Opinion
H042701
11-28-2018
THE PEOPLE, Plaintiff and Respondent, v. JIMMY SANCHEZ VASQUEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1481871)
A jury convicted defendant Jimmy Sanchez Vasquez of sex offenses involving three minor victims. The trial court imposed a 32-years-to-life prison term. On appeal, defendant challenges the adequacy of his Miranda warnings, the trial court's denial of his motion to sever the charges involving one of the victims, the admission of testimony he contends was inadmissible hearsay, and the trial court's refusal to instruct on the defense of unconsciousness. He also raises a cumulative error claim and requests that we review one of the victim's confidential school records, to which the trial court denied him access following an in camera review, to determine whether that denial was erroneous. We conclude that the court erroneously admitted hearsay evidence, an error that was harmless as to counts 1 through 5, but prejudicial as to counts 6 and 7. Accordingly, we reverse the judgment and remand for possible retrial of counts 6 and 7 and for resentencing.
Miranda v. Arizona (1963) 234 U.S. 456 (Miranda).
I. BACKGROUND
A. Factual Background
1. The Incidents Involving V. and the Initial Police Investigation
Defendant and S.P. started dating in late 2000. The two met through S.P's brother, Raul, who is married to defendant's aunt, Lupe. In 2006, defendant moved in with S.P. and 12-year-old V. V. saw defendant as a "father figure." While V. had her own bedroom, she slept in bed with her mother and defendant "[f]airly often."
Rule 8.90(b) of the California Rules of Court provides that reviewing courts "should consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only," in order to protect those individuals' privacy.
V. testified that in early 2007, shortly after her 13th birthday, defendant touched her inappropriately three times. On one occasion, she and defendant were sitting on the living room couch watching television. "[S]omehow [she] ended up straddling [defendant,] facing him." He held her by the hips and "grind[ed]" his erect penis against her. Neither of them said anything during the incident and she did not tell her mother about it.
On another occasion, V. and defendant were lying on the bed. He pulled her on top of him and, again, "grinded" against her while holding her hips. When V. got up, she could see the head of defendant's penis above the waistband of his shorts or sweatpants. Again, neither V. nor defendant said anything during the incident and V. did not disclose it to her mother.
Finally, one night S.P., defendant, and V. all went to sleep in the same bed. In the middle of the night V. awoke and felt defendant's hand "feeling around" between her legs on the outside of her underwear. V. was lying on her side at the time and defendant was lying behind her. S.P. was not in the bed, having moved to V.'s room because V. was kicking in her sleep. Defendant's fingers moved to the inside of V.'s underwear and he "tried inserting them into [her] vagina." V. estimated that defendant touched her vagina for 10 minutes; she believed he penetrated her vagina because she experienced pain. The encounter ended when V. pulled defendant's hand away, got out of bed, and yelled at defendant. V., crying, went to her room to tell her mother what happened.
S.P. testified that she awoke to the sound of V. crying and yelling. V. said that defendant had touched her vagina with his fingers.
Defendant moved out of the apartment the following day. S.P. and V. agreed not to report the incident to police. S.P. also wanted to avoid involving defendant's family because they were part of her family too. S.P. took V. to Kaiser for counseling. S.P. agreed to allow Kaiser to report the incident to police, as Kaiser informed her was required to enroll V. in counseling.
Shortly thereafter, San Jose Police Detective Matty Hrncir contacted V. During a February 26, 2007 interview, V. told Detective Hrncir about the incident in which defendant touched her vagina in the middle of the night. V. said that defendant had touched her vagina under her underwear, but that his hand "wasn't moving" or "doing any sort of rubbing," and that she moved his hand away "immediately." She denied that his fingers penetrated her vagina. During that interview, V. did not mention any other incidents. At the 2015 trial, V. testified that during that initial police interview in 2007, she "didn't tell [Detective Hrncir] a lot of the things that happened" or identifying information about defendant because she didn't want to "have to go through this whole process . . . ."
Detective Hrncir also spoke with S.P. in February 2007. Like V., S.P. failed to provide any identifying information about defendant.
S.P. testified that, in the months following February 2007, defendant told her that he regretted "to have touched V[.]"
In April 2009, San Jose Police Detective Saul Duran was assigned to do further investigation into V.'s 2007 allegation in an effort to identify the alleged perpetrator. He contacted V. and S.P. Again they refused to provide identifying information about defendant, even failing to correct Detective Duran when he mistakenly referred to defendant as Velasquez, as opposed to Vasquez. V. testified that she lied to Detective Duran during that interview, saying she did not know whether defendant had any family in the United States.
2. The Incident Involving A. and the Subsequent Police Investigation
S.P.'s brother, Raul, and his wife, Lupe, had family members over to their apartment for a barbeque in August 2009. Raul, defendant, and the kids, including Raul and Lupe's 14-year-old daughter A., played in the apartment complex pool that day. At the preliminary hearing, A. testified that during that barbeque, defendant rubbed his erect penis against her buttocks while they were in the pool and exposed his penis to her in the hot tub. Defendant slept on the couch at Raul and Lupe's that night. According to A., after she had gone to bed, she felt something touching her buttocks. When she turned to see what it was, she saw defendant quickly move away. He told her he was in the bedroom to cover her cousins, who also were sleeping over, with a blanket.
A. refused to testify at trial. The court allowed her testimony from the July 24, 2014 preliminary hearing to be read into the record.
Raul did not see defendant expose himself at the barbeque and did not notice A. acting strangely that day. Others who attended the barbeque, including defendant's brother, sister, nephew, and niece, likewise denied seeing defendant expose himself or noticing anything else unusual.
At some point, V. and A., who are cousins and close friends, exchanged stories regarding their experiences with defendant. V. then told her mother, S.P., what A. had told her. S.P., in turn, told her brother Raul about V. and A.'s experiences. Raul called the police.
At trial, Raul initially denied calling the police. Later, he admitted that he did call the police and explained that he had lied because he didn't "want to have any problems . . . with anybody."
On September 10, 2009, Detective Duran interviewed A. She made a pretext call to defendant at that time, a recording of which was played for the jury. On the call, A. asked defendant why he had showed her his penis in the pool. He responded that he did not do so intentionally; he said was wearing small shorts with no drawstring and the shorts fell down a little as he got into and out of the water. A. accused defendant of exposing his penis after telling her to go under the water wearing goggles. She also accused him of exposing himself to her in the hot tub. He denied the accusations. A. then told defendant that V. had told her about the things he had done to her. Defendant responded: "What happened with V[.] is something that (inaudible) you do not have to be coming out and butting into. What happened is something very personal. . . . And it's something that you can't understand . . . ." Just before the call cut off, defendant asked A., "Why did you change in front of me, A[.], and left the door open?" A. did not mention defendant rubbing his penis against her or touching her bottom while she was in bed on the pretext call. In fact, when defendant said "I've not touched you," she agreed, saying "you haven't touched me . . . ."
V. spoke with Detective Duran for a second time in September 2009. She told him that defendant "felt around" with his hand on her vagina during the middle-of-the-night incident, but she did not say that he penetrated her vagina with his fingers. She also did not tell him about defendant "grinding" against her, even though Detective Duran repeatedly asked if there were any other incidents.
Detective Duran interviewed defendant on September 18, 2009. A recording of that interview was played for the jury. Defendant denied rubbing his erect penis against A. in the pool and exposing himself to her in the hot tub. He said that if she saw his penis in the pool it was an accident because his shorts were slipping off. Defendant said that after learning of A.'s accusations he wanted to undergo hypnosis to find out what had happened because he "was very drunk" at the party. While he did not think he had touched A., he "doubt[ed]" himself and wondered whether he was so drunk that he did not remember touching her. As to V., defendant said he put his hand out to touch S.P. in the middle of the night and touched V. unintentionally.
Defendant was arrested and charged based on V. and A.'s accusations. However, the charges were dropped after they both refused to testify at a preliminary hearing.
3. The Incident Involving S. and the Subsequent Police Investigation
In March 2009, Helen S. and C.S. threw a traditional Peruvian fundraising party—a pollada—at their San Jose home. Fourteen-year-old S., Helen's daughter and C.S.'s stepdaughter, was at home during the party, which defendant attended. S. recognized defendant because he played soccer with C.S., but she did not know him.
During the party, S. went to her bedroom to get a camera. She saw defendant come out of the bathroom across the hall from her bedroom. He followed S. into her bedroom and closed and locked the door behind him. He told her she looked beautiful and kissed her. She pushed him away. He grabbed her by the shoulders and pushed her down on to the bed. Defendant removed his own clothes and then removed S.'s clothes. S. screamed and tried to stop him. Defendant inserted his penis into her vagina. After a matter of seconds, he stopped, got dressed, told S. she "won't like it if [she] told [her] parents what happened," and left the room.
S. did not disclose the rape for years because she was embarrassed. In 2012, S. and her mother, Helen, fought because S. was "hanging out with a woman a lot." Helen suspected S. was a lesbian and disapproved. S. decided to tell her mother about the rape so that she could understand why S. was "hanging out with girls a lot instead of guys." According to Helen, S. said "I'm doing this because I hate men because Jimmy raped me." Helen took S. to Kaiser for "a physical exam . . . to make sure." Kaiser informed Helen that they were going to report the rape to police. S. and Helen testified that they were unaware that defendant previously had been arrested and charged with sexual offenses.
Around the same time that S. told Helen about the rape, she also disclosed it to a close friend, Karen L. Karen testified that S. said defendant had raped her during a pollada.
Wayne Smith, an officer with the San Jose Police Department, interviewed V. in July 2014. She told him that defendant had penetrated her vagina during the middle-of-the-night-touching incident. She also disclosed, for the first time, the two incidents during which defendant "grinded" his erect penis against her.
B. Procedural History
On July 31, 2014, the Santa Clara County District Attorney charged defendant by information with three counts of lewd conduct with V., a child under 14 (Pen. Code, § 288, subd. (a), counts 1-3); one count of forcible rape of S. (id., § 261, subd. (a)(2), count 4); one count of lewd conduct with S., a child of 14 or 15 (id., § 288, subd. (c)(1), count 5); and two counts of lewd conduct with A., a child of 14 or 15 (ibid., counts 6-7). Multiple victims were alleged for counts 1 through 4. (§ 667.61, subds. (b) & (e)).
The prosecutor elected to base count 1 on the incident during which defendant "grinded" against V. on the couch, count 2 on the incident during which defendant "grinded" against V. on the bed, count 3 on the incident during which defendant touched V.'s vagina in bed, count 5 on defendant kissing S., count 6 on the incident during which defendant rubbed his penis against A. in the pool, and count 7 on the incident during which defendant touched A.'s bottom while she was in bed. Count 4 charged defendant with raping S.
The jury returned guilty verdicts on all seven counts and found the multiple victim allegations true on June 4, 2015. The trial court sentenced defendant on August 14, 2015. The court imposed a term of 15 years to life on count 1; concurrent terms of 15 years to life on counts 2 and 3; a consecutive term of 15 years to life on count 4; the midterm of two years on count 5, to run concurrently; the midterm of two years on count 6, to run consecutively; and the midterm of two years on count 7, to run concurrently, for a total term of 32 years to life.
Defendant timely appealed.
II. DISCUSSION
A. Adequacy of the Miranda Warnings
Defendant contends the warnings he received pursuant to Miranda were inadequate because they failed to inform him that he was entitled to appointed counsel, not only before questioning, but during questioning. We disagree with defendant's characterization of the warnings, which we conclude were sufficient.
1. The Miranda Warnings and In Limine Motion
At the beginning of defendant's taped interview, Detective Duran advised defendant of his rights as follows:
"Detective Duran: Ok. You have the right to remain silent, you understand? [¶] Defendant: Mm-hmm. [¶ Det.] Duran: Do you understand? [¶] Defendant: Yes. [¶ Det.] Duran: Anything you say can be used against you in a court of law, do you understand? [¶] Defendant: Inaudible. [¶ Det.] Duran: Yes? Yes or no. [¶] Defendant: Yes. [¶ Det.] Duran: Yes. You have the right to have an attorney present before and during the interrogation. Do you understand? [¶] "Defendant: Yes. [¶ Det.] Duran: Yes. Um, if you can't afford an attorney one will be assigned to you free of charge to represent you before the interrogation if you want. Understand? [¶] Defendant: Yes. [¶ Det.] Duran: You understand that? [¶] Defendant: Yes."
Detective Duran testified that he "read verbatim what was on" his San Jose Police Department-issued Miranda card to defendant.
Before trial, defendant requested an Evidence Code section 402 hearing as to any of his statements that the prosecution intended to introduce at trial and indicated his intent to challenge the admissibility of any such statements under Miranda. At the requested hearing, defense counsel urged the court to "focus on" the detective's "use of psychological coercion," including repeatedly accusing the defendant of lying, which she said rendered defendant's statements "involuntary." She did not address the adequacy of the warnings themselves. The trial court concluded that defendant's statements to Detective Duran were admissible, reasoning that he "received a full advisement of his Miranda rights. He clearly understood his rights and freely submitted to questioning by the officer. The defendant's decision to speak with the officer was a product of a free and deliberate choice, and not based on any intimidation, coercion, or deception."
All further statutory citations are to the Evidence Code unless otherwise indicated.
2. Legal Principles and Standard of Review
In Miranda, the United States Supreme Court held that "when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." (Miranda, supra, 384 U.S. at pp. 478-479.)
No "precise formulation" or "talismanic incantation" of the Miranda warnings is required. (California v. Prysock (1981) 453 U.S. 355, 359 (per curiam).) "In determining whether police officers adequately conveyed the [requisite] warnings, . . . '[t]he inquiry is simply whether the warnings reasonably "conve[yed] to [a suspect] his rights as required by Miranda." ' [Citations.]" (Florida v. Powell (2010) 559 U.S. 50, 60.)
"In reviewing the trial court's ruling on a claimed Miranda violation, ' "we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from [those facts] whether the challenged statement was illegally obtained." ' [Citations.]" (People v. Elizalde (2015) 61 Cal.4th 523, 530.)
3. The Miranda Warnings Were Adequate
The Attorney General contends that defendant forfeited his claim that the Miranda warnings were defective by failing to raise it below. Defendant maintains that his in limine motion preserved the argument. Alternatively, he argues that trial counsel rendered ineffective assistance by failing to move to suppress his statement on the ground that he was not informed of his right to appointed counsel during questioning. We need not address the forfeiture and ineffective assistance issues; even assuming, without deciding, that the claim was properly preserved for appellate review, it fails on the merits.
Detective Duran properly informed defendant of his "right to have an attorney present before and during the interrogation." Detective Duran then advised defendant "if you can't afford an attorney one will be assigned to you free of charge to represent you before the interrogation if you want." According to defendant, the latter advisement improperly suggested that defendant had a right to appointed counsel before, but not during, any interrogation.
Binding California Supreme Court precedent compels us to reject that reading of the advisement. In People v. Wash (1993) 6 Cal.4th 215, 236 (Wash), the defendant was advised of his " 'right to have an attorney present before any questioning if you wish one' " and that " 'if you cannot afford . . . an attorney one will be provided to you at no cost before any questioning begins.' " Wash complained on appeal that the "Miranda warnings were inadequate because they failed to inform him that he was entitled to counsel during questioning." (Ibid.) Our Supreme Court acknowledged that "the warning given to defendant . . . deviated from the standard form in failing to expressly state that defendant had the right to counsel both before and during questioning," but was "not persuaded . . . that the language was so ambiguous or confusing as to lead defendant to believe that counsel would be provided before questioning, and then summarily removed once questioning began." (Ibid. [citing with approval People v. Valdivia (1986) 180 Cal.App.3d 657, 662-664 (Valdivia)].) The Wash court concluded "that the warnings given defendant . . . 'reasonably conveyed' his right to have an attorney present during questioning." (Id. at p. 237.)
The same logic applies here: a reasonable person would not understand the complained-of advisement to mean that "counsel would only be provided before questioning and then whisked away once it began." (Valdivia, supra, 180 Cal.App.3d at p. 663 [advisement " '[y]ou have the right of attorney, to speak with an attorney and to have him present before any question' " held to be adequate under Miranda].) Indeed, defendant has an even weaker argument than did Wash and Valdivia because he was advised of his "right to have an attorney present before and during the interrogation." In that context, and in view of the cited case law, we have little difficulty concluding that the warnings reasonably conveyed to defendant his right to appointed counsel before and during any interrogation.
B. Motion to Sever
Before trial, defendant moved unsuccessfully to sever the counts involving S. from those involving A. and V. Defendant contends that the trial court abused its discretion in denying his motion to sever. In support of that claim, defendant argues that the rape evidence would not have been cross-admissible in a trial involving only the lewd conduct charges involving A. and V., was particularly inflammatory, and was stronger than the evidence supporting the charges involving A. and V. In a related argument, defendant argues that the trial court erred in permitting the jury to consider the evidence of the charges involving S. under section 1108 to show propensity to commit the sexual offenses involving A. and V. We reject both arguments on the merits.
1. Legal Principles - Severance and Standard of Review
"[T]wo or more different offenses of the same class of crimes or offenses" may be charged and tried together in a single case. (Pen. Code, § 954.) "Nonetheless, a trial court has discretion to sever properly joined charges in the interest of justice and for good cause." (People v. Simon (2016) 1 Cal.5th 98, 122 (Simon).)
"Our review proceeds in two steps. First, we examine whether, in light of the information available at the time, the trial court abused its discretion in denying the severance motion prior to the guilt phase. [Citation.]" (Simon, supra, 1 Cal.5th at p. 122.) " 'Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns into a capital case.' [Citation.]" (People v. Scott (2015) 61 Cal.4th 363, 395-396 (Scott).) "Where, as here, the statutory requirements for joinder are met, a defendant must make a 'clear showing of prejudice' to establish that the trial court abused its discretion in denying the motion. [Citation.]" (Simon, supra, at pp. 122-123, fn. omitted.) "Second, even if the trial court's ruling was proper as a matter of state law, we will reverse the judgment if the defendant shows that joinder of the charges actually resulted in ' " 'gross unfairness' " ' amounting to a denial of due process during the guilt phase. [Citation.]" (Id. at p. 23.)
Defendant does not dispute that rape and lewd conduct with a child belong to the same class of offenses, such that the statutory requirements for joinder under Penal Code section 954 were met. We agree that sex offenses against minor female victims belong to "the same class of crimes or offenses" (Pen. Code, § 954). (See People v. Ross (1960) 178 Cal.App.2d 801, 805 [sex crimes committed against children were properly joined because they belonged to the same class of offenses]; People v. Nguyen (2010) 184 Cal.App.4th 1096, 1112 (Nguyen) ["Sex offenses 'belong to the same class of crimes' "].)
2. The Trial Court Did Not Abuse its Discretion in Denying the Motion to Sever
" 'Cross-admissibility is the crucial factor affecting prejudice. [Citation.] If evidence of one crime would be admissible in a separate trial of the other crime, prejudice is usually dispelled.' [Citation.]" (Scott, supra, 61 Cal.4th at p. 396.) Here, the court concluded that the evidence of S.'s rape would have been cross-admissible as sexual offense propensity evidence under section 1108 in a hypothetical separate trial on the charges involving A. and V. only. Defendant says that was error. We disagree.
Section 1108 is an exception to the general prohibition against admitting character evidence to prove criminal disposition or propensity. (See § 1101, subd. (a); People v. Falsetta (1999) 21 Cal.4th 903, 911.) In a sexual offense prosecution, that statute permits the admission of evidence that the defendant "committed other sexual offenses to prove his propensity to commit the charged sexual offenses," so long as the evidence of other sexual offenses is admissible under section 352. (People v. Cottone (2013) 57 Cal.4th 269, 281; see also § 1108, subd. (a).) Uncharged sexual offense conduct is admissible under section 352 if its probative value is not "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." The factors to be considered in the section 352 analysis include: "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time." (Nguyen, supra, 184 Cal.App.4th at p. 1117.)
Section 1108, subdivision (a), provides in full: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." The statute defines "sexual offense" to include conduct proscribed by Penal Code sections 261 and 288. (§ 1108, subd. (d)(1)(A).) Thus, all the charges at issue here were sexual offenses for purposes of section 1108.
Defendant contends that evidence that he raped S. was not probative of any propensity to engage in lewd acts with A. and V. For that argument, he relies on this court's opinion in People v. Earle (2009) 172 Cal.App.4th 372 (Earle). There, the majority held that evidence that the defendant had committed indecent exposure was not probative of any propensity to commit sexual assault and thus was not admissible under section 1108. (Earle, supra, at p. 400.) The majority reasoned that the existence of "abstract conceptual analogies between one kind of sexual misconduct and another. . . does not make it rational to suppose that the perpetrator of one crime will commit another crime of a substantially different character." (Id. at p. 399.)
Defendant's reliance on Earle is unpersuasive. The crimes at issue here were not of "substantially different character" from one another. (Earle, supra, 172 Cal.App.4th at p. 399.) Each was a sexual offense against a female victim between the ages of 13 and 15 years who was known to the defendant. In each instance, defendant gained access to the victim through his relationship with her parent or parents. The offenses all appear to have been crimes of opportunity, committed when defendant found himself alone with the victims or in a position where he did not believe his actions could be observed by others. Given these similarities, the rape evidence was probative of a propensity to sexually assault adolescent females. The rape evidence also was probative of whether defendant had the sexual intent required to violate section 288 when he touched A. and V., as it showed that defendant had sexual interest in adolescent girls. Given his statements that any touching of A.'s buttocks with his penis and of V.'s vagina with his finger was accidental, that evidence was highly probative.
Turning to the other factors relevant to the section 352 analysis, the rape was neither remote nor stale. It occurred two years after the incidents with V., months before the incidents with A., and six years before trial. There was no likelihood of confusion, as the rape involved a separate victim and took place at a separate time and place, making it distinguishable from the other charged crimes.
The rape evidence was not, as defendant contends, significantly stronger than the evidence of the lewd acts against A. and V. The evidence of each crime consisted of the testimony of the victim. Defendant argues that the trial court knew, when it ruled, that S. would be more credible than A. (who expressed reluctance to testify at the preliminary hearing and could not remember all the details of the incidents) and V. (whose preliminary hearing testimony was inconsistent with some of her police statements). But S. had credibility issues of her own, having failed to disclose the rape for three years. V. arguably was more credible, having contemporaneously disclosed the final incident to her mother. Thus, at the time the court ruled, the evidence of the counts involving S. did not appear to be meaningfully stronger than the evidence of the counts involving A. and V.
Given that the charges were tried together, it is impossible to assess what the likelihood of distraction (meaning whether the jury might be tempted to punish the defendant for his uncharged conduct) would have been in a hypothetical separate trial. It is likewise impossible to assess whether the admission of the rape evidence would have required an undue consumption of time in a hypothetical separate trial where the prosecutor was not seeking a conviction on that charge.
Finally, we agree with defendant that the rape evidence was more inflammatory than the evidence of most of the lewd acts against A. and V., save perhaps for the digital penetration of V. However, evidence of the rape was not so inflammatory as to compel the conclusion that its significant probative value was substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. In our view, one could reasonably conclude that the probative value outweighed the potential prejudicial effect in this case. Accordingly, we conclude that the evidence of S.'s rape was cross-admissible in a hypothetical separate trial of the charges involving A. and V.
Based on the foregoing analysis, we reject defendant's related argument that the trial court abused its discretion under section 352 in admitting S.'s testimony as propensity evidence. As the Attorney General points out, in the context of a joint trial on all the charges, it makes little sense to say the court erred in admitting S.'s testimony, which obviously was admissible in that context. Rather, defendant's argument appears to be that the court should have limited jurors' use of that evidence, instructing them not to consider it in connection with the charges involving A. and V. Instead, the court instructed the jury, pursuant to CALCRIM No. 1191, that if it concluded beyond a reasonable doubt that defendant committed one of the charged offenses, it could conclude that "defendant was disposed or inclined to commit the other charged crimes . . . ." Regardless of how defendant's argument is characterized, it fails on the merits. --------
Cross-admissibility " 'alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges' " (People v. Jackson (2016) 1 Cal.5th 269, 304-305.) Accordingly, we conclude that the trial court did not abuse its discretion in denying defendant's motion to sever.
3. Defendant Fails to Show That Joinder Resulted in a Denial of Due Process
"Even when we conclude, as we do here, that the trial court acted well within its discretion in denying severance or consolidating charges, we must further inquire whether events after the court's ruling demonstrate that joinder actually resulted in 'gross unfairness' amounting to a denial of defendant's constitutional right to fair trial or due process of law." (People v. Merriman (2014) 60 Cal.4th 1, 46.) Defendant fails to show gross unfairness.
Defendant argues that the joinder actually resulted in gross unfairness because the rape evidence would not have been cross-admissible in a hypothetical separate trial on the charges involving A. and V. only. For all the reasons described above, the evidence would have been cross-admissible in such a trial.
He also contends that gross unfairness resulted from the disparity in strength between the evidence supporting his guilt of the rape and the evidence supporting his guilt of the offenses against A. and V. In his view, the strength of the rape evidence unfairly tainted the jury's consideration of the weaker evidence supporting the other charges. But the evidence supporting the charges involving V. (counts 1 - 3) was not significantly weaker than the evidence supporting the charges involving S. (counts 4 and 5). Indeed, the evidence supporting counts 1 through 3 was quite strong: V. provided detailed testimony regarding the three charged incidents at trial. She acknowledged her failure to give a full and candid account of the abuse to police during her first three interviews and offered a credible explanation for that failure—her youth and desire to avoid a trial that would tear apart her family. And jurors heard from Miriam Wolf, a Child Sexual Abuse Accommodation Syndrome expert, that children who are victims of sexual abuse commonly do not report abuse immediately. Wolf further testified that when child sex abuse victims do disclose their abuse, incremental disclosure is not uncommon. V.'s mother, S.P., testified that V. immediately disclosed the vaginal touching incident to her and that she took V. for counseling at Kaiser, where S.P. was told they would contact police. S.P.'s testimony about the immediate disclosure was corroborated by the fact that San Jose Police in fact learned of the accusation and reached out to S.P. and V. in February 2007. Evidence was presented that defendant made incriminating statements about touching V. to S.P. and A. Specifically, S.P. testified that defendant told her he regretted having touched V. And during a recorded phone call with A., defendant described "[w]hat happened with V[.]" as "something very personal . . . that you can't understand . . . ." Notably, in that conversation, he did not deny touching V. or say it was accidental. During his recorded interview with Detective Duran, defendant admitted to touching V. in bed but claimed it was inadvertent, an implausible explanation given V.'s description of a 10-minute-long episode involving penetration. Counts 4 and 5 were proved by S.'s testimony, which was consistent with the accounts she gave to her mother and her friend Karen, when she first disclosed the rape three years after it occurred. In sum, we cannot say the evidence supporting counts 4 and 5 was meaningfully stronger than that supporting counts 1 through 3.
We agree with defendant that the evidence supporting counts 6 and 7, involving A., was weaker than that supporting the rape charge. However, as discussed below, we reverse defendant's convictions on counts 6 and 7 based on the prejudicial admission of hearsay evidence. Accordingly, we need not decide whether the strength of the evidence of the rape charge rendered defendant's trial on counts 6 and 7 grossly unfair.
Finally, defendant points to the fact that the court instructed jurors with CALCRIM No. 1191 as proof of "gross unfairness." That instruction, which permitted jurors to conclude that "defendant was disposed or inclined to commit" the charged lewd acts if they concluded beyond a reasonable doubt that defendant committed the rape, is a correct statement of the law permitting the use of sexual offense propensity evidence. While such evidence is damaging, its lawful admission is not unfairly prejudicial. (People v. Soto (1998) 64 Cal.App.4th 966, 991-992 [prejudice presented by propensity evidence is inherent and does not render evidence inadmissible].) Accordingly, defendant fails to show that the joinder actually resulted in gross unfairness.
C. The Court Erroneously Admitted Hearsay Evidence
Defendant says the trial court prejudicially erred by admitting testimonial hearsay evidence requiring reversal of his convictions. The Attorney General contends that the testimony at issue was not admitted for its truth, but was simply foundational, such that it was not hearsay. Alternatively, the Attorney General argues that defendant suffered no prejudice.
1. Factual Background
During Detective Duran's testimony, the prosecutor played a recording of the detective's interview of defendant. After playing the recording, the prosecutor asked Detective Duran about the interview. The following exchange took place:
"[PROSECUTOR:] Now, during the course of your interview with the Defendant, you also confronted him at some point with that call that you had set up where Lupe had called [A.]; is that correct? [¶] [DURAN:] That's correct. [¶] [PROSECUTOR:] During the course of that call, you confronted him with the fact that Lupe had indicated to [A.] that defendant had admitted to committing this crime? [¶] [DEFENSE COUNSEL]: Your Honor, I will object to this line of questioning. The transcript speaks for itself. [¶] [PROSECUTOR]: This is -- [¶] THE COURT: Hold on. The question you're asking in the transcript [sic]? [¶] [PROSECUTOR]: Yes. [¶] THE COURT: I'll allow you to ask the question, assuming it's foundational. [¶] [PROSECUTOR]: Thank you. . . . [¶] You confronted the Defendant with a number of things that [A.] had shared with you or that you had heard during the course of that phone conversation between [A.] and Lupe; is that correct? [¶] [DURAN:] That's correct. [¶] [PROSECUTOR]: Including the fact that the Defendant had admitted this offense and sought forgiveness? [¶] [DEFENSE COUNSEL]: Your Honor, I'm going to object as to hearsay. Double hearsay as well. [¶] THE COURT: Okay. Overruled as to what the Defendant said. [¶] [DURAN]: Yes. [¶] [PROSECUTOR]: That's a yes as in that's true? [¶] [DURAN:] That's true." The court gave no limiting instruction as to the use of the foregoing testimony.
As the Attorney General concedes on appeal, Detective Duran did not, as he testified, confront defendant with "the fact that [he] had admitted this offense [to Lupe or A. or anyone else] and sought forgiveness." Rather, Detective Duran told defendant he had listened to a call between A. and her mother, Lupe, during which Lupe told A. she had spoken with defendant and defendant had said he "had to go see a psychologist Defendant responded by explaining to Detective Duran that Lupe had suggested that he see a psychologist and that he had agreed because he wanted to be hypnotized so he could find out "what happened" and if he "really touched" A. There was no mention of any admission to Lupe or of seeking forgiveness in defendant's police interview.
In closing, the prosecutor argued: "[A]t some point, [defendant] confirms that Lupe spoke with him and suggested to him that he see a psychologist. Now, bear in mind, why would Lupe, okay, suggest he see a psychologist? I mean, that speaks volumes, 'cause he's acknowledged to Lupe, he admits that he's done this. We have evidence of that, and in this case, in the context of that conversation, he's admitting that he's talked to Lupe, that she suggested that he see a psychiatrist. [¶] He mentions also seeing maybe a hypnotist. He's clearly telling you, you know what? These things, they did occur, and he needs to get help. He makes it obvious that he's a sexual predator in this context."
2. Contentions on Appeal
Defendant argues that Detective Duran's testimony constituted inadmissible double hearsay, as it related Lupe's out-of-court statement to A., which in turn repeated an out-of-court statement made by defendant. Defendant further contends that Lupe's statement was testimonial, such that its admission violated his federal constitutional right to confront witnesses against him. The Attorney General responds that the out-of-court statements were not admitted for their truth, but rather were "foundational regarding the recorded interview Duran conducted with" defendant. The Attorney General concedes that the trial court should have given a limiting instruction as to the proper use of that testimony, but posits that "it was clear in its context that the questions and responses concerned the interview, and Duran's testimony on the issue was not admitted for its truth." The Attorney General does not respond to defendant's contention that Lupe's statement was testimonial except to argue that any error was harmless under any standard.
3. Legal Principles
" 'Hearsay evidence' is 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." (§ 1200, subd. (a).) " 'Under this definition, as under existing case law, a statement that is offered for some purpose other than to prove the fact stated therein is not hearsay.' " (People v. Bolden (1996) 44 Cal.App.4th 707, 714.) "Except as provided by law, hearsay evidence is inadmissible." (§ 1200, subd. (b).) "[A] trial court's decision to admit or exclude a hearsay statement . . . will not be disturbed on appeal absent a showing of abuse of discretion. [Citation.]" (People v. Jones (2013) 57 Cal.4th 899, 956.)
"The Sixth Amendment's Confrontation Clause provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.' " (Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford).) In Crawford, the United States Supreme Court held that the admission of "testimonial" hearsay violates a criminal defendant's confrontation rights unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination. (People v. Leon (2015) 61 Cal.4th 569, 602-603 (Leon).) "Although the Supreme Court has not settled on a clear definition of what makes a statement testimonial, [our state Supreme Court has] discerned two requirements. First, 'the out-of-court statement must have been made with some degree of formality or solemnity.' [Citation.] Second, the primary purpose of the statement must 'pertain[ ] in some fashion to a criminal prosecution.' [Citation.]" (Id. at p. 603.)
In sum, the "improper admission of hearsay . . . constitute[s] statutory error under the Evidence Code." (People v. Sanchez (2016) 63 Cal.4th 665, 685 (Sanchez).) The standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), under which an error is prejudicial if it is "reasonably probable that a result more favorable to" defendant would have been reached in its absence, applies to such state law errors. (People v. Seumanu (2015) 61 Cal.4th 1293, 1308 (Seumanu) [Watson standard applies to the erroneous admission of hearsay evidence].) If the improperly admitted hearsay "was testimonial and Crawford's exceptions did not apply," then the "[i]mproper admission of such prosecution evidence would also [violate the Confrontation Clause of the Sixth Amendment and] be an error of federal constitutional magnitude." (Sanchez, supra, at p. 685, fn. omitted.) The harmless-beyond-a-reasonable-doubt test for prejudice set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) applies to such constitutional errors.
4. The Court Erroneously Admitted Inadmissible Hearsay
The record supports defendant's position that the out-of-court statements Detective Duran related were admitted for their truth. The court initially allowed the line of questioning on the assumption that it was "foundational," suggesting the testimony was not being admitted for its truth. But the court overruled defense counsel's double hearsay objection "as to what the Defendant said," indicating that the court was admitting the defendant's statement for its truth pursuant to an exception to the hearsay rule, such as the section 1220 exception for statements by a party opponent. The court's failure to instruct jurors not to consider the testimony for its truth convinces us that the court admitted the testimony for its truth. As the Attorney General concedes, that was error because, while defendant's statement was admissible under an exception to the hearsay rule, Lupe's out-of-court statement was not.
5. The Error Was Prejudicial as to Counts 6 and 7
The erroneous admission of Lupe's out-of-court statement requires reversal of defendant's convictions only if it was prejudicial. Ordinarily, the Watson standard applies to the erroneous admission of hearsay in violation of the Evidence Code. (Seumanu, supra, 61 Cal.4th at p. 1308.) But defendant contends the Chapman harmless-beyond-a-reasonable-doubt test for prejudice applies for two reasons. First, as noted, he says Lupe's statement was testimonial, such that its admission violated the Confrontation Clause of the Sixth Amendment. Second, he says the admission of the evidence was a violation of his federal due process rights because it made his trial fundamentally unfair. We need not determine whether Watson or Chapman applies; under either standard, the error was harmless as to counts 1 through 5 and prejudicial as to counts 6 and 7.
The testimony at issue was vague as to what, precisely, defendant admitted. Detective Duran referred generally to "this crime" and "this offense." But defendant was charged with seven crimes. In discussing the hearsay evidence in closing, the prosecutor was equally vague, arguing that defendant "acknowledged to Lupe, he admits that he's done this." (Italics added.) For purposes of the prejudice analysis, we shall assume that jurors understood the hearsay evidence to mean defendant admitted all of the charged conduct to Lupe.
We are convinced beyond a reasonable doubt that the error did not contribute to the verdicts on counts 1 through 3. As discussed above, those counts were supported by V.'s trial testimony, S.P.'s testimony that V. immediately disclosed the vaginal touching incident, defendant's statement to S.P. that he regretted having touched V., defendant's statement to A. that "[w]hat happened with V[.]" was "something very personal . . . that you can't understand . . . ," defendant's admission to Detective Duran that he touched V. in bed combined with his implausible explanation for that touching, and expert testimony regarding delayed and incremental disclosure of abuse by the victims of child sexual abuse. In view of the foregoing evidence, we are convinced beyond a reasonable doubt that the error did not contribute to the verdicts on counts 1 through 3.
Likewise, we are convinced beyond a reasonable doubt that the hearsay evidence did not impact the verdicts on counts 4 and 5. S. provided a firsthand account of the rape at trial, which was consistent with the accounts she gave to her mother and her friend Karen when she first disclosed the rape. Other witnesses confirmed that defendant attended the pollada at which S. said the rape occurred. While S. failed to disclose the rape for three years, she explained at trial that she kept quiet because of embarrassment. And jurors heard expert testimony that child sexual abuse victims commonly wait years before reporting the abuse. We have no doubt that the vague testimony about an admission by defendant to Lupe did not contribute to the guilty verdicts on counts 4 and 5.
We reach a different conclusion as to counts 6 and 7. A. refused to testify at trial. The only evidence of the charged incidents—the penis-to-buttocks touching in the pool and the touching of A.'s buttocks in bed—was her preliminary hearing testimony. Significantly, A. did not mention either of those incidents during her pretext call to defendant. To the contrary, on that call, she assured defendant "you haven't touched me." Thus, jurors were faced with two inconsistent statements and no opportunity to observe A.'s demeanor in attempting to decide which to believe. We recognize that defendant made incriminating statements regarding A., including asking her why she changed her clothes in front of him and telling Detective Duran that he had wanted to undergo hypnosis to find out what had happened with A. because he "was very drunk" at the party. And jurors could have concluded that defendant had a propensity to commit counts 6 and 7 based on their conclusion that defendant had committed counts 1 through 5. Nevertheless, the evidence as to counts 6 and 7 was sufficiently weak that we conclude the error in admitting the hearsay evidence was prejudicial under even the more forgiving Watson standard. That is, it is reasonably probable that at least one juror would have had a reasonable doubt as to defendant's guilt of the crimes involving A. had jurors not heard that defendant admitted those crimes to Lupe. (People v. Soojian (2010) 190 Cal.App.4th 491, 521 ["common sense compels the conclusion that a hung jury is a more favorable result than a guilty verdict"].)
D. The Trial Court Did Not Prejudicially Err in Refusing to Instruct on Unconsciousness Defense
Defendant argues that the trial court erroneously denied defense counsel's request to instruct the jury with CALCRIM No. 3425 regarding the defense of unconsciousness. "Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge." (People v. Halvorsen (2007) 42 Cal.4th 379, 417; Pen. Code, § 26, class Four.) CALCRIM No. 3425 provides, in relevant part: "The defendant is not guilty of <insert crime[s]> if (he/she) acted while unconscious. Someone is unconscious when he or she is not conscious of his or her actions." Unconsciousness may be caused by a blackout, an epileptic seizure, involuntary intoxication, or a similar condition (CALCRIM No. 3425), including sleep. (People v. Mathson (2012) 210 Cal.App.4th 1297, 1315 and fn. 17; CALJIC No. 4.30 [rule that a person is not guilty of a crime committed while unconscious "applies to persons who are not conscious of acting but who perform acts while asleep . . ."].)
"A party is entitled to a requested instruction if it is supported by substantial evidence." (People v. Ross (2007) 155 Cal.App.4th 1033, 1049.) " 'Substantial evidence' in this specific context is defined as evidence which is 'sufficient to "deserve consideration by the jury, i.e., 'evidence from which a jury composed of reasonable men could have concluded' " that the particular facts underlying the instruction did exist.' " (People v. Burnham (1986) 176 Cal.App.3d 1134, 1139.) " ' "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the [defendant]." ' " (People v. Tufunga (1999) 21 Cal.4th 935, 944.) "On appeal, we independently review the court's refusal to instruct on a defense." (People v. Orlosky (2015) 233 Cal.App.4th 257, 270.)
Defendant argues that the jury reasonably could have concluded that he touched V.'s vagina while he was asleep, and thus unconscious, based on his statement to Detective Duran. We disagree. During the interview, Defendant told Detective Duran that at night he commonly "put [his] hand out (inaudible) to see if [S.P.] is there [in bed] and kept sleeping or sometimes I need something, you know." On the night in question, "when I tri[e]d to feel her out to see if she was there it seems I touched the girl and the girl got scared and all that and that woke me up and . . . but I don't exactly know if I touched her, where I touched her, it seems this affected the girl quite a lot." Later, he stated: "I don't remember exactly well how it was that, or how I touched her or if I touched her how I put my hand down there; I do know th[a]t I was half way asleep I just felt like this, but . . ." Defendant further explained: "Like I tell you, it was dark, it was night time and I was asleep and I touched her while I was turned around because I didn't know it was her." While defendant did refer to being "asleep" or "half way asleep," he did not indicate that he was unconscious during the touching. To the contrary, he indicated that he recalled reaching out to feel for S.P., as was his practice, and that he touched V. instead because "I was turned around [and so] I didn't know it was her." Therefore, we conclude the trial court did not err in refusing to instruct the jury regarding unconsciousness.
Even if the court erred in refusing to instruct on the defense of unconsciousness, the error did not prejudice defendant. We shall assume the more stringent Chapman standard applies. (People v. Salas (2006) 37 Cal.4th 967, 984 [standard of prejudice for failure to instruct on affirmative defense not yet determined]; People v. Watt (2014) 229 Cal.App.4th 1215, 1219-1220 [same].) Under Chapman, an error is harmless if the record establishes beyond a reasonable doubt that the error did not contribute to the jury's guilty verdict. (Chapman, supra, at p. 24.)
V. testified that defendant touched her vagina, including penetrating it with his fingers, for 10 minutes. It is true that she initially told police he only touched her vagina briefly. But jurors clearly credited her trial testimony, including that she was not honest in her initial police interview, as they convicted defendant on all three counts involving V. even though she did not disclose the incidents underlying counts 1 and 2 until 2014. No evidence was presented that defendant has a sleep disorder that causes him to engage in complex behaviors while asleep. Rather, his claim is that he inadvertently reached out and touched V. in his sleep. But, having accepted V.'s trial testimony describing a 10-minute-long episode involving penetration, there can be no doubt that the jurors would have rejected defendant's unconsciousness defense. Accordingly, we can say beyond a reasonable doubt that the court's refusal to instruct on unconsciousness did not affect the trial outcome.
E. Independent Review of School Records
The trial court conducted an in camera review of S.'s school records, which were subpoenaed by defense counsel. Finding nothing relevant in those records, the court refused to disclose the records to defense counsel. Defendant asks us to independently examine the sealed records to determine whether the court erred; the Attorney General does not oppose the request. We have reviewed the records and conclude that the trial court did not err. The records contain no information regarding the rape, bearing on S.'s credibility, or that otherwise would have assisted the defense.
F. Cumulative Error
Defendant contends that the cumulative effect of the alleged errors was to deprive him of his right to due process. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.' " (People v. Williams (2009) 170 Cal.App.4th 587, 646.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.' " (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) We have found only a single error, the erroneous admission of hearsay evidence, so there are no errors to cumulate.
III. DISPOSITION
The judgment is reversed and the matter is remanded for possible retrial of counts 6 and 7. If the prosecution elects not to retry these counts, or at the conclusion of the retrial, the court shall resentence the defendant.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.