Filed 9/30/15 P. v. Storey CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065025
Plaintiff and Respondent,
v. (Super. Ct. No. SCD240241)
DONTAZE A. STOREY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Peter C.
Deddeh, Judge. Affirmed.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton and Seth M.
Friedman, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted defendant of 19 counts of sexually abusing two of his daughters
(V.S. and I.S.) when they were minors (Pen. Code, § 288, subd. (a)),1 and two counts of
failing to register as a sex offender based on prior convictions for sexually abusing
another daughter (E.S.) (§§ 290.013, subds. (a)-(b), 290.018, subd. (b)). The jury
deadlocked on four counts based on defendant's alleged sexual abuse of a fourth daughter
(K.S.). The trial court sentenced defendant to an indeterminate term of 185 years to life,
and a consecutive determinate term of 40 years. On appeal, defendant asserts the trial
court erred by (1) limiting his ability to rebut the prosecution's introduction of his prior
convictions as propensity evidence under Evidence Code section 1108; (2) instructing the
jury, in the context of evaluating a defense expert's opinions, not to consider I.S.'s pretrial
forensic interviews for their truth, even though the interviews were separately admitted
for their truth under an applicable hearsay exception; and (3) resolving a factual dispute
regarding the trigger date for an extended statute of limitations applicable to defendant's
sexual abuse of V.S. in 1988. For reasons we shall explain, we reject these contentions
and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1995, defendant was convicted of three counts of committing lewd acts on his
daughter, E.S., between June 1992 and June 1993, when she was between three and four
years old. The court sentenced defendant to 10 years in prison. He was released in 2000.
1 Unspecified statutory references are to the Penal Code. 2 In 2012, defendant was charged with 23 counts of sexually abusing three of his
other daughters. Seventeen of those counts arose from defendant's sexual abuse of his
daughter V.S. in 1988, when she was 13; two arose from his sexual abuse of his daughter
I.S. between 2004 and 2011, when she was seven or younger; and four arose from his
alleged sexual abuse of his daughter K.S. between 2006 and 2011, when she was five or
younger.
Defendant's Sexual Abuse of V.S. in 1988 (Counts 7 through 23)
Defendant's daughter, V.S., was born in 1974. Her mother left with her when she
was six months old, so V.S. first met defendant at age 11 and they began a father-
daughter relationship. During a visit to his home when V.S. was around 11 or 12 years
old, defendant tried to touch her vaginal area while she was falling asleep on the couch.
V.S. was shocked and moved away, but neither said anything. They continued to have a
father-daughter relationship, and there was no further inappropriate touching until V.S.
was 13.
V.S.'s mother suffered from mental health issues and was physically and verbally
abusive to her. When V.S. was 13, her mother threw a glass mayonnaise jar at her head,
but missed. This prompted V.S. to move in with defendant and his then-wife, Esther,
who was pregnant with defendant's daughter, E.S.
Defendant began sexually abusing V.S. as soon as she moved in. The first
incident occurred when defendant touched V.S.'s vagina while she was sleeping in her
bed. V.S. told him it made her angry, but defendant responded, "You're not angry
3 because I'm touching you. You're angry because you like it." This confused and shamed
V.S.
After the first incident, defendant continuously abused V.S. in his work van.
Every day, he touched V.S.'s vagina and performed oral sex on her.2 Defendant had V.S.
perform oral sex on him a few times. They drank beer and smoked marijuana together.
When V.S. turned 14, defendant's abuse of her escalated to daily sexual
intercourse.
Esther noticed unusual behavior between defendant and V.S. One night she found
defendant kneeling over V.S.'s bed while he was wearing only bikini brief underwear.
Esther also saw V.S. sit on defendant's lap while one or both of them were in their
underwear. Defendant told Esther he thought a father should "have" his girls before they
married or had relationships with anyone else. In early 1989, defendant and Esther
separated.
After the separation, V.S. lived with defendant in various locations. When they
lived with defendant's girlfriend, Karen Spearman, she noticed inappropriate behavior.
Defendant and V.S. walked around naked in front of each other. On one occasion,
defendant entered the bathroom naked while V.S. was showering and shut the door.
Another time, when Spearman came home and found defendant and V.S. naked,
defendant explained he was cuddling V.S. in bed.
2 Defendant performed oral sex on V.S. in the van during a recess in custody proceedings with V.S.'s mother and almost missed the hearing. He was awarded custody of V.S. 4 Later, when defendant and V.S. no longer lived with Spearman, defendant's then
16- or 17-year-old niece stayed with them for about six months. V.S. and the niece
shared a bedroom, but V.S. slept in defendant's room every night. The niece walked in
on defendant and V.S. having sex one morning. Defendant offered the niece money to
have sex with him, but she declined and promptly moved out.
Defendant's sexual relationship with V.S. continued until she was 20 years old. It
ended in 1995 when defendant was convicted of sexually abusing E.S. and became
incarcerated.3 Defendant tried to resume a sexual relationship with V.S. when he was
released from prison in 2000, but V.S. refused.
V.S. never told anybody about defendant's sexual abuse while it was happening.
Defendant told her that if she ever told anyone, he would deny it and then she would have
no one to look out for her or love her. It was not until 2005, when V.S. watched an
episode of Oprah, that she realized how wrong defendant's conduct was. V.S. became
worried for defendant's other daughters, so she called child protective services (CPS).
CPS was unable to take action because V.S. did not know defendant's whereabouts.
In 2011, V.S. learned defendant stood accused of sexually abusing two of his other
daughters, I.S. and K.S.4 To support those claims, V.S. wrote a letter to the court
3 During the 1995 trial, V.S. denied that defendant ever sexually abused her. She later explained she was lying then because she was ashamed and would have nowhere to go if defendant were taken away from her.
4 We discuss defendant's abuse of I.S. below. However, because the jury deadlocked on the counts relating to K.S. and there are no issues regarding K.S. raised in this appeal, we do not discuss defendant's alleged sexual abuse of her. 5 regarding defendant's abuse of her. The police received the letter and contacted V.S. In
November 2011, V.S. met with Detective Daniel Burow and gave a detailed statement of
defendant's abuse of her from the age of 13 forward. She later said defendant video
recorded some of their sexual encounters and that she buried the videotapes when
defendant went to prison in 1995. She led police to the videotapes. A clip from one was
played for the jury, and V.S. testified it depicted defendant having sex with her.
Defendant's Sexual Abuse of I.S. (Counts 5 and 6)
Defendant met C.S. in 2000 and married her a few years later. In December 2004,
C.S. gave birth to defendant's daughter, I.S. I.S. is developmentally delayed and has
difficulty processing information. In October 2006, C.S. gave birth to another of
defendant's daughters, K.S. K.S. is developmentally delayed and physically disabled.
In August 2011, I.S. told C.S. she had put a heart-shaped rock in her vagina. C.S.
took I.S. to the children's hospital, where a pediatric surgeon removed the rock.
A few weeks later, I.S.'s maternal aunt talked to I.S. at a family birthday party.
Regarding the rock, I.S. told her aunt, " 'My daddy did it.' " I.S. also wanted her aunt to
"[s]tay in [I.S.'s] room with [her] at nighttime, because [her] dad comes in at nighttime."
Later, I.S. told her aunt she was scared because defendant "touches [her]" and "put tape
on [her] mouth and rubbed [her] leg." The aunt called CPS.
In October 2011, CPS alerted the police, who, in turn, scheduled an examination
of I.S. Dr. Joyce Adams, a specialist in pediatric sexual abuse cases, examined I.S.
Adams found multiple healed tears in I.S.'s hymen, as well as a genital wart. This
suggested sexual abuse.
6 I.S. underwent a four-part forensic interview with Laurie Fortin, a licensed clinical
social worker who specializes in child sexual abuse. During the interviews, I.S. denied
defendant touched her inappropriately. However, at the preliminary hearing, I.S. testified
defendant "touched her private part with his private part."
I.S. testified at trial that defendant repeatedly touched her vagina with his penis.
He told her not to tell anyone, and she feared that if she did she would end up in foster
care or defendant would whip her (he whipped her with a belt when she wet the bed).
Defendant's Failure To Register as a Sex Offender
As a result of his 1995 convictions for sexually abusing E.S., defendant was
required to register annually with law enforcement within five working days of his
birthday or upon a change of residence. (§§ 290, 290.012, 290.013.) In April 2011,
defendant timely registered his address as the apartment he shared with C.S., I.S., and
K.S. Defendant stopped living in that apartment in October 2011, and began living in
space belonging to the Association of Black Contractors in late 2011 or early 2012. As
of April 2012, defendant had not notified law enforcement of his change in residence.
Jury Verdict and Sentencing
Defendant was charged with 23 counts of committing a lewd or lascivious act on
his minor daughters (§ 288, subd. (a)) and two counts of failing to register as a sex
offender (§§ 290.013, subds. (a)-(b), 290.018, subd. (b)). Counts 1 through 4 related to
defendant's alleged sexual abuse of K.S.; counts 5 and 6 related to his sexual abuse of
I.S.; counts 7 through 23 related to his sexual abuse of V.S. in 1988; and counts 24 and
25 related to his failure to register as a sex offender.
7 As to counts 1 through 6, the information specially alleged that defendant was
previously convicted of violating section 288, subdivision (a) (§ 667.61, subds. (a), (c) &
(d)), that there were multiple victims (§ 667.61, subds. (b), (c) & (e)), and that defendant
engaged in substantial sexual conduct with the victims (§ 1203.066, subd. (a)(8)). The
information further alleged that counts 7 through 23 were timely filed. (§ 803, subd. (f)).
Finally, the information alleged defendant had three prior serious felony convictions
(§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and three prior strike convictions (§§ 667,
subds. (b)-(i), 668, 1170.12).
The jury deadlocked on counts 1 through 4, but returned guilty verdicts on all the
remaining counts and found true the associated special allegations. Defendant admitted
the prior conviction allegations were true. The trial court sentenced defendant to an
indeterminate term of 185 years to life, and a consecutive determinate term of 40 years.
DISCUSSION
I.
EXCLUSION OF EVIDENCE TO REBUT PROPENSITY EVIDENCE
The trial court allowed the prosecutor to admit defendant's 1995 convictions for
sexually abusing E.S. as propensity evidence under Evidence Code section 1108,
subdivision (a).5 Defendant sought to rebut this evidence with "evidence and testimony
5 Evidence Code section 1108, subdivision (a) provides: "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 [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." 8 through CPS, a city attorney and [V.S.] that [E.S.] [subsequently] told them she was not
molested and her grandmother planted and suggested the accusations of molest." The
trial court barred defendant's evidence. Defendant concedes his prior conviction was
properly admitted as propensity evidence, but contends the trial court's exclusion of his
rebuttal evidence violated his Fifth, Sixth, and Fourteenth Amendment rights to
compulsory process, cross-examination, and due process. We are not persuaded.
A. Proceedings Below
Before trial, the prosecutor identified certain propensity evidence she intended to
introduce at trial. That evidence included defendant's 1995 convictions for sexually
abusing E.S. The prosecutor explained that as a matter of efficiency, she planned to
introduce just the certified convictions without any live testimony from witnesses about
the circumstances of the convictions.
Defense counsel opposed this approach. She acknowledged "the certified records
of conviction would certainly show [E.S.] was molested," but argued E.S. later admitted
to others she was coerced into falsely saying defendant had sexually abused her.
Therefore, defense counsel argued that if the convictions were admitted, she should be
able to "impeach" them. However, because she could not locate E.S., she indicated she
would impeach the conviction with the testimony of those to whom E.S. supposedly
recanted, even though counsel acknowledged "[i]t's not quite proper with me attacking
the conviction with hearsay . . . ." Defense counsel acknowledged her approach would
require "a trial within a trial" that would consume "at least" two weeks of trial time.
9 The trial court ruled the convictions were admissible and found that defendant's
purported impeachment evidence was irrelevant because it would not change the fact of
the fully litigated convictions. The trial court further excluded defendant's evidence as
unduly time-consuming under Evidence Code section 352.6 Nevertheless, if defendant
were to testify at trial, the trial court would allow him to deny that he sexually abused
E.S. and to claim that she was lying about having been sexually abused.
Defendant later renewed his request to attack the convictions with hearsay
testimony that E.S. denied she was sexually abused. The trial court confirmed its prior
ruling, declining to "hav[e] a little mini Jerry Springer Show" that explored the family
dynamics that might have led E.S. to tell different versions of her story to different
people at different times. The court clarified it would allow defendant to also oppose the
propensity evidence with testimony of "somebody of a similar age" of his victims who
would state "I was with him during whatever the time period is, and he didn't try to
molest me."
The impeachment issue arose during trial. On cross-examination, defense counsel
asked V.S. why, during defendant's prosecution for sexually abusing E.S., V.S.
supposedly lied by denying defendant had sexually abused her. The following exchange
occurred:
"A. I really did not believe he molested my sister."
6 Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." 10 "Q. You never saw anything that led you to believe that he did?"
"A. No. And I did not want him to get in trouble for molesting my sister because I did—really I did not believe he molested her."
V.S. then testified that she, E.S., and defendant "would hang out together" after
defendant was released from prison.
On recross-examination, defense counsel tried to explore V.S.'s basis for believing
defendant's claim he had not sexually abused E.S.
"Q. Counsel asked you whether or not my client said things to you about [E.S.], and you believed them."
"A. During the time of the trial, about what was going on for the molestation of [E.S.], yes. I believed him."
"Q. And there are statements that [E.S.] made to you also that were consistent with what my client told you, correct?"
"[Prosecutor]: Objection, hearsay."
"The Court: Sustained."
"[Defense counsel]: There were reasons for you to believe what my client said relating to [E.S.], true?"
"A. During the trial of him molesting her?"
"Q. During and after."
"[Prosecutor]: Objection, speculation, relevance."
"[Defense counsel]: You mentioned that there were statements that caused you—that my client made that you believed regarding the molestation of [E.S.], correct?"
"A. Yes."
11 "Q. There were other reasons for you to believe what he had said to you, true?"
"Q. Those reasons came from [E.S.]; isn't that true?"
"[Prosecutor]: Objection, speculation."
"[Defense counsel]: Your honor, may we go sidebar?"
"The Court: No. Ask another question."
"[Defense counsel]: There were reasons outside of what my client told you that caused you to believe him; isn't that correct?"
"A. During the case of the molestation of [E.S.], yes."
"Q. And after, correct?"
"A. And that—be specific of after."
"Q. After he—well, we will say while he was in prison and after he got out of prison there were things that were said to you that caused you to continue to believe what my client had told you, correct?"
"[Defense counsel]: I'm not asking for what was said."
"The Court: Overruled. Her state of mind. Yes or no, after he got out of prison?"
"The witness: He got out of prison for a period of time, yes."
"The Court: Okay. Ask another question."
"[Defense counsel]: And those things that you heard did not come from my client. They came from other people, correct?"
"[Prosecutor]: Objection, hearsay, speculation."
"The Court: Sustained. [¶] Ask another question."
12 "[Defense Counsel]: It came from—"
"The Court: Let's go on—you can't ask that question, so let's go on to another topic, please."
"[Defense counsel]: I have nothing further."
Defense counsel argued that V.S.'s testimony had opened the door for her to ask
about E.S.'s hearsay statements. The trial court disagreed and reaffirmed its earlier
ruling.
Before defendant took the witness stand, his counsel again raised the impeachment
issue. The trial court reaffirmed its ruling under Evidence Code section 352, but
reiterated that defendant could deny that he sexually abused E.S. and clarified that
defendant could also argue E.S. would not have lived with him again (as she did) had
defendant truly sexually abused her.
Defendant testified he did not molest E.S. or his other daughters. When
defendant's counsel asked him the circumstances under which E.S. came back into his life
after he served his prison sentence for sexually abusing her, defendant responded, "[E.S.]
confessed to me that she knew I had not—" The trial court sustained the prosecutor's
hearsay objection. When defendant's counsel asked him why he let E.S. move in with
him, he responded, "Because she had—because she had confessed that she knew I
didn't—" The trial court again sustained the prosecutor's hearsay objection.
During closing argument, defense counsel argued V.S. knew defendant had not
sexually abused E.S. and would not have allowed her to live near defendant if he had.
Counsel elaborated:
13 "When [V.S.] was on the stand, ladies and gentlemen, it was very interesting to watch. She was asked questions whether or not my client had said something to her that caused her to believe him. She answered yes. And then I started asking her questions whether or not there was anything else, anything independent that caused her to believe him. There's a flurry of objections. But it comes out. There was something independent that caused her to believe him.
"And what was that one thing? Couldn't go there. The one thing independent was the fact that [E.S.], after she was 13 years old and her mother had abused her—her grandmother had abused her for so long and she ran away from home, she came to him and she confessed to him exactly what had happened, that her grandmother had forced her to say that he abused her for financial gain."
"[Prosecutor]: Objection."
"[Prosecutor]: Motion to strike that entire argument."
"The Court: Right. Strike that."
"[Prosecutor]: No evidence of that."
"The Court: Disregard that."
"[Defense counsel]: A reasonable interpretation as to why [V.S.] and [E.S.] came back into his life, because he didn't do it."
Later, during closing argument, defense counsel argued, without objection, "Why
would this man bring in his daughter that he molested, who actually sent him to prison in
1995, into his home if he was molesting his children? . . . A reasonable interpretation as
to why he would let [E.S.] come back into his home is because she confessed to him
nothing happened and he said, I forgive you."
B. Relevant Law
Evidence Code section 1108 sets forth an exception to the general rule against the
use of evidence of a defendant's misconduct apart from the charged offense to show a 14 propensity to commit crimes. (People v. Robertson (2012) 208 Cal.App.4th 965, 989-
990.) When a defendant is charged with a sex offense, Evidence Code section 1108
allows admission of evidence of other sex offenses to prove the defendant's disposition to
commit sex offenses, subject to the trial court's discretion to exclude the evidence under
Evidence Code section 352. (Evid. Code, § 1108, subd. (a); Robertson, at p. 990.)
Evidence Code section 1108 is premised on the recognition that sex offense propensity
evidence is critical in sex offense cases " 'given the serious and secretive nature of sex
crimes and the often resulting credibility contest at trial.' " (People v. Falsetta (1999) 21
Cal.4th 903, 918.)
Under Evidence Code section 1108, the prosecution must prove only by a
preponderance of the evidence that the defendant committed a prior sexual offense.
(People v. Lopez (2007) 156 Cal.App.4th 1291, 1299.) Court records of the defendant's
prior conviction for a sex offense "may be offered to prove not only the fact of a
conviction, but the commission of the underlying offense." (People v. Duran (2002) 97
Cal.App.4th 1448, 1461; see People v. Wesson (2006) 138 Cal.App.4th 959, 967-968;
Evid. Code, § 452.5, subd. (b)(1) ["An official record of conviction . . . is admissible . . .
to prove the commission . . . of a criminal offense . . . ."].)
"Under Evidence Code section 352, the trial court enjoys broad discretion in
assessing whether the probative value of particular evidence is outweighed by concerns
of undue prejudice, confusion or consumption of time." (People v. Rodrigues (1994)
8 Cal.4th 1060, 1124.) "Where, as here, a discretionary power is statutorily vested in the
trial court, its exercise of that discretion 'must not be disturbed on appeal except on a
15 showing that the court exercised its discretion in an arbitrary, capricious or patently
absurd manner that resulted in a manifest miscarriage of justice.' " (Id. at pp. 1124-1125.)
"[A] state court's application of ordinary rules of evidence—including the rule
stated in Evidence Code section 352—generally does not infringe upon" a defendant's
"general right to offer a defense through the testimony of his or her witnesses." (People
v. Cornwell (2005) 37 Cal.4th 50, 82, overruled on other grounds in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103
["Although completely excluding evidence of an accused's defense theoretically could
rise to [the level of impermissibly infringing on a defendant's right to present a defense],
excluding defense evidence on a minor or subsidiary point does not impair an accused's
due process right to present a defense."].)
C. Analysis
The trial court did not abuse its discretion by excluding defendant's rebuttal
evidence as unduly time-consuming under Evidence Code section 352. Defense counsel
conceded her impeachment approach would result in not only one tremendous "trial
within a trial"—"[a]t least" two weeks "just on [E.S.]"—but would actually result in two:
"rehashing the entire trial, plus what happened after." (Italics added.)
The prosecution agreed that if defendant sought to impeach E.S.'s 1995 trial
testimony, the prosecution would be forced to retry the entire case by presenting all the
16 evidence in addition to E.S.'s trial testimony.7 Defense counsel acknowledged the 1995
trial was "voluminous" and lasted "probably about a week and a half."
Defense counsel and the prosecutor agreed the second mini-trial—addressing
E.S.'s supposed subsequent recantations and the circumstances surrounding them—would
also be extensive. Defense counsel stated, "I would have a list of witnesses that would
come in to impeach [E.S.] or impeach whatever in that trial. You're looking at two weeks
just on [E.S.]. At least." She elaborated that the "can of worms that is being opened"
would contain a lawsuit that defendant filed against E.S. over an unpaid phone bill and an
elder abuse complaint E.S.'s grandmother filed against her. The prosecutor identified
additional "worms": that one of E.S.'s "recantations"8 occurred after she was visiting
with defendant while he was on parole and subject to a "no-contact-with-children order";
that defendant violated parole and was sent back to prison three times; that defendant was
charged with misdemeanor battery for "beat[ing] [E.S.] up while she was pregnant"; that
E.S. was financially dependent on defendant; and that E.S. was concerned her mother
would be left without support if defendant returned to prison.
7 The prosecutor argued: "[I]f the jury is left to believe that [E.S.] was the reason for that prior conviction, the jury will need to learn that there was much more behind that conviction. There were her spontaneous disclosures, there was her forensic interview when she was [four] years old giving the details, there were her physical findings. All of that evidence would then need to be presented to the jury. This will turn into a trial within a trial within a trial, which . . . is just going to be confusing."
8 According to the prosecutor, E.S. did not deny defendant had abused her, but rather, said she did not remember if he had. 17 The current trial consisted of eight court days of argument and testimony. The
trial court did not abuse its discretion by declining to permit a full-blown trial on an
ancillary impeachment issue that would have more than doubled the length of trial.
Further, the trial court's ruling did not, as defendant asserts, "deprive[] . . .
defendant of all evidence concerning the theory of defense." Instead, the court's
evidentiary ruling was limited to certain evidence intended to rebut a single item of
propensity evidence. The court's ruling did not preclude defendant from defending
against the merits of the prosecution's pending case. And even as to the narrow issue of
propensity evidence, the court ruled defendant could (1) deny he sexually abused E.S.;
(2) accuse her of lying about it; (3) argue that her living with him later undermined her
claim; and (4) present character evidence that he did not molest other children when
presented with similar opportunities. The record shows defendant did, in fact, (1) deny
he sexually abused E.S.; (2) elicit from V.S. that she believed defendant when he said he
did not molest E.S. and that "there were things that were said" to her that caused her to
believe that; and (3) argue in closing that "[a] reasonable interpretation as to why
[defendant] would let [E.S.] come back into his home is because she confessed to him
nothing happened . . . ." Defendant was not completely deprived of an opportunity to
present an adequate defense.
Defendant's only argument on appeal regarding undue consumption of time is that
"the more extensive and time consuming the evidence that [defendant] did not molest
[E.S.] the greater the importance of the evidence to [his] defense." We reject this
18 reasoning as circular—it would effectively read the undue-consumption-of-time element
out of Evidence Code section 352.
Finally, none of defendant's cited cases support his argument that the trial court
was required to admit his impeachment evidence. People v. Cottone (2013) 57 Cal.4th
269 is distinguishable because it involved uncharged prior conduct and addressed
whether the defendant's maturity was a relevant factor in evaluating whether he had a
propensity to commit sexual offenses. (Id. at pp. 278, 290.) Here, defendant was
charged with sexually abusing E.S. and his maturity was not at issue. People v. Griffin
(1967) 66 Cal.2d 459, 465 and People v. Mullens (2004) 119 Cal.App.4th 648, 662-663
are distinguishable because the trial courts admitted evidence of charged prior sexual
offenses but excluded evidence that the defendants had been acquitted of those charges.
By contrast, defendant was convicted of sexually abusing E.S. People v. Callahan (1999)
74 Cal.App.4th 356 is unpersuasive because that court "conclude[d] that when the
prosecution introduces evidence under [Evidence Code] section 1108 of the defendant's
commission of another sexual offense or offenses, the defendant is not precluded from
introducing evidence of specific instances of his good behavior under similar
circumstances." (Id. at p. 360.) Here, the trial court ruled defendant could do precisely
that.
On this record, we find no abuse of discretion in the trial court's exclusion of
admittedly time-consuming evidence aimed at impeaching E.S.'s testimony during the
trial that led to defendant's 1995 conviction.
19 II.
JURY INSTRUCTIONS REGARDING I.S.'S FORENSIC INTERVIEWS
Defendant contends the trial court committed reversible error by instructing the
jury not to consider for their truth I.S.'s statements during pretrial forensic interviews that
defendant did not sexually abuse her. The People concede this instruction was erroneous,
but assert it was harmless in light of the record and overall charge to the jury. We agree.
At trial, recordings of four forensic interviews of I.S. were played for the jury
without objection. The parties appear to have agreed they were admissible as prior
inconsistent statements. (Evid. Code, § 1235.) Although I.S. testified at trial that
defendant sexually abused her, in the interviews she denied any sexual abuse occurred.
Clinical and forensic psychologist Joanna Edwards testified on defendant's behalf
regarding children's "suggestibility" during interviews. Edwards considered I.S.'s earlier
denials when assessing the reliability of her later testimony.
Even though counsel agreed I.S.'s forensic interviews had not been admitted for a
limited purpose (that is, they were admitted for their truth), the trial court instructed the
jury to the contrary with CALCRIM No. 360:
"Dr. Joanna Edwards testified that in reaching her conclusions as an expert witness, she considered statements made by [I.S.] and [K.S.]. You may consider those statements only to evaluate the expert's opinion. Do not consider those statements as proof that the information contained in the statements [is] true."
The court also instructed the jury with CALCRIM No. 318:
20 "You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways:
"To evaluate whether the witness's testimony in court is believable;
"AND
"As evidence that the information in those earlier statements is true."
In closing argument, defense counsel repeatedly encouraged the jury to believe
I.S.'s statements during her forensic interviews over her trial testimony:
"Let's talk about [I.S.]. The district attorney didn't want you to see the real [I.S.] back in 2011 when she's eating Play-Doh® during the break. It's sad, but the reality is that [I.S.] has a delay that not just prevents her from being able to speak her mind, but being able to perceive events, hear them, and then say them back. [I.S.] had been interviewed numerous times and denied that there was any touching. And in four interviews, she denied that my client had done anything wrong to her. Go back and look at those interviews, because what's interesting is that no matter how many times she denies, she's not getting out of that room. Laurie Fortin wants to keep going until she admits, which is why Laurie Fortin keeps going."
[¶] . . . [¶]
"So, [I.S.] denies any touching, comes in as if she had no delay, as if there was nothing wrong with her ability to perceive events. In August of 2012, the first question she's asked [during the preliminary hearing] is, do you know why you are here today? She said, yes, my daddy did touching to my private parts. Wow. You saw her in that video. How did she change from those videos to that if it wasn't coaching over the years?"
During deliberations, the jury requested the video of K.S.'s (but not I.S.'s) forensic
interview. The request was granted without objection. Although the jury requested
several witnesses' trial transcripts, Edwards's was not among them.
21 B. Relevant Law
We review de novo the propriety of jury instructions. (People v. Posey (2004) 32
Cal.4th 193, 218.) "In reviewing a claim of instructional error, the ultimate question is
whether 'there was a reasonable likelihood the jury applied the challenged instruction in
an impermissible manner.' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220
(Hajek); see generally People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)9 " '[T]he
correctness of jury instructions is to be determined from the entire charge of the court, not
from a consideration of parts of an instruction or from a particular instruction.' " (Hajek,
supra, at p. 1220.) " '[W]e must assume that jurors are intelligent persons and capable of
understanding and correlating all jury instructions which are given." (People v.
Richardson (2008) 43 Cal.4th 959, 1028.) " 'Moreover, any theoretical possibility of
confusion [may be] diminished by the parties' closing arguments . . . .' " (Hajek, at p.
1220, brackets in original.) " 'Instructions should be interpreted, if possible, so as to
support the judgment rather than defeat it if they are reasonably susceptible to such
interpretation.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
Accepting the People's concession that the trial court erred by instructing the jury
with CALCRIM No. 360 in light of the admission of I.S.'s forensic interviews under a
9 We reject defendant's suggestion that we should assess prejudice under the federal constitutional standard of harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Contrary to defendant's view, the error did not impact his right to present a complete defense under the Fifth and Sixth Amendments, or to due process under the Fourteenth Amendment. Defendant's reliance on Gonzales v. Lytle (10th Cir. 1999) 167 F.3d 1318 is misplaced. There, the jury was precluded entirely from hearing a witness's inconsistent statement. Here, the jury heard all of I.S.'s forensic interviews. 22 hearsay exception, we conclude the error was harmless.10 Although CALCRIM No. 360
instructed jurors they could not consider I.S.'s forensic interviews for their truth when
evaluating Edwards's opinions, CALCRIM No. 318 instructed jurors they could consider
them for their truth, generally.
"[A]ny theoretical possibility of confusion" (Hajek, supra, 58 Cal.4th at p. 1220)
was eliminated by defense counsel's encouragement to jurors that they "[g]o back and
look at those interviews" when evaluating the veracity of I.S.'s testimony. The
encouragement was wholly unrelated to the validity of Edwards's opinions. That any
confusion is merely theoretical is borne out by the jury's request for K.S.'s forensic
interview and not Edwards's trial testimony—jurors would not have requested K.S.'s
interview alone if they did not believe they could consider it independently from
Edwards's opinions. Moreover, the fact that the jury deadlocked on the counts relating to
K.S.—despite her trial testimony that defendant never sexually abused her—suggests the
jurors who were willing to convict defendant on those counts considered K.S.'s
statements during her forensic interviews for their truth.
Defendant cites People v. Clark (2011) 52 Cal.4th 856 (Clark) to support the
proposition that CALCRIM No. 360 "would interfere with defense attempts to use the
statements relied upon by an expert for their truth." Clark is inapposite. There, the
Supreme Court—after finding the defendant forfeited the issue—rejected the defendant's
10 The bench notes accompanying CALCRIM No. 360 state: "This instruction should not be given if all of the statements relied on by the expert were admitted under applicable hearsay exceptions."
23 claim that the trial court erred by not instructing with CALCRIM No. 360's predecessor,
CALJIC No. 2.10. (Clark, at p. 942.) Here, defendant asserts the trial court erred by
instructing with CALCRIM No. 360. The Clark court's speculation about what "might
have" happened had the court instructed the jury with CALJIC No. 2.10 is not instructive
here. (Clark, at p. 942.)
On this record, we conclude there is no reasonable likelihood the jury believed it
could not consider I.S.'s forensic interviews for their truth. Thus, any instructional error
was harmless.
III.
STATUTE OF LIMITATIONS
The statute of limitations for a violation of section 288, subdivision (a) is normally
six years. (§ 800; People v. Smith (2011) 198 Cal.App.4th 415, 424 (Smith).) If it has
expired, it may be reopened for a one-year period beginning when the victim first reports
to a law enforcement agency the commission of a crime involving substantial sexual
conduct. (§ 803, subd. (f)(1), (2)(B); Smith, at p. 424.) Defendant asserts V.S. first
reported the crimes committed against her to law enforcement in 2005, while the People
assert she first reported them in 2011.11 Because prosecution commenced in 2012, the
timeliness of counts 7 through 23 (defendant's sexual abuse of V.S. in 1988) depends on
when the extended statute of limitations was triggered. Defendant contends the trial court
11 The People acknowledge a 2005 report to CPS, but contend it was insufficient to trigger the extended statute of limitations because it was not to a law enforcement agency and did not disclose substantial sexual conduct. 24 improperly resolved this alleged factual dispute itself when it instructed the jury that the
extended statute of limitations was triggered in 2011. We disagree.
To establish the prosecution was timely, the prosecutor sought to show during
V.S.'s direct examination that she first reported the details of defendant's sexual abuse of
her to law enforcement in November 2011. V.S. testified she met with Detective Burow
on November 28, 2011, and told him "[a]ll the incidents that happened when [she was] 13
years old in 1988[.]" When asked if this was her first disclosure to "law enforcement,"
V.S. initially stated she "called the police" after watching an episode of Oprah in 2005 to
warn them defendant might molest his other daughters. V.S. later clarified the 2005 call
was to CPS and that 2011 was the first time she disclosed the sexual abuse to police.
On cross-examination, defense counsel sought to establish the 2005 call was to
law enforcement, not CPS. V.S. answered "[y]es" to leading questions that asked
whether she "contacted the police department," "pick[ed] up a phone and contact[ed] a
police officer," and had a "conversation . . . with the police officer about briefly what
happened to [her.]"
On redirect examination, the prosecutor showed V.S. a report from CPS dated
November 15, 2005. V.S. read the report and testified it refreshed her recollection that
her 2005 call was to CPS and that her 2011 report to Detective Burow was her first report
of the sexual abuse to law enforcement.12
12 "[Prosecutor:] You said it could have been police [you called], it could have been CPS. [¶] Now that I've shown you that report, here's the question: Did you, prior to 25 On recross-examination, V.S. again responded "[y]es" to leading questions that
asked if she "contacted the police department" and "told the police department that [she]
had been molested."
V.S. also testified regarding the extent of her disclosure in 2005. Initially, when
asked if she "disclose[d] . . . in detail" in 2005 "all the details that [she] provided . . . in
court," V.S. responded, "Probably. I don't remember." However, she later clarified that
in 2005 she gave only a "general report" that she had been sexually abused; she "didn't
give any details." V.S. testified repeatedly that her 2011 report to Detective Burow was
"the first time [she] ever sat down with a police officer and provided all of those details
about what happened to [her]." She acknowledged on re-redirect examination that "[i]n
no uncertain terms did [she] ever report to any California law enforcement agency before
November 28, 2011 specific acts of the defendant touching [her] vagina with his hand" or
orally copulating her when she was 13. Defense counsel's questioning conceded V.S. did
not disclose the details of her molestation in her 2005 report.13
talking to Detective Burow in 2011, did you ever report to law enforcement what the defendant specifically did to you? [¶] [V.S.:] No. [¶] . . . [¶] [Prosecutor:] And just to be clear, that report, those phone calls that you made, that would have been to CPS in San Diego? [¶] [V.S.:] Yes. [¶] . . . [¶] [Prosecutor:] But just so we are clear. The call that you remember specifically was to CPS? [¶] [V.S.:] Yes. [¶] [Prosecutor:] And Detective Burow [was] the first law enforcement officer that you ever spoke with? [¶] [V.S.:] Yes." (Italics added.)
13 "[Defense Counsel:] I understand that you didn't give all the details that you have now given, but [did] you at least let law enforcement know that something had happened to you back in the days and you were concerned? [¶] [V.S.:] Yes. [¶] . . . [¶] [Defense Counsel:] It's fair to say that when you did contact the police department you did tell 26 Detective Burow testified he interviewed V.S. on November 28, 2011. V.S.
reported to him that defendant touched her vagina with his hand, orally copulated her,
and had her orally copulate him when she was 13. V.S. also told Burow this was her first
report of the abuse to law enforcement. Burow verified this claim by reviewing a
regional law enforcement database that contains records dating back seven to 10 years,
and city-wide police records of child abuse reports that are retained for at least 10 years.
Burow's review of the database and records did not reveal any prior report by V.S.
The prosecutor offered the following jury instruction regarding the extended
statute of limitations' triggering date:
"If you find the defendant guilty of a violation of Section 288(a) . . . as charged in Counts 7 thru 23, pursuant to Penal Code section 803[, subdivision] (f)(1), you must further decide whether the People have proved the following factual allegations by a preponderance of the evidence: [¶] (1) On April 11, 2012, a complaint was filed in this case, and on August 7, 2012, an amended complaint was filed in this case, within a year of the victim's report of the crime to a California law enforcement agency on November 28, 2011." (Italics added.)
Defense counsel objected and instead offered a general instruction on statute of
limitations (CALCRIM No. 3410). The court used the prosecutor's instruction.
"Ordinarily, the statute of limitations for a violation of section 288, subdivision (a)
is six years under section 800." (People v. Maguire (2002) 102 Cal.App.4th 396, 399.)
However, section 803, subdivision (f) "allows the prosecution to file an action after the
them that you were molested, but you did not go into details? [¶] [V.S.:] That is correct." (Italics added.)
27 expiration of the six-year statute when: (1) a victim of any age reports to a California law
enforcement agency a violation that occurred while the victim was under age 18; (2) the
crime involves 'substantial sexual conduct'; (3) independent evidence clearly and
convincingly corroborates the victim's allegation; and (4) the criminal complaint is filed
within one year of the date the report was made to law enforcement." (Maguire, at pp.
399-400 [discussing former section 803, subdivision (g)].) There are two significant
nuances to these triggering criteria. First, the report must be made to a law enforcement
agency; a report to CPS is insufficient. (Maguire, at pp. 399-400.) Second, the report
"must refer to unlawful sexual abuse acts involving substantial sexual conduct"; a general
report of sexual abuse is insufficient. (People v. Superior Court (Maldonado) (2007) 157
Cal.App.4th 694, 702.)
" 'Substantial sexual conduct' means penetration of the vagina or rectum of either
the victim or the offender by the penis of the other or by any foreign object, oral
copulation, or masturbation of either the victim or the offender," excluding "masturbation
that is not mutual." (§§ 1203.066, subd. (b), 803, subd. (f)(2)(B).) This exclusion "refers
to a defendant's self-masturbation in the presence of the victim." (People v. Terry (2005)
127 Cal.App.4th 750, 771 (Terry), citing People v. Lamb (1999) 76 Cal.App.4th 664, 679
(Lamb).) Therefore, a defendant's "acts in masturbating the victim fall within the
definition of mutual masturbation." (Lamb, at p. 682; see Terry, at p. 771.)14
14 Defendant argued to the contrary in his reply brief, but withdrew the argument before oral argument.
28 Although the prosecution bears the burden of proving each element of an offense
beyond a reasonable doubt, "the statute of limitations is not an ingredient of an offense
but a substantive matter for which the prosecution's burden of proof is a preponderance of
the evidence." (People v. Riskin (2006) 143 Cal.App.4th 234, 241.)
As discussed above, we review de novo the correctness of the trial court's
instructions to the jury. (People v. Posey, supra, 32 Cal.4th at p. 218.) The trial court
has no duty to give an instruction that is not supported by substantial evidence. (People
v. Moon (2005) 37 Cal.4th 1, 30.) In this regard, substantial evidence is "evidence
sufficient to 'deserve consideration by the jury,' not '. . . any evidence . . . presented, no
matter how weak.' " (People v. Williams (1992) 4 Cal.4th 354, 361.)
The trial court did not err by instructing the jury that the extended statute of
limitations was triggered in 2011 rather than 2005. First, no substantial evidence
supports defendant's claim that V.S. reported sexual abuse to a law enforcement agency
in 2005. Rather, the record is clear that V.S.'s 2005 report was to CPS. She so testified
on direct examination. After defense counsel's cross-examination led V.S. to adopt
references to "police" and "law enforcement," V.S. clarified on redirect—after reviewing
the 2005 CPS report documenting her call—that her call was to CPS. V.S.'s affirmative
responses to defense counsel's leading questions demonstrate only that V.S., as a lay
witness, did not appreciate the significance of the legal distinction between CPS and a
29 law enforcement agency.15 Any doubt was resolved by Detective Burow's testimony
that his search of law enforcement databases and records that date back to at least 2004—
the year before V.S.'s 2005 report—did not reveal any report of sexual abuse by V.S.
Thus, no substantial evidence would have supported a jury instruction premised on V.S.'s
2005 report having been made to a law enforcement agency.
Even if V.S.'s 2005 report had been to a law enforcement agency, it still would not
have triggered the extended statute of limitations because V.S. did not report "substantial
sexual conduct" (§ 1203.006, subd. (a)(8))—she gave only a "general report" that she had
been sexually abused, without "giv[ing] any details." V.S. testified consistently that,
"[i]n no uncertain terms," her first report of the details of defendant's sexual abuse of her
was to Detective Burow in 2011. Defense counsel's questioning conceded as much.
Thus, no substantial evidence would have supported a jury instruction premised on V.S.
having reported substantial sexual conduct in 2005.
Because no substantial evidence would have supported a jury instruction premised
on V.S.'s 2005 report having been made to a law enforcement agency or having disclosed
substantial sexual conduct, the trial court did not err by instructing the jury that the
extended statute of limitations was triggered in 2011 rather than 2005.
15 The prosecutor sought to clarify this distinction, stating within a broader question, "As lawyers we get used to what's a police department and CPS." Defense counsel objected on hearsay and foundational grounds, and the trial court sustained the objection. 30 IV.
CUMULATIVE ERROR
Because we have found only one instance of harmless error with respect to the
jury instructions regarding I.S.'s forensic interviews, we reject defendant's claim that
cumulative error requires reversal of his convictions. (People v. Bennett (2009) 45
Cal.4th 577, 618 ["With the exception of a single erroneous evidentiary ruling, which
was harmless beyond a reasonable doubt, we have rejected all other claims of error; thus
there is no cumulative error."].)
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.