P. v. Cogburn

Filed 7/22/08 P. v. Cogburn CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge.

Roger T. Nuttall, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted appellant Kyle Ryan Cogburn of one count of committing a lewd or lascivious act upon a child under the age of 14 years (Pen. Code,  288, subd. (a)),^[1]with the special allegation that he committed substantial sexual conduct with a victim under the age of 14 years ( 1203.066, subd. (a)(8)). He was sentenced to the lower term of three years in prison.

Cogburn contends the trial court improperly denied his motion to determine whether the six-year-old victim was competent to testify; the trial court should have granted his motion for acquittal because the victims trial testimony was inherently contradictory; and the prosecutor committed misconduct by coaching the victim during a break in her testimony. He also asserts prosecutorial misconduct occurred during closing argument and raises two claims of instructional error. We will affirm the judgment.

FACTUAL SUMMARY

Ms. H.s Testimony at Trial

Ms. H. has two children: a daughter, Jane Doe (born 2000), and a younger son, John Doe. In early 2005, Ms. H. met Cogburn, who was 23 years old, and a romantic relationship developed. As of September 2005, John was one and one-half years old and Jane was five years old. Cogburn came over to Ms. H.s house about three times a week. Ms. H. did not have any problems in her relationship with Cogburn and believed he got along well with her children.

On Sunday, September 11, 2005, Cogburn was at Ms. H.s house with the family. Around 4:00 p.m., Ms. H. went to the grocery store and left the children at the house with Cogburn. Ms. H. testified John was asleep and Jane might have been watching television. This was the first time Ms. H. had left the children alone in the house with Cogburn. As Ms. H. was driving to the store, she ran into her former mother-in-law and they both returned to the house for a few minutes. John was still asleep, and Cogburn and Jane were in the house. When Ms. H. and her former mother-in-law left the house, Jane was playing and Cogburn was sweeping the back patio.

Ms. H. returned to her house about 30 minutes later and entered through the garage. As she walked through the house, she found John looking out the front screen door and crying. Cogburn was in the kitchen cleaning a counter. Jane came up to Ms. H. and said, Mommy, Kyle and I have a secret. Cogburn was present when Jane made the comment, but Ms. H. did not notice him react in anyway. Ms. H. did not think much about Janes comment or ask the child about it.

After dinner, Cogburn left the house on an errand and Ms. H. gave the children their baths. While both children were in the bathtub, Ms. H. asked Jane what was your and Kyles secret? Ms. H. described Jane as going from happy to like, Mommy, I cant tell you. At that point, Ms. H. assured Jane that she could tell her everything. Jane insisted she could not tell her. Ms. H described Jane as having a look of horror like Im not supposed to tell you.

Ms. H. took Jane into her bedroom and asked her, What do you mean that you cant tell me? Jane answered that Kyle showed her his penis. Ms. H. asked for more details:

I said, Do you mean that you were chasing behind him and you accidentally pulled his pants down and you saw it, or when you -- if he was going to the rest room [sic] and you walked in on him? She said, No, mommy. I saw -- he pulled down his pants and I saw his penis. He was sitting on the couch.

Jane placed her own finger on her lower stomach and demonstrated by pointing up so that she showed [Ms. H.] how the penis was, that it was pointing straight up. And then she said that he made her touch his penis, and she said it was soft. Ms. H. asked Jane to use Ms. H.s hand and show what Cogburn made her do: I said, Lets pretend -- lets say if my arm was his penis, what did he do? Show mommy what he did. Jane placed her hand on Ms. H.s wrist and moved her hand up and down Ms. H.s wrist.

Ms. H. decided to get the children out of the house before Cogburn returned and arranged for her mother, Ms. M., to pick them up but did not tell her what was wrong. Cogburn returned just as Ms. M. was leaving with the children, and he asked what was going on. Ms. H. told Cogburn they needed to talk and that Jane told me what your little secret was. Cogburn just looked at her. Ms. H. told Cogburn that Jane said you showed her your penis and made her touch it. Cogburn denied doing anything wrong. Ms. H. asked, Then what was your little secret? Cogburn replied they had been arguing and they were going to tell Ms. H. that they were not arguing.

Ms. H. had enjoyed a good relationship with Cogburn and trusted him with her children, but their relationship was over because of Janes disclosure and she asked Cogburn to leave her house.

After Cogburn left, Ms. M. returned with the children. Ms. H. talked with Jane about what happened and Jane told her more stuff. Ms. H. and Jane sat on the couch, and Ms. H. asked Jane to show her where she was sitting with Cogburn and what happened. Jane said Cogburn was sitting on the couch. Jane was playing with a toy tractor and rolled it over Cogburns body near his penis and Cogburn said, Dont stop because that feels good. Jane said Cogburn pulled down his pants and underwear and she saw his penis. Jane said that Cogburn asked, Do you want to touch it? Cogburn told Jane to do something to make it feel better. Jane cupped her hand over his penis, and he made her move her hand up and down. Ms. H. asked Jane what happened next. Jane went to a toy box in the living room and picked up a little Christmas bag she often played with, placed it on Ms. H.s crotch, and demonstrated that she used the bag to cover Cogburns penis.

Ms. H. did not call the police about Cogburns conduct that Sunday night because she was going through a pretty nasty divorce at that time and was afraid that her former husband, a deputy sheriff, would use the incident as an excuse to take the children away from her. Ms. H. again talked to Jane about the incident on Monday or Tuesday and Jane told her more information.

Ms. H. always told Jane to tell mommy the truth and that she would not get into trouble if she was lying about it. Jane said she was not lying. Ms. H. never told Jane what to tell the police except tell the truth.

At some point that week, Ms. H. called her family law attorney and spoke to the paralegal, who told her to call the police immediately. Ms. H. also called Cogburn twice. Ms. H. finally told her former husband about Janes report on Saturday, six days after the incident, and she called the police the same day. She did not speak to an officer until the following Wednesday, nearly 10 days after Jane revealed the incident.

On cross-examination, Ms. H. admitted she asked Jane over and over again about the incident, including direct questions as to whether Cogburn made Jane touch his penis. Ms. H. conceded that when an officer asked about the delayed report, she stated that she was too scared to tell her former husband. Ms. H. knew the police arranged for Jane to submit to a videotaped interview. Prior to that interview, however, Ms. H. had additional conversations with Jane and asked her more questions about what Cogburn did. Ms. H. repeatedly asked Jane about the incident because she wanted to make sure that Jane did not make up the story. During one conversation, they were sitting on the floor and Ms. H asked Jane to tell her the story again and what Cogburn meant by keeping it a secret. Jane said that Cogburn told her to make sure that we dont tell mommy and make it -- its a secret because mommy will be mad.

Ms. M.s Testimony at Trial

Ms. M. was in the living room when Ms. H. asked Jane to show her where Cogburn was sitting. Jane pointed to the couch. Ms. H. asked Jane to pretend her hand was Cogburns penis and asked how it was pointed. Jane placed Ms. H.s index finger below her waist line and pointed the index finger up. Ms. H. asked Jane to pretend Ms. H.s hand was Cogburns penis and asked Jane what she did. Jane picked up a little gift bag from the toy box and placed it on top of Ms. H.s hand. Ms. H. asked Jane why she used the bag and Jane could not answer. Ms. H. asked Jane what happened next and Jane removed the bag from Ms. H.s crotch area and said, Kyle put my hand on his penis. Ms. H. asked what happened next. Jane said, He moved my hand up and down. Ms. H. again asked what happened next. Jane said that Cogburn said, it feels better this way.

Ms. H. spoke to Jane for about 30 minutes. Ms. M. did not hear Ms. H. provide Jane with any information as she asked questions. Ms. M. believed Jane used the word penis but explained Jane was whispering and not talking assuredly. Ms. M. also asked Jane some questions about the incident, then and a day or two later.

Officers Interview with Ms. M.

An officer interviewed Ms. M. about her own conversations with Jane. Ms. M. said she asked Jane what happened between her and Cogburn and whether Cogburn took off his underwear. Jane replied, I cant tell you because I was a bad girl. Ms. M. told Jane that she was not a bad girl and that Cogburn was a bad boy. Ms. M. also asked Jane what would happen if Cogburn denied it and Jane said, Oh, no, he did it.

Janes Pretrial Interview

On September 21, 2005, Shelly Ramirez conducted a videotaped interview with Jane at the MultiDisciplinary Interview Center (MDIC). The videotape was played at trial and the jury followed with transcripts.^[2]

As the interview began, Jane said she was five years old and went to kindergarten, named her friends at school, and demonstrated that she knew her colors and how to count. Ramirez asked whether it would be the truth or a lie if her friend ate some cake but claimed Jane actually ate it. Jane said it would be a lie. Ramirez continued with her questions:

[Q:] And what happens when people tell lies?

[A:] You get in trouble.

[Q:] So is it bad or good to tell lies?

[A:] Its bad.

[Q:] So can you and I make a deal while were here that were only going to talk about the truth? Is that yes or no?

[A:] Yes.

Ramirez asked Jane whether it would be the truth if someone said Jane was three years old. Jane said it would not be the truth because she was five years old. Ramirez asked Jane what she had for lunch, and Jane said she had a salami sandwich and a Sprite. When asked what Ramirez had for lunch, Jane said she did not know. Ramirez said: Thats right you dont know because you werent there so that would be the right answer ok?

Ramirez asked Jane if she knew why they were talking. Jane said no, but she knew she had to talk to a police officer [c]ause something was going on that wasnt suppose to be doing. Ramirez asked who did it happen to, and Jane said it was Cogburn. Ramirez asked who Cogburn was, and Jane said he was someone who was really big and he used to work for her father. Ramirez asked Jane what Cogburn did and Jane said she did not remember. Ramirez said she understood that it might be hard for Jane to talk about it and she was not going to get in trouble.

Jane said Cogburn did it to her one time. It happened when they were in the living room and Cogburn was sitting on the couch. John was asleep in his crib and Janes mother was at the store. Ramirez asked Jane about what happened:

[Q:] Kyle ok, so what did he do next?

[A:] He asked me to do something.

[Q:] Okay what did he ask you to do?

[A:] Um, touch right here.

[Q:] Ok and whats that part called?

[A:] Private.

[Q:] Private, does, do girls have that part?

[A:] They only, its short, boys have long thingys.

Jane was asked if she had seen another mans private and she replied, Only dads. It happened [w]hen I was a baby and my mommy said I can only see [John], and mommy and daddy naked. She saw her mother and John naked when they were taking baths, and she saw her father naked when [he] got out of the shower. Jane knew that Cogburn used his private to go to the bathroom and offered to draw a picture of it. Jane said Cogburn pulled down his shorts and underwear and had her touch [a]ll of it. Ramirez continued with her questions:

[Q:] . . . [W]hat did he have you touch his private with?

[A:] My hand.

[Q:] And what did he have you do to your hands, with your hands?

[A:] Just touched it.

[Q:] How did he want you to touch it?

[A:] Because mommy wasnt there and he told me to not tell mom.

Ramirez asked Jane how Cogburns private felt. Jane said it felt soft and was sticking up, and nothing came out of it. Cogburn, said Dont tell mommy, but did not say what would happen if she told. Ramirez asked Jane if Cogburn touched her anywhere, and Jane said he just touched her hand [c]ause he just picked it up for her to touch him. Jane could not get away from him when it was happening but she did not try. It finally stopped when mommy got here. Ramirez asked about when her mother returned:

[Q:] How did you know to stop?

[A:] Cause we heard the door.

[Q:] What did Kyle say or do?

[A:] Put his shorts up.

[Q:] . . . Did you tell mommy when she came in? What did you say to mommy?

[A:] That me a[nd] Kyle had a secret.

Jane said the secret was when we were doing just what I told you. Jane said Cogburn had never done anything like that before to her, and she never saw him do it to her brother or anyone else. Ramirez asked Jane if anything else happened and Jane said no. Ramirez continued the questioning:

[Q:] . . . [E]verything we talked [about] today is that what you remember happening? Whats that?

[A:] , yes.

[Q:] And did anybody tell you what to say to me today or not say to me today?

[A:] Didnt know.

[Q:] Whats that?

[A:] They didnt know.

[Q:] Who didnt know?

[A:] The people that I know.

Janes Testimony at Trial

Jane testified she was six years old and in the first grade.^[3] She could spell her name and read, and she knew what city she lived in and her teachers name. The prosecutor began direct examination as follows:

Q. Okay. Now, just a second ago when you held up your hand and you promised to tell the truth, do you know what that means?

A. No.

Q. Okay. Well, do you know what it means to tell the truth . . . ?

A. No.

Q. Okay. Let me ask you a question, if I told you that my suit that Im wearing right now is yellow, would that be true?

A. No.

Q. Okay. What color is my suit that Im wearing right now?

A. Black and red.

Q. Okay. Now, you and I have met before today. Is that right? Is that a yes or a no?

A. Yes.

Q. Okay. Remember I told you that you have to say yes or no because this lady right here is taking down everything you say. Do you remember that?

A. Yes.

Q. Okay. And what did I tell you the number one rule is when youre here in court?

A. Tell the truth.

Q. Okay. And so do you know what that means, to tell the truth?

A. No.

Q. Okay. Well, lets say I said I have a yellow suit on, would that be true or would that be a lie?

A. A lie.

Q. Okay. Is it good or bad to tell lies?

A. Bad.

Q. What happens if you tell a lie?

A. I dont know.

Q. Okay. Do you get in trouble if you tell a lie?

A. I dont know.

Q. You dont know. Well, your mommy and daddy tell you whether its good or bad to tell lies. What do mommy and daddy tell you about telling lies?

A. Dont tell a lie.

Q. Okay. And if you do tell a lie, what do they say will happen? Will you get in trouble?

A. Yes.

Q. Okay. So you understand that in here today, you promise to tell the truth, no lies. Do you understand that?

A. Yes.

Q. So while youre in here, were only going to talk about the truth. Do you understand that?

A. Yes.

The prosecutor asked Jane if she remembered they met in the courtroom and she saw the judge that morning, and Jane said yes.

Q. Okay. When I talked to you, other than telling you to tell the truth, did I ever tell you what to say in here?

A. I cant remember.

Q. Do you remember me telling you to tell the truth?

A. Yes.

Q. And your mommy and daddy, have they told you what to say in here?

A. Yes.

Q. What did they tell you about what to say in here?

A. Tell the truth.

Q. Okay. Do you know why youre here today, what youre supposed to tell the truth about?

A. No.

Q. Okay. Do you remember a time that you told your mommy that you and Kyle had a secret?

A. Yes.

Jane was asked if Cogburn was in the courtroom. Jane said she did not know. The prosecutor asked Jane to stand up and Jane pointed to him. Jane was asked if she remembered when she told her mother that she had a secret with Cogburn, and Jane said no. Jane was asked where her mom was when she told her about the secret. Jane said she was getting a bath in the bathroom. Jane did not remember whether her mother asked about the secret, but Jane knew that she told her mother what the secret was. Jane could not remember the secret. The prosecutor continued with direct examination:

Q. Okay. Are you saying you cant remember because you really cant remember or because you dont want to talk about it?

A. I dont want to talk about it.

Q. You dont want to talk about it?

A. (Nods).

The prosecutor reminded Jane that even though it was hard, she needed to tell us what happened that made you and Kyle have a secret that day. The prosecutor asked if Cogburn was at the house that day, and Jane said yes. The prosecutor continued:

Q. . . . [D]id something happen with Kyle one time or more than one time?

A. One time.

Jane said it happened in the living room at home.

Q. And where was Kyle?

A. Sitting on the couch.

Jane was playing with her dolls and knew her mother was at the store. She went over to where Cogburn was sitting on the couch, but she could not remember what happened.

Q. Okay. Are you saying you dont remember because you really dont remember or you dont want to talk about this?

A. I really dont remember.

At this point in Janes direct examination testimony, the trial court called for a 10-minute break and held a hearing outside the jurys presence. Defense counsel asked the trial court to order Ms. Landau, the prosecutor, not to speak with Jane about her testimony. The trial court asked the prosecutor whether she had talked to Janes mother about this issue, and she replied:

Yes. Ive spoken to all the witnesses about this. I need to talk to her, but I dont anticipate anybody else speaking with her.

The trial court addressed Jane as follows:

[Jane], when Ms. Landau comes out to speak with you, you can talk to her about whatever she wants to talk to you about, but dont talk to anybody else unless she says its okay. Is that okay with you?

[Jane]: Yes.

The trial court asked defense counsel if thats what he wanted, and counsel said it was.^[4] After the break, the prosecutor resumed Janes direct examination:

Q. Okay. [Jane], when I asked you before the break if you remember what happened when you and Kyle were in the living room and you said you dont remember, was that the truth?

A. Yes.

Q. I cant hear you, sweetheart. You have to talk into the microphone.

A. Yes.

Q. Okay. Was it the truth that you dont remember what happened with Kyle in the living room?

A. Yes.

Q. Okay. As you sit here right now, [Jane], do you remember what happened that day that mommy went to the store and you were alone in the living room with Kyle?

A. Yes.

Q. Can you tell us what happened that day that you were in the living room with Kyle?

A. He made me touch his penis.

Jane testified Cogburn made her touch his penis over his clothes, he pulled down his pants, and she could see his penis. Direct examination continued:

Q. Okay. And how did he make you touch his penis with your hand.

A. He grabbed my hand.

Q. What did he do with it?

A. He put it on.

Q. Put it on what, sweetie?

A. His penis.

Q. Okay. And is that what you remember happening that day?

A. Yes.

Q. And did anybody tell you what to say about what happened that day other than to tell the truth?

A. I cant remember.

Jane testified Cogburn had her touch him one time that day, and he said, Dont tell mom that we have a secret. When her mom returned from the store, Jane told her mom that she had a secret with Kyle. Jane later told her mom the secret, and she told her mom the truth. The prosecutor continued with direct examination:

Q. While you sit here today and you talk about what the secret was, are you telling the truth?

A. Yes.

Q. Is that what you actually remember happening?

A. Yes.

Jane did not remember going through the videotaped MDIC interview.

On cross-examination, defense counsel asked Jane if she remembered the break and recess. Jane said yes. Defense counsel asked Jane if she talked to this lady here, referring to the prosecutor. Jane said yes. Defense counsel then asked Jane, When you were talking to Elana, [the prosecutor,] did she explain to you that while we were here in court, that Kyle would have someone here to help him?

THE COURT: Did Elana tell you about that? Do you remember if Elana talked to you about that?

[Jane]: Yes.

Defense counsel asked Jane if she talked to anyone in the hallway, and Jane said she talked to the prosecutor and her mom was present. Defense counsel asked Jane if she talked to her mom, and Jane said they talked a little bit. Defense counsel asked Jane if she talked to anyone else, and she said no. When asked what they talked about, Jane said she could not remember.

Defense counsel reminded Jane that before the break she said she could not remember what Cogburn showed her but that after the break she remembered what happened. Defense counsel continued with cross-examination:

Q. Okay. Now, when you went outside in the hallway, did something help you remember that Kyle did show you something?

A. Not really.

Q. Okay. When you say not really, does that mean maybe something helped you a little bit?

A. Yes.

Q. Okay. What helped you when you went out in the hallway?

A. Elana talked to me about it.

Q. What was she talking to you about in the hallway?

A. I cant remember.

The trial court told Jane that it was okay to talk about it, and the prosecutor also told Jane that it was okay. Defense counsel continued with cross-examination:

Q. Okay. Did [Elana] help you remember some things that happened in the living room? Do you want me to ask you the question again, or do you not know the answer?

A. I dont know the answer.

Q. Okay. Let me ask you a different way, did something happen out in the hallway that made you tell us when you came back here in the courtroom that Kyle made you touch his penis?

A. No.

Q. So nothing happened out there to help you remember that?

A. No.

Q. Can you tell us, if you can, how come you didnt remember that before we took the break?

A. I dont know.

Q. Okay. Did something happen that helped you remember that after the break?

A. A little bit.

Q. Okay. And what happened that helped you remember a little bit? Let me ask you this, when youre not answering to this question, does that mean that you dont know the answer? Is that the reason you didnt give us an answer?

A. Yes.

Defense counsel asked Jane if she remembered the day that her mom went to the store. Jane said no. Jane remembered telling her mother that she had a secret with Cogburn. Jane was in the bathroom when she told her mom about the secret. Jane was a little embarrassed to say what she was doing in the bathroom. Defense counsel asked if her mom was dressing her, and Jane said yes. Jane did not remember talking to a police officer about it. She could not remember if her mother or grandmother talked to her some more about it.

Jane was playing with her dolls while Cogburn sat by her in the living room. She could not remember playing with anything else. Her mother was the first person she told about the secret, and she told her about the secret on the same day her mom went to the store. Defense counsel asked Jane if she remembered talking to a lady during a taped interview, and if the lady asked her if she had seen her fathers penis. Jane could not remember.

On redirect examination, the prosecutor asked Jane about what happened in the hallway during the break:

Q. . . . [W]hen we went out in the hallway, did we sometimes talk about how you say you dont remember when you feel uncomfortable?

A. Yes.

Q. And did I ask you whether or not you remembered what happened with Kyle in the living room?

A. I forgot what you said.

Q. Okay. When we went out in the hallway, did I tell you to make up anything?

A. No.

Q. Did I tell you to -- did I ask you if you could come back in here and tell the truth?

A. Yes.

Q. And did you tell me why it was that you didnt want to answer my questions? Why didnt you want to answer my questions before the break about what happened with Kyle?

A. Because there was only a couple people.

Q. Okay. Well, were you embarrassed about the questions I was asking you?

A. Yeah.

Q. Were you embarrassed by the questions I was asking you?

A. Yes.

Q. When you talked about what happened with Kyle, making you touch his penis, is that the truth?

A. Yes.

The prosecutor asked Jane to clarify whether she touched Cogburns penis over or under his clothes. Jane testified he was wearing clothes but she saw his penis. The prosecutor continued with redirect examination:

Q. Okay. And everything youve told us here today, is that what you remember happening?

A. Yes.

Q. And aside from telling you to tell the truth, did I ever tell you what to say in here?

A. I cant remember.

Q. Okay. What did I tell you the number one rule is when you are in this courtroom . . . ?

A. Tell the truth.

Jane had a hard time remembering what happened and she was uncomfortable about having to testify.

Q. All right. But have everything you told us up to this point has been the truth . . .?

A. Yes.

On recross-examination, defense counsel asked Jane if she knew the difference between a truth and a lie.

Q. . . . [I]f someone asks you a question and you really know the answer, but you say I dont remember when you really know the answer, is that a truth or a lie?

A. A lie.

Q. Okay. Are you -- have you told us the whole truth or have you lied to us today?

A. I told you the whole truth.

Q. Okay. So you havent told us any lies, correct?

A. Yes.

Q. So when you said that you dont remember something, did you say that because you really dont remember it?

A. Yes.

Q. Okay. Its kind of a -- you said -- it was kind of a soft yes, like maybe you werent sure. So I just wanted to see, were you sure about that answer, that yes, or is there something else you want to tell us?

A. I dont know.

Defense Evidence

Cogburn did not testify. Ashley Gilmer, who had known Cogburn for 11 years, and Sharie Joest, who had known him for eight years, both testified that they had been with Cogburn in various family situations with children; they never saw him act inappropriately around children; and he was a very honest and trustworthy person who would never engage in sexual conduct with a child.

Harold Seymour, a licensed clinical psychologist, evaluated Cogburn and determined his history was inconsistent with being a pedophile. Seymour acknowledged that if Cogburn were not truthful about the alleged incident, it would impact[] everything. Seymour testified that when he asked Cogburn about the incident, there was some confusion because it was not easy for Cogburn to talk about it. [H]e would start into it and he would kind of dance a little bit about saying, Okay, so you now know how when one of us has to go to the store because we need sauce? or something like that and, I was only gone 10 minutes, is what he said, and she said I was gone an hour. Seymour interpreted Cogburns statement as meaning that he was alone with Jane for some time while the mother was not present. Cogburn said there wasnt an incident so there were no details to give.

DISCUSSION

I. Janes Trial Testimony

Cogburn raises two issues as to Janes trial testimony. First, he contends the trial court improperly denied his motion to conduct a voir dire examination of Jane to determine whether she was competent to be a witness pursuant to Evidence Code sections 701 and 702. Second, he argues Janes trial testimony showed she was not a competent witness; her testimony was internally inconsistent; and the trial court should have granted his motion for acquittal. We begin with the procedural background for these issues.

Pretrial motion

During the pretrial motions in limine, defense counsel requested the trial court to conduct a hearing pursuant to Evidence Code section 702 as to whether Jane had the ability to testify before the jury.^[5] The trial court replied it did not intend to have the child testify twice in this courtroom, and wanted to take an alternative approach to decide whether she was competent to testify. The trial court stated it had reviewed the videotape of Janes MDIC interview and quite frankly, I am satisfied that the witness meets the foundational requirements to be able to testify from her personal knowledge as to the events in question here. And I am prepared to allow her to go ahead and take the stand and testify on this issue.

Defense counsel argued a pretrial hearing was necessary to determine Janes competency because there was a six-day delay between Janes report to her mother and when her mother contacted the police; Janes mother asked the child about the alleged molestation on multiple occasions; and there was a legitimate issue as to what [Jane] knows of her own knowledge versus what information she obtained from others.

The prosecutor argued the issue as to how much is based on [Janes] own recollection and how much is based on information provided to her or suggested to her is an area for cross-examination and not to exclude her testimony. The prosecutor further argued the MDIC videotape showed Jane clearly had the ability to perceive and recollect; she should be permitted to testify; and the other concerns could be addressed through cross-examination.

Defense counsel replied that his objection was whether Jane had personal knowledge of what she was going to testify to versus what information she has been provided by others. And, unfortunately, there was no inquiry made concerning that subject at the MDIC interview or by any of the investigating officers. The prosecutor replied defense counsels concerns were addressed during the MDIC interview when Jane was asked if she remembered everything they had talked about or someone had told her what to say, and Jane replied that no one told her what to say.

The trial court denied defense counsels motion for a hearing and found the MDIC interview showed that Jane could testify at trial from her own personal knowledge.

I reviewed the tape in its entirety and looked at each of the specific references. I believe that the tape not only establishes this young lady can testify to the events from her own personal knowledge, I think that each of the references within the tape, the taped interview, establish foundational bases [sic] for her to present this testimony. I think they address issues establishing her credibility. And so, yes, I am prepared, based on my review of the taped interview and in reviewing it to coincide inside with the transcript I have here, I think that it should be deemed admissible.

Defense motion for acquittal

After the People rested, defense counsel moved for acquittal and argued the prosecution failed to lay a proper foundation for the admission of Janes testimony under Evidence Code section 710, and Jane should not have been allowed to testify.^[6] Defense counsel argued Janes trial testimony showed that she did not know what it meant to tell the truth; the prosecutions evidence legally was insufficient because the entire case was based upon Janes trial testimony; and Jane was not subject to meaningful cross-examination since she was unable to answer most of the questions. Defense counsel stated:

[I]ts essentially -- its like dominoes. Her testimony is not admissible, and her mothers testimony shouldnt have been admissible, and the MDIC tape should not have been admissible.

The trial court again found Jane was competent to testify and reaffirmed its previous ruling that Jane understood the difference between telling the truth and a lie. The trial court acknowledged that Jane was not the easiest witness to cross-examine, but that did not affect the ultimate question of her ability to testify. I think what all of that reflects on is questions that ultimately should be left to the province of the jury, and that is to determine what weight and credibility to attach to her testimony here.

The trial court denied Cogburns motion for acquittal and held the matter should go to the jury.

Its not my job at this point to interject any personal feelings that I may be drawing if I were the sole trier of fact. I think this is exactly what a jury is called upon to do. I made the findings that [Jane] is competent to testify. I think that it is the only appropriate method to handle this matter at this time is to let the jury assess exactly what weight and credibility to describe to any and all testimony produced at the trial.

Janes competence to testify

Cogburn claims the trial court improperly found Jane was competent to testify simply based on the MDIC videotape, and it should have conducted a pretrial hearing and voir dire examination of her before it found her competent. As a general rule, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter. (Evid. Code, 700; see Pen. Code, 1321.) A person may be disqualified as a witness for one of two reasons: (1) the witness is incapable of expressing himself or herself so as to be understood, or (2) the witness is incapable of understanding the duty to tell the truth. (Evid. Code, 701, subd. (a).) The party challenging the witness bears the burden of proving disqualification. (People v. Mincey (1992) 2 Cal.4th 408, 444 (Mincey).) Whether a witness has the capacity to communicate or understand the duty to testify truthfully is a preliminary fact to be determined exclusively by the trial court, whose determination will be upheld absent a clear abuse of discretion. (People v. Anderson (2001) 25 Cal.4th 543, 573.)

Once the trial court determines a witness is competent to testify under Evidence Code section 701, it has no basis for excluding that witnesss testimony for lack of personal knowledge. (People v. Dennis (1998) 17 Cal.4th 468, 526 (Dennis).) Evidence Code section 702 requires that a witness have personal knowledge of the subject of the testimony, i.e., a present recollection of an impression derived from the exercise of the witness own senses. [Citations.] (People v. Lewis (2001) 26 Cal.4th 334, 356 (Lewis).) In order to have personal knowledge, a witness must have the capacity to perceive and recollect. (Lewis, at p. 356.) The capacity to perceive and recollect is a condition for the admissibility of a witnesss testimony on a certain matter, rather than a prerequisite for the witnesss competency. (Dennis, at p. 525.) If there is evidence that the witness has those capacities, the determination whether [she] in fact perceived and does recollect is left to the trier of fact. [Citations.] [Citation.] (Id. at p. 526.)

The trial court may not summarily find a child incompetent to testify. Instead, it may conduct a pretrial hearing and voir dire examination of a child to determine the childs competency to testify as a witness under Evidence Code section 701. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1369.) The trial court may also review the videotape of a childs MDIC interview to determine whether the child is responsive to questions and knows the difference between the truth and a lie, and thus competent to be a witness. (In re S.C. (2006) 138 Cal.App.4th 396, 421; People v. Eccleston (2001) 89 Cal.App.4th 436, 445-446.)

Here, the trial court did not abuse its discretion when it denied Cogburns request to conduct a separate hearing and voir dire examination of Jane to determine her competency to testify. It properly relied upon the videotape of her lengthy MDIC interview to determine that she had the capacity to communicate and an understanding of the duty to testify truthfully. Both requirements of Evidence Code section 701 are readily apparent from the MDIC interview. Jane was five years old at the time of the MDIC interview and clearly knew the difference between telling the truth or a lie, and she was capable of communicating and responding to the interviewers questions.

Moreover, the entirety of Janes trial testimony showed that she was competent to testify as a witness. As set forth in the factual summary, ante, Jane appeared to be an extremely reluctant witness during the prosecutors initial direct examination testimony. As defense counsel repeatedly noted, Janes testimony became more clear and certain in direct examination after the brief recess. While Cogburn alleges that Jane was coached during that recess, the entirety of her testimony demonstrated that she was uncomfortable and embarrassed to testify in front of so many people, and the recess allowed her the opportunity to feel more comfortable in the courtroom.^[7] Jane repeatedly testified that no one told her to make up anything and that she was only told to tell the truth. Jane demonstrated that she knew the difference between the truth and a lie.

Cogburn also argues that Janes statements at the MDIC interview and her trial testimony were tainted by the manner in which her mother and grandmother repeatedly questioned her about the incident during the interval between her disclosure to Ms. H. and the MDIC interview. Cogburn contends the trial court should have conducted a pretrial hearing and voir dire examination of Jane to determine whether her testimony was based on her personal knowledge of the alleged incident or influenced by the questions from her mother and grandmother. This argument fails for the same reasons as stated above. This contention should be developed and explored during cross-examination. On this record, the allegations do not rise to the level of disqualifying the witness from testifying.

Denial of motion for acquittal

Cogburn next asserts that Janes actual trial testimony was internally inconsistent so that the trial court should have granted his motion for acquittal.

In ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.] [Citation.] Where the section 1118.1 motion is made at the close of the prosecutions case-in-chief, the sufficiency of the evidence is tested as it stood at that point. [Citations.] (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213 (Cole).)

The purpose of a motion under section 1118.1 is to weed out as soon as possible those few instances in which the prosecution fails to make even a prima facie case. [Citations.] The question is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination. [Citation.] (People v. Stevens (2007) 41 Cal.4th 182, 200.) On appeal, [w]e review independently a trial courts ruling under section 1118.1 that the evidence is sufficient to support a conviction. [Citations.] We also determine independently whether the evidence is sufficient under the federal and state constitutional due process clauses. (Cole, supra, 33 Cal.4th at p. 1213.)

Cogburn contends his motion for acquittal should have been granted because there were numerous inconsistencies within Janes trial testimony and between that testimony and her MDIC statement. As we have discussed already, Jane clearly was competent to testify as a witness. Cogburns trial and appellate challenges to Janes testimony involved issues of personal knowledge and confuses competency and capacity. The inconsistencies in her accounts of the molestation raised credibility questions for the trier of fact rather than undermined her competency as a witness. Inconsistencies in testimony and a failure to remember aspects of the subject of the testimony, however, do not disqualify a witness. [Citation.] They present questions of credibility for resolution by the trier of fact. [Citations.] (Mincey, supra, 2 Cal.4th at pp. 444-445.) A trial court should allow a witnesss testimony unless no jury could reasonably find that he has such [personal] knowledge. [Citation.] (Lewis, supra, 26 Cal.4that p. 356.)

Janes testimony was not so inconsistent that no jury could reasonably find that [she had] such [personal] knowledge. [Citation.] (Lewis, supra, 26 Cal.4th at p. 356.) The trial court correctly denied Cogburns motion for acquittal and allowed the jury to resolve these credibility questions and to determine whether Jane perceived and recollected the events in question. (Dennis, supra, 17 Cal.4th at pp. 525-526.)

II. Prosecutorial Misconduct

Cogburn raises two claims of prosecutorial misconduct. First, he asserts the prosecutor committed misconduct because she purportedly coached Jane during the break in her direct examination testimony. Second, he contends that a portion of the prosecutors rebuttal argument improperly appealed to the passions of the jury.

The People argue that Cogburn failed to raise any prosecutorial misconduct objections and thus has forfeited review.

We begin with a summary of the well-established legal principles governing claims of prosecutorial misconduct. A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such unfairness as to make the resulting conviction a denial of due process. [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citations.] (People v. Lopez (2008) 42 Cal.4th 960, 965-966.)

A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety. (People v. Thornton (2007) 41 Cal.4th 391, 454.) A defendant will be excused from the requirement of making a timely objection and/or a request for admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request. [Citation.] (Cole, supra, 33 Cal.4th at p. 1201.)

Janes trial testimony

Cogburns claim that the prosecutor committed misconduct by purportedly coaching Jane during the recess has not been preserved for appeal because Cogburn did not object at trial. As set forth, ante, defense counsel requested the trial court to admonish the prosecutor prior to the recess not to talk to Jane about the facts and was satisfied with the trial courts admonition.

After Jane was excused, the trial court asked the parties to place their side-bar objections on the record. Defense counsel raised a foundational objection as to whether Jane understood her obligation to tell the truth pursuant to Evidence Code section 710, and her testimony showed that she was not competent to testify. The trial court stated it had already overruled that objection and found a sufficient foundational basis to allow Jane to testify before the jury. Defense counsel then used his closing argument to ask the jury to consider why Jane was able to remember more things after speaking to the prosecutor and her mother during the recess.

Cogburn claims defense counsel preserved review of his prosecutorial misconduct claim because he asked the trial court to admonish the prosecutor not to coach Jane. This request, however, was made prior to the break. While defense counsel cross-examined Jane about what happened during the break, defense counsel never raised a prosecutorial misconduct objection after the break based on the allegation that the prosecutor coached Jane during the recess, even when the trial court asked the parties to place their side-bar objections on the record. Thus, the claim was forfeited.

In any event, we do not think there was misconduct, even if the issue were preserved. Cogburns claim that Jane was coached during the recess is based on pure speculation and conjecture and refuted by the entirety of Janes trial testimony. Defense counsel extensively cross-examined Jane as to what happened during the recess, and repeatedly asked her whether the prosecutor told her something during the break that helped her remember what Cogburn did to her. Jane replied, A little bit. On redirect examination, Jane testified that she initially said she did not remember what happened because she was embarrassed and uncomfortable about talking in front of people. Jane further testified the prosecutor did not tell her to make up anything and she was telling the truth about what Cogburn did to her. There is no evidence the prosecutor coached Jane during the recess.

Closing argument

Cogburn next contends the prosecutor committed misconduct in closing argument by appealing to the jurys passions in evaluating Janes testimony. Cogburn did not raise any misconduct objections during the course of the prosecutors closing argument; there is no evidence that an objection or request for an admonition would have been futile; and Cogburn thus has forfeited review of this issue.

We also disagree with Cogburns contention on the merits. As with his other claim of misconduct, the entirety of the parties closing arguments refutes Cogburns claim of misconduct. The key issue in this case was Janes credibility. In her initial closing argument, the prosecutor anticipated that the defense would claim that Jane was not a credible witness, and argued [t]he question really is whether or not you believed, based on her testimony in the courtroom, based on your observation of that forensic interview and based on what [Ms. H.] told you [Jane] told her . The prosecutor asserted there was no possible reason for Jane to make up the story; she cited to Janes physical demonstration of the incident to her mother; and she asked the jury to consider whether Jane was even capable at the age of five of making up this story against Mr. Cogburn? And if she didnt make it up . . . then it happened.

In his closing argument, defense counsel argued the jury should conclude Jane was an impressionable five-year-old child and not credible. Defense counsel was not accusing Jane of lying, but claimed she was not a reliable historian and her trial testimony was terribly inconsistent concerning key points in this case, as a significant result of contamination by her mother. Ms. H.s questions were suggestive and influenced Jane so that her testimony was not believable. Defense counsel argued Jane was not that kind of historian to rely upon to convict someone of the charged offense.

Cogburns claim of misconduct is based on the prosecutors rebuttal argument when she refuted defense counsels claim that Ms. H. took her five-year-old daughter and imprinted all this information into her head for some unknown reason simply by asking her questions about what happened. The prosecutor argued that [i]f you believe that [Ms. H.] gave [Jane] all that information, told her what a penis looked like, told her what a penis felt like, explained to her five-year-old daughter the motion of masturbation, if you believe that, then you do have to find the defendant not guilty because it didnt happen. [Ms. H.] made the whole thing up and made [Jane] say it. The case boil[ed] down to whether the jury believed Jane. The prosecutor asked, Do you believe, based on your observations of [Ms. H.], that she would do that to her daughter, that she would subject her to that and expose her to all that information that a five-year-old really doesnt need. The prosecutor continued:

If you want to discredit [Jane] and throw out all her testimony because she was very six years old in the courtroom, youre entitled to do that as a jury. Im asking you not to do that. Make no mistake, a verdict of not guilty in this case tells [Jane] that you didnt believe her and that you thought she was lying to you.

So Im going to ask you to go back, carefully consider all the evidence, including that forensic interview, including your recollection of what [Ms. H.] told you [Jane] told her that night and, again, Im going to ask you to return a verdict of guilty. (Italics added.)

Cogburn claims the italicized sentence, ante, constituted misconduct because the prosecutor improperly appealed to the jurys passions. As a general rule, a prosecutor may not invite the jury to view the case through the victims eyes, because to do so appeals to the jurys sympathy for the victim. [Citations.] (People v. Leonard (2007) 40 Cal.4th 1370, 1406 (Leonard).) We do not view the prosecutors remarks in isolation but rather in the context of the argument as a whole. (Cole, supra, 33 Cal.4th at p. 1203.)

Leonard presents examples of both permissible and impermissible arguments involving the victims perspectives. In Leonard, a robbery/murder capital case, defense counsel asked the jurors to picture themselves as the victims of a robbery, and argued the defendant could not have been the killer because he was so weak and ineffectual that if he had tried to rob the victims, they would have been able to take