Opinion
H045390
09-18-2019
THE PEOPLE, Plaintiff and Respondent, v. ANDRES MENDOZA VALENZUELA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1513170)
I. INTRODUCTION
Defendant Andres Mendoza Valenzuela appeals after a jury found him guilty of assault with intent to commit rape (Pen. Code, § 220, subd. (a)(1)). The trial court sentenced defendant to two years in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that his conviction is not supported by substantial evidence, the trial court abused its discretion when it admitted various out-of-court statements into evidence, and the cumulative effect of the admission of the statements was prejudicial and violated his federal right to due process.
For reasons that we will explain, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
1. The Incident
Victim was born in the United States (U.S.) but moved to Mexico at age six. In April 2015, at age 17, she returned to the U.S. to live with her grandparents in San Jose. Victim's brother accompanied her, but he planned to stay in the U.S. only temporarily.
Victim's grandparents lived in a two-bedroom apartment. Both bedrooms were upstairs. Her grandparents slept in one bedroom and defendant, victim's uncle, slept in the second bedroom. Victim and her brother slept downstairs on an inflatable mattress in the living room. Victim enrolled in high school and planned to live with her grandparents until she got a job and found her own place.
On April 24, 2015, victim woke up at 3:00 a.m. because she needed to use the bathroom. Victim decided to use the upstairs bathroom because the tile floor downstairs was cold. While victim was in the bathroom, she heard someone enter the apartment. She thought it was her grandfather because he got home from work around 2:00 or 3:00 a.m.
When victim exited the bathroom, defendant stepped in victim's way, grasped victim on her upper arms with both of his hands, and pushed victim toward his bedroom. Defendant threw victim onto his bed. Defendant took victim's wrists in one of his hands and placed her wrists above her head. With his other hand, defendant lowered his shorts and pulled down victim's pajamas and underwear. Victim was scared and confused. Defendant told victim to be quiet.
While kneeling over her, defendant used his knees to separate victim's legs. Defendant then put his penis between the lips of victim's vagina and moaned. Victim thought about screaming but she was afraid. Victim did not try to defend herself because she did not know how to react. Defendant was a lot bigger and heavier than victim. After two to three minutes, defendant got up and let victim go, telling her not to say anything. Victim went into the bathroom and cried. She washed her face, went back downstairs, and changed her clothes. She did not tell her grandparents what happened because she did not want to cause any problems and she thought they might not believe her because defendant was their son. When she got downstairs, her brother was still asleep. Victim did not wake him up to tell him what happened because she was scared of how he would react.
Victim saw defendant later that day when he came home from work. Defendant acted like everything was normal.
2. Victim's Disclosure to K.M.
Victim eventually told her best friend, K.M., what happened. Victim had wanted to keep the incident to herself, but after a while she realized it was too much for her and she had to tell someone. Victim did not tell her mother because she thought her mother would not be able to do anything since she was in Mexico. She also did not want to worry everyone.
In late April or early May 2015, victim sent a text message to K.M. stating that she needed to tell her something. K.M. asked victim what it was but victim would not tell her. K.M. asked again at some point when they were around family and friends, but victim said that it needed to be in private.
On May 3, 2015, victim was at K.M.'s house for dinner. While K.M.'s family was cooking, they went to K.M.'s room so they could talk privately. K.M. again asked victim what she had to tell her. Victim hesitated because she did not want to say what it was. Then, rather than orally telling K.M. what happened, victim used a notes application on her cell phone and insinuated that something serious had happened to her. She wrote that she was scared and did not know who to tell, but she did not want to keep it to herself. K.M. continued to ask victim for specifics until victim finally told her by writing about it in the notes application.
Victim wrote that defendant intercepted her after she had gone to the bathroom. Victim said that defendant "had done some stuff to her" and had assaulted her, but would not disclose the details. K.M. asked victim whether it was "the thing you wait for till [sic] marriage?" Victim responded with two sad-face emojis, a happy-face emoji, and another sad-face emoji. Victim also said it was embarrassing followed by three happy-face emojis. K.M. asked victim why she was using the smiling emojis, and victim explained that she was embarrassed.
Afterwards, K.M. sent text messages to victim urging her to tell someone. In response, victim sent text messages saying she was scared. She also sent K.M. sad-face emojis. Eventually, K.M. decided to tell her mother because she was concerned something would happen to victim since she lived with defendant. K.M.'s mother was very worried and tried to contact victim and victim's brother.
3. Victim's Disclosure to Her Brother
In May 2015, victim told her brother that she was sad and felt bad about something that had happened to her, but she would not tell him what it was. Victim's brother asked victim to tell him what happened, but she said that he would get upset. Victim seemed sad and did not want to engage in her usual activities, like going for a walk or to the mall. Instead, she would put her head phones on and listen to music. Although she had always been happy and excited to go to school, victim said that she did not want to go to school anymore.
At some point, K.M.'s mother took victim and victim's brother to Starbucks. Afterwards, they went to K.M.'s mother's house. Victim gave her brother a letter, which he read while victim was beside him. The letter stated that when victim was going downstairs after exiting the upstairs bathroom, defendant "grabbed her and pushed her and took her to his room." The letter said that when they were inside the room, defendant removed her clothing " '[a]nd that's where it all happened.' " The letter did not give any other details. Victim's brother asked her for more information after he read the letter, but victim refused to explain. Victim was crying.
Victim's brother asked K.M.'s mother if they could stay with her because he did not want to see defendant and victim did not feel comfortable going back to their grandparents' house. Victim's brother then went to his grandparents' home to pick up some clothes but did not tell them about the allegations.
4. Victim's Disclosure to School Officials and Police
At K.M.'s mother's suggestion, the day after victim told her brother what happened, victim talked to the school nurse who brought her to school officials. Victim told them everything.
Afterwards, victim spoke to a detective about what happened. At the detective's direction, victim called defendant. Victim told defendant that they needed to talk about what happened because it was bothering her. In response, defendant hung up on victim.
5. Expert Testimony
On May 18, 2015, victim was examined by a physician's assistant who was an expert in the medical evaluation of child sexual assault victims. The physician's assistant found no sign of penetrating injury to victim's vaginal or anal area. The findings were consistent with victim's reported history.
Dr. Blake Carmichael testified as an expert on the disclosure of child sexual assault. Dr. Carmichael described the Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Carmichael stated that CSAAS was developed as an educational tool to dispel misconceptions about how sexually abused children behave. Dr. Carmichael described the five characteristics of CSAAS: secrecy, helplessness, entrapment or accommodation, delayed and unconvincing disclosure, and retraction or recanting. Dr. Carmichael stated that not all five characteristics are present in every instance of abuse.
B. Defense Evidence
Defendant's father, Andres Valenzuela, testified that in the summer of 2015, he lived in an apartment with his wife and defendant. His grandchildren, victim and victim's brother, came to stay with them while they were on vacation. Victim also attended school. Victim and victim's brother slept in the living room.
Valenzuela worked Monday through Friday from 6:00 p.m. to 2:30 a.m. He arrived home at 3:00 a.m. Whenever he arrived home from work, both victim and victim's brother were in the living room. He never saw victim upstairs when he arrived home.
Valenzuela's bedroom was upstairs and about two feet from the top of the stairway. He shared the room with his wife. She was always in the bedroom when he arrived home from work. Defendant's bedroom was on the other side of the stairway. Valenzuela never heard anything unusual coming from defendant's bedroom or saw anything unusual in the upstairs hallway when he arrived home from work.
Victim had also visited Valenzuela and his wife in 2014. Valenzuela never saw defendant behave inappropriately or sexually toward victim and victim never complained about him. Valenzuela never saw defendant behave in a sexually inappropriate manner toward defendant's daughter. In Valenzuela's opinion, defendant did not have the character of someone who would act sexually inappropriate toward young teenagers. In Valenzuela's opinion, defendant had never been violent.
Abril Tamayo testified that she had known defendant for approximately 28 years and was married to him from 1991 to 2002 or 2003. They had four children together. After she and defendant separated, defendant visited their children every other weekend. Tamayo never saw defendant act sexually inappropriate toward young women or their daughter. In Tamayo's opinion, it was not in defendant's character to act sexually inappropriate toward young teenage girls. Defendant was not violent.
Defendant's mother, Graciela Mendoza, testified that victim came from Mexico to live with them in 2015. Once she arrived in the U.S., victim enrolled in high school. Victim was excited to attend school. At some point, Mendoza learned that victim would not be graduating that spring. Victim was "happy as usual" and said she would continue studying.
Mendoza testified that she did not notice anything unusual at 3:00 a.m. on April 24, 2015, or on any other date while victim was living with them. She also did not hear anything unusual coming from defendant's room or hear anybody being pushed or shoved in the hallway. Mendoza slept with her bedroom door open.
Mendoza had never seen defendant act in a sexually inappropriate manner toward his daughter or toward any of Mendoza's nieces. Defendant and victim did not interact very much. In Mendoza's opinion, defendant did not have the character of someone who would act sexually inappropriate toward young teenage girls.
Defendant's daughter testified that after she learned of victim's accusations against defendant, she went to victim's high school to talk to her. Victim's demeanor was "very blank" and she looked away from her.
Defendant's daughter had never seen defendant act sexually inappropriate toward women or teenage girls and he had never acted sexually inappropriate toward her. In defendant's daughter's opinion, defendant did not have the character of someone who would act sexually inappropriate toward teenage girls.
Defendant's partner, Lorena Campoverde, testified that she dated defendant for 11 years. They lived together for nine years until she moved to Mexico in 2015. She returned in November 2016 and resided with defendant in San Jose.
Campoverde stated that she never saw defendant act sexually inappropriate toward her daughters, her grandchildren, or any other women. In Campoverde's opinion, defendant did not have the character of someone who would act sexually inappropriate toward young teenage girls. Defendant was not violent. He was a very calm, good person and a good father.
Victim admitted that at a hearing on June 2, 2017, she testified untruthfully under oath. Victim lied about the number of times she cut herself on her arms and about being prescribed antidepressants. Victim stated that the district attorney had given her immunity from prosecution for perjury.
C. Charges , Verdict , and Sentence
Defendant was charged with assault with intent to commit rape (§ 220, subd. (a)(1)). A jury found defendant guilty as charged. The trial court sentenced defendant to two years in prison.
III. DISCUSSION
A. Sufficiency of the Evidence
Defendant contends his conviction must be overturned because there was "no evidence . . . of [his] intent to commit penetration of [victim's] vagina," as required to commit assault with intent to commit rape in violation of section 220. Defendant argues that the record evidence that he placed his penis between the lips of victim's vagina does not constitute penetration and that if he had held "the specific intent to penetrate [victim's] vagina, there is no reason he could not have accomplished that act." Focusing on the crime of rape, the Attorney General quotes section 263 to counter that "[t]he crime of rape is complete upon '[a]ny sexual penetration, however slight,' " and cites People v. Karsai (1982) 131 Cal.App.3d 224, 232 (Karsai) to argue that " '[p]enetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina.' "
Disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, footnote 8.
The standard of review for an appellate challenge to the sufficiency of the evidence to support a conviction is well established. "In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we 'examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1129 (Guerra), disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) Further, " '[i]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.' [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citation.]" (Guerra, supra, at p. 1129.)
Section 220, subdivision (a)(1) states: "Except as provided in subdivision (b), any person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for two, four, or six years."
An element of the crime of assault with intent to commit rape is the intent to commit rape. (People v. Cook (2017) 8 Cal.App.5th 309, 313 (Cook); see also People v. Ghent (1987) 43 Cal.3d 739, 757 [the offenses of assault with intent to commit rape and attempted rape require the same specific intent].) " ' "The essential element of [assault with intent to commit rape] is the intent to commit the act against the will of the complainant. The offense is complete if at any moment during the assault the accused intends to use whatever force may be required." ' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 399-400 (Maury).) " ' "[I]f there is evidence of the former intent and acts attendant to the execution of that intent, the abandonment of that intent before consummation of the act will not erase the felonious nature of the assault." ' [Citation.]" (Id. at p. 400.)
Defendant argues that the California Supreme Court in People v. Holt (1997) 15 Cal.4th 619 (Holt) defined "sexual intercourse as requiring penetration of the actual vagina" and that in this case there was "no evidence" he intended to penetrate victim's internal genitalia because he "did not put his penis near [victim's] vaginal opening, but instead rested it between the vaginal lips." We are not persuaded.
By "actual vagina," we assume defendant to mean a woman's internal genitalia.
In Holt, the defendant contended that "the failure of the [trial] court to define 'sexual intercourse' resulted in a failure to instruct on all elements of the offense of rape." (Holt, supra, 15 Cal.4th at p. 675, fn. omitted.) The defendant asserted that the instructions "did not inform the jury that the penetration required was penetration of the vagina and the jury might have believed that anal penetration was sufficient." (Id. at pp. 675-676.) The Supreme Court rejected the claim, "see[ing] no possibility that the jury did not understand the instructions to require vaginal penetration." (Id. at p. 676.) The court "agree[d] with the People that there is no possibility that the jury did not understand that in the court's instruction on rape, the intercourse to which the instruction referred required penetration of the victim's vaginal genitalia." (Ibid., italics added.) The court did not state that the crime of rape required penetration of a victim's internal genitalia.
Regarding the offense of rape, which is defined by the Penal Code as "an act of sexual intercourse" occurring in specified circumstances (§ 261, subd. (a)), "[t]he [California] Supreme Court has described the requirement as 'vaginal penetration,' but has never held that section 261 requires vaginal penetration as it is commonly understood. [Citation.]" (People v. Paz (2017) 10 Cal.App.5th 1023, 1037 (Paz).) "[A]ppellate courts have long held that vaginal penetration does not require penetration of the vagina." (Ibid.) Rather, "[p]enetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina." (Karsai, supra, 131 Cal.App.3d at p. 232; see also People v. Dunn (2012) 205 Cal.App.4th 1086, 1097 [sexual intercourse required proof of "penetration of [the victim's] labia majora, not her vagina"].) "In short, although the term vagina has a well-established anatomical meaning, California courts have long treated it as a term of art synonymous with 'female private parts.' [Citation.]" (Paz, supra, at p. 1037.)
In Karsai, supra, 131 Cal.App.3d at page 233, "[t]he victim testified that she felt defendant's penis in the area of her private parts and that it was 'between my lips.' It did not extend into her vagina; however, she felt pressure on the entrance to her vagina which hurt. She believed that defendant's penis was inside her body, although not inside her vagina. She clarified that she believed the penis to be inside her when it was between her major and minor lips (the labia majora and minora) and at the entrance to her vagina. The physician who examined the victim after the rape testified that he observed a mild erythema, or redness, about the vagina introitus, which is at the opening of the vagina. In his opinion this was consistent with contact with an erect penis." The Court of Appeal concluded that "[t]his evidence supports the jury's determination that defendant made sexual penetration and is sufficient to support his conviction for rape." (Ibid.)
Here, however, "the prosecution was not required to prove that a rape had occurred, but only that [victim] had been assaulted with an intent to commit rape." (Maury, supra, 30 Cal.4th at p. 400.) The crime of assault with intent to commit rape does not require any penetration of the victim's external or internal genitalia. "An assault is an unlawful attempt, coupled with a present ability, to inflict a violent injury on a person (§ 240), and unlike a battery (§ 242), it does not require contact with the victim. . . . The only additional element of assault with intent to commit rape is the perpetrator's subjective intent, during the commission of the assault, to commit a rape. [Citations.]" (Cook, supra, 8 Cal.App.5th at p. 313.)
Victim testified that defendant pushed her toward his bedroom, threw her onto his bed, took her wrists in one hand and with his other hand pulled down her pajamas and underwear, and told her to be quiet. While kneeling over her, he then used his knees to separate victim's legs and placed his penis between the lips of victim's vagina and moaned. The evidence thus established that defendant assaulted victim and penetrated her external genitalia. From this evidence, a reasonable jury could determine beyond a reasonable doubt that defendant intended to rape victim when he assaulted her. We therefore conclude there is sufficient evidence to support defendant's conviction of assault with intent to commit rape in violation of section 220, subdivision (a)(1).
B. Admission of Victim's Out-of-Court Statements
Defendant contends that the trial court erroneously admitted various out-of-court statements by victim into evidence and that the cumulative effect of the statements' admission was prejudicial and violated his federal right to due process. Defendant asserts that the court improperly: (1) elicited and admitted into evidence victim's statements to K.M. under the fresh complaint doctrine; (2) admitted victim's statements to her brother into evidence as impeachment and under the fresh complaint doctrine; and (3) admitted text messages between victim and K.M. into evidence as prior consistent statements, evidence of victim's state of mind, and spontaneous declarations.
1. Motions in Limine
In a motion in limine, the prosecutor sought permission to move into evidence under the fresh complaint doctrine victim's statements to her brother, K.M., and K.M.'s mother. In his motions in limine, defendant requested the trial court to limit the admission of the fresh complaint evidence "to the fact that a complaint was made, name of the perpetrator, date and time of the act, and the circumstances surrounding the making of the complaint." Defendant objected "to any use of additional details aside from the above described limited purpose."
At a hearing on the motions, the prosecutor stated that she was "seeking to introduce the fact that the complaint was made, who the subject matter was, that it was the uncle, and that it was an assault." The trial court ruled that victim's out-of-court statements disclosing the assault were admissible under the fresh complaint doctrine and indicated that some of victim's out-of-court statements might be admissible as spontaneous statements, prior consistent statements, or prior inconsistent statements depending on the foundation laid by the parties.
2. Limiting Instructions
The trial court included two limiting instructions pertaining to victim's out-of-court statements in its instructions to the jury. The court told the jury: "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. [¶] The People have presented evidence that [victim] told the following people that she had been sexually assaulted by the defendant: [¶] Her brother . . . and her friend [K.M.]. [¶] These statements were not admitted for the truth of the matter stated. These statements were admitted for the limited purpose to show the circumstances surrounding [victim's] reports of being sexually assaulted by the defendant. [¶] The People presented evidence through the testimony of [victim's brother] regarding what [victim] told him about the sexual assault. [Victim's] statements to [her brother] were not offered for the truth of the matter stated but only for the limited purpose of showing [victim's brother] made a statement that was inconsistent with his testimony."
3. Legal Principles
a. Fresh Complaint Evidence
" ' "Hearsay evidence," ' "defined as 'evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated,' is generally inadmissible. (Evid. Code, § 1200.)" (Guerra, supra, 37 Cal.4th at p. 1113.)
Under the fresh complaint doctrine, "proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred." (People v. Brown (1994) 8 Cal.4th 746, 749-750 (Brown).) The jury may consider the evidence "for the purpose of corroborating the victim's testimony, but not to prove the occurrence of the crime. [Citation.]" (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522.)
Importantly, "in light of the narrow purpose of its admission, evidence of the victim's report or disclosure of the alleged offense should be limited to the fact of the making of the complaint and other circumstances material to this limited purpose. Caution in this regard is particularly important because, if the details of the victim's extrajudicial complaint are admitted into evidence, even with a proper limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault [citation], thereby converting the victim's statement into a hearsay assertion [citation]." (Brown, supra, 8 Cal.4th at p. 763.) "[T]he 'fact of complaint' [does] not include details of the incident, but [does] include evidence demonstrating that the complaint ' "related to the matter being inquired into, and [was] not a complaint wholly foreign to the subject . . . . " ' [Citation.]" (Id. at p. 756.) A victim's identifications of the assailant(s) and the nature of the crime(s) are properly included within evidence of the fresh complaint. (People v. Burton (1961) 55 Cal.2d 328, 351 (Burton), abrogated on a different point in Brown, supra, at pp. 756-757, 763.)
The admissibility of fresh complaint evidence does not turn "upon whether the victim's complaint was made immediately following the alleged assault or was preceded by some delay, nor upon whether the complaint was volunteered spontaneously by the victim or instead was prompted by some inquiry or questioning from another person." (Brown, supra, 8 Cal.4th at p. 763.) Instead, the jury may consider those factors in assessing the significance of the victim's complaint. (Ibid.)
On request, "the trial court must instruct the jury as to the limited purpose for which the fresh complaint evidence was admitted. [Citation.] However, the trial court has no duty to give such an instruction in the absence of a request." (People v. Manning (2008) 165 Cal.App.4th 870, 880 (Manning).)
b. Prior Inconsistent Statements
If a witness's in-court testimony is inconsistent with the witness's prior out-of-court statement, the prior out-of-court statement may be admitted for its truth if certain conditions are met. (Evid. Code, §§ 1235, 770.) In general, if a witness is given an opportunity to explain or deny the prior inconsistent statement and the witness has not yet been excused, the prior inconsistent statement may be admitted. (Evid. Code, § 770, subds. (a) & (b).)
" 'The "fundamental requirement" of section 1235 is that the statement in fact be inconsistent with the witness's trial testimony.' [Citation.] ' "Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness'[s] prior statement . . . ." ' [Citations.]" (People v. Cowan (2010) 50 Cal.4th 401, 462 (Cowan).)
c. Evidence of Declarant's State of Mind
"Evidence of a statement of a declarant's state of mind, when offered to prove or explain the declarant's conduct, is admissible, as long as the statement was made under circumstances indicating its trustworthiness. (Evid. Code, §§ 1250, subd. (a)(2), 1252.) A prerequisite to this exception is that the victim's mental state or conduct be placed in issue. [Citation.]" (Guerra, supra, 37 Cal.4th at p. 1114.) For example, "[e]vidence of [a] murder victim's fear of the defendant is admissible when the victim's state of mind is relevant to an element of an offense." (Ibid.)
d. Standard of Review
We "appl[y] the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22 Cal.4th 690, 723 (Waidla).) "Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (Guerra, supra, 37 Cal.4th at p. 1113.)
4. Victim's Statements to K.M. Elicited by the Trial Court
a. Trial Court Proceedings
After K.M. was examined by both parties, the trial court asked her: "[Y]ou [testified] [victim] told you in the notes app but then you said you were embarrassed and she was embarrassed. But did she tell you what happened in the notes app?" K.M. responded, "I don't remember exactly every phrase, but she had said that her uncle had stopped her while she was going to the bathroom and that he had intercepted her and that's when the whole incident, the thing you do [on the night of your] marriage, came into the conversation." Defendant did not object to the court's inquiry or ask that K.M.'s response be stricken.
b. Analysis
Defendant contends that the trial court abused its discretion when it admitted this testimony under the fresh complaint doctrine. The Attorney General argues that the trial court did not err because K.M.'s testimony "explained without unnecessary details the general nature of the offense . . . ."
Defendant also contends that it was an abuse of discretion for the trial court to elicit K.M.'s testimony. However, defendant does not offer argument or legal authority to support this claim. " ' "[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]" [Citation.]' " (People v. Hovarter (2008) 44 Cal.4th 983, 1029.) Moreover, we observe that the trial court's question was limited to whether victim told K.M. what happened. In response, K.M. volunteered what victim said, and, as we have stated, defendant did not move to strike K.M.'s answer.
The Attorney General does not contend that defendant forfeited this claim.
Assuming that the trial court admitted this particular testimony into evidence under the fresh complaint doctrine, we determine that it was not an abuse of discretion for the court to do so. The nature of the charged offense was that defendant, victim's uncle, assaulted victim with the intent to rape her. Thus, K.M. could testify that victim had told her that "[victim's] uncle . . . had intercepted her" and that it had something to do with "the thing you do [on the night of your] marriage . . . ." (See People v. Meacham (1984) 152 Cal.App.3d 142, 157, 160 [mothers' testimony that their children had complained defendant had touched their bottom and/or removed their clothing was properly admitted under the fresh complaint doctrine], abrogated on a different point in Brown, supra, 8 Cal.4th at pp. 756-757, 763.) Insofar as K.M. testified that victim told her that the incident occurred "while she was going to the bathroom," we conclude that it was not arbitrary, capricious, or patently absurd for the trial court to implicitly determine that the testimony "demonstrat[ed] that the complaint ' "related to the matter being inquired into, and [was] not a complaint wholly foreign to the subject . . . . " ' [Citation.]" (Brown, supra, at p. 756, italics omitted.)
5. Victim's Statements to Her Brother
a. Trial Court Proceedings
Victim's brother testified that victim gave him a letter regarding what happened. The prosecutor asked victim's brother whether victim had identified the perpetrator. Defendant objected, stating that he was "making a standing objection" that "any statement provided to the witness from [victim] is hearsay and doesn't fall under any exception." The trial court overruled defendant's objection and victim's brother answered, "My uncle." When the prosecutor asked victim's brother "the nature of what [defendant] had done to [victim], without getting into specifics," victim's brother indicated that he did not understand the prosecutor's question.
The prosecutor asked whether in the letter victim "disclose[d] the nature of [the] abusive things that happened," and victim's brother answered, "No." Victim's brother also testified that victim refused to explain what happened in a follow-up conversation with him but that she was sad and crying. The prosecutor asked victim's brother whether he "remember[ed] telling the police officers about [victim] telling [him] specifically what had happened to her after writing the letter." Victim's brother responded that he did not remember. The prosecutor asked victim's brother whether it would refresh his recollection if he saw a copy of his statement in the police report, and victim's brother responded, "Maybe, yes," but the prosecutor did not show victim's brother the police report.
The prosecutor asked victim's brother, "Isn't it true that [victim] told you, according to your statement [to police], 'That early one morning' --" Defendant objected, asserting there was a "[l]ack of foundation for impeachment." The trial court overruled the objection. The prosecutor continued, "[Victim] told you, 'That early one morning she went to use the upstairs bathroom. When she came out, she ran into her uncle near the top of the stairs. Her uncle then grabbed her, forced her into his bedroom. He took off her clothes and that's where everything started.' [¶] She didn't go into specifics of [sic] specific details?" Victim's brother answered, "That's what the letter said." The prosecutor then asked, "Now when you say she didn't tell you anything, are you talking about she didn't tell you the details after the assault and pushed [sic] into the room?" Victim's brother said, "Yes." Victim's brother testified that "later on, [victim] just repeated" the portion of the letter the prosecutor had just read.
The prosecutor asked victim's brother to state in his own words how he remembered the letter and what victim conveyed to him. Victim's brother responded, "Well, she said to me that she wanted to go to the bathroom. But that she decided to go to the upstairs bathroom. And when she exited, she was going down the stairs and then at that point my uncle grabbed her and pushed her and took her to his room." The prosecutor asked whether victim told him what occurred in the room, and victim's brother testified, "He removed her clothing. And then at that point she said 'And that's where it all happened.' " Victim's brother stated that victim did not tell him what " 'all happened' " was.
After the brother's testimony concluded, the trial court put a sidebar conference on the record involving defendant's objection to the brother's testimony. The court stated that it seemed that defendant was "conceding that [the testimony] could come in under fresh complaint" but that defendant kept objecting on hearsay grounds. Defendant clarified that he objected to the testimony because under Brown, "only the circumstances under which [the disclosure] was made" are admissible and "not so much the details . . . ." Defendant asserted that "what was admitted was the entirety of what was said, not just some details."
The trial court stated, "I didn't take it that way. . . . [T]here was a little bit more details but it wasn't the whole full blown details of everything that happened. Because she never disclosed everything that happened to [her brother]. So even though it was what she told [her brother], that fell, I believe, within fresh complaint. Even though it was everything she told her brother, which was not everything that happened."
The prosecutor added, "[A]nother reason why that statement came in . . . was because initially there was . . . confusion about what has been disclosed and whether [victim] had disclosed anything at all." The prosecutor stated that victim's brother testified that victim had not "disclosed anything at all" and the prosecutor had then "used that statement in a way to impeach him that, yes, she actually had disclosed something and he had told the officer. [¶] So it came in under both of those theories, fresh complaint and impeachment. As it turned out, it wasn't true impeachment. It was just he was confused about the timing or the extent of what [victim] had disclosed."
Defendant stated that it was unclear whether the testimony was admitted as impeachment or if the prosecutor was trying to refresh victim's brother's recollection, and the trial court responded that the testimony was admitted as impeachment evidence. Defendant argued that "[u]nder those circumstances, the jury cannot use [the testimony] for the substance of what was conveyed but only for the purposes of impeaching his credibility" and asked for a limiting instruction, which as we stated above, the court gave.
b. Analysis
Defendant contends that it was an abuse of discretion for the trial court to admit victim's brother's testimony as impeachment evidence because the brother's statements that he did not remember what victim told him were not inconsistent with his statement to the police regarding victim's complaint. Defendant also contends that the trial court abused its discretion when it admitted the brother's testimony under the fresh complaint doctrine because the testimony included not just the fact of victim's disclosure but the details of the incident.
When the prosecutor asked victim's brother whether in victim's letter victim "disclose[d] the nature of [the] abusive things that happened," victim's brother answered, "No." Although the prosecutor's question was arguably vague, it was not an abuse of discretion for the trial court to implicitly determine that victim's brother's testimony was inconsistent with his prior statement to the police about the content of victim's letter and to allow the prosecutor to impeach victim's brother with his prior inconsistent statement to the police. The prosecutor did so when she asked victim's brother, "Isn't it true that [victim] told you, according to your statement [to police], 'That early one morning' --" After the trial court overruled defendant's objection, the prosecutor continued, "[Victim] told you, 'That early one morning she went to use the upstairs bathroom. When she came out, she ran into her uncle near the top of the stairs. Her uncle then grabbed her, forced her into his bedroom. He took off her clothes and that's where everything started.' [¶] She didn't go into specifics of [sic] specific details?" Victim's brother answered, "That's what the letter said." Thus, victim's brother's preimpeachment testimony was both " ' "express[ly]" ' " inconsistent and " ' "[i]nconsisten[t] in effect" ' " with his prior statement to the police. (Cowan, supra, 50 Cal.4th at p. 462.)
Defendant argues that the impeachment was improper because "[w]hen asked by the prosecutor whether [victim] had told him anything independent of what she stated in the letter, [victim's brother] repeatedly replied that he did not remember." While it is true that victim's brother stated that he did not remember telling the police that victim told him what happened apart from writing him the letter, that testimony did not negate victim's brother's earlier, unequivocal testimony that victim did not disclose the nature of the abuse in her letter to him. Thus, victim's brother could be impeached with his prior inconsistent statement to the police about the contents of victim's letter, and victim's brother's testimony about the contents of victim's letter was admissible under Evidence Code section 1235 as a prior inconsistent statement. We observe, moreover, that the trial court's instruction to the jury limited the jury's consideration of this testimony to "showing [that victim's brother] made a statement that was inconsistent with his testimony."
Defendant contends that the trial court improperly admitted under the fresh complaint doctrine victim's brother's testimony that victim had told him that when she was exiting the upstairs bathroom, their "uncle grabbed her and pushed her and took her to his room" where "[h]e removed her clothing" and " 'that's where it all happened.' " The testimony was in response to the prosecutor's request to victim's brother, after she had impeached him with his prior inconsistent statement, to state "in [his] own words how [he] remember[s] the letter and how [he] remember[s] what [victim] conveyed to [him]."
We conclude that it was not "arbitrary, capricious, or patently absurd" for the trial court to implicitly determine that this testimony fell within the parameters of the fresh complaint doctrine. (Guerra, supra, 37 Cal.4th at p. 1113.) Victim's brother's testimony essentially did no more than identify the crime (assault with intent to commit rape) and the assailant (victim's uncle). The "alleged victim's statement of the nature of the offense and the identity of the asserted offender, without details, is proper. [Citations.]" (Burton, supra, 55 Cal.2d at pp. 351-352, italics omitted; see, e.g., People v. Snyder (1993) 14 Cal.App.4th 1166, 1171-1172 [victim's disclosures to the defendant's wife that " ' "He made me do it," ' " and " ' "He made me have sex," ' " were properly admitted under the fresh complaint doctrine], abrogated on a different point in Brown, supra, 8 Cal.4th at pp. 756-757, 763; People v. Fair (1988) 203 Cal.App.3d 1303, 1307 [victim's note stating the defendant " 'made me touche [sic] his dick. He touched my pussy. Don't tell. No. That's what he told me,' " was admissible under the fresh complaint doctrine], abrogated on a different point in Brown, supra, at pp. 756-757, 763; People v. Cordray (1963) 221 Cal.App.2d 589, 594 [testimony that " '[s]he said he had pulled her pants down and he had kissed her between the legs' " properly admitted under fresh complaint doctrine], abrogated on a different point in Brown, supra, at pp. 756-757, 763.) "[T]estimony to the bare fact that the victim 'made a complaint' as to an unspecified subject matter on its face would be meaningless . . . ." (Burton, supra, at p. 351.)
In any event, to the extent victim's brother's testimony exceeded the bounds of the fresh complaint doctrine, its admission did not result in a "manifest miscarriage of justice. [Citation.]" (Guerra, supra, 37 Cal.4th at p. 1113.) As we stated above, the trial court gave a limiting instruction regarding this testimony, telling the jury that the "statements were not admitted for the truth of the matter stated," but "for the limited purpose to show the circumstances surrounding [victim's] reports of being sexually assaulted by the defendant." We presume that the jury followed the court's limiting instruction and did not consider the statements for their truth. (See id. at p. 1115; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Moreover, victim testified to the assault. Consequently, the jury "did not have to rely on [victim's] secondhand statements to other people, but was able to hear her directly and judge her credibility." (Manning, supra, 165 Cal.App.4th at p. 881.)
6. Text Messages Between Victim and K.M.
a. Trial Court Proceedings
Over defendant's objection, the trial court admitted a May 3, 2015 text message conversation between victim and K.M. into evidence.
In the texts, K.M. pressed victim to tell her what happened. Victim first responded with "sad and crying faces emojis." When K.M. again asked victim what occurred, victim stated, "It's not that easy as it appears." K.M. told victim she had to try. Victim responded with an "emoji with tear drops on [it's] face" and by stating, "[Y]ou almost know everything. There's nothing much to say, things just happened, there was nothing I could do to stop it." K.M. asked, "Like what?" Victim used an "emoji with tear drop on [its] face" and asked, "[K.M.] you don't have any idea?" K.M. asked, "Is it the thing you wait for till marriage?" Victim responded with "emojis with tear drop on face, happy face and sad face" and by telling K.M. "this is embarrassing." Victim again stated, "This is embarrassing," which she followed with "3 emoji happy faces." K.M. asked, "[W]hy are you smiling?!" and victim responded by stating, "[S]miling?" and, "They are not smiling (emoji of sad face)." K.M. asked, "Sorry but why?! How?! And why didn't anyone notice?!" Victim stated, "I don't know . . . I ask myself those same questions (emojis of sad faces)."
The remainder of the text messages involved K.M.'s attempts to get victim to disclose to her family what happened and victim's reluctance to do so. Victim told K.M. that she did not know when she would disclose and asked K.M. to "give [her] time." Victim stated that she was "afraid," and K.M. assured her that no one would blame her. Victim responded that she would "try" but she could not "promise [K.M.] anything." K.M. told victim that if she did not disclose what happened soon, she might have to do it for her. Victim asked K.M. to "give [her] 15 days," but then stated that "15 days [was] too short" and asked K.M. not to "do this to [her]." The girls continued their back and forth. At the end of the text conversation, victim thanked K.M. and stated that she "would be drowning with this" if she had not told her. Victim's last text message stated, "I seriously hope everything turns out ok . . . I don't know how [my brother] or he will react but I don't know, I'm crying, but thank you, thank you [K.M.], I owe you."
The prosecutor argued that the text messages were admissible as prior consistent statements (Evid. Code, §§ 791, 1236), evidence of victim's state of mind (Evid. Code, § 1250), and spontaneous statements (Evid. Code, § 1240). The trial court admitted the text messages under all three theories. When ruling that the text messages were admissible as evidence of victim's state of mind, the trial court stated that the text messages were "clearly relevant evidence for the jury to consider," but did not elaborate.
b. Analysis
Defendant contends that the trial court abused its discretion when it admitted victim's text messages to K.M. into evidence as prior consistent statements, evidence of victim's state of mind, and spontaneous statements because the messages constituted inadmissible hearsay. Defendant argues that none of the bases of admission applied.
Regarding the admissibility of the text messages as nonhearsay evidence of victim's state of mind, defendant argues that "[victim's] state of mind regarding whether she should tell anyone about the assault was not at issue - what was at issue was the veracity of her testimony that her uncle had assaulted her." Defendant also asserts that Evidence Code section 352 barred the texts' admission as evidence of victim's state of mind because the texts were cumulative of victim's and K.M.'s testimony regarding victim's reluctance to disclose the assault, and "the prosecution has no right to present cumulative evidence that creates a substantial danger of undue prejudice to the defendant."
As we stated above, "[t]he abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence. [Citation.] This standard is particularly appropriate when, as here, the trial court's determination of admissibility involved questions of relevance, the state-of-mind exception to the hearsay rule, and undue prejudice. [Citation.]" (Guerra, supra, 37 Cal.4th at p. 1113.)
Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Nonetheless, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
Although hearsay evidence is generally inadmissible, "[e]vidence of a statement of a declarant's state of mind, when offered to prove or explain the declarant's conduct, is admissible" when circumstances indicate its trustworthiness and "the victim's state of mind is relevant to an element of an offense. [Citation.]" (Guerra, supra, 37 Cal.4th at p. 1114.)
In Waidla, supra, 22 Cal.4th at page 723, the California Supreme Court held that the victim's statements indicating she was fearful of the defendant were relevant to prove her lack of consent to the burglary and robbery occurring at the time of her murder. In Guerra, supra, 37 Cal.4th at page 1114, the court held that the victim's statements that "she believed defendant came into her house as she napped and that she was afraid of him were clearly probative of her lack of consent to sexual intercourse in the attempted rape. Therefore, [the victim's] state of mind was relevant to prove the attempted-rape felony murder and the attempted-rape special-circumstance allegation, and thus fell within the state-of-mind exception. [Citation.]" This was true despite the fact that the defendant proffered an alibi defense. (Id. at p. 1082.)
Likewise, here, victim's text message to K.M. that "[t]here's nothing much to say, things just happened, there was nothing I could do to stop it," her statements that it was "embarrassing," and her use of emojis to express her feelings about what happened were "clearly probative of her lack of consent" to defendant's conduct. (Guerra, supra, 37 Cal.4th at p. 1114.) As defendant acknowledges, "what was at issue was the veracity of [victim's] testimony that her uncle had assaulted her," and the text messages shed light on victim's truthfulness in that regard.
Defendant argues that victim's texts to K.M. expressing her reluctance to report the abuse were both irrelevant and cumulative and therefore should not have been admitted as evidence of victim's state of mind. We conclude that it was not "arbitrary, capricious, or patently absurd" for the trial court to determine that the text messages regarding victim's reluctance to disclose the assault were relevant and for it to implicitly determine that they were not cumulative of victim's and K.M.'s testimony such that the messages' probative value was substantially outweighed by the probability that their admission would create a substantial danger of undue prejudice. (Guerra, supra, 37 Cal.4th at p. 1113; see Evid. Code, § 352.)
Defendant's theory at trial was that victim lied about the assault because she no longer wanted to stay at her grandparents' apartment and "she needed to create a situation that would make her grandparents' home an unsafe environment." Victim's text messages to K.M. regarding her reluctance to disclose the assault to her family directly countered that theory. If victim had "create[d]" the assault in order to move out of her grandparents' home, it stood to reason that she would not have been reluctant to share what happened. Moreover, while both victim and K.M. testified that K.M. urged victim to tell her family members, neither witness's testimony about victim's reluctance to disclose was prolonged, nor was it so detailed that the text messages' admission into evidence created a substantial danger of undue prejudice.
For these reasons, we conclude that the trial court did not abuse its discretion when it admitted victim's text messages to K.M. as evidence of victim's state of mind.
Because we determine that the text messages were admissible as evidence of victim's state of mind, we do not reach defendant's claims that the trial court abused its discretion when it admitted the texts as prior consistent statements and spontaneous statements.
7. Cumulative Prejudice
Defendant contends cumulative prejudice resulted from the admission of victim's out-of-court statements into evidence and that his federal right to due process was violated. (See People v. Hill (1998) 17 Cal.4th 800, 844 ["a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error"].) However, we have found the trial court's evidentiary rulings were not an abuse of discretion. Because there are not multiple errors, there can be no cumulative prejudice.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.