhibits 3, 4, 5, and I) were the only ones produced to defendant in pretrial discovery.
He reiterated that opinion when he returned to the witness stand following Dr. Kerns's testimony.
The trial court apparently found that Valley Medical should have produced the SART video: "[I]f the videotape existed at the time of trial, and the hospital knew of the existence of the video images for Anna Doe, the videotape should have been produced during discovery pre-trial. It was not."
Dr. Hariton's credentials included that he was chief of the obstetrics and gynecology department at Valley Presbyterian Hospital; the founder and chairman of the obstetrics department at the Encino-Tarzana Medical Center; a fellow of the American College of Obstetricians and Gynecologists; and was a member of the board of directors at the University of Southern California School of Pharmacy.
There were some technical problems that the court encountered: For the majority of the footage from which the key prosecution photos (exhibits 4 and 5) were taken, the top portion of the hymen (where the claimed "V-shaped" configuration would have been shown) was cut off. The court also notes that defendant urged in his supplemental opening brief that this court review the "SART Videotape CD" or CD duplicating the SART videotape." Since the only videotape sent to us from the superior court was a VHS-format videotape, this reference to a "CD" suggests that defense counsel may believe that the record should have included a more refined format of videotape than the one available to this court.
At oral argument, the Attorney General relied on the court's order denying the first new trial motion as the basis for arguing that defendant failed to establish the materiality element of a Brady violation. The Attorney General urged that this court should adopt the findings of the trial court in its order, based upon that court's viewing of the SART video. For the reasons expressed in this opinion, we decline counsel's suggestion that we automatically adopt the findings of the trial court concerning the SART video in disposing of this appeal.
4. Conclusion re Brady violation
We have carefully reviewed and considered the entire record in this case, including all of the trial testimony, exhibits, arguments of counsel, defendant's two new trial motions, the People's oppositions thereto, the SART video and additional photographs submitted by the defense in connection with the first new trial motion and reviewed in camera by the trial court, and the court's lengthy order on the first new trial motion. We cannot uphold the trial court's conclusion that there was no Brady error.
The SART video was favorable to the defense. And it constituted suppressed evidence under Brady, because the Center at Valley Medical was part of the "prosecution team." The determination of whether defendant established the third element, namely, the materiality of the SART video under Brady, boils down to an overall assessment of whether, giving full consideration of the evidence presented at trial, the suppression of the SART video "`undermines confidence in the outcome of the trial.'" ( Kyles, supra, 514 U.S. at p. 434, quoting Bagley, supra, 473 U.S. at p. 678.) This, we believe, is something more than a conclusion that the outcome may have been different had the SART video been available, but something less than defendant's being required to "demonstrate that after discounting the inculpatory evidence in light of the [SART video], there would not have been enough left to convict." ( Kyles, supra, at pp. 434-435.) Here, evaluating the potential impact of the omitted SART video in light of the entire record, our confidence in the outcome of the trial has been undermined by the suppression of this evidence by the prosecution. This determination is largely based upon the relative weakness ( sans medical evidence) of the prosecution's case, coupled with the unfairness to defendant in his being required to respond to medical testimony with limited and inferior photos when far superior and numerous photographic evidence in the form of the SART video should have been made available to him.
We are mindful that the purpose of the Brady rule is "to ensure that a miscarriage of justice does not occur." ( Bagley, 473 U.S. at p. 675, fn. omitted.) Based upon our conclusion that defendant established the requisite three elements, we find that the trial court erred by denying defendant's first motion for new trial made on the basis of violation of the Brady rule.
Because of this conclusion, we need not address defendant's remaining contentions of error. (See People v. Jenkins (2000) 22 Cal.4th 900, 980, fn. 12 [ 95 Cal.Rptr.2d 377, 997 P.2d 1044] [where Supreme Court held that suppression motion was properly denied based on third party consent, it declined to consider other claimed justifications for such denial].)
DISPOSITION
The judgment is reversed and remanded for a new trial.Mihara, Acting P. J., and McAdams, J., concurred.
Respondent's petition for review by the Supreme Court was denied September 10, 2008, S164724.