P. v. Carmona







Filed 9/13/11 P. v. Carmona 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, v. DANIEL THOMAS CARMONA, Defendant and Appellant.

E050771 (Super.Ct.No. INF054904) OPINION

APPEAL from the Superior Court of Riverside County. H. Morgan Dougherty, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Anthony DaSilva, Jennifer A. Jadovitz, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
After the jury in his first trial was unable to reach verdicts on any counts, a second jury found defendant and appellant, Daniel Thomas Carmona (defendant), guilty of continuous sexual abuse of a child in violation of Penal Code section 288.5 (count 1) and two counts of committing a lewd and lascivious act on a child under the age of 14, in violation of Penal Code section 288, subdivision (a) (counts 2 & 3). The jury found defendant not guilty on two additional counts charging violations of Penal Code section 288, subdivision (a). The trial court sentenced defendant to serve a total term of 14 years in state prison.
Defendant raises two claims of error in this appeal. First, he contends the trial court abused its discretion by granting the prosecutor’s in limine motion to exclude the testimony of defendant’s expert witness, Dr. Mary Jane Adams, a licensed clinical psychologist. Dr. Adams testified in defendant’s first trial, among other things, that based on her 30 years of experience working with convicted sex offenders it is “extremely rare to have out-of-the-closet, self-identified gay men be adjudicated for child molestation.” In the motion to exclude that evidence from defendant’s second trial, the prosecutor asserted that Dr. Adams’s testimony that “openly gay men[] tend not to molest children,” is both irrelevant and its probative value is substantially outweighed by its prejudicial effect. The trial court agreed and ruled that Dr. Adams’s testimony was inadmissible.
Defendant also contends that by excluding Dr. Adams’s testimony, the trial court deprived defendant of his rights to due process, to present a defense, and to a fair trial as set out in the Sixth and Fourteenth Amendments to the federal Constitution.
We conclude, for reasons we explain below, the trial court did not abuse its discretion and exclusion of the evidence did not violate any of defendant’s constitutional rights. Therefore, we will affirm.
FACTS
Defendant lived with Peter, his domestic partner of 19 years, in a duplex next door to Leslie J., her son, B., and daughter, S. During the several years the two families lived next door to each other in the duplex, defendant and Peter often babysat B. and S. while their mother worked. Defendant and Peter bought gifts for the children, hosted birthday parties for them, and took them on outings.
After several years, Leslie and the children moved to another home. The children continued to see defendant and Peter every other weekend. B. was about 10 years old at the time. When he and S. spent the night with defendant and Peter everyone slept in the master bedroom—S. and Peter on the bed and defendant and B. on a mattress on the floor.
One night while staying overnight at defendant’s house, and sleeping with him on the mattress on the floor, B. woke up with his boxers “a foot down and [defendant’s] hand cupped around [B.’s] penis.” Defendant massaged B.’s penis until B. ejaculated. Over the next six months, defendant masturbated B. several more times, and he had B. rub defendant’s penis. Defendant also orally copulated B. and rubbed his penis between B.’s buttocks. At defendant’s request, B. tried once to perform oral sex on him but B. could not do it and stopped. The acts first occurred while defendant and B. were on the mattress on the floor in the master bedroom with S. and Peter asleep on the bed. Later, defendant and B. shared the bed in the guest bedroom rather than move the mattress from that bed into the master bedroom. After about six months, B. told his mother what defendant was doing and the next day she went to the police.
B. was interviewed on July 11, 2005, apparently by a social worker. The jury viewed the videotape of that interview and also received transcripts of the audio portion. B.’s trial testimony was mostly consistent with the statements he made during that interview.
In his defense, defendant presented six witnesses, including his partner, Peter, all of whom testified, based on their knowledge of defendant as an honest and moral person, that they did not believe it possible he would molest children.
DISCUSSION
Defendant challenges the trial court’s ruling granting the prosecutor’s motion to exclude Dr. Adams’s testimony from evidence at defendant’s second trial. In making that ruling, the trial court considered Dr. Adams’s testimony from defendant’s first trial, as well as her testimony during an Evidence Code section 402 hearing in the second trial. In addition, the trial court reviewed a letter, dated November 10, 2009, from Dr. Adams to defense counsel. We briefly recount the substance of that evidence.
At defendant’s first trial, Dr. Adams testified not only to her “clinical observation” about the likelihood gay men would molest children, she also viewed the videotaped interview of B. and shared her observations about his demeanor during that interview. Dr. Adams’s observations of B. during that interview are also the subject of her November 2009 letter to defense counsel.
With respect to her “clinical observation” of gay men, at defendant’s first trial Dr. Adams testified, “Based on my experience as someone who has been treating sex offenders, primarily child molesters, for 30 years it has been my experience—and I also do assessments on sex offenders—it has been my experience that it’s extremely rare to have out-of-the-closet, self-identified gay men be adjudicated for child molestation.” Dr. Adams stated that because her experience was limited to “inpatient settings,” she was not “sure how representative” that experience was. So, she consulted three other colleagues who have been treating sex offenders for many years, and “all three of them corroborated that their experience had been very similar to [hers], that they had very rarely seen a gay—an out-of-the-closet gay man in treatment for child molestation.”
Dr. Adams also testified that she had reviewed the dozen or so letters written on defendant’s behalf by friends and family and concluded from those letters that defendant is not a socially isolated person, he has a big support system; that he babysat many of the letter writers or the letter writers’ children and none of them reported that he had ever done anything inappropriate; and the letters showed that defendant’s family was supportive of him and his sexual identity. In addition, Dr. Adams considered that defendant has been in a long term relationship, he does not have a history of abuse, and at his age—“it would be extremely unusual to see somebody begin that kind of behavior that late in life” unless the person’s mental status had changed. Finally, Dr. Adams testified, “[I]n my experience, it’s been rare to see a gay man, out of the closet, who is quite comfortable with his own identity, has never made a secret of it, and who has been very consistently supported in it by his family, to be molesting children.”
Dr. Adams also testified at defendant’s first trial that she reviewed the 30-minute videotape of B.’s interview by a trained professional, and although she is not an expert in interviewing children, she has “spoken with many adolescent boys who have been sexually abused—not in that kind of formal interview context—and [she has] spoken to literally hundreds of adult men and women who have been sexually abused.” Dr. Adams shared her “observations” that during the interview, B. “appeared to be almost blasé in telling his story. Sometimes you see children who are very shut down, and they don’t show any feelings, and you might conclude that they are not bothered by it. But that’s often a result of withdrawal and them attempting to cope with the pain. You didn’t see that with him. But he was almost matter-of-fact in telling the story. And he didn’t show any signs of shame or embarrassment or discomfort with the kinds of questions he was being asked by the interviewer.” Dr. Adams added that she could not reach any conclusion about whether B. had been sexually abused.
Dr. Adams’s testimony at the Evidence Code section 402 hearing in defendant’s second trial was effectively identical to that of her trial testimony. With respect to defendant, Dr. Adams expressed the view that “it would be extremely unusual for someone [his] age [mid-forties] to suddenly start engaging in this kind of behavior with no past history unless something had happened to change his mental status. In other words, unless he had sustained a blow to the head, maybe suffered a stroke, been diagnosed with dementia, or possibly another possibility would be using a drug like methamphetamines which act on the pleasure center of the brain and, obviously, reduce people’s impulse control.” Dr. Adams also recounted her observation, confirmed by a “national expert” who recently “said that in his research only 3.4 percent of child molestations are committed by men who describe themselves as out of the closet and exclusively gay.” Regarding the videotaped interview of B., Dr. Adams shared her observations and added that because she does not consider herself an expert on such interviews, she asked her friend and colleague, Dr. Beryl Davis, to view the videotape. Dr. Davis found the interview was conducted professionally and she described B. as “‘casual’” and “thought that he appeared very cocky and self-assured.” Dr. Adams letter of November 10, 2009, included this same information about her observations and those of Dr. Davis.
The trial court ruled that Dr. Adams’s testimony was inadmissible. With respect to her comments about B.’s demeanor during the videotaped interview, the trial court noted that most of what Dr. Adams said was merely her observations and those observations did not require any expertise; the jurors were able to make those same observations on their own. With respect to her testimony regarding whether out-of-the-closet gay men are likely to sexually molest children, the trial court held there was no showing that Dr. Adams’s view “is a generally accepted opinion in the field.” In addition, the trial court noted that as a result of her limited experience, Dr. Adams “is essentially relying solely on the opinions of these other experts,” and that, in the trial court’s view, is “inappropriate.”
A. Standard of Review
A trial court has broad discretion in determining whether to admit or exclude expert testimony, and its ruling will be reversed on appeal only where the record reveals an abuse of discretion. (People v. Robbie (2001) 92 Cal.App.4th 1075, 1083-1084; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Likewise, “The qualification of expert witnesses, including foundational requirements, rests in the sound discretion of the trial court. [Citations.] That discretion is necessarily broad: ‘The competency of an expert “is in every case a relative one, i.e. relative to the topic about which the person is asked to make his statement.” [Citation.]’ [Citation.] Absent a manifest abuse, the court’s determination will not be disturbed on appeal. [Citations.]” (People v. Ramos (1997) 15 Cal.4th 1133, 1175.)
B. Analysis
“Opinion testimony is generally inadmissible at trial. (Evid. Code, §§ 800, 801.) Opinion testimony may be admitted in circumstances where it will assist the jury to understand the evidence or a concept beyond common experience. Thus, expert opinion is admissible if it is ‘[r]elated to a subject that is sufficiently beyond common experience [and] would assist the trier of fact.’ (Evid. Code, § 801, subd. (a).) Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness. [Citation.]” (People v. Torres (1995) 33 Cal.App.4th 37, 45.)
Dr. Adams’s observations of B.’s demeanor during the videotaped interview do not qualify as expert testimony. Dr. Adams simply offered a description of how B. looked and acted during the interview, namely blasé and matter of fact. The jurors could reach those same conclusions by watching the videotape of the interview. Therefore, Dr. Adams’s testimony did not assist the trier of fact and was irrelevant. Moreover, Dr. Adams acknowledged she had no particular expertise in interviewing children. Therefore, to the extent she purported to express an expert opinion regarding the significance of B.’s blasé and matter-of-fact demeanor, Dr. Adams did not qualify as an expert witness. (See Evid. Code, § 720, subd. (a) [“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.”].) Dr. Adams’s consultation with her colleague Dr. Davis did not cure the problem. Although experts may rely on hearsay in forming their opinions, they may not recount the content of that hearsay information. (People v. Campos (1995) 32 Cal.App.4th 304, 307-308.) Consequently, Dr. Adams could not tell the jury what Dr. Davis had said about B.’s demeanor or appearance during the videotaped interview. In any event, Dr. Davis, like Dr. Adams, simply described B.’s appearance and demeanor during the interview, but she did not express an opinion based on her expertise regarding the significance of that appearance or demeanor. For any or all of these reasons we conclude the trial court did not abuse its discretion in excluding Dr. Adams’s testimony regarding B.
Dr. Adams did have experience and thus expertise in counseling convicted child molesters. However, her conclusion that gay, out-of-the closet child molesters make up only 3.4 percent of convicted child molesters is based entirely on her so-called “clinical observation,” i.e., anecdotal evidence. Because it was purely anecdotal, the probative value of that testimony was minimal at best. In addition, the relevance of that evidence in determining whether defendant was likely to be a child molester is also minimal. We reach the same conclusion with respect to Dr. Adams’s testimony, set out above, that in her experience, “it’s been rare to see a gay man, out of the closet, who is quite comfortable with his own identity, has never made a secret of it, and who has been very consistently supported in it by his family, to be molesting children.” “Although the court could have admitted this evidence, leaving its weight to the jury, exclusion was also within the range of discretion. [Citation.]” (People v. Ramos, supra, 15 Cal.4th at p. 1175.) That three of her colleagues share her opinion, based on their own experiences counseling child molesters, not only adds little relevance but also is inadmissible hearsay.
In challenging the trial court’s ruling excluding Dr. Adams’s testimony regarding out-of-the closet, gay men, defendant takes issue with the trial court’s focus on whether her “opinions fall within the category of being generally accepted in the field.” According to defendant, the quoted phrase “only applies to that limited class of expert testimony which is based, in whole or part, on a technique, process, or theory which is new to science and, even more so, the law.” (People v. Stoll (1989) 49 Cal.3d 1136, 1156.)
We will not resolve this claim because we conclude the trial court could have excluded, and in our view actually did exclude, the evidence based on its limited relevance. The task of an appellate court is to “review the correctness of the challenged ruling, not the analysis used to reach it.” (In re Baraka H. (1992) 6 Cal.App.4th 1039, 1045.) “‘“If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.” [Citation.]’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 976.)
Finally, we reject defendant’s claim that the ruling deprived him of his right to present a defense and thus violated various constitutional rights. “The United States Supreme Court has repeatedly acknowledged ‘the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.’ [Citations.] This authority extends to conditioning admissibility of certain evidence on foundational prerequisites. [Citation.] ‘As a general proposition, criminal defendants are not entitled to any deference in the application of these constraints but, like the prosecution, “must comply with established rules of procedure and evidence designed to assure both fairness and reliability . . . .” [Citation.]’ [Citation.]” (People v. Ramos, supra, 15 Cal.4th at p. 1175, citing, among other cases, Chambers v. Mississippi (1973) 410 U.S. 284, 302-303 [93 S.Ct. 1038, 1049, 35 L.Ed.2d 297]; and Washington v. Texas (1967) 388 U.S. 14, 23, fn. 21 [87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019].)
In finding Dr. Adams’s testimony inadmissible the trial court did not abuse its discretion. That ruling is in accordance with the foundational rules applicable to the admissibility of expert testimony. As such, the trial court’s ruling does not violate any constitutional right.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


/s/ McKinster
J.


We concur:

/s/ Hollenhorst
Acting P.J.
/s/ Codrington
J.



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