Filed 8/30/16 P. v. Tran CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D067919
Plaintiff and Respondent,
v. (Super. Ct. No. SCD248768)
PHUOC TRAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Sharon B.
Majors-Lewis, Judge. Affirmed.
Patrick Morgan Ford for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Tami
Falkenstein, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Phuoc Tran guilty of 12 counts of committing a lewd act
upon a child. The crimes were against four different children. As to each victim, the jury
also found true that defendant had substantial sexual conduct with a child under the age of 14 and committed the crime against more than one victim. The court sentenced
defendant to 15 years to life on counts 1 through 12, for a total term of 180 years to life.
Defendant's central appellate contention concerns the fact that one of the victims
did not have an evidentiary medical examination after she reported the sexual abuse.
Defendant contends the failure to conduct the examination constitutes outrageous
governmental conduct requiring a complete dismissal of all of the charges and/or violates
his due process rights to the collection and preservation of exculpatory evidence. He also
contends the court erred in failing to sua sponte instruct the jury that the absence of a
medical examination may establish reasonable doubt of his guilt. Defendant additionally
contends the court erred in admitting evidence of uncharged sexual abuse against a fifth
alleged victim under Evidence Code section 1108.1
We determine defendant's contentions are without merit and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Because defendant does not raise a substantial evidence challenge, we do not
provide a comprehensive description of all the evidence presented during the lengthy
trial. Instead, our factual summary focuses on the prosecution and defense evidence
relevant to the specific contentions raised on appeal. In the Discussion section, we will
describe additional relevant evidence.
1 All statutory references are to the Evidence Code unless otherwise specified. 2 Prosecution Case
In 2013, defendant was married and lived with his elderly parents (Grandparents).
Defendant had six adult siblings, all of whom had children. At the time, the extended
family was close and celebrated birthdays and other milestone events together. The
children of the siblings (the cousins) often played together. The family had immigrated
from Vietnam, and many of the adults spoke only Vietnamese.
One of defendant's brothers has three sons (Michael, age 22; Peter, age 17; David,
age 16), and one daughter (M, age 11) (ages at the time of trial). Another one of
defendant's siblings has one child, a daughter (C), who was 18 at the time of trial.
Another one of defendant's siblings (Tracy) has two children. Tracy's husband's niece is
D, who was 17 at the time of trial.
The jury found defendant committed lewd acts against four of these younger
relatives: siblings Peter and M, their cousin C, and D. The abuse occurred at various
times and over many years. None of these children immediately reported the misconduct.
When they later reported, some of the reporting was gradual.
Chronology of Disclosures
The disclosures were triggered by a family event that took place at the
Grandparents' home during the weekend of May 17 through May 19, 2013 (the Family
Party). The extended family was celebrating a birthday and anniversary, and many
family members stayed overnight at the Grandparents' house (where defendant lived; and
Peter and C also lived while going to school).
3 During the Family Party, Peter saw defendant take Peter's nine-year-old sister M
into defendant's bedroom. When Peter attempted to open the door, it was locked. Peter
went into an adjacent room and listened through a closet, and thought he heard moans.
Peter was concerned because he and C had recently told each other about incidents of
sexual abuse by their uncle (defendant) when they were much younger.
M later testified that she had been playing with her younger cousin, when
defendant asked her to go into his room. When she did so, he locked the door and told
her to take off her clothes. M pulled her pants and underwear down to her knees and laid
on defendant's bed. At first, she was on her back and defendant touched his penis to her
vagina. M saw defendant's penis through "a hole on [his] underwear." After telling M to
turn over, defendant put his penis into her "butt." Someone knocked on the door and
defendant said "wait." Defendant and M then put their clothes back on and M left the
bedroom. M was not crying and "acted normally" when she left the room. As detailed
below, this form of abuse had occurred many times since M was five years old.
After this event occurred, Peter and several of the cousins met in a room, and told
M to come in the room. Peter then asked if defendant had touched her inappropriately.
M repeatedly denied it, but Peter kept pushing her to tell the truth. After about 20
minutes, M admitted that defendant had done so. She said defendant told her not to tell
anyone. The older cousins then had lengthy discussions about what to do with the
information. Some wanted to confront defendant; others wanted to tell the adults; and
others (Peter) wanted to call the police.
4 On Monday evening following the Family Party, Peter called the police and told
them that defendant had been molesting younger relatives, including Peter's younger
sister (M) and 16-year-old cousin (C), and that defendant had molested him when he was
about eight years old. Peter's father and the Grandparents were extremely angry at Peter's
report and instructed him to tell the police that he had lied about the abuse. Peter called
911 and told the officers he was afraid for his safety, and he spent the night in protective
custody.
Shortly after Peter's report, on May 21, C was interviewed by a social worker, who
came to her high school unannounced. After initially denying the abuse, C began crying
and told the social worker that defendant had touched her " 'down there.' " When asked
what she meant, she said her "vagina." She said defendant "tried to have sex" with her
and tried to "penetrate" her. She said this conduct occurred at nighttime on multiple
occasions. She said it began when she was nine years old and that it stopped when she
was 12 or 13 years old when she began locking her bedroom door. Later that day, when
her cousin Michael (Peter's older brother) picked her up from school, C told him that
defendant had repeatedly touched her "down there" when she was in her bedroom. C said
she did not tell an adult about the abuse because she feared it would ruin the family.
On that same day, Peter and M's mother heard about Peter's accusations and
picked up M from school early. When M's mother asked M whether she had gone into a
bedroom alone with defendant, M responded that she could not say. After M's mother
told her she loved her and repeatedly said that M needed to tell the truth, M disclosed
some of the conduct to her mother. M's mother testified that M said that defendant
5 "Asked her to come in the room. Asked her to lay down on the bed and pull her pants
down to her knees. . . . [M] [s]aid that uncle [defendant] took his [penis] and touch her
butterfly [vagina]." When M's mother asked her if she was hurt, M responded that "it
was not inserted inside," but "her uncle pull it out" after M said "Ouch. Ouch." M said
that defendant told her not to "say this to anybody including the parents." M denied that
she was in pain or had bled. M's mother examined M's vaginal area and did not see any
visible injury.
Later that day (May 21), a social worker told M's mother to bring M to Children's
Hospital to be interviewed. During the car ride, M was told by her father and/or mother
not to tell the truth and to lie and say that nothing happened. They were worried about
the health of defendant's mother if defendant was arrested. When M was interviewed by
social worker Laurie Fortin later that day, M denied that anything had occurred. She said
that she had made up the story to her brothers and cousins because they were "asking so
[many] times."
Two weeks later, on June 4, M's mother admitted to police officers that M had
disclosed the abuse and that she had instructed M to lie to social workers. The next day,
on June 5, M's mother brought her back to Children's Hospital to be reinterviewed by the
same social worker. During the second interview, M disclosed that defendant began
abusing her when she was about five years old. M described how defendant would rub
his penis on her vaginal area, but she denied any penetration. M did not have a medical
examination on that date, and there was no evidence that police officers or the social
6 workers recommended or asked M's parents to permit a doctor to conduct an
examination.
Two months later, at the preliminary hearing on August 29, M elaborated on her
disclosures. At the hearing, M disclosed for the first time that defendant also touched his
penis to her "butt," and that the touchings had occurred outside and inside her vaginal and
anal areas.
About 10 days after M first disclosed the abuse to the social worker, in mid-June
2013, D's family received a phone call from relatives in Vietnam about the accusations
against defendant. The relative said D had been identified as a possible victim and told D
not to disclose any abuse. After receiving the phone call, D began crying and told her
parents she had been sexually abused by defendant when she was about eight years old.
D had not been at the Family Party, and was not in contact with Peter. Several days later,
D's parents called police officers, who interviewed D.
Several months later, in about February or March 2014, Children's Hospital
(through an investigator) called M's parents requesting that M be brought in for a medical
examination. M's parents ignored the phone calls, and declined to bring her in for the
During the first trial that took place in April and May 2014, the jury was unable to
reach a unanimous verdict on any of the charges concerning Peter, C, M, or D. After the
trial, the prosecutor learned that Peter and M's brother David was also alleging that he
was abused by defendant when he was younger.
7 The Second Trial
The second trial took place in February and March 2015. At the trial, C retracted
her allegations against defendant and testified she made up the accusations to get
defendant in trouble. There was evidence that C was under substantial pressure from her
parents and other relatives not to testify against her uncle. However, the three other
alleged victims (M, Peter, and D) testified in detail about the sexual abuse committed by
defendant.
Eleven-year-old M testified to the incident in the bedroom during the Family Party
(as summarized above), and also provided more detail about the past abuse. In summary,
she said that defendant touched his penis to her vagina "[a] bunch of times" ("more than
10 times") beginning when she was in kindergarten. She said that defendant "push[ed]"
his penis inside her "middle" (vaginal area) and "pushed" his penis inside the "hole" in
her butt on numerous occasions (more than 10 times). She said these acts made her feel
uncomfortable, and that she would feel pain "[w]hen he did it too hard." She said that
defendant also used his hands to touch her chest. M said she did not tell her parents or
her brothers because defendant told her not to tell anyone. She described various
additional details, including the places where the abuse occurred (mainly bedrooms and
bathrooms in various family homes).
Seventeen-year-old Peter testified that when he was eight years old defendant
came into his bedroom and rubbed Peter's testicles and penis for a lengthy period, telling
Peter that it was a medical examination. He also described a similar touching in a room
in a hair salon owned by a family member. Peter also described conversations with C in
8 which she disclosed that defendant had sexually abused her on multiple occasions when
she was younger.
Seventeen-year-old D testified that when she was eight or nine years old, she had a
sleepover with her cousin C. As D was falling asleep, defendant came into the bedroom
and began touching her legs. Defendant then pulled D's pajama pants down and began
touching her "private spot" (vagina). Defendant put his mouth on her vagina until D
stopped it by getting up. Defendant then told her to go back to sleep and left the room. D
woke up C to tell her what happened. D did not tell an adult what had happened because
she was scared. When D was in eighth or ninth grade, she told her best friend (Y) about
the molestation. In her testimony, Y confirmed this information. D also testified that,
during another sleepover, C and D stayed up late at night and had a discussion about
defendant. D and C each told the other about defendant molesting them.
The prosecution additionally presented the testimony of 15-year-old David, the
brother of Peter and M. As described in more detail below, David testified that defendant
repeatedly touched his penis and testicles from the time David was about six or eight
until he was about 13.
The evidence also showed some of the adults in the extended family (defendant's
siblings and parents) were pressuring these witnesses to recant their accusations.
Defense
Defendant testified at trial, and denied engaging in any abuse against any of the
children. The defense theory was that Peter asserted the false accusations against
defendant because Peter hated his uncle and was seeking revenge because defendant was
9 always yelling at him to clean his room and to act in a more responsible way. To support
this theory, defendant presented evidence that Peter was a leader of his younger siblings
and his cousins and that Peter had urged these younger relatives to report abuse by his
uncle. Defense counsel argued that Peter used his leadership position to convince David,
M, D, and C (at least initially) to make false accusations against defendant.
Verdict
The jury found defendant guilty of 12 separate counts of lewd act upon a child
against M, D, C, and Peter. (Pen. Code, § 288, subd. (a).) As to M, the jury found
defendant guilty of four lewd act offenses: two counts of "Penis to Vagina" (charged as
"First Time" and "Last Time") and two counts of "Penis to Butt" (charged as "First Time"
and "Last Time"). As to D, the jury found defendant guilty of two lewd act offenses: one
count of "Mouth to Vagina" and one count of "Hand to Vagina." As to C, the jury found
defendant guilty of two counts of "Touching Private Parts" (charged as "First Time" and
"Last Time") and two counts of "Touching Breasts" (charged as "First Time" and "Last
Time"). (Capitalization omitted.) As to Peter, the jury found defendant guilty of two
lewd act counts ("Hand to Penis" and "Hand to Testicles"). (Capitalization omitted.) The
jury was unable to reach a verdict on an additional count pertaining to Peter (the alleged
abuse at the nail salon), and that count was dismissed.
DISCUSSION
I. Lack of Medical Examination
Defendant raises several appellate contentions arising from the fact that no
medical examination was conducted on M after she initially disclosed the sexual abuse to
10 authorities. We first summarize the evidence relevant to the medical examination issue,
and then address each of the contentions. We find no error.
A. Relevant Facts
M first disclosed the abuse to authorities on June 5 about 17 days after the last
abuse incident. She disclosed during a forensic interview with a social worker at the
Chadwick Center at Rady's Children's Hospital (Chadwick Center). At that time, M
reported penis to vagina contact, but indicated the touching was on the outside of her
vaginal area. There was no evidence showing that the social workers or law enforcement
officials requested or recommended that M undergo a physical examination at that time.
At trial, the prosecution and defense each presented a medical expert who testified
on the issue of whether a medical examination should have been performed and what
findings might have been expected if an examination had been performed. The
prosecution's expert was Dr. Jennifer Davis, the medical director of the Chadwick Center.
The defense expert was Dr. Lynne Ticson, a pediatrician specializing in child sexual
abuse who is the chief physician at Los Angeles County juvenile hall facilities.
Dr. Davis testified that the Chadwick Center does not generally perform a medical
examination if a child is denying any contact. Dr. Davis said she was not consulted when
M first disclosed the abuse about three weeks later, and she did not know why M was not
initially offered a medical examination. Dr. Davis testified that generally if a child
reports sexual abuse or sexual assault within 72 hours of the incident (characterized as the
"acute" period), an examination should be conducted for forensic purposes, but after that
time, the purpose of an examination is primarily for healthcare reasons. She explained
11 that well-established scientific studies show after the 72-hour period (or at the very most
one week), physical injuries will be present in less than 5 percent of cases, and anal
injuries are "extremely rare" and will be present in only 1 to 3 percent of cases. She also
said that even with sexual intercourse on young girls, the vaginal "area heals rapidly and
heals completely most of the time." She stated that for a 10-year-old girl, a swab for
DNA or sperm cells is generally conducted only within 72 hours of the alleged abuse
because beyond that time period it is unlikely that any such evidence would remain. She
also said that girls will often have a normal intact hymen even after sexual intercourse.
She additionally stated that young girls often misidentify touching as penetration,
explaining that touching to the outer vaginal area can feel to a young girl that the finger
or penis has gone "inside" the vagina.
Dr. Ticson's opinions were essentially consistent with Dr. Davis's testimony on
these issues. Dr. Ticson acknowledged that most sexual abuse injuries "heal rapidly" and
most sexual abuse examinations of children do not result in physical findings, particularly
after the 72-hour period. She agreed that studies have found that " 'Even with a history of
severe abuse, such as vaginal or anal penetration, the rate of abnormal medical findings is
only 5.5 percent.' " Dr. Ticson discussed a possible exception to this rule if there is blunt
force trauma and "full penetration" into a five- or six-year-old girl's vaginal area. She
said with such force, there could be substantial injury, including disruption of the hymen,
vaginal tearing, bleeding, and internal damage. Dr. Ticson said that absent this form of
trauma (which she said frequently does not occur with family member sexual abuse),
most sexual abuse examinations of children do not result in physical findings. She also
12 acknowledged that sometimes children do not have bleeding even if "sex is forced upon
them." She said that although a forensic medical examination of the vaginal area is
"gentle," if the child denies any abuse occurred, an examination is not "automatically
done" and she would not force a child to have an examination. Dr. Ticson agreed that the
history from the child is the most important diagnostic feature in determining whether
abuse occurred.
B. Analysis of Contentions
1. Claimed "Outrageous" Government Conduct
Defendant contends the court had a duty to dismiss all criminal charges because
the undisputed evidence shows the state acted in an "outrageous" manner by failing to
require M to undergo a medical examination. Defendant argues that the examination
"would almost certainly have shown whether [M] had been regularly raped and
sodomized for four years as she said."
Defendant forfeited this argument by failing to raise it below. The proffered
defense requires an analysis of facts, and is not purely a legal issue. (See People v.
Velasco-Palacios (2015) 235 Cal.App.4th 439, 445-446 (Velasco-Palacios).)
Even if we were to reach the issue, the contention has no merit. M first reported
penis-vaginal contact about 17 days after the last incident. Both the prosecution expert
and the defense expert testified it is unlikely that a medical examination would disclose
injuries after the 72-hour period. This defeats defendant's contention that the
examination "would almost certainly" have shown whether he committed the crime.
Moreover, on the date of the first disclosure, there was no indication that M had been
13 "regularly raped and sodomized." M denied there was any penetration, and there was no
indication she was in any kind of pain or distress. On this record, there is no basis for
finding the social workers and/or law enforcement officials acted in an "outrageous"
manner by failing to offer a forensic medical examination. Although both experts
testified they would have preferred to have a medical examination at this first disclosure,
both indicated this was primarily for healthcare reasons, and not to obtain evidence of the
abuse.
Moreover, it is unclear whether and under what circumstances a wrongful
governmental action can serve as valid grounds for dismissing criminal charges.2 But
assuming the validity of this defense, it precludes a prosecution only " 'in the rarest and
most outrageous of circumstances' " (Miller, The Case for Preserving the Outrageous
Government Conduct Defense (1996) 91 Nw.U. L.Rev. 305, 321), where a prosecution
would violate " 'fundamental fairness, shocking to the universal sense of justice,'
mandated by the Due Process clause of the Fifth Amendment." (United States v. Russell
(1973) 411 U.S. 423, 432.)
For example, in Velasco-Palacios, the reviewing court upheld the dismissal of
criminal charges based on the trial court's finding that the prosecutor had deliberately
altered an interrogation transcript to add a false confession and had provided the
2 In 1979, the California Supreme Court suggested in dicta that "[s]ufficiently gross police misconduct could conceivably lead to a finding that conviction of the accused would violate his constitutional right to due process of the law." (People v. McIntire (1979) 23 Cal.3d 742, 748, fn. 1.) More recently, the court left open the question whether this defense exists and the manner in which it should be raised (pretrial or during trial) in an entrapment case. (People v. Smith (2003) 31 Cal.4th 1207, 1223-1227.) 14 transcript to defense counsel when the prosecutor knew the counsel was attempting to
convince the defendant to settle the case. (Velasco-Palacios, supra, 235 Cal.App.4th at
pp. 446-452.) Focusing on the prosecutor's "conscience shocking" conduct of adding
false information to a transcript and finding that this conduct materially interfered with
the defendant's right to counsel, the court determined the dismissal of the criminal
charges was the appropriate sanction. (Ibid.)
There is no similar basis to dismiss the criminal charges in this case. Unlike a
deliberate falsification of a defendant's pretrial interrogation, there was no evidence
showing the absence of a forensic medical examination on M reflected bad faith or any
form of fundamental unfairness.
2. Claimed Due Process Violation for Failure to Preserve Evidence
In a related argument, defendant contends his due process rights were violated
because the state did not preserve potentially exculpatory evidence by conducting a
forensic medical examination on M. He argues the failure to conduct the examination
violated his due process rights because it was "likely" to show his "guilt or innocence."
Defendant forfeited this argument by not raising it below. He asks this court to
nonetheless reach his contention because it is "an important constitutional issue" and "the
facts here are undisputed." However, the forfeiture doctrine applies to constitutional
issues. (See People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17; People v. Navarro
(2013) 212 Cal.App.4th 1336, 1347, fn. 9.)
Moreover, the relevant undisputed facts do not support defendant's contention.
15 Under California v. Trombetta (1984) 467 U.S. 479 (Trombetta), the state has a
duty "to preserve 'evidence that might be expected to play a significant role in the
suspect's defense.' " (People v. Montes (2014) 58 Cal.4th 809, 837, italics added.)
Defendant is asking this court to extend that principle to impose a duty on the state to
collect potentially exculpatory evidence. Even assuming there is support for such an
extension (see Montes, at p. 838; Miller v. Vasquez (9th Cir. 1989) 868 F.2d 1116, 1120),
a Trombetta duty arises only where the exculpatory value of the evidence is "apparent"
(Montes, at p. 837). As discussed above, it would not have been apparent to law
enforcement officials that a medical examination would benefit defendant's case. The
testimony from both experts supported that when M first disclosed the abuse, it was
unlikely there would be any physical findings to support a true claim of abuse. Thus, a
physical examination would have little or no probative value to support a defense to the
sexual abuse charges.
Further, there is no due process violation on a failure-to-preserve claim unless the
defendant shows law enforcement acted in bad faith with an "animus towards [the
defendant] or [a] conscious effort to suppress exculpatory evidence." (Trombetta, supra,
467 U.S. at p. 488.) There was no evidence of a conscious effort to suppress evidence in
this case.
Defendant contends an "important constitutional issue" is "whether there is a due
process obligation for the police to gather potentially exculpatory evidence . . . through a
routine medical exam that would likely show the defendant's guilt or innocence as to one
of the victims . . . ." (Italics added.) However, this issue is not presented here because
16 the factual predicate is missing. There is no evidence in the record showing the medical
examination would "likely show . . . defendant's guilt or innocence . . . ."
3. Instruction Regarding Adverse Inference from Lack of Medical Examination
Defendant contends the court erred in failing to sua sponte instruct the jury that "if
[M] had been physically examined, there would have been no evidence of an injury, even
a healed injury, and that fact alone could be found to establish reasonable doubt." We
reject this argument because the proposed instruction is not an accurate statement of the
law or facts.
Defendant relies on People v. Zamora (1980) 28 Cal.3d 88 (Zamora), in which the
California Supreme Court reversed the defendant's convictions for resisting arrest and
assaulting police officers because the officers' personnel files were wrongfully destroyed
by the city before trial. (Id. at pp. 93-104.) In remanding the case for retrial, the high
court determined that as a sanction for the city's wrongful destruction of the evidence, the
jury should be instructed the destroyed files contained evidence the officers had used
excessive force in the past and that the jury may rely on this information to infer the
officers were prone to use excessive or unnecessary force. (Id. at pp. 99-103.)
Zamora is inapplicable here. There is no showing a public entity engaged in
wrongful conduct in this case. No evidence was destroyed and there was no duty to
conduct a medical examination under the circumstances. Moreover, defendant's
proposed instruction is incorrect and confusing. Even according to his own expert, the
absence of injuries to a child abuse victim does not constitute reasonable doubt. As
17 stated above, Dr. Ticson testified that "most" examinations of children do not result in
physical findings.
Because the instruction is not legally correct, there was no sua sponte duty for the
court to give the instruction. (People v. Kelly (1992) 1 Cal.4th 495, 532.) We likewise
reject defendant's contention that his counsel was ineffective for failing to request the
instruction.3
II. Police Interviews Did Not Preclude a Fair Trial
Defendant contends the trial was unfair because the investigating officers acted
wrongfully by asking "leading and improper questions" to minors. Defendant forfeited
this argument because it was not asserted in the court below. Additionally, the argument
fails on its merits.
Defendant primarily focuses on an interview of a witness (E) who never testified
at trial. The trial court excluded E's testimony because it found the questioning was
"highly suggestive" and "unprofessional." Because the jury was unaware of this
interview and there is no indication the verdicts were based on statements made by E,
there are no grounds for reversing the judgment based on the interview.
3 At various points in his appellate briefs, defendant also suggests error regarding the absence of a medical examination on C. For the same reasons we have rejected the outrageous conduct and due process arguments as to M, we find them unavailing as to C. Defendant does not cite, nor has our independent review disclosed, any evidence supporting that a forensic examination of 16-year-old C would have revealed evidence relevant to defense claims, particularly because the abuse stopped three or four years earlier when C was 12 or 13. 18 With respect to the two other claimed suggestive interviews, we have examined
the relevant testimony and find there was nothing fundamentally unfair about the
interviews. First, with respect to C, defendant complains that the police officers asked
her leading and suggestive questions. However, despite these questions, the record
reflects that C (who was 16 years old at the time) had previously volunteered specific
information about the abuse to social workers. In recanting her accusations, C did not
suggest her earlier statements were the result of an unfair police interview; instead she
said she intentionally made up the false accusations to help Peter get her uncle into
trouble. C's statements to the police officers were also corroborated by Michael, C's
cousin, who had previously been in a close and friendly relationship with defendant.
Shortly after C first disclosed, Michael picked up C from school, and on the way home, C
repeated the same accusations against defendant. Finally, defense counsel conducted a
strong cross-examination of the police officers involved in the interview, and the jury had
full information to decide whether C's responses were the result of an unfair interview or
were made independently.
Second, with respect to Y's interview, defendant complains that the prosecutor
made improper efforts before trial to "get [Y] to say that [D] told her she had been
'molested' by appellant." The record does not support this assertion. Defendant cites
only to defense counsel's argument to the court, and not to any alleged unfair questions.
Further, after reviewing Y's testimony, we are satisfied that Y testified from her own
recollection and that any statements made to her during the pretrial interview did not
improperly influence her testimony. Y was careful to explain that she remembered only
19 generalities about the conversations with D. Defense counsel was given substantial
latitude to vigorously cross-examine Y regarding her memory of the conversations, and
the jury, as the trier of fact, had full information to decide whether Y was credible.
III. Court Did Not Err in Admitting David's Testimony Under Section 1108
Defendant next contends the court erred in admitting David's testimony.
A. Factual Background
Before trial, the prosecutor moved to admit the testimony of 16-year-old David
(the brother of Peter and M) under section 1108, which permits the admission of
uncharged sex offenses as propensity evidence. The prosecutor made an offer of proof
that David would testify that defendant touched David's penis when he was between the
ages of eight and 10 years old. The prosecutor said he had been previously unaware of
David's allegations because his parents had refused to permit an interview with him. The
prosecutor said that when the parents finally allowed a conversation, David disclosed the
Defendant opposed the motion on numerous grounds, including that the alleged
improper touching was remote; David's statement lacked credibility as there is no
corroborating evidence; David likely had been "pressured by his older brother Peter to
join him in the allegations"; and the testimony would be confusing as defendant was not
being charged with the alleged conduct against David.
The court decided to conduct a section 402 hearing to consider David's credibility
and the potential relevance of the evidence. At the hearing, David testified he
"remember[ed] a few occurrences where [defendant] has touched my private place,"
20 meaning "my testicles and my . . . balls." He later clarified that he was referring to his
penis and his testicles. He said his uncle would "grab" his penis and "move it around"
and would "grab [his testicles] and squeeze." He said this occurred on multiple occasions
from the time he was six or seven years old until he was 13 years old when he "started
becoming a teenager." David said he did not tell anyone because he was afraid.
During cross-examination, David said he was told he had been asked to testify
because "Peter . . . said that [defendant] raped him and also me." He testified that during
the Family Party, Peter repeatedly attempted to "convince" him that he had been raped by
his uncle, but that he (David) had denied it. David also said he had been "[c]onflicted"
about what he should do because Peter had told him "what to say," whereas his father had
instructed him to "lie" about his uncle (defendant). But David also testified that Peter
told him he "should always tell the truth and never make stuff up, even if you can't
remember and stuff . . . ." David also made a series of conflicting statements about
whether and when he spoke with his mother about defendant's conduct, and the nature of
that disclosure.
After considering the testimony and arguments, the court ruled David's testimony
was admissible under section 1108. The court reasoned that it found David was
believable, despite that there would be substantial room for cross-examination on bias,
memory, and credibility issues. The court noted that David appeared to be immature,
nervous, and not highly articulate, and it was uncertain whether "this is all a figment of
his imagination or if he was really touched." But the court found it was the jury's role to
make this credibility determination.
21 At trial, David testified that defendant touched his penis and testicles many times
under and over his clothes. He said defendant "would thrust his hand under my pan[t]s,"
and would squeeze his testicles and would "move[ ]" his penis "around." He said the
touchings began when he was six or eight years old, and continued until he was 13 years
old. He said he was "[v]ery certain" that these touchings had occurred. He said that they
happened when he was alone in a bedroom with his uncle and identified the houses where
the abuse had taken place. David said he never told his parents because he did not know
how they would react. He said he did not disclose the touchings to anyone until he spoke
with the prosecutor in September 2014.
Regarding the Family Party, David remembered one "cousins" meeting, and said
that during the meeting Peter kept telling him that he had been "raped" by his uncle and
David had repeatedly denied it.4 David also said he spoke with Peter about coming to
court, and Peter told him to "[a]lways tell the truth." David said his father (defendant's
brother) told him to lie and not disclose any abuse and that David would "be dead to him"
if David did not "lie." During cross-examination, David agreed he had previously said
Peter told him to say that he was molested.
B. Legal Principles
Section 1101 prohibits the admission of evidence to show a defendant's propensity
to commit a particular crime. Section 1108, subdivision (a) creates an exception to this
rule by permitting the admission of a prior sexual offense for any relevant purpose,
4 On redirect, David clarified that Peter had probably used the word molested rather than raped. 22 including to show the defendant's propensity to commit the current sexual offense.
(People v. Loy (2011) 52 Cal.4th 46, 60; People v. Falsetta (1999) 21 Cal.4th 903, 911.)
"With the enactment of section 1108, the Legislature 'declared that the willingness to
commit a sexual offense is not common to most individuals; thus, evidence of any prior
sexual offenses is particularly probative and necessary for determining the credibility of
the witness.' " (People v. Soto (1998) 64 Cal.App.4th 966, 983.)
Defendant does not challenge that David's testimony was potentially admissible
under section 1108 as propensity evidence, but contends the court erred in denying his
motion to exclude the evidence under section 352.
In considering the admission of section 1108 sexual offense evidence, the court
should conduct a section 352 balancing analysis and exclude the evidence if "its
probative value is substantially outweighed by the probability that its admission will
necessitate undue time consumption or create substantial danger of undue prejudice,
confusing the issues, or misleading the jury." (People v. Loy, supra, 52 Cal.4th at pp. 61-
64; accord, People v. Falsetta, supra, 21 Cal.4th at p. 917.) This determination " 'is
entrusted to the sound discretion of the trial judge who is in the best position to evaluate
the evidence.' " (Falsetta, supra, 21 Cal.4th at pp. 917-918.) We must uphold the trial
court's ruling unless it " 'falls outside the bounds of reason.' [Citation.]" (People v. Kipp
(1998) 18 Cal.4th 349, 371; see People v. Avila (2014) 59 Cal.4th 496, 515; People v.
Loy, supra, 52 Cal.4th at p. 61; People v. Miramontes (2010) 189 Cal.App.4th 1085,
1098.)
23 The court did not abuse its discretion. David's testimony about the abuse reflected
actions similar to the charged conduct—engaging in secretive sexual abuse against his
prepubescent nieces and nephews within the family homes. Defendant's actions against
David (if believed by the jurors) were thus highly probative to show defendant had the
propensity to commit this type of crime and made it more likely he engaged in
comparable acts against David's siblings and cousins. Additionally, David's testimony
was brief and there was little likelihood the jury would become confused or distracted by
the evidence. Further, the abuse against David was not more inflammatory than the
charged crimes. If anything, it was relatively less substantial. Unlike the abuse
committed against M and C, the offenses involved fondling and not attempted
penetration.
In arguing the court abused its discretion, defendant focuses primarily on issues
surrounding David's credibility, particularly given David's late reporting and his
admissions that his brother Peter had told him what to say. However, as the trial court
found, the weaknesses in David's testimony pertained to the weight of the evidence, not
its admission. The court had the opportunity to observe and consider David's testimony,
and found that he was fundamentally a believable witness on the basic fact that he had
been subjected to unwanted sexual touchings by defendant. After hearing the testimony
and viewing David's demeanor and body language, the court said that "I do not feel he's
lying." The court recognized the weaknesses in David's testimony and that a jury may
not agree with its credibility assessment, but found the jury should have the opportunity
to consider the evidence and make its own determination.
24 The court did not abuse its discretion in reaching these conclusions. The
reliability and credibility of a witness are matters for the jury to decide, and therefore
inconsistencies in the testimony or biases or memory problems generally are not grounds
for precluding the admission of the evidence under section 352. (See People v. Merriman
(2014) 60 Cal.4th 1, 57; People v. Anderson (2001) 25 Cal.4th 543, 587; People v.
Mullens (2004) 119 Cal.App.4th 648, 660.) Although David suggested at times that he
was told what to say by Peter, he also said Peter told him to tell the truth and that he was
conflicted because his father was telling him to lie and say there was no improper
conduct. The court did not abuse its discretion in finding the jury should make the
credibility determination.
We also reject defendant's contention the evidence should have been excluded
because it was remote. According to David's testimony, the sexual touchings continued
until he was about 13 years old. Since David was 16 years old when he testified, the
abuse evidence was not remote. Further, many of the alleged abusive acts against David
occurred during the same period as the charged offenses.
We likewise reject defendant's contention the evidence was unduly cumulative.
There was no other evidence showing David had also been a victim of defendant's sexual
abuse, and the fact that defendant had also abused Peter's younger male sibling had
material probative value. In this regard, it is significant that the trial court refused to
permit the prosecutor to present the testimony of two other claimed victims under section
1108. This ruling shows the court carefully weighed the proposed testimony and
understood the scope of its discretion to disallow section 1108 evidence. Based on the
25 court's detailed explanation for its ruling, we are satisfied the court carefully balanced the
relevant factors, and acted within its discretion in determining the defendant did not meet
his burden to show the probative value of David's testimony was substantially
outweighed by the prejudicial effect.
Further, even assuming the court abused its discretion in admitting the prior sexual
offense evidence, the error is not reversible unless the defendant shows a reasonable
probability he would have obtained a more favorable result had the court excluded the
prior acts evidence. (See People v. Gonzales (2011) 51 Cal.4th 894, 924; People v.
Falsetta, supra, 21 Cal.4th at pp. 924-925; People v. Walker (2006) 139 Cal.App.4th 782,
808; People v. Mullens, supra, 119 Cal.App.4th at pp. 658-659.) Defendant has not made
this showing in this case.
Defense counsel effectively cross-examined David regarding his memory, his late
disclosure, and the pressure various family members placed on him regarding his
testimony. Under the circumstances, it is highly doubtful the jury would have been
persuaded that defendant was guilty of the charged offenses based solely on David's
testimony. If anything, David's testimony had the potential to help defendant's case.
Portions of David's testimony supported the defense theory that Peter had convinced his
cousins and siblings to falsely accuse defendant in order to retaliate against defendant.
David's statements that during the Family Party, Peter repeatedly told him he had been
"raped" by defendant and that David had denied this assertion was consistent with the
defense case. On our review of the entire record, we are confident that even if the court
had not permitted David to testify, the outcome would have been the same. On this issue,
26 we find unhelpful defendant's focus on the fact that David did not testify in the first trial.
Without a full comparison between the trials, it is speculative to conclude that this one
witness made the difference in the outcome.
IV. No Cumulative Error
Defendant contends we must reverse his conviction because the accumulation of
errors deprived him of a fair trial. Because we have rejected his contentions of error, we
necessarily reject the cumulative error claim. (People v. Vieira (2005) 35 Cal.4th 264,
294; People v. Bolin (1998) 18 Cal.4th 297, 335.) The record demonstrates that
defendant received a fair trial and the verdicts were supported by substantial evidence.
V. Judicial Notice
Defendant requests that we take judicial notice of an expert declaration that was
submitted in support of a habeas corpus petition in an unrelated child abuse case. We
deny this request. The declaration was not presented in the proceedings below, and
defendant provides no persuasive reason for this court to consider the declaration for the
first time here. (See People v. Catlin (2001) 26 Cal.4th 81, 170-171; Vons Companies,
Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Additionally, there are no
appropriate statutory grounds for judicial notice, and the information contained in the
document is not relevant on the issues before us. The declaration was authored by an
expert who was not subject to cross-examination and who was offering opinions
concerning different victims and a different defendant. Further, even if we were to
consider the declaration, it would not change the outcome of this appeal.
27 DISPOSITION
Judgment affirmed.
HALLER, Acting P. J. WE CONCUR:
O'ROURKE, J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 28