Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County No. VCF118872. Patrick O'Hara, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
INTRODUCTION
Thad Lee Young appeals from a judgment of 16 years in state prison. He contends that the trial court erred in not excluding videotaped testimony of the child victim that was admitted at his trial under Evidence Code section 1360. He also contends that the trial court erred in admitting hearsay statements by the victim’s grandmother under the “fresh complaint” exception to the hearsay rule. For the following reasons, we affirm.
STATEMENT OF THE CASE
On March 19, 2007, the Tulare County District Attorney filed an 11-count first amended information against Young. Counts one through six charged Young with committing lewd acts upon a child, K.L., in violation of Penal Code section 288, subdivision (a). Counts seven and eight charged Young with child molestation against K.L., in violation of section 647.6, subdivision (a). Counts nine through 11 charged Young with misdemeanor possession or control of child pornography, in violation of section 311.11, subdivision (a). It was further alleged, as to counts two through four that the victim, K.L., was under the age of 14 years and that Young had substantial sexual conduct with K.L. (§1203.066, subd. (a)(8).)
All further statutory references are to the Penal Code unless otherwise stated.
On the same date, Young was arraigned on the amended information. He pled not guilty and denied the allegations.
On March 20, 2007, a jury was empanelled to try the case. On March 27, 2007, the jury found Young guilty as charged on counts one through nine, and found the section 1203.066, subdivision (a)(8) allegations to be true.
On August 21, 2007, the trial court denied probation and sentenced appellant to 16 years in prison, which consisted of: the midterm of six years on count one; consecutive two year terms on counts two through six; and 365 days on counts seven through nine, with credit for time served.
On October 22, 2007, Young filed a notice of appeal.
FACTS
Prosecution Case
Dena F., the victim’s mother, testified that she met Young at a friend’s house in Visalia, California, in 1998, and they started dating around that time. After dating Young for approximately one year, Dena and her two daughters, C.L. and K.L., moved into Young’s apartment in Visalia. Dena’s daughters were two and four years old respectively when they lived at Young’s apartment. Dena’s brother, Billy, stayed with them for a month when they lived at the apartment.
During this time, Dena was going to school and working part time. Dena’s friend Jackie watched the children when she was not home. Young watched the children if Dena needed to go to the store. K.L. and Young had a good relationship; he was like a father to her. This relationship changed when they moved into a house in Farmersville that was owned by Young’s brother.
They lived in the Farmersville house from about 2001 to 2003. During this time, Dena’s daughters were approximately five and seven years old. Dena worked full time until she went back to school during the last year they lived in the Farmersville house. Instead of paying for a babysitter, Young and Dena agreed that she would work the night shift so that she could be home during the day to get the children to school or to pick them up. No one else lived with them at the Farmersville house, except for Dena’s ex-sister-in-law whom, Young kicked out after two days.
When they first moved into the Farmersville house, Dena testified that they only had one computer, but there were approximately half a dozen computers in the house by the time she moved out. Dena used the computers on a few occasions, but Young was the primary user. When Dena first got her computer, Young was on it all of the time. Dena had access to the computer during the day when Young was at work, and she downloaded e-books and scanned pictures of her children into the computer. At some point, she found pornographic pictures on the computer and asked Young not to put them on her computer.
On another occasion, Dena came across child pornography when she clicked on a website in a “Hotmail community.” She told Young about it and they shut it off. Sometime later, Dena saw Young downloading those pictures and she believed him when he told her that he was going to turn them in to AOL. There were also times when Dena was on the computer and pictures of regular pornography or bestiality would pop up. This concerned Dena and she asked Young not to have these things on her computer.
Dena admitted to looking at bestiality images on the computer with Young, but denied ever looking at child pornography. According to Dena, Young kept all of his pornographic movies on the top shelf of the closet in the computer room. As far as she knew, those movies contained only adult pornography.
K.L. testified that when they lived in the Visalia apartment, Young told her that she had to touch his penis in order to get a coloring book. At the Farmersville house, Young looked at “porn” on the computer and on television. On one occasion, Young showed K.L. a pornographic picture of himself with a girl whom Young said was the same age as K.L. at that time, which was seven years old. There were other times when Young looked at pornography when he knew that K.L. was in the room.
One night, when K.L.’s mother was at work, Young asked K.L. to touch his penis. K.L.’s young sister, C.L., was asleep in the bed when this happened. K.L. touched Young’s penis with her hand underneath his clothes. Young did not do or say anything to K.L. when she did this. She stopped when Young told her to go back to bed because her mother was about to come home from work.
On more than one occasion, Young told K.L. to orally copulate him while they were in the computer room in the Farmersville house. Young also touched K.L.’s vagina, underneath her clothes, with his finger. K..L.’s mother was at work when this abuse occurred.
Young also took showers with K.L. while both were nude. While they were in the shower, Young told K.L. to get down on her hands and knees and he put his penis between her legs, but did not penetrate her vagina. When K.L. and Young took showers together, her mother and sister were both asleep. K.L. never saw Young taking showers with C.L.
On another occasion, when K.L. was in the living room., Young told her to take off her clothes and get on her hands and knees. K.L. complied and Young held the family dog behind K.L. and tried to put the dog’s penis into her vagina. Sometime before this incident, K.L. saw Young holding the dog on his lap and rubbing the dog in the area around the penis.
The first person K.L. told about any of these incidents was her grandmother, Nancy B. Nancy testified that K.L. and C.L. occasionally spent the night at her house. June 15, 2003 was one such night. When Nancy was putting the girls to bed that night, K.L. asked Nancy where babies came from and how they were made. Nancy just laughed and told K.L. that she needed to talk to her mother about that.
According to Nancy, K.L. then asked her what the “white stuff” was that came out of a man’s penis. K.L. told her that Young had told K.L. that the “white stuff” was sperm. K.L. went on to tell Nancy that Young had made K.L. put his penis in her mouth. According to Nancy, K.L. also told her that Young showed K.L. pictures of a dog and little girls, and Young tried to get K.L. to “do it” with the family dog.
The next morning, Nancy told Dena about these allegations and Dena contacted the police. Nancy testified that she knew there was pornography in the Visalia apartment, and she told Dena that it was inappropriate and if she saw it again, she would do something about it. Nancy also testified that she always had a feeling something had been going on since K.L. was three years old, but she could not prove it.
At the time that Dena learned about these allegations, she had recently broken up with Young, and she and her daughters were no longer living with him. They had moved in with her mother about a month before K.L. reported the molestation because Young refused to support Dena and the kids so that Dena could go to school full time and only work part time. However, she did stay at his house on the weekend because she worked 12-hour shifts and his house was only 10 minutes from her work. No one else was living with Young at the time K.L. made the allegations against him.
Even though Dena and Young had recently broken up, she still had feelings for him and they were still somewhat romantically involved. Dena continued to talk to Young for three months after K.L. made her allegations, but they did not have a sexual relationship during this time. Dena put K.L. in therapy after she reported the molestation.
A. The Investigation
In June of 2003, Jess Gutierrez, a sexual assault investigator with the Tulare County Sheriff’s Department, began investigating the allegations of sexual molestation made by K.L. against Young. K.L. told Detective Gutierrez that the most recent incidence of molestation occurred approximately two weeks prior, and there had never been vaginal or anal penetration. Based upon the information provided by K.L., Detective Gutierrez did not feel the need to put K.L. through the extremely invasive Sexual Assault Response Team (SART) examination of the anus or vagina, which is usually ordered when the sexual assault is alleged to have occurred within 72 hours prior to the report.
B. KL’s Videotaped Interview
Detective Gutierrez also was present when K.L. was interviewed by CART (Child Abuse Response Team) on June 16, 2003. A videotape of this interview was played for the jury. In the interview, K.L. said she used to live with Young, but they moved out one or two months ago or maybe two or three weeks ago. She said she was not allowed to see him anymore because he made her suck on his “weenie.” This happened when K.L. was eight years old and her mother was working the night shift.
K.L. said that she and Young started taking showers together when she was eight years old. She said nothing happened in the shower; they would just wash their hair and bodies and get out. Young did not touch her when they were in the shower together. The first time he made her suck his weenie was in the computer room in the Farmersville house. At the time, C.L. was asleep and her mother was at work. Young was on the computer and he showed K.L. a picture of him putting his weenie in a seven-year-old girl’s vagina. When she sucked on his weenie, it was hanging down and soft. She did not see anything come out of his weenie.
K.L. said Young made her suck his weenie in his bedroom and in the living room. Her mother was always at work when this happened. The last time it happened was about one or two days before she went to live with her grandmother. Young never said anything to K.L. when she sucked on his weenie, but he groaned.
Young rubbed the outside of K.L.’s vagina with his finger one time when they were in the living room. Then Young made K.L. get on the floor on her hands and knees, and had her take her underwear off. That is when he tried to put the dog’s weenie into K.L.’s vagina but it did not work. When they lived in an apartment, Young told K.L. that he would give her a coloring book if she touched his weenie, but she did not touch it.
When they took showers together appellant put his weenie between her legs close to her vagina, and he told her to hold his weenie while he moved up and down. His weenie was hard when he did this and white stuff came out into her hand. K.L. said Young told her not to tell her mother because he did not want either of them to get in trouble. No one else had ever touched her in the manner that Young did.
C. The Search
On June 18, 2003, Detective Gutierrez served a search warrant on Young’s residence in Farmersville. During the search, Detective Gutierrez found a videotape labeled “Ms. Piggy XXXX” in the computer room. Detective Gutierrez viewed this tape, which contained young adult females engaging in sexual acts with animals. Officers also located approximately six computers in the house and numerous compact and floppy discs.
Detective Christopher Porter from the Tulare County Sheriff’s Department was responsible for securing the digital evidence recovered during the search. During the search of the home, the officers found in one room two computers on desks, several other computers around the room, and compact and floppy discs on the desk and on the floor. Detective Porter ran a forensic analysis on the computers and found files containing links to child pornography and bestiality websites.
Detective Porter found several documents on one of the compact discs that linked the disc to appellant. One such document appeared to be a scanned check from the State of California, and another was a scanned Department of Motor Vehicles record in Young’s name. Detective Porter estimated that he recovered 500 bestiality files, movies, and pictures from the computers and discs found in Young’s residence.
He also recovered files from both compact and floppy discs containing child pornography. Detective Porter ran these pictures though the National Center for Missing and Exploited Children’s database, but did not get any matches. However, one of the pictures did match a picture from the United States Department of Justice that was suspected child pornography.
Police recovered a total of 62 compact discs and 176 floppy discs in Young’s residence. Based on all of the computer-related evidence found in Young’s residence, Detective Porter considered Young to be technically savvy.
Defense Case
Young testified that he and Dena were involved in a romantic relationship for five to six years. When he started dating Dena, he was a long haul truck driver, and Dena spent approximately three months on the road with him. Dena’s mother, Nancy, and Young’s cousin, Jeanette Clark, watched the children during this time. At some point during this trip, Dena allegedly told Young that she wanted to give her mother custody of the children so she could stay with him on the road. Young said he arranged for her to get home immediately and refused to allow her to give up custody of the children because “her kids were more important than any man would be.”
After about a year, Young changed his schedule so that he would not be driving cross country anymore, and that is when they moved into the Farmersville house. They lived in the Farmersville house for about a year before Dena went back to school. When Dena was at school, either Young or Nancy would watch the children. Sometimes Nancy would watch them at Young’s house, and other times she would watch them at her house. Young believed the children preferred living at Nancy’s house because discipline was lax when they were at Nancy’s house.
Young said he had a lot of computers in his house because he replaced small parts on his friends’ computer for free. Sometimes his friends would leave compact discs in the computers when they brought them to his house. He said he usually put these discs in a box that contained hundreds of other discs. Young testified that sometimes he took his computers to a man named Mr. Manfredie, who performed work on the computers that Young did not know how to do. He left the computers with Manfredie for weeks at a time. He claimed that Manfredie gave him boxes of discs and most of the computer-related items he had.
Young testified that the main reason he stopped taking computers to Manfredie was because Manfredie was charged with possessing child pornography. However, the prosecutor pointed out that Manfredie was not arrested on the child pornography charges until 2006, and that the charges involved boys and not girls.
When Young received images of bestiality through an email or in a popup, he claimed that he showed them to Dena and they got rid of them. Young admitted to saving legal pornography onto compact discs. Young said Dena received child pornography through emails on a couple of occasions, which she brought to Young’s attention. He claimed that they reported the pictures to AOL, but never received a response. Young said that most of the pictures of him nude with an erection were taken by Dena, and he denied taking any of them himself.
Young testified that they had a satellite system for the television with access to adult channels. The children were not allowed to touch the television or the computers. Young claimed that he did not touch the satellite because it was Dena’s system. Young remembered two occasions where he caught the children watching adult channels on television, and he told Dena about it. As far as he knew, Dena never did anything to block the adult channels so the children would not be able to view them.
Young denied getting in the shower with K.L. or helping her take a shower. He claimed he merely told her that she could take a shower before she went to sleep. He denied ever placing his hands on K.L.’s vagina area purposefully or accidentally. He claimed he never told K.L. to touch his penis or to orally copulate him. He also denied trying to force K.L. to have sex with the family dog, and he questioned whether it could even be possible because the dog was “blind and deaf.” He also said he did not commonly use the term “sperm,” and he never used that term in front of K.L., C.L., or Dena.
Young admitted that K.L. and her younger sister C.L. saw him nude when they walked in on him and Dena engaged in sexual intercourse and oral sex on numerous occasions. He also admitted to spanking K.L. on the butt when she was naughty and refused to do something he told her to do. Dena never spanked K.L., but he claimed that she did not get mad at him when he spanked K.L.
Young claimed that even after K.L. made the molestation allegations against him, he and Dena continued to have sexual relations until the weekend he was taken into custody, which was six months later. During this time, Dena would stay at Young’s house on the weekends and they talked on the phone several times a day. Young claimed Dena told him that K.L. made false allegations of molestation against Dena’s brother, Billy.
According to Young, Dena told him that she did not believe the accusations and she thought her mother, Nancy, was trying to get him out of her life. Young and Nancy were not friends, and Nancy always commented on his laziness. Dena and Nancy both had relaxed parenting styles, and Young was the only one who disciplined the children. Young believed that K.L. made these molestation accusations against him because she did not like it when he disciplined her, and she did not want to be around him.
Young admitted to having a sexual relationship with Dena’s good friend, Crystal, which started toward the end of his relationship with Dena. He said that when Dena found out that he was cheating on her with her good friend, she became extremely upset. As far as he knew, Dena and Crystal were no longer good friends. After he was released from jail, Young claimed Dena went to his house and flipped him off and cursed him. Young believed that Dena did this because he cheated on her based upon what she said to him, and not because he molested her daughter or exposed her daughter to pornography.
Shelly McGahey was Young’s and Dena’s friend and neighbor. McGahey testified that Dena told her that K.L. had made molestation allegations against her brother Billy once before, and when Dena confronted K.L. about them, K.L. said it never happened. McGahey never spoke directly with K.L. about the allegations against Billy. She had no personal knowledge as to whether K.L. ever made those allegations or, if they were made, whether they were true or false.
Detective Gutierrez talked to McGahey during the course of his investigation, and she told him that Dena told her about a past molestation allegation by K.L. of Billy. When Detective Gutierrez asked Dena about the alleged past molestation, she denied it and said that there had never been any such allegations by K.L. against Billy. Detective Gutierrez never talked to Billy during the course of his investigation because he was unable to find him. Dena told Detective Gutierrez that the allegation against Billy had nothing to do with any of her children, and that it involved one of Billy’s children. On cross-examination, Detective Gutierrez testified that Dena said that Billy and his wife were going through a divorce and fighting over custody of the children. The allegations of molestation involving Billy’s child stemmed from these events, and it was never reported to law enforcement.
C.L. testified that when she lived with Young, she shared a room with K.L., and sometimes they stayed up late talking. C.L. said she and K.L. saw naked adults on television when their mother and Young were watching television. When this happened, they told the girls to cover their eyes. C.L. testified that once she, her sister, and her cousin walked by the computer and they saw a picture of an adult man and a girl having sex. She said that K.L. never told her that she saw adults kissing children on the computer. K.L. also said that Young never touched her inappropriately. C.L. testified that Young never touched her inappropriately.
Detective Gutierrez testified that he was present at the CART interview with C.L. and he observed C.L. during that interview. C.L.’s testimony in court was basically the same as what she said during the CART interview, specifically that Young never touched her inappropriately. However, Detective Gutierrez testified that during the CART interview, C.L. said K.L. told her that K.L. had seen adults kissing children on the computer.
Jeannette Clark, Young’s cousin, testified that she was a live-in babysitter for K.L. when K.L. was between the ages of two-and-a-half and four. Clark stated that she lived with K.L. when the family was at two different Visalia apartments, and when they were at Nancy’s house. Clark observed K.L.’s behavior on a daily basis and she saw K.L. manipulate situations in order to get what she wanted. On cross-examination, Clark testified that she did not tell the police about K.L.’s manipulative behavior when she learned about the allegations against her cousin because it happened so long ago, she did not think it was relevant.
DISCUSSION
A.
Videotaped Interview
Young contends that the trial court erred when it admitted K.L.’s hearsay accusations made during the CART interview without an Evidence Code section 402 hearing or any determination as to reliability.
The trial court admitted the videotaped interview pursuant to Evidence Code section 1360. Section 1360 provides in part:
“(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply:
"(1) The statement is not otherwise admissible by statute or court rule.
"(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.
"(3) The child either:
"(A) Testifies at the proceedings.
"(B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.
"(b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.”
Ordinarily, an appellate court reviews the admission of evidence under Evidence Code section 1360 for an abuse of discretion. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367 (Roberto V.).) However, in this case, the trial court did not hold an evidentiary hearing, as required by Evidence Code section 1360. Thus, Young contends that the failure to hold an evidentiary hearing requires automatic reversal because it deprived him of his rights to due process and confrontation of witnesses under the Sixth and Fourteenth Amendments to the federal Constitution. We disagree.
The U.S. Supreme Court has reaffirmed that the Confrontation Clause “does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” (Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9, citing California v. Green (1970) 399 U.S. 149.) K.L. was present at trial. Thus, the Confrontation Clause does not bar the admission of prior statements by K.L. However, the prior admissions must still be admissible under a state law exception to the hearsay rule. Here, that exception was Evidence Code section 1360. As stated before, the trial court failed to hold an evidentiary ruling as required by Evidence Code section 1360. Thus, it was erroneous for the trial court to admit the evidence without holding such a hearing.
Young argues that the error requires automatic reversal because the failure to hold a hearing defeats a primary goal of the law. As an example, he cites Bonnie P. v. Superior Court (2005) 134 Cal.App.4th 1249, 1256, wherein the reviewing court held that “by failing to swear in witnesses at hearing on petition, the trial court failed to meet minimum procedural requirements mandated by the Evidence Code and due process clause.” However, we agree with the People that Bonnie P. is distinguishable because it involved failure to abide by procedural rules that cannot be reviewed or corrected on appeal, whereas the error in this case can be reviewed by this Court’s independent determination about the reliability of the videotaped testimony. Moreover, we do not believe that the error is a structural error of the type requiring automatic reversal, such as “total deprivation of the right to counsel at trial [citation]; trial before a judge who is not impartial [citation]; and the giving of a constitutionally defective instruction on reasonable doubt [citation].” (People v. Marshall (1996) 13 Cal.4th 799, 851.) Thus, although it was error for the trial court to not hold an evidentiary hearing, the error is not prejudicial if, after independent review, we determine that the “time, content, and circumstances of the statement provide sufficient indicia of reliability.” (Evid. Code, § 1360.)
Although Evidence Code section 1360 states that the trial court should examine the “time, content, and circumstances” of a hearsay statement to determine whether those factors provide sufficient indicia of reliability, the California courts also have looked to the nonexclusive factors listed in Idaho v. Wright (1990) 497 U.S. 805, to determine the reliability of hearsay statements made by child witnesses in sexual abuse cases. (See People v. Eccleston (2001) 89 Cal.App.4th 436, 445.) These nonexclusive factors are: (1) "spontaneity and consistent repetition;" (2) the "mental statement of the declarant;" (3) "use of terminology unexpected of a child of a similar age;" and (4) "lack of motive to fabricate." (Idaho v. Wright, supra, 497 U.S. at pp. 821-822.) The “unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” (Id. at p. 822.)
Here, Young contends that the videotaped interview did not show sufficient indicia of reliability. First, he notes that the statements were not “spontaneous” because they were made in an artificial setting after persistent questioning. He also contends that the allegations of sexual molestation were not consistently repeated. For example, K.L.’s grandmother had testified that K.L. told her about the “white stuff” that came out of a man’s penis, and she had used the term “sperm.” However, according to Young, throughout the majority of the videotaped interview, K.L. repeatedly and emphatically denied ever seeing Young ejaculate, or that she had told anyone she had seen him ejaculate. It was not until the very end of the interview, when the interrogator, not K.L., returned again to the allegations concerning the shower which had been previously covered that the statements of ejaculation were made.
Young also contends that K.L.’s failure to recall when incidents were alleged to have occurred and her “calm” demeanor undermined the reliability of her statements. Young further contends that K.L. was exposed to pornography from watching the adult channels and thus the use of terminology was not unexpected from her. Finally, Young contends that there was motive to fabricate because the interrogator’s tone, although “low-key,” was “insistent and inquisitorial.” He also contends that K.L. was unduly influenced by the knowledge of the presence of Detective Gutierrez and a lawyer behind the room’s one-way mirror, and the fact that there were several instances where the interviewer appears to be listening to someone speaking to her through the “microphone,” especially when she suddenly returns to the issue of the showers. We disagree.
After viewing the videotaped interview and reading the transcript of the interview, under the totality of the circumstances, we conclude that there were sufficient indicia of reliability. First, the statements were made spontaneously in the sense that the statements did not seem to be rehearsed and were made in response to open-ended questions by the interviewer. Although K.L. initially denied that she had seen Young ejaculate, when she changed her story later, that story was consistent with the accusation that she made to her grandmother. Moreover, based upon her tone and in the context of the question, we would conclude that change in the story was not the result of any motive to fabricate, such as to please the interviewer or to end the interview.
Second, we are persuaded that K.L. knew the difference between a lie and a truth, and that she knew that the interviewer wanted her to tell the truth. From our independent review of the videotaped interview, we find that K.L. had the proper mental state to recall her experiences with Young and to tell the truth about those experiences.
The third factor, the use of terminology unexpected by a child of her age, is inconclusive on whether the statements were or were not reliable. K.L. used child-like terminology (for example, “weenie” and “private”) often, but does demonstrate more adult-like knowledge of sexuality. It is unclear from the interview whether this was a result of her exposure to pornography by Young, or her exposure to pornography by other persons, or cumulative exposure.
Finally, we find that K.L. did not have a motive to fabricate based upon what we saw on the videotaped interview or read in the transcript. K.L. knew that there were people on the other side of the room’s one-way mirror. There were at least three times that she glanced towards the camera. However, as the interview went on, she did not glance towards the camera. Moreover, we did not get any impression that K.L. was forcing herself not to look at the one-way mirror. Thus, the reasonable inference is that she was not bothered or forgot about the people on the other side of the one-way mirror.
We also disagree with Young’s argument that the interviewer was insistent and inquisitorial. Rather, the interviewer was low-key and asked open-ended questions. The interviewer generally followed through with questions based upon the prior answers of K.L. To the extent that the interviewer asked about new content such as whether Young did anything else, most of the time K.L. responded in the negative. We did not get any impression that the interviewer was trying to shape K.L.’s answers or provide her with suggestive words. It is true that the interviewer had a list of questions she wanted to ask, and we note several pauses where she may have gotten advice from Detective Gutierrez through a personal microphone about what questions to ask, but that did not change the interviewer’s tone or questioning in a manner that made the tone or questioning “insistent or inquisitorial” because the interviewer’s tone and questioning did not give the impression that K.L. had to make some statements in order to please the interviewer or to end the interview. Thus, after independent review of the videotaped interview, we conclude that the videotaped interview bore sufficient indicia of reliability that the trial court’s error in failing to hold an evidentiary hearing was harmless.
B.
Hearsay Statements To Grandmother
Young contends that the trial court erred in admitting numerous statements made by K.L. to her grandmother under the “fresh complaint” exception to the hearsay rule. He contends that this error was prejudicial because it resulted in the denial of his right to confrontation under the Sixth Amendment of the federal Constitution.
The grandmother’s testimony recounted K.L.’s allegations that Young forced K.L. to orally copulate him, and that he showed her animal sex pornography and attempted to force her into having sex with the family dog. The testimony also insinuated that Young digitally abused K.L. Further, the grandmother also testified that K.L. asked her about the white stuff which comes out of a penis and that K.L. had used the word sperm, which might have supported K.L.’s allegations that she had been forced to have oral sex with Young.
In People v. Brown (1994) 8 Cal.4th 746, the California Supreme Court held that, under the fresh complaint doctrine, evidence of a victim’s complaint about sexual abuse is admissible if it is “narrowly limited to the fact of, and the circumstances surrounding, her disclosure of the alleged sexual molestation.” (Id. at p. 750.)
The People admit that much of the grandmother’s testimony was inadmissible under the fresh complaint doctrine. However, the People contend that there was no violation of the Confrontation Clause because K.L. testified at trial. (See Crawford v. Washington, supra, 541 U.S. at p. 59, fn. 9.) We agree.
Young, however, also contends that the grandmother’s testimony virtually repeated the entire case against Young and that the technique of “rereading the child’s testimony” is prosecutorial misconduct. (People v. Pitts (1990) 223 Cal.App.3d 606, 746.) In People v. Pitts, supra, we noted that “[d]uring cross-examination of virtually every defendant who testified, [the prosecutor] adopted the technique of rereading the children’s testimony. Although we need not determine whether such a technique is improper per se, it was carried to abusive extremes in the instant case.” (Ibid.) As an example, we quoted the prosecutor’s questioning which consisted of asking the defendant whether he was present in the courtroom and heard the child victims accuse him of sexual abuse. (Ibid.) In contrast, in this case, the grandmother was asked to testify about the allegations that K.L. made against Young. The prosecutor did not ask Young whether he heard the trial testimony by K.L. and the grandmother, and then repeat that trial testimony. Thus, we disagree that there was prosecutorial misconduct in the questioning of the grandmother here.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, J., Kane, J.