Filed 5/23/14 P. v. Vasquez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056036
v. (Super.Ct.No. INF10002190)
GABRIEL MORALES VASQUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. David B. Downing,
Judge. Affirmed.
Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael T. Murphy and Stephanie
H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
1 A jury convicted defendant, Gabriel Vasquez, of committing lewd and lascivious
acts on a minor (Pen. Code, § 288, subd. (a)). He was sentenced to prison for six years
and appeals claiming the jury was misinstructed. We reject his contention and affirm.
FACTS
The victim, who was five at the time of trial, testified that when she was four years
old and visiting her father at defendant’s house (defendant was her paternal grandfather),
defendant touched her genitals and inside her genitals with his hand while she and her
two brothers were in the living room with defendant. She immediately reported this to
her father, who was in his bedroom, and he became upset. When she returned to her
mother’s house that night, she reported the incident to her mother, who examined her
genitals, and to her mother’s live-in boyfriend.
The victim’s father testified for the defense and denied that on August 26, 2010,
the victim had said anything to him about defendant. He asserted that his children were
never alone with defendant and he denied telling the police that they were. Defendant
testified, denying that he ever touched the victim or that his grandchildren saw him
naked. He denied being alone with his grandchildren around the time of the crime.
More facts will be disclosed as they are relevant to the issue discussed.
ISSUE AND DISCUSSION
Before trial began, the jury was given the following instruction, inter alia, “In
evaluating a witness’s testimony, you may consider anything that reasonably tends to
prove or disprove the truth or accuracy of that testimony. Among the factors that you
2 may consider [is] . . . [¶] . . . [¶] [d]id the witness make a statement in the past that is
consistent or inconsistent with his or her testimony?”1
During her opening statement, defense counsel called the jury’s attention to
statements the victim had made to a forensic interviewer the day after the crime that her
brothers had touched her butt and her genitals.
The younger of the victim’s two older brothers (the younger brother), who was
seven years old at the time of trial, testified that while he and his older brother were
playing catch outside defendant’s home,2 the victim came outside looking scared. Later
that night, she told him that defendant had touched her in her private parts.3 The trial
court immediately instructed the jury, “[W]hat [the younger brother] has just told us is
something the [victim] told him. So let me explain that to you. [¶] During the trial,
certain evidence is being admitted for a limited purpose, and this is the area we’re in.
You may consider that evidence only for that purpose and for no other. The rule is this,
proof of an extrajudicial complaint made by the victim of a sexual offense—so we talked
about [the victim’s] statement to [the younger brother] . . . disclosing the alleged assault
may be admissible for a limited nonhearsay purpose, namely, to establish the fact of and
1 This instruction was repeated at the end of trial.
2Both the children’s mother and defendant testified that the home where the children’s father lived belonged to defendant.
3 On redirect, the brother testified that he did not remember the victim telling him this.
3 the circumstances surrounding the victim’s disclosure of the assault to others. Whenever
the fact that that disclosure was made and the circumstances under which it was made are
relevant to the trier of facts, that is the jury’s[4] determination as to whether the offense
occurred. . . . That is the rule.”
The older of the victim’s brothers (the older brother) testified that he was playing
video games with the younger brother in their father’s room of defendant’s house when
the victim came into the room from the living room and, crying a little, told him that
defendant had touched her private part one time, so the older brother told her to stay in
the bedroom with them. The trial court did not, at that point, instruct the jury about this
testimony. The older brother went on to testify that their father came home later that
night and the following morning, he told his father what the victim had told him in the
presence of the victim and the younger brother. When the children returned to their
mother’s house, the older brother told his mother, then her live-in boyfriend.
The victim’s mother testified that on August 26, 2010, her children returned late
from defendant’s home. The victim, who appeared to be very scared, told the mother that
her genitals hurt. The mother took the victim to the bathroom to examine her genitals
and she asked the victim why they hurt. The victim said that defendant had touched her
4 We note that, according to the Reporter’s Transcript, the trial court inserted a period between the word “others” and the word “Whenever” and a comma and the words, “that’s the jury’s” between “trier of facts” and “determination as to whether . . . .” Other than this, and a few irrelevant asides, this first statement of the fresh complaint doctrine contains exactly the language in CALCRIM No. 303 and in the holding in People v. Brown (1994) 8 Cal.4th 746, 749, 750 (Brown). (See text, infra)
4 with his fingers. After the mother stated a second time what the victim had told her
defendant had done, defense counsel immediately objected to that statement on the basis
of hearsay and the prosecutor responded that he was offering it as, inter alia, a fresh
complaint. The trial court then said to the jury, “ . . . I told you [before] what a fresh
complaint was. That, again, is a proof of an extrajudicial complaint which is made
outside the courtroom, made by the victim of a sexual offense, disclosing the alleged
assault, and is admissible for the limited purpose, the nonhearsay purpose, namely, to
establish the fact of and the circumstances surrounding the victim’s disclosure of the
assault to others. That would be [the victim’s] disclosure . . . to her mother . . . of what
happened, the witness here. . . . So that’s the fresh complaint doctrine. So it’s
admissible under that theory.” The mother went on to testify that when she examined the
victim, she noticed that her genital lips were red, which was abnormal, and the mother
told her live-in boyfriend and cried in the presence of him and the victim.
The mother’s live-in boyfriend testified that when the mother came out of the
bathroom crying, she showed him the victim’s genitals and he asked the victim what had
happened. Defense counsel immediately objected on the basis of hearsay and the trial
court responded that it was admitting the testimony as, inter alia, a fresh complaint. The
boyfriend then testified that the victim told him that her privates hurt and defendant had
touched them. When the boyfriend asked the victim what she meant, she said that
defendant had hurt her with his nail when he put his finger in and out and the younger
5 brother had tried to enter the room where defendant and the victim were and defendant
had told him to leave.
When the doctor who examined the victim testified that she received a history of
what had happened to the victim from the forensic examiner,5 and was asked what her
understanding of that history was, the trial court said, in response to defense counsel’s
hearsay objection, “[W]hat the doctor is about to tell you is what she understood [to have]
happened, so that she can conduct her [examination of the victim]. You are not to
consider what the doctor was told . . . for the truth of the matter asserted, but rather she
was told that, all right, if that helps. In other words, what the doctor is about to say that
someone told her about what happened to [the victim], you cannot consider it for the truth
of the matter of that. [¶] Obviously, . . . before [the doctor] conducts a[n examination],
she has to know what happened, and often she gets information, as she told you, from
various people. So don’t consider that information coming to the doctor as the truth of
that information.” The doctor went on to testify that the victim had said that defendant
had touched her private parts with his fingers and she was in pain.
The prosecution also introduced a recording of the victim’s forensic interview on
August 27, 2011, in which she said, inter alia, that defendant took off his pants and she
5 Appellate counsel for defendant is under the impression that this person was a psychologist. This is not supported by the record. Nowhere in the record is she described by anyone as a psychologist. She is identified on the transcript of the recorded interview as being from Riverside County Children’s Social Services and the doctor who examined the victim described her as someone who worked at the Child Abuse Unit of the Riverside County Regional Medical Center, doing a lot of forensic interviews.
6 saw his penis while defendant was showering and she was using the toilet and defendant
drinks and when he is drunk, he touches her genitals with his finger and her butt and she
saw his butt and saw him touch his penis. Then she said twice that defendant did not
touch her genitals, then she said he did, “a little bit.” In the same interview, before
making the contradictory statements about defendant, the victim, who was four at the
time, said that both of her brothers had touched her genitals and her butt while she had
her clothes on, despite the fact that she told them not to. She said that only her brothers
touched her butt or her genitals. She said that before her genitals began to hurt, the older
brother touched and opened them, then she said he did not, then she said he did, but it did
not hurt.
During instructions to the jury at the conclusion of trial, the court below said,
“During the trial, certain evidence was admitted for a limited purpose. You may consider
that evidence only for that purpose and no other. [The victim] made statements to some
of the witnesses who have testified at this trial. Proof of an extrajudicial complaint made
by the victim of a sexual offense disclosing the alleged assault may be admissible for a
limited nonhearsay purpose—namely, to establish the fact of and the circumstances
surrounding the victim’s disclosure of the assault to others—whenever the fact about that
disclosure are made and the circumstances under which it was made are relevant to the
jury’s determination as to whether the offense occurred.”
Before trial had begun, the trial court had tentatively decided to give an instruction
on the fresh complaint doctrine that was a combination of CALCRIM No. 303 and the
7 holding in Brown, supra, 8 Cal.4th 746. CALCRIM No. 303 provides, “During the trial,
certain evidence was admitted for a limited purpose. You may consider that evidence
only for that purpose and for no other.” Brown held, as to the fresh complaint doctrine,
“ . . . [P]roof of an extrajudicial complaint, made by the victim of a sexual offense,
disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—
namely, to establish the fact of, and the circumstances surrounding, the victim’s
disclosure of the assault to others—whenever the fact that the disclosure was made and
the circumstances under which it was made are relevant to the trier of fact’s
determination as to whether the offense occurred.” (Brown, supra, 8 Cal.4th at pp. 749-
750.) The trial court invited both counsel to submit to it, before trial began, any language
they wanted to include in the tentative instruction because it said that it intended to give
the instruction as soon as the first witness testified to a fresh complaint the victim had
made. There is no further mention of the tentative instruction in the record before us
until it was given the first time at trial, as stated above. The trial court informed counsel
that it would be giving them its completed set of jury instructions before trial began. The
following day, the trial court noted that it had handed both counsel its set of instructions
the previous day which was the same day the instruction at issue was given for the first
time. While discussing jury instructions to be given at the end of trial, the court said it
would give CALCRIM No. 303 “with . . . People v. Brown, 8 Cal.4th 746, phrased in
there.” Defense counsel was asked if she had any thoughts about changes to or
modifications of any of the instructions or pinpoints and she said she did not.
8 Defendant now, for the first time, claims that the instructions given as to fresh
complaint doctrine, were incapable of being understood by the jurors. Specifically, he
asserts that because the instruction made reference to hearsay, it required the jury to be
familiar with the hearsay doctrine—not so. An understanding of the hearsay doctrine was
not necessary to an understanding of the fresh complaint doctrine. Moreover, the
instructions were often given in the wake of defense counsel’s hearsay objections. We
note that this trial court encouraged the jurors to submit to it questions they wanted asked
of witnesses, which is unusual in our experience reviewing trials in the courts under our
jurisdiction. Under these circumstances, we find it hard to fathom that any juror who
found the instruction on the fresh complaint doctrine confusing would not have asked for
clarification from the trial court, but none did, not even during deliberations. Beyond
this, if defendant wanted clarification of the instruction, it was incumbent upon him to
request it or the matter is waived. (People v. Livingston (2012) 53 Cal.4th 1145, 1165.)
Defendant next claims that the giving of CALCRIM No. 318 rendered the
instructions on the fresh complaint doctrine even more confusing to the jury. By way of
background, during the victim’s testimony, at the beginning of trial, defense counsel said
that if the prosecutor did not play the tape of the victim statements to the forensic
interviewer, she would. As stated before, the victim made contradictory statements
during this interview about whether defendant had touched her. During the mother’s
testimony, as stated before, she said that after the victim told her that her genitals hurt,
the mother asked her why and the victim said that defendant had touched her genitals
9 with his fingers, the mother took the victim to the bathroom and examined her there.
Defense counsel did not object to this. When asked if she ever questioned the victim
more in detail about what happened or how she got hurt, the mother testified that the
victim “kind of just said it on her own.” When asked what the victim said, the mother
repeated that she said that defendant had touched her. After defense counsel objected on
the basis of hearsay to this, the prosecutor said he was offering it as both a fresh
complaint and a prior inconsistent statement. As to the latter, the court instructed the
jury, “It may be admissible under another theory [in addition to being a fresh complaint]
which is a prior inconsistent statement. [The victim] testified . . . to certain things. You
can evaluate what she said here as to what she said to her mom, this witness, and
determine whether the statements were inconsistent or consistent. And for this reason, I
will overrule the defense objection. What [the victim] said to [her mother] comes in
under either theory.” The mother went on to finish her testimony on the subject by
saying that the victim said that defendant had touched the victim with his fingers.
As stated before, when the mother’s boyfriend testified, defense counsel objected
on the basis of hearsay when he was asked what the victim had said to him when he
asked her what had happened. Besides admitting the answer on the basis of the fresh
complaint doctrine, the trial court also admitted it as a prior consistent or inconsistent
statement, thusly, “I told [the jury before trial began] some things you could look at to
evaluate the credibility of a witness. . . . [O]ne of those was, did the witness make a
statement in the past that is consistent or inconsistent with his or her testimony. [¶] In
10 other words, a statement in the past would be [the victim’s] statement to [the mother’s
boyfriend] and to [the mother], and you look at that and evaluate that statement as told to
you by [the mother] and as told to you by [the mother’s boyfriend] with [the victim’s]
testimony. So were the statements made consistent or inconsistent[?]”
Because it makes no sense whatsoever that the prosecutor would want to impeach
the victim with her prior inconsistent statements, it is apparent that the prosecutor was
anticipating the introduction of the victim’s statements to the forensic interviewer (in
light of defense counsel’s reliance on some of those statements in her opening statement
and her assertion that she would introduce the statements if the prosecutor did not) and
was actually attempting to rehabilitate the victim by introducing her prior consistent
statements, i.e. the ones to her mother and to her mother’s boyfriend, which were
consistent with her trial testimony that defendant touched her genitals with his fingers
and inconsistent with some of the statements she made during the forensic interview that
defendant did not touch her. Of course, the jurors had no way of knowing this and knew
only what the trial court had told them up to that point, which was that they could
consider these statements as fresh complaints with the limited usage that accompanied
statements admitted pursuant to this doctrine, and in judging the victim’s credibility
given that she had made statements that were consistent or inconsistent with her trial
testimony. It was not until the presentation of evidence had concluded and the jury was
being instructed that they were told, for the first time, about an additional use to which
they could put these statements, and, in fact, all the victim’s previous statements,
11 including the ones to her brothers, which was, according to CAlCRIM No. 318, “as
evidence that the information in those earlier statements is true.”6 Once the forensic
interview was admitted, the victim’s prior consistent statements to her brothers, her
mother and the mother’s boyfriend were admissible to rehabilitate her under Evidence
Code section 1236. That section provides, “Evidence of a statement previously made by
a witness is not made inadmissible by the hearsay rule if the statement is consistent with
his testimony at the hearing and is offered in compliance with Section 791.” Evidence
Code section 791 provides, in pertinent part, “Evidence of a statement previously made
by a witness that is consistent with his testimony at the hearing is inadmissible to support
his credibility unless it is offered after . . . [¶] [e]vidence of a statement made by him
that is inconsistent with any part of his testimony at the hearing has been admitted for the
purpose of attacking his credibility, and the statement was made before the alleged
inconsistent statement.” We disagree with defendant that these statements were not
admissible as prior consistent statements under Evidence Code section 791 because they
were offered into evidence before the tape of the victim’s interview with the forensic
interviewer was played for the jury. This is so because the jury was not informed of the
expanded use to which they could apply the statements until after the interview was
6 The entire instruction was as follows, “You’ve heard evidence of a statement that a witness made before the trial. If you decide that the witness made the statement, you may use that statement in two ways: [¶] 1. To evaluate whether the witness’s testimony in court is believable; [¶] AND [¶] 2. As evidence that the information in the earlier statement is true.”
12 admitted into evidence and defense counsel had referred to the victim’s statements in the
interview that were inconsistent with the victim’s trial testimony during her opening
statement to the jury. While defendant was free at trial to object to the introduction of the
victim’s statements to her brothers, her mother and her mother’s boyfriend on the basis
that the interview had not yet been introduced into evidence, the defense did not do so,
most probably because defense counsel had already referred to it in her opening
statement and anticipated introducing the interview, herself, if the prosecutor did not.
Additionally, the statements were clearly admissible under the fresh complaint doctrine.
Finally, defendant here is not contending that his conviction should be reversed because
the trial court erred in allowing the introduction of the statements at a time when the
condition of Evidence Code section 791 had not yet been met—he is contending that the
jury instruction given on the basis of the admission of the evidence as consistent
statements confused the jury about the instructions given on the fresh complaint doctrine.
Clearly, the two were contradictory. However, ultimately, admission of the victim’s
statements as consistent statements was proper, therefore, it was appropriate for
CALCRIM No. 318 to be given. We note that in their arguments to the jury, neither
party called the jury’s attention to the distinction between the use of the victim’s
statements as fresh complaints as compared to their use under CALCRIM No. 318—the
prosecutor merely argued that all of the victim’s prior statements supported her trial
testimony that defendant had molested her and it was irrelevant whether her brothers had,
13 and defense counsel focused on her statements that her brothers had molested her and
contended that there was insufficient evidence that defendant had.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
HOLLENHORST J.
MILLER J.