P. v. Augustus
Filed 7/3/13 P. v. Augustus CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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, Plaintiff and Respondent, v. TREVOR BERNE AUGUSTUS, Defendant and Appellant. | D060939 (Super. Ct. No. SCE 304177) |
APPEAL from
a judgment of the Superior Court
of
County, Patricia K. Cookson, Judge. Affirmed.
Marianne
Harguindeguy-Cox, 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, Senior Assistant Attorney General, Steve Oetting and Lise S.
Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Trevor Berne Augustus guilty of two counts
of committing a lewd act upon a child under the age of 14 years (Pen. Code, §
288, subd. (a)). The trial court
sentenced Augustus to five years in prison.
On appeal, Augustus claims that the
trial court erred in admitting statements he made to a pastor and to a member
of his church, in which he admitted that he had molested the victim. Augustus also claims that the prosecutor
violated his constitutional rights
under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and its progeny by failing to timely disclose a prosecution
witness's prior misdemeanor conviction.
Finally, Augustus claims that the trial court erred in admitting a
recording of a police interview of the victim during which the victim disclosed
the molestations.
We affirm the judgment.
II.
FACTUAL AND
PROCEDURAL BACKGROUND
A.
In early 2010, Augustus lived with
his wife, Michelle and their adopted children, 12-year-old M.B. and her
brother. Augustus's mother, Barbara
Augustus (Barbara), also lived on the property.
In the spring of 2010, Augustus
took M.B. on a two-night camping trip.
On the second night, while M.B. was in her sleeping bag in the tent,
Augustus touched M.B.'s breasts and vagina, both over and under her clothing
and bra. The touching lasted for about
30 minutes. One weekend after the
camping trip, at around 4:00 a.m.,
Augustus entered M.B.'s bedroom and touched her chest and vagina for about 10
minutes. Augustus also touched M.B.'s
breast and vagina under and over her clothing on two other mornings when he
entered her bedroom to wake her up.
On the afternoon following the last
incident, M.B. told Michelle that Augustus had touched her chest area and
"private," and that it made her feel uncomfortable. M.B. also told Barbara that Augustus had
touched her that morning and gestured with her hand toward her vaginal area.
Barbara confronted Augustus, asking
him, "[W]ere you feeling [M.B.] up?"
Augustus sobbed and said, "[N]o—I guess [you] know—yeah." Augustus also admitted to Barbara that he had
touched M.B. in the groin area during the camping trip. Barbara advised Augustus to seek spiritual
guidance from a pastor.
On April 19, 2010, Augustus called Sean Speed, a member of,
and volunteer at, the Bethel Assembly Christian Church in Alpine. Speed met with Augustus, who appeared
distraught, remorseful, and a "little bit fearful." Augustus told Speed that he was a "child
molester," that he had touched M.B. inappropriately when she was sleeping
at night, and that he felt bad about it.
Speed testified that Augustus told him that M.B. was becoming beautiful
and that she was adopted.
The next day, April 20, Augustus
called associate pastor Craig Osborne of the Bethel
Christian Assembly
Church and told Osborne that he
wanted to meet with him. Osborne met with Augustus in Osborne's office at the
church. Augustus told Osborne that
Michelle and Barbara had confronted him about an incident with M.B. Augustus also told Osborne that he had
touched M.B. inappropriately on three occasions while she was in her room and
Augustus thought she was sleeping.
Augustus said that he enjoyed touching M.B. and that it excited
him. Augustus also told Osborne that M.B.
was getting older and more mature, and mentioned that she was adopted.
On April 21, Osborne reported
Augustus's conduct to Child Protective Services. Detective Heather Czerwinski of the San Diego
County Sheriff's Department subsequently interviewed Michelle, Barbara,
Augustus and M.B. Barbara told Detective
Czerwinski that M.B. had disclosed to her that Augustus had touched her vaginal
area. M.B. told Detective Czerwinski
about Augustus's molestation of her on the camping trip. M.B. also told the detective that Augustus
had molested her on several occasions during the early morning hours in her
bedroom. M.B. explained that during the
molestations in her bedroom and on the camping trip, Augustus would touch her
vagina and breasts.
B. The
defense
Augustus testified on his own
behalf. Augustus said that he snuggled,
cuddled and tickled M.B. on the camping trip, but denied having done anything
sexual to her, and specifically denied touching her breasts and vagina. Augustus also testified that he would awaken
M.B. in the morning for school by playing music and then nudging, shaking,
pushing and poking her. If she was awake
but not getting out of bed, he would tickle her neck, stomach and sides. Augustus maintained that he had never done
anything sexual with M.B.
III.
DISCUSSION
A.
that Augustus made to
Speed and Osborne
claims that the trial court erred in admitting the statements he made to Speed
and Osborne. Specifically, Augustus
claims that the trial court violated his right to due process by determining the
admissibility of his statements to Speed without holding an evidentiary
hearing, and that the trial court erred in denying his motion in limine to
exclude his statements to Osborne pursuant to the penitent-clergy privilege.
1. Factual
and procedural background
Prior to
trial, defense counsel filed a motion in limine to exclude all statements that
Augustus made to both Speed and Osborne.
Augustus claimed that all of these statements were inadmissible pursuant
to the penitent-clergy privilege. The prosecutor
filed a trial brief in which she requested that the trial court deny Augustus's
motion in limine in its entirety. The
prosecutor argued that Augustus's statements to Speed were admissible because
Speed is not a clergy member, and the penitent-clergy privilege therefore does
not apply to communications between Augustus and Speed. The prosecutor contended that Augustus's
statements to Osborne were not privileged because in order for the privilege to
apply, the member of the clergy must have a duty, under the tenets of his
church, to keep secret communications between a parishioner and a member of the
clergy, and the tenets of Osborne's church do not mandate that disclosures such
as Augustus's be kept secret.
During a
pretrial hearing, the trial court discussed the in limine motion with counsel
and stated, "Tentatively, it seemed like privileged conversations in both
instances [i.e., with respect to Augustus's statements to Osborne and with
respect to Augustus's statements to Speed]." However, the court stated that there was a
question as to whether the tenets of Osborne's church mandated that disclosures
such as those at issue in this case be kept secret. The court indicated that it would conduct an
Evidence Code section 402 hearing
name="_ftnref1" title="">[1] concerning the tenets of Osborne's church with
respect to this issue, and that it would hold a separate hearing with respect
to the statements made to Speed at a later date, if necessary.
Later that
day, the trial court held a section 402 hearing. At that hearing, the prosecutor asked
Osborne, "And in your job description or in any tenet of the church as far
as consulting with your main pastor, if someone were to disclose something like
molesting or hurting a child, do you know, is there a policy in your church or
a tenet in your church of what you do in that situation?" Osborne replied:
"As pastors on
staff, we're all under the same understanding
of . . . being mandated reporters, so when we hear things
like that when something is done to a minor, then we all understand that we are
legally bound to report that. When
someone comes for counseling, there is a reasonable expectation of
confidentiality that we won't turn and as we walk out the door tell somebody. But there is nothing stat[ing] I can't say
anything or talk to anybody."
The
prosecutor then asked, "So you don't say that to someone that speaks to
you, ''[W]hatever you tell me I'm not going to tell anybody?' " Osborne responded, "No, no, no."
On
cross-examination, defense counsel asked, "At least there's a reasonable
expectation that the things people come to tell you are told in a confidential
nature, correct?" Osborne
responded, "Yes, unless it's deemed illegal, broken [sic] a law concerning—specifically concerning a minor."
Osborne
testified that after his conversation with Augustus, he talked with the senior
pastor at his church and asked, " 'Hey, you know, what do I do with
this information?' " Osborne
explained that the senior pastor told him that "his understanding was I
needed to report it."
At the
conclusion of the hearing, the trial court ruled that all of the statements
that Augustus made to Osborne were admissible.
The court reasoned that "the tenets of this church require[d] the
pastor . . . to disclose." The court also ruled that Augustus's
statements to Speed were admissible, reasoning that Speed is not a priest or
minister under section 1030.
name="_ftnref3" title="">[3]
2.
The trial court did not violate Augustus's right to due process in
determining
the admissibility of the statements that he made to Speed
without
holding an evidentiary hearing
Without
citation to any relevant authority, Augustus claims that the trial court
violated his "federal due process rights"
without first holding an evidentiary
hearing. We are not aware of any
authority that supports Augustus's contention that due process requires such a
hearing. On the contrary, in
872 (Hoyos), the California Supreme
Court rejected a defendant's claim
that a trial court violated his right to due process by determining the
admissibility of his codefendant's (Alvarado) admissions to a jailhouse
informant (Jimenez) without holding an evidentiary hearing:
evidentiary hearing on federal due process grounds. . . . [U]nder the federal due process clause, a
defendant
evidentiary hearing on the issue of his confession's voluntariness. [Citations.] Although the Jimenez statements reported
Alvarado's admissions, defense counsel never raised the issue of the voluntariness
of Alvarado's admissions to Jimenez.
Rather, defense counsel claimed Jimenez's statements were inherently
unreliable because Jimenez was a jailhouse informant. Therefore, the due process cases defendant
cites are inapplicable." (
As in Hoyos, Augustus did not raise any claim in the trial court, and has
not raised any claim in this court, that the statements he made to Speed were
involuntary. Accordingly, we reject
Augustus's claim that his right to federal due process required that the trial
court hold an evidentiary hearing prior to determining the admissibility of his
statements to Speed.
name="_ftnref5" title="">[5]
3.
Augustus's statements to Osborne
law
Sections
1030 through 1035 define the penitent-clergy privilege. Section 1033 provides in relevant part:
"[A] penitent,
whether or not a party, has a privilege to refuse to disclose, and to prevent
another from disclosing, a penitential communication if he or she claims the
privilege."
Sections
1031 and 1032 define "penitent" and "penitential
communication" as follows:
"As used in this
article, 'penitent' means a person who has made a penitential communication to
a member of the clergy." (§ 1031.)
"As used in this
article, 'penitential communication' means a communication made in confidence,
in the presence of no third person so far as the penitent is aware, to a member
of the clergy who, in the course of the discipline or practice of the clergy
member's church, denomination, or organization, is authorized or accustomed to
hear those communications and, under the discipline or tenets of his or her
church, denomination, or organization, has a duty to keep those communications
secret." (§ 1032.)
In Roman Catholic Archbishop of Los Angeles v. Superior Court (2005)
131 Cal.App.4th 417 (Roman Catholic
Archbishop), the court summarized the requirements for a statement to
qualify as privileged pursuant to the penitent-clergy privilege:
" 'In order for
a statement to be privileged, it must satisfy all of the conceptual
requirements of a penitential communication:
1) it must be intended to be in
confidence; 2) it must be made to a member of the clergy who in the
course of his or her religious discipline or practice is authorized or
accustomed to hear such communications; and 3) such member of the clergy
denomination or organization to keep such communications secret. [Citations.]'
[Citation.]" (
"[I]n this context, the
privilege-claimant 'has the initial
burden of proving the preliminary
facts to show the privilege applies.'
[Citation.] 'Once the claimant
establishes the preliminary facts . . . , the burden of proof shifts to the opponent
of the privilege. . . .
[Citation.]' [Citation.]" (Roman
Catholic Archbishop, supra, 131 Cal.App.4th at p. 442, fn. and italics
omitted.)
An
appellate court reviews "the trial court's privilege determination under
the substantial evidence standard. '
" 'When the facts, or reasonable inferences from the facts, shown in
support of or in opposition to the claim of privilege are in conflict, the
determination of whether the evidence supports one conclusion or the other is
for the trial court, and a reviewing court may not disturb such finding if
there is any substantial evidence to support it [citations].' " [Citation.]
Accordingly, unless a claimed privilege appears as a matter of law from
the undisputed facts, an appellate court may not overturn the trial
that claim.' [Citation.]" (Roman
Catholic Archbishop, supra, 131
Cal.App.4th at pp. 442-443.)
b.
In discussing the tenets of his
church, Osborne testified that
"there is nothing stat[ing] I can't say anything or talk to anybody,"
with respect to statements made by a parishioner during a church counseling
session. Osborne also stated that he
never tells individuals involved in such sessions that what they say during the
sessions will be received in confidence.
Further, while Osborne agreed with defense counsel that a person
participating in a church counseling session would generally have a
"reasonable expectation of confidentiality," Osborne clarified that
this expectation would not apply if the person were to make statements about
having engaged in illegal conduct, particularly if the illegal conduct involved
a minor.
Osborne's
testimony constitutes substantial evidence to support the trial court's ruling
that the statements Augustus made to Osborne were admissible, since the tenets
of Osborne's church do not include "a duty to keep those communications
secret." (§ 1032.)
B. The prosecutor did not
violate Augustus's right to due process or his right to
confront adverse
witnesses by failing to disclose that Speed had previously
suffered a misdemeanor
conviction
Augustus
claims that the prosecutor violated his right to due process and his right to
confront adverse witnesses by failing to disclose that Speed had previously
suffered a misdemeanor conviction.
1. Factual
and procedural background
During the trial, after Speed
testified, the prosecutor advised the court outside the presence of the jury that
defense counsel had contacted her the previous evening concerning the
possibility that Speed had suffered a prior "felony sexual
conviction." The prosecutor stated
that in response to counsel's inquiry, she instructed a paralegal in her office
to "run the FBI raps," and that she learned that Speed had suffered a
2004 misdemeanor conviction in Utah
for "criminal mischief." The
prosecutor stated that Speed had been required to pay a $200 fine and that he
had not been placed on probation.
The prosecutor informed the court
and defense counsel that she asked Speed about the conviction. According to the prosecutor, in describing
the circumstances of the facts underlying the conviction, Speed stated that he
had been talking to someone who was refusing to listen to him. Speed said that he closed a door and told the
person that the person was going to " 'hear him out.' " Speed told the prosecutor that in lieu of
fighting charges related to his conduct, he paid a $200 fine. The prosecutor also stated that her office
had contacted the district attorney's office in Utah,
and that office had confirmed Speed's conviction. The prosecutor added that the Utah
district attorney's office did not think that a police report had been
prepared, and said that they had been unable to locate such a report.
The court responded, "It
sounds like you did as much as you possibly could given the short
notice." Defense counsel stated,
"I'm satisfied it would not have [risen] to an impeachable area."
After
defense counsel's closing argument, the prosecutor advised the court and
defense counsel that she had just received a copy of a Utah
police report concerning the incident giving rise to Speed's conviction. The report described an incident during which
Speed had helped a woman who was having car trouble take her car to a garage
for repairs. According to the report,
after the woman refused Speed's request to have sex, Speed masturbated to the
point of ejaculation in front of the woman in a closed room at the garage. The woman was afraid and felt that she could
not leave. Speed was convicted of
criminal mischief based on his conduct.
Defense counsel asserted that if
she had known about Speed's conviction, she would have "want[ed] to have
impeach[ed] him on that." The court
and counsel proceeded to have extensive discussions concerning the
circumstances of the prior conviction, Speed's testimony in this case, Speed's
failure to accurately describe the prior conviction to the prosecutor, and the
fact that the prosecutor had been unable to locate Speed for potential further
proceedings. In the wake of these
discussions, the court stated that it was contemplating holding a section 402
hearing with Speed for the purpose of learning more about the conviction. However, the court ultimately ruled, pursuant
to section 352, that the court would limit any evidence pertaining to the
conviction to a possible stipulation to be entered into between the
parties. The court reasoned:
"I'm going to
deny it,[
[section] 352. I find as I go through . . . probing
this, it's going to be very difficult to limit both sides to the matter at
hand, whether or not he was convicted of a 2004 misdemeanor—of moral
turpitude. . . .
And it has nothing to do with the timeliness of it.[
to end up in a circus based upon what has happened so far. So I want to do the right thing, but it's
obvious to me it's not going to be the right thing because we're going to go
far afield and [put] Mr. Speed on trial, and I don't want to do that.
"So if you two
want to huddle and talk about a stipulation that the Court would feel
comfortable taking that I can say or I believe Mr. Speed would agree that this
was the conduct he engaged in [in] 2004, I will accept that stipulation. I will read it into the
record . . . ."
The parties subsequently agreed to
a stipulation pertaining to Speed's conviction and the court read the
stipulation to the jury. The stipulation
provided:
" 'In 2004 Sean
Speed suffered a conviction . . . out of the state of Utah
for a Class B misdemeanor of criminal mischief—lewd conduct that is public
masturbation. This evidence is offered
for the limited purpose of determining whether the witness had engaged in
conduct that reflected on his . . . believability.' "
After reading the stipulation to
the jury, the trial court permitted defense counsel to reopen her closing
argument for the purpose of addressing the subject matter of the
stipulation. Defense counsel argued to
the jury that Speed's suggestion that appellant was using the fact that his
daughter was adopted as a justification for the molestation reflected
Speed's "little, sick, twisted
mind." Defense counsel also argued
that Speed was not credible in light of this prior conviction.
2.
In People v. Whalen (2013) 56 Cal.4th 1, 64 (Whalen), the California Supreme Court summarized the following
principles of law that govern a claim under Brady,
supra, 373 U.S. 83 and its progeny:
" 'The federal
due process clause prohibits the prosecution from suppressing evidence
materially favorable to the accused. The
duty of disclosure exists regardless of good or bad faith, and regardless
requested the materials.
[Citations.] The obligation is
not limited to evidence the prosecutor's office itself actually knows or
possesses, but includes "evidence known to the others acting on the
government's behalf in the case, including the police." [Citation.]
[¶] For Brady
purposes, evidence is favorable if it helps the defense or hurts the
prosecution, as by impeaching a prosecution witness. [Citations.]
Evidence is material if there is a
reasonable probability its disclosure would have altered the trial result. [Citation.]
Materiality includes consideration of the effect of the nondisclosure on
defense investigations and trial strategies.
[Citations.] Because a
constitutional violation occurs only if the suppressed evidence was material by
these standards, a finding that Brady was not
satisfied is reversible without need for further harmless-error review. [Citation.]'
[Citation.]" (
3. Application
On appeal,
Augustus argues that the prosecutor's failure to disclose information
concerning Speed's conviction violated his right to due process under
prosecutor had timely disclosed the conviction, "It would have enabled
[defense counsel] to properly cross-examine Speed as to the underlying facts of
his conviction as well as the false information he gave to the prosecutor
regarding it." Augustus also
argues, "Had the evidence underlying Speed's conviction been introduced at
trial, it would have rendered [Speed's] testimony biased and
unconvincing."
As noted above, the trial court
ruled that, pursuant to section 352, the sole evidence of Speed's prior
conviction that the court would admit at trial would be a stipulation entered
into between the parties concerning the circumstances of that conviction. Augustus
does not claim on appeal that the trial court erred in so ruling. Augustus has not established that the
prosecutor's failure to disclose Speed's conviction earlier in the proceedings
was prejudicial, since, in light of the court's section 352 ruling, the trial
court would not have admitted any additional evidence pertaining to that
conviction in any event.
Further, even assuming that the
trial court would have permitted the defense to offer additional evidence
pertaining to the conviction if the prosecutor had disclosed the conviction at
an earlier point in the proceedings, reversal still would not be required. Most fundamentally, even assuming that the
jury would have entirely disregarded Speed's testimony in light of additional
information concerning the 2004 misdemeanor conviction, Speed's testimony was
far from the only evidence that Augustus committed the charged offenses. Among other evidence, the jury heard M.B.'s recorded
statements to Detective Czerwinski that Augustus had molested her (see part
III.C., ante), and M.B.'s
grandmother's recorded statement to law enforcement officers that M.B. had
indicated through gestures that Augustus had touched her vaginal area. The jury also heard the grandmother's
recorded statement that Augustus admitted to her that he had touched M.B.'s
groin area on the camping trip.
Associate pastor Osborne also testified that Augustus admitted to him
that he had touched M.B. inappropriately on three occasions, and that the
touching had excited Augustus. In light
of this evidence, there is no " 'reasonable
probability . . . disclosure [of the prior conviction]
would have altered the trial result.
[Citation.]' " (Whalen,
supra, 56 Cal.4th at p. 64.)
Accordingly,
we conclude that the prosecutor did not violate Augustus's constitutional
rights by failing to disclose earlier in the proceedings that Speed had
suffered a prior misdemeanor conviction.
C. The trial court did not
abuse its discretion in admitting a recording of M.B.'s
police interview in
evidence
Augustus
contends that the trial court abused its discretion in admitting in evidence an
audio recording of Detective Czerwinski's interview of M.B. Augustus claims that the trial court erred in
failing to redact Detective Czerwinski's statements from the interview on the
ground that her statements constitute hearsay.
Augustus also claims that the trial court erred in concluding that statements
that M.B. made during the interview were admissible as prior inconsistent
statements. Finally, Augustus contends
that the trial court erred in denying his motion to exclude the interview on
the ground that its probative value was substantially outweighed by the risk of
undue prejudice.
We apply
the abuse of discretion standard of review to these claims. (See e.g., People v. Williams (1997)
16 Cal.4th 153, 197 ["On appeal, a trial court's decision to admit or not
admit evidence . . . is reviewed only for abuse of
discretion"].)
1
and procedural background
a.
Augustus's motion to exclude statements made by Detective
Czerwinski during her
interview of M.B.
Prior to trial, Augustus filed a
motion to exclude "superfluous statements by law enforcement officers
during the interviews of witnesses."
Augustus argued that the detectives had "interject[ed] personal
feelings or opinions into the interviews . . . [and]
interpret[ed] the meaning of other hearsay statements." As an example, Augustus noted that during
Detective Czerwinski's interview with M.B., the detective stated, "[I]t
takes a lot of guts to do what you did.
And you know what? It's a good
thing that you did because I'll tell you why.
I've been doing this job a long time[.]
If you didn't, it would have gotten worse." Augustus argued that these statements were
irrelevant, constituted hearsay, and should be excluded pursuant to section
352.
In their trial brief, the People
argued that the defense was attempting to "piecemeal [sic] the recordings and only introduce portions of them because
[Augustus] is not in agreement with the mode of questioning of Detective[]
Czerwinski . . . ."
The People argued that "[t]he jury has the right to listen to each
recording in its entirety and determine for themselves what weight and
credibility to give each." The
People further contended that "eliminating certain statements made by the
detective may lead the jury to speculate as to what was said and [would] not be
an accurate representation of the conversation."
During a pretrial hearing, the
trial court ruled that the entire interview was admissible.
b.
by M.B. during her
with Detective Czerwinski
At trial,
M.B. acknowledged that she told Detective Czerwinski both that Augustus had
touched her breasts and vagina while the two were on a camping trip and that
Augustus had engaged in similar conduct on approximately four other occasions
in her bedroom at her house. However,
M.B. testified that she now realized that Augustus had not molested her in
fact, and said that she had been dreaming with respect to each incident that
she had reported.
title="">[8]
After M.B.
testified, Augustus filed a motion to exclude all of the statements that M.B.
made during her interview with Detective Czerwinski on the ground that the
statements were not inconsistent with her trial testimony.
M.B.'s interview statements should be excluded as cumulative because "the
defense anticipates that multiple witnesses will testify as to the statements
the victim made during pretrial interviews with social workers, therapists, and
police." Augustus also argued that
the statements should be excluded pursuant to section 352 because "the
recording's probative value may be relevant in so much as it goes to impeach
the credibility of the victim, but its probative value is significantly
diminished because there is no necessity of proving the issue by this
particular piece of evidence."
At a
hearing on Augustus's motion, defense
counsel argued that none of the statements that M.B. made during her
interview were admissible as inconsistent statements because, at trial, M.B.
admitted having made the statements. The
People argued that M.B.'s interview statements in which she provided details of
the various molestations were admissible because they were inconsistent with
her trial testimony, in which she claimed that she now realized that Augustus
had not in fact molested her, and that she had only been dreaming.
The trial
court denied the motion, and ruled that the People would be permitted to play
the interview in its entirety. The court
reasoned:
"[T]he Court
finds that this audiotape would be inconsistent in large part with the victim's
testimony. And the Court is not going to
order you to part and parcel statements and splice them up because then the
Court's concern would be the potential error in taking statements out of
context."
The court also ruled that the
interview should not be excluded on the ground it was cumulative of other
evidence, and that the probative value of the interview outweighed the
possibility of prejudice stemming from its admission.
After the
court ruled, the People played an audiotape of Detective Czerwinski's interview
of M.B. During the interview, M.B.
stated that Augustus had touched her vagina and her chest while the two were
staying in a tent together on a camping trip.
M.B. also said that Augustus had come into her bedroom while she was
sleeping on approximately four occasions and touched her vagina and chest.
2. The
trial court did not abuse its discretion in admitting statements that
Czerwinski made during the interview
Augustus
claims that the trial court erred in admitting Detective Czerwinski's
statements in evidence on the ground that these statements constituted
inadmissible hearsay. In his brief,
Augustus lists a series of statements that he contends "should have been
redacted." The statements include
Detective Czerwinski telling M.B. that Augustus had been "honest" in
a police interview and that it was a "good thing" that Augustus had
"admitted it was his fault."
In addition, Augustus claims that questions such as, "Do you think
[Augustus] should be arrested?" and "I mean do you think it's right
what your dad did?" should have been redacted. Augustus argues that the "audiotape as
well as the transcript were out-of-court statements of the detective at the
interview, introduced for their truth (i.e., to show the nature of appellant's
fault for the underlying charges against him)."
a.
Governing law
evidence," defined as " 'evidence of a
statement that was made other than by a witness while testifying at the hearing
and that is offered to prove the truth of
the matter stated,' " is generally inadmissible. (§ 1200, subd. (a), italics added.) "Evidence of an out-of-court statement
is . . . admissible if offered for a nonhearsay
purpose—that is, for something other than the truth of the matter asserted—and
the nonhearsay purpose is relevant to an issue in
For example, an out-of-court statement is admissible if offered solely
to give context to other admissible . . . statements." (People
v. Davis (2005) 36 Cal.4th 510, 535.)
b.
Application
While Augustus contends that
Detective Czerwinski's statements were offered for their truth, he points to
nothing in the record that would indicate that this is the case. Further, Augustus does not suggest that the trial
court refused to instruct the jury that the detective's statements were not
admissible for their truth. Given that
Detective Czerwinski was interviewing M.B., the trial court could reasonably
have determined that the detective's statements were admissible for the
nonhearsay purpose of providing context for M.B. statements. (See People
v. Davis, supra, 36 Cal.4th at p.
535; People v. Riccardi (2012)
54 Cal.4th 758, 801, fn. 21 ["Detective Purcell's statements were admitted
for the nonhearsay purpose of giving context
to Young's answers" given during police interview].)
Accordingly, we conclude that the
trial court did not abuse its discretion in refusing to exclude statements that
Detective Czerwinski made to M.B. during her police interview.
3.
trial court did not abuse its discretion in admitting statements that M.B
made to
Detective Czerwinski as prior inconsistent statements
Augustus
claims that the trial court erred in admitting in evidence M.B.'s out-of-court
statements to Detective Czerwinski as prior inconsistent statements.
a.
Governing
law
to inconsistent statements,
provides, "Evidence of a statement made by a witness
is not made inadmissible by the hearsay rule if the statement
is inconsistent with his testimony at the hearing and is
offered in compliance with Section 770."
Cal.4th 401 (Cowan), the Supreme
Court summarized the admissibility of inconsistent
with his or her trial testimony is admissible to establish the truth of the
matter asserted in the statement under the conditions set forth in Evidence
Code sections 1235 and 770.' [Citation] 'The "fundamental requirement" of
section 1235 is that the statement in fact be
with the witness's trial testimony.'
[Citation.] ' "Inconsistency
in effect, rather than contradiction in express terms, is the test for
admitting a witness's prior statement. . . . " ' [Citation.]" (Cowan, supra, at p. 462, fn. omitted.)
b.
M.B.'s trial testimony that
Augustus had not molested her was
plainly inconsistent with her statements to Detective Czerwinski that Augustus
did not abuse its discretion in admitting statements that M.B. made to the
detective as prior inconsistent statements.
trial court did not abuse its discretion in denying Augustus's request to
exclude the recording of
Detective Czerwinski's interview with M.B.
pursuant to section 352
trial court erred in denying his request to exclude the interview pursuant to
section 352. Augustus claims that the
statements that Detective Czerwinski made during the interview were irrelevant
and that admission of the interview was cumulative in light of M.B.'s
admissions at trial that she had previously told Detective Czerwinski that
Augustus had molested her.
a.
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."
"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.) The undue prejudice
the prejudice or damage to a defense that naturally flows from relevant, highly
probative evidence."
[Citations.] "Rather, the
statute uses the word in its etymological sense of 'prejudging' a person or
cause on the basis of extraneous factors." ' [Citation.]
Painting a person faithfully is not, of itself, unfair." (People v. Harris (1998) 60
Cal.App.4th 727, 737.) A trial court may
exercise its discretion to exclude cumulative evidence,
pursuant to section 352.
(See People v. Partida (2005) 37 Cal.4th 428, 436, fn. 2.)
b.
Application
With
respect to statements that Detective Czerwinski made during the interview, for
the reasons discussed above, the trial court reasonably exercised its
discretion to admit those statements in evidence for the purpose of giving
context to M.B.'s interview statements.
As to the statements that M.B. made during the interview, while M.B.
acknowledged at trial having made many of the statements, she also testified
that she "tried" to tell Detective Czerwinski that the alleged
molestations were just a dream, by saying "it was foggy." M.B. also testified that she "didn't
know how to" convey to Detective Czerwinski the idea that the molestations
were a dream. Under these circumstances,
the probative value of the particular wording that M.B. used to disclose the
molestations to Detective Czerwinski was extremely high. Accordingly, we conclude that the trial court
reasonably exercised its discretion in determining that the probative value of
permitting the jury to hear the actual interview was not substantially
outweighed by the prejudice stemming from the potentially cumulative nature of
portions of the interview.
IV.
DISPOSITION
The judgment
is affirmed.
AARON, J.
WE CONCUR:
NARES,
Acting P. J.
O'ROURKE,
J.
name="_ftn1" title="">[1] All
further statutory references are to the Evidence Code unless otherwise
specified.
Section
402, subdivision (b) provides, "The court may hear and determine the question
of the admissibility of evidence out of the presence or hearing of the jury;
but in a criminal action, the court shall hear and determine the question of
the admissibility of a confession or admission of the defendant out of the
presence and hearing of the jury if any party so requests."
name="_ftn2" title="">[2] In
her trial brief, the prosecutor noted that Speed and Osborne are members of the
same church.
