Filed
3/2/12 P. v. Foster CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ANTHONY BRIAN FOSTER,
Defendant and
Appellant.
F061174
(Super.
Ct. No. 08CM2826)
APPEAL from
a judgment of the Superior Court of
Robert
Derham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna,
Janet E. Neeley, Kelly E. LeBel and William K. Kim, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
Following a
jury trial, appellant Anthony Brian Foster, was convicted of
sodomy (Pen. Code, § 269, subd. (a)(3)),
age (§ 286, subd. (c)(2)), sodomy upon a child under 14 years of age
(§ 286, subd. (c)(1)), making a criminal threat (§ 422), sodomy upon an
unconscious or sleeping person (§ 286, subd. (f)), and contributing to the
delinquency of a minor (§ 272, subd. (a)(1)).
The trial court sentenced appellant
to a total term of 27 years and 8 months to life in state prison.
On appeal,
appellant contends that the trial court erred when it allowed an officer to
testify on his assessment of the victim’s credibility; when it allowed evidence
that appellant had been molested by an older brother; when it allowed testimony
concerning Child Sexual Abuse Accommodation Syndrome (CSAAS); and when it
allowed the victim’s pretrial statement to an officer and investigator as a
prior consistent statement. Appellant
contends that the trial court erred when it denied his request for a
continuance to prepare for cross-examination of and surrebuttal to the CSAAS
testimony. He also contends cumulative
error occurred, that several of the terms imposed should have been stayed, and
that the court’s order that he undergo medroxyprogesterone acetate treatment
upon parole violated his right to due process and amounted to cruel and unusual
punishment. We find no prejudicial error
and affirm.
STATEMENT OF THE
FACTS
Appellant
and his 10-year-old son, A.F. lived together alone between April and July of
2007. In April of 2007, appellant began
making A.F. watch pornographic movies two or three times a week. Often after watching part of a movie,
appellant would have A.F. go to his room, where appellant had A.F. simulate the
sexual acts on a doll and appellant simulated the sexual acts on A.F. Appellant began sodomizing A.F. in June of
2007 and did so on numerous occasions.
After the first incident, A.F. noticed blood in his stool. His anus continued to bleed and feel tender
when he defecated. On one occasion,
appellant told A.F., “If you tell anybody, I will break your neck and bury you
where nobody will find you. And if they
do find you, I’ll tell them that I don’t know you.” A.F. was afraid of appellant because he had
hit, kicked, and choked him in the past.
The last time appellant sodomized A.F. occurred in July of 2007. On that occasion, appellant entered A.F.’s
bedroom. A.F. was awake, but pretended
to be asleep. Appellant pulled off
A.F.’s pants and underwear and inserted his penis into A.F.’s anus.
In the
summer of 2007, A.F. told his mother about the acts. For unknown reasons, it was not until March
of 2008, when mother, who was divorced from appellant, reported the acts to law
enforcements officials. At that time,
Deputy Sheriff Scott Ward spoke with A.F. and his mother. A.F. told Ward about appellant’s insistence
that he watch pornographic movies with him and the simulated sexual acts and
sodomies that followed. According to
Ward, A.F. described in detail one sodomy that occurred when A.F. pretended to
be asleep, and another sodomy which A.F. suspected occurred while he was asleep
because his anus was sore and bleeding in the morning. When Ward asked why A.F. had not reported the
sodomies sooner, A.F. said he was scared because appellant had threatened to
kill him and bury him where nobody would find him. A.F. repeated similar allegations to District
Attorney Investigator Keith Prewitt. The
interview was recorded and played for the jury.
Deputy Ward
spoke with appellant on March 26, 2008.
Ward informed appellant of the allegation against him and conducted a
taped interview. When Ward attempted to
locate appellant the following week, his trailer was vacant. Appellant was located in North Dakota six
months later.
Appellant’s
aunt and grandmother testified that A.F. told them that someone else told him
to make the allegations and they were lies.
Appellant’s mother and a church pastor testified that A.F. often
lied.
On
rebuttal, Investigator Prewitt testified as an expert on the five stages of
behavior children who suffer from CSAAS go through: secrecy, helplessness,
entrapment and accommodation, delayed or unconvincing disclosure, and
retraction.
DISCUSSION
Ward’s Assessment of A.F.’s Credibility.
Appellant
first contends that the trial court erred in overruling his objection to Deputy
Ward’s opinion testimony about A.F.’s veracity when he interviewed him about
the allegations against appellant. We
find no prejudicial error.
At trial,
after the prosecutor asked Deputy Ward if he recalled A.F.’s demeanor during
his conversation with him, Ward replied:
“As I talked to [A.F.] and watched him, every time I’d
ask him to recall an event, he would look up into the light, like he was
searching in his head for a memory and never looked away from me or looked down
towards the ground as though he was trying to fabricate or make something
up. As he talked, he was very
articulate, even though he had a little bit of a stutter. Very graphic in his descriptions to me. And it seemed to me each time I asked him a
question, he was searching for that particular memory to recall that.”
Defense
counsel objected, stating the answer called for speculation. He also asked that the statement that A.F.
was not fabricating be stricken. The
court sustained the objection and asked that the prosecutor to lay a further
foundation for Ward’s statement. The
prosecutor then asked Ward, “What caused you to believe that” to which Ward
replied:
“This would be through my experience as a deputy
sheriff, through the training I’ve had, interview and interrogation. I’ve learned when people fabricate things,
they tend not to look you in the face, down to the ground or away from
you. And when somebody’s telling you the
truth, they tend to … look up, like they’re looking into their brain searching
for a particular memory that recalls a certain set of circumstances that
they’re trying to explain to you.”
Defense
counsel again objected on grounds of foundation and speculation. The court overruled the objection. The prosecutor then asked Ward whether it was
something he was taught or his personal opinion based on experience. Ward replied: “Something I was taught in
interrogation interview school and my own personal experience.”
The law in
this area clearly supports appellant’s position. In People
v. Zambrano (2004) 124 Cal.App.4th 228, the court stated:
“Our state Supreme Court [in People v. Melton (1988) 44 Cal.3d 713, 774-745] has recognized that
a lay witness’s opinion about the veracity of another person’s particular statements
is inadmissible and irrelevant on the issue of the statements’
credibility. [Citation.] The high court reasoned that such lay opinion
testimony invades the province of the jury as the ultimate fact finder, is
generally not helpful to a clear understanding of the lay witness’s testimony,
is not ‘properly founded character or reputation evidence,’ and does not bear
on ‘any of the other matters listed by statute as most commonly affecting
credibility’ in Evidence Code section 780, subdivisions (a) through (k). [Citation.]”
(People v. Zambrano, supra, at
pp. 239-240, italics omitted.)
The court
in People v. Sergill (1982) 138
Cal.App.3d 34 (Sergill), considered a
situation in which the defendant was charged with committing a sexual offense
against his niece, who was eight years old at the time of trial. The prosecutor asked one of the investigating
officers his opinion of whether the child was telling the truth. (Id.
at p. 38.) The officer testified that in
his opinion the girl was truthful, and explained that as a result of his
dealings with many children he could usually determine with a high degree of
accuracy whether their statements were true.
The trial court overruled the defense’s objection to this testimony
saying, “ ‘this officer has had … seven years of experience, and has written …
a thousand or more reports, … and I think [in] the course of that he would be
normally expected to judge whether a person, in his opinion, is telling the
truth or not.’ ” (Ibid.) Additionally, the
court allowed another police officer, who had also interviewed the girl, to
express an opinion that the girl was telling the truth when she reported that
her uncle had molested her. (
The
those who report crimes to the police is not a proper subject of expert
testimony; and, even if it were, the fact that the officers had taken numerous
reports during their careers would not qualify them as experts in judging
truthfulness. (Sergill, supra, 138 Cal.App.3d at p. 39.) The appellate court held,
“… Both these officers were able to describe their
interviews with the girl in concrete detail and their opinions or conclusions
as to her truthfulness were not ‘helpful to a clear understanding of [their]
testimony.’ [Citation.] [¶] We
also conclude that this opinion testimony was inadmissible because it was not
relevant. [Citation.]… [¶] … [T]hese
officers neither knew the child, nor knew her reputation for truthfulness. [Citation.]
Instead, their conclusions that she was telling the truth were based on
their own self-proclaimed expertise in assessing victim veracity, but the
record is devoid of any evidence to establish their qualifications in this
regard.” (Id. at p. 40; see also People
v. Smith (1989) 214 Cal.App.3d 904, 914-915 [trial court erred in admitting
a police officer’s testimony that he believed the victim’s dying declaration
identifying defendant].)
Consequently,
Deputy Ward’s personal opinion about the credibility of a witness did not
assist the trier of fact, but instead drew conclusions on issues reserved for
the jury. The instant record does not
establish that Deputy Ward was an expert on judging witness credibility or on
the truthfulness of persons who provide him with information in the course of investigations. Nor is there any evidence that prior to
investigating the allegations, he knew anything about A.F.’s reputation for
veracity. While Deputy Ward was
certainly free to describe his interview with A.F. in detail, leaving the jury
to decide A.F.’s credibility for itself based on such factors as his physical
demeanor and motives to lie, he should not have been allowed to offer an
opinion regarding the veracity of A.F.’s out-of-court statement.
Having
concluded the trial court erred in admitting Deputy Ward’s testimony concerning
A.F.’s veracity, we now examine the entire record in order to determine whether
it is reasonably probable a result more favorable to appellant would have been
reached in the absence of the erroneously admitted evidence. (People
v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) We conclude that any error was harmless,
because the prosecution’s evidence in this case was strong and Deputy Ward’s
improper opinion testimony was an exceedingly minor factor in the trial.
While A.F.’s credibility was the
crux of the trial, the jury was able to observe A.F.’s demeanor for themselves,
as A.F. testified at trial, and his interview with Investigator Prewitt was
played for the jury. It appears that the
jury did not abdicate its function of determining a witness’s credibility to
Deputy Ward. During deliberations, the
jury asked for a read back portion of A.F.’s trial testimony on “practicing
[with the] Dora doll,” and for a replay of the video of A.F.’s interview with
Investigator Prewitt. The jury also had
before it evidence that after appellant was confronted with the allegations, he
demonstrated his consciousness of guilt by fleeing the state. In defending these charges, appellant offered
little or no evidence to disassociate himself from the allegations, but he
thoroughly attacked A.F.’s credibility by calling to the stand appellant’s
mother, aunt, grandmother, and church pastor, who all claimed A.F. either lied
in making the allegations or had a propensity to lie. Finally, the jury was instructed, pursuant to
CALCRIM No. 226, that they “alone must judge the credibility or believability
of the witnesses.”
Given the
strong evidence of appellant’s guilt and his weak defense, we conclude it is
not reasonably probable he would have obtained a more favorable verdict had the
trial court excluded the improper opinion testimony on A.F.’s veracity. (Watson,
supra, 46 Cal.2d at p. 836.)
that Appellant Had Been Sexually Molested.
Appellant
next contends that the trial court abused its discretion when it allowed the
prosecutor, on cross-examination, to ask appellant’s mother whether appellant
had told her when he was 15 that he had been molested by his older
brother. The trial court overruled
defense counsel’s objection on hearsay grounds.
Appellant’s mother then testified that appellant did not tell her he had
been molested when he was 15, but that she first learned of the molestation a
year ago. Defense counsel again objected
on hearsay grounds, asking that the answer be stricken, and the trial court
again overruled the objection.
Appellant
now claims that the question had no possible relevance, and that it was
prejudicial to appellant because the prosecutor used it to argue that
appellant’s “shame” over being molested “mutated into something that was erotic
for him,” leading to the molestation of A.F.
Realizing that his argument may not be cognizable on appeal because
defense counsel did not object on the ground he now argues (
302-303), he asserts counsel was ineffective for failing to do so.
A defendant
will prevail on an ineffective assistance of counsel claim only where the
defendant is able to show that counsel’s performance was deficient and the
defendant would have obtained a more favorable result absent the
deficiency. (Strickland v. Washington
(1984) 466 U.S. 668, 687-688, 694.)
Here, appellant would not have obtained a more favorable result had the
trial court not allowed evidence of appellant’s prior molestation by his
brother. As noted above, the critical
issue for the jury appeared to be A.F.’s credibility, not anything related to
appellant’s propensity for sexually deviant behavior. We reject appellant’s claim to the
contrary.
Testimony.
Appellant
raised several claims concerning the expert testimony that the People presented
regarding CSAAS. Specifically, appellant
contends that the trial court erred in concluding that Investigator Prewitt was
qualified to provide such testimony and when it commented in front of the jury
that Prewitt was a “clearly qualified” expert.
He also contends that the court erred when it refused to give defense
counsel a continuance to prepare for the “surprise” evidence. We address each claim in turn but first set
forth the procedural background and a more detailed summary of the expert’s
testimony.
A. Factual and Procedural Background.
Jury trial
began on September 7, 2010. There was no
testimony on Friday, September 10, 2010, because defense counsel had a “family
emergency.” On the following Monday,
September 13, 2010, the third day of testimony, the court noted the prosecution
sought to introduce CSAAS evidence in rebuttal through Investigator Prewitt. An Evidence Code section 402 hearing was held
outside the presence of the jury to determine whether Prewitt was qualified to
testify on the matter.
During the
hearing, Investigator Prewitt testified that he was a district attorney
investigator, he had been a peace officer for 23 years, and he had investigated
hundreds of child sexual assault cases.
He had taken a course in how to be a forensic interviewer and, as part
of that course, was taught CSAAS.
Prewitt described in some detail the concept of CSAAS and the five
behavior patterns of sexual abuse victims: secrecy, helplessness, entrapment, delayed or
unconvincing disclosure, and retraction.
Prewitt had handled his own child sexual abuse cases, and, because he
was the district attorney investigator, had been involved in the investigations
of many other investigators as well.
Defense
counsel questioned Investigator Prewitt as well, focusing on Prewitt’s
education, which consisted of an associate degree in criminal justice at a
community college. Counsel also
questioned Prewitt about his knowledge of Dr. Roland Summit, the person who
first originated the term CSAAS. Counsel
specifically asked if Prewitt was familiar with Summit’s later published paper
which criticized the way CSAAS had been used in the courts. Prewitt said he was not. He also asked whether Prewitt was familiar
with Debbie Nathaniel and Michael Nestor’s critique on Summit’s paper because
Summit had had no children as patients prior to publishing his original
paper. Prewitt said he was not. Counsel asked whether Prewitt was aware that
Summit had claimed in his paper that half of all women had been sexually abused
as children. Again Prewitt said that he
was not. Prewitt described the CSAAS
course he had taken as a one-hour block, which was then referred to
consistently throughout the one-week course on forensic interview
techniques. Counsel asked whether the
class taught him that CSAAS is not to be used as a diagnostic tool “to prove
that any child was sexually abused.”
Prewitt stated that his understanding was that it was “supposed to be a
model for us to improve our understanding and acceptance of a child’s position
as a victim of sexual abuse.” When asked
if Prewitt had been taught that CSAAS should not be used in court to bolster
the credibility of a testifying child, Prewitt stated that the use of CSAAS in
courts was not emphasized in his training.
When asked if Prewitt was aware that Summit had said he had mislabeled
CSAAS as a syndrome, Prewitt testified that he was not.
The trial
court then asked Investigator Prewitt if he had testified before as an expert
witness with respect to CSAAS or whether he had ever qualified as an expert
witness with respect to CSAAS before.
Prewitt answered he had not to both questions.
Defense
counsel objected to Investigator Prewitt as an expert “for lack of
qualifications,” because the defense had no notice that the People planned to
call Prewitt or any other witness to testify regarding CSAAS, and because CSAAS
“lacks scientific validity under the Kelly Frye standard.”
The
prosecutor argued that he was not required to give notice because Prewitt was
testifying as a rebuttal witness in response to defense testimony that A.F. had
allegedly retracted his allegations. The
prosecutor also argued that, while Prewitt was not a doctor or psychiatrist, he
did have special knowledge, skill, experience or training in the area of
CSAAS.
After
defense counsel complained that the prosecution was using Investigator
Prewitt’s testimony to improperly “bolster the credibility of” A.F.’s testimony
and to prove the sexual abuse did occur, the trial court overruled defense
counsel’s objections and designated Prewitt as an expert in CSAAS. In doing so it stated:
“I would remind the parties that this is a trial, and
the purpose of this trial is to determine whether [appellant] is guilty or not
guilty. To do that, the People are
required to put on evidence that is prejudicial to the defendant. When … the defendant presents witnesses, that,
in essence, say[] that the Prosecution’s witnesses are not being truthful, the
Prosecution then is entitled to put on rebuttal witnesses. Those witnesses would provide evidence that
would be prejudicial to the defendant as well because they’re going to be the
opposite of what the defendant says.
“In this particular instance, the Defense witnesses, in
essence, call the Prosecution’s victim witness a liar. In no uncertain terms, he said that he
fabricated items and made up fancy trips to Disneyland and back-flips on a
skateboard. And because of that, he’s a
liar. In no uncertain terms, the
minister … found him to be absolutely untruthful with respect to that. The proposed testimony of this witness with
respect to the Child Sexual Abuse Accommodation Syndrome, which the Court would
find that the witness has education, training, and substantial experience in
this particular area, and the Court would provide a substantial limiting
instruction under Cal[.] Crim. 1193 as well as the Evidence Code Section --
Cal[.] Crim. 332, expert witness testimony instructions. The testimony and trial Sexual Abuse
Accommodation Syndrome instruction will specifically advise the jury that the
testimony is not evidence that the defendant committed any of the crimes
charged against him. That they can
consider the evidence only in deciding whether or not his conduct was
consistent with the conduct of someone who had been molested and in evaluating
the believability of his testimony. So
Court would find that that substantially limits it. Further, that the Judicial Council[] has made
a determination that this particular syndrome is something that is not to be
taken lightly. They’ve taken with the
opportunity to provide us with a particularized instruction with respect to
that.”
Defense
counsel then asked for a continuance so he could “have additional time to be
prepared to address this issue.” Defense
counsel acknowledged that he had notice of the prosecution’s intent to use
Investigator Prewitt as an expert on CSAAS the previous Friday, but that his
personal situation (his wife had delivered a baby on Friday) did not allow him
to “delve into researching this particular issue.” Defense counsel then added that before Friday
he had “never even heard of the Child Sexual Abuse Accommodation Syndrome” and
that this was “the first trial of this nature” he had done. The trial court denied defense counsel’s
request.
Thereafter,
in the presence of the jury, Investigator Prewitt testified that he had been a
police officer in Missouri for five years, a Hanford police officer for five
years, and, for the past 13 years, had been a district attorney
investigator. Investigator Prewitt
testified that he had investigated hundreds of child sexual assault cases and,
in his position, had been exposed to many more, and that he had taken a
one-week course (in November of 2007) at the National Child Protection Training
Center, which had included instruction on CSAAS. While the specific instruction on CSAAS had
been a one-hour course, he had read Dr. Summit’s paper on CSAAS and had been
tested on it. Prewitt then explained the
various stages associated with CSAAS.
Defense
counsel cross-examined Investigator Prewitt, repeating the various questions he
had asked during the Evidence Code section 402 hearing, emphasizing his lack of
education and the fact that this was the first time he had testified as an
expert, and questioning Prewitt on various aspects of the syndrome. At the end of questioning, the trial court
stated it would “declare this witness to be clearly qualified as an expert
witness, as proffered by the People.”
B. Qualification of Expert Witness.
With
respect to appellant’s claim pertaining to the expert’s qualifications, “ ‘We
are required to uphold the trial judge’s ruling … absent an abuse of
discretion. [Citation.] Such abuse of discretion will be found only
where “ ‘the evidence shows that a witness clearly lacks qualification as an
expert .…’ ” [Citation.]’ [Citation.]”
(People v. Wallace (2008) 44
Cal.4th 1032, 1062-1063, italics omitted.)
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.
“Against the objection of a party, such special knowledge, skill,
experience, training, or education must be shown before the witness may testify
as an expert,” and “may be shown by any otherwise admissible evidence,
including his own testimony.” (Evid.
Code, § 720, subds. (a), (b).)
“[T]he qualifications of an expert must be related to the particular subject
upon which he is giving expert testimony.”
(People v. Hogan (1982) 31
Cal.3d 815, 852 (Hogan), disapproved
on other grounds in People v. Cooper
(1991) 53 Cal.3d 771, 836.)
Consequently, “the field of expertise must be carefully distinguished
and limited” (People v. Brown (2001)
96 Cal.App.4th Supp. 1, 37), and
“[q]ualifications on related subject matter are insufficient” (
expert in a particular case … depends upon the facts of the case and the
witness’s qualifications.” (
357.) “[T]he determinative issue in each
case is whether the witness has sufficient skill or experience in the field so
his testimony would be likely to assist the jury in the search for truth.” (Alef
v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 219.)
Additionally,
“[t]he trial court is given considerable latitude in determining the
qualifications of an expert and its ruling will not be disturbed on appeal unless
a manifest abuse of discretion is shown.”
(People v. Bloyd, supra, 43
Cal.3d at p. 357.) Moreover, an
appellate court may find an error regarding a witness’s qualifications as an
expert only if “ ‘the evidence shows that a witness clearly lacks qualification as an expert .…’ [Citation.]” (Hogan,
supra, 31 Cal.3d at p. 852; People v.
Panah (2005) 35 Cal.4th 395, 478.)
Once it is established that a witness has adequate credentials to
qualify as an expert, questions as to the degree of his or her expertise go to
weight not admissibility. (
322; People v. Brown, supra, 96
Cal.App.4th at Supp. 37.)
Appellant
argues his case is similar to that in Hogan,
in which the California Supreme Court held that mere observation without
analysis or inquiry cannot qualify a witness as an expert. (Hogan,
supra, 31 Cal.3d at p. 853.) In
first degree murder of a woman and her son.
(Id. at p. 820.) When the defendant surrendered to the police,
he had bloodstains on his pants and shoes.
(Id. at p. 821.) He claimed he discovered the victims and the
bloodstains on his clothes were from kneeling near the victims. (Ibid.) At trial a criminalist offered his expert
opinion on the source of the bloodstains, testifying that some stains on the
defendant’s clothes were “splatters,” caused by blood drops flying through the
air following impact rather than by a surface-to-surface contact with a bloody
object. (Id. at pp. 851-852)
The
California Supreme Court in Hogan, supra,
31 Cal.3d 815 decided the trial court abused its discretion in qualifying the
criminalist as an expert on the subject of the source of bloodstains. (Id.
at pp. 852-853.) The criminalist had
never performed laboratory analyses to determine the source of bloodstains
either in past cases or the present case.
(Id. at p. 852.) He had received no formal education or
training to make such a determination. (
Several years before the case, the criminalist had viewed an exhibit,
which demonstrated patterns of human blood dropped from various heights and
angles, and had read a book about flight patterns of blood. (Ibid.) The criminalist had also observed bloodstains
at many crime scenes. (
Consequently, the criminalist’s qualifications “boiled down to having
observed many bloodstains” and, thus, he was not qualified to render an expert
opinion on the source of the bloodstains.
(Id. at p. 853.)
Appellant
contends that Investigator Prewitt had no significant training or education in
CSAAS, and that his investigation of sexual abuse cases was in his role as a
law enforcement officer, not as a social worker or psychologist. The record shows that Prewitt, who had been a
peace officer for 23 years, attended a one-week course at the National Child
Protection Training Center, which had included a one-hour session on
CSAAS. The syndrome was discussed
throughout the course and he had been tested on the concept. He had participated in the investigation of
hundreds of child sexual abuse allegations.
Prewitt limited his testimony to the defined behavior patterns of CSAAS,
which was aimed at debunking myths regarding the behavior of abused
children. He did nothing to misrepresent
his credentials, acknowledging that he did not have a Ph.D., Master’s Degree,
or a four-year college or university degree, but instead had a two-year degree
in criminal justice Under these
circumstances, appellant’s complaints about Prewitt’s qualifications go to the
weight of his testimony, not its admissibility.
(See People v. Chavez (1985)
39 Cal.3d 823, 829.)
The trial
court stressed the limited use of the CSAAS evidence when it instructed with
CALCRIM No. 1193, as follows:
“You have heard testimony from Keith Prewitt regarding
Child Sexual Abuse Accommodation Syndrome.
Keith Prewitt’s testimony about Child Sexual Abuse Accommodation
Syndrome is not evidence that the defendant committed any of the crimes charged
against him. [¶] You may consider this evidence only in
deciding whether or not [A.F.’s] conduct was not inconsistent with the conduct
of someone who has been molested, and in evaluating the believability of his
testimony.”
The jury was also instructed with
CALCRIM No. 332, as follows:
“Witnesses were allowed to testify as an expert and to
give an opinion. You must consider the opinion, but you’re not required to
accept it as true or correct. The
meaning and importance of any opinions are for you to decide. [¶] In evaluating the believability of an
expert witness, follow the instructions about the believability of witnesses
generally. [¶] In addition, consider the
expert’s knowledge, skill, experience, training, and education, the reasons the
expert gave for any opinion, and the facts or information on which the expert
relied in reaching that opinion. [¶] You
must decide whether information on which the expert relied is true and
accurate. You may disregard any opinion
that you find unbelievable, unreasonable, or unsupported by the evidence.”
Even if we
were to find that the trial court abused its discretion in qualifying Prewitt
as an expert on CSAAS, the error does not warrant reversal. “The erroneous admission of expert testimony
only warrants reversal if ‘it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the
error.’ ” (People v. Prieto (2003) 30 Cal.4th 226, 247, citing
Applying
the Watson standard, it is not
reasonably probable that a jury would have reached a different result in the
absence of Investigator Prewitt’s testimony on CSAAS, which was primarily
introduced in response to appellant’s aunt’s and grandmother’s testimony that
A.F. had retracted his claims, and appellant’s mother’s and a pastor’s
testimony that A.F. often lied. As was
apparent from the jury’s request for a read back of portions of A.F.’s
testimony concerning “practicing” with a doll and for a replay of the video of
A.F.’s interview with Prewitt, the jury carefully considered A.F.’s testimony
and interview with Prewitt before finding appellant guilty.
Appellant
also contends that the trial court erred when it “gratuitously commented at the
end of the cross-examination that Prewitt was ‘clearly qualified as an expert
witness as proffered by the People.’ ”
Appellant contends the error was compounded when the court refused to
instruct the jury on how to view comments of a judge during a trial. At a jury instruction conference,
court give CALCRIM No. 3530, which is to be given when the court comments on
the evidence in front of the jury. The
trial court refused, stating that its comment was not made concerning the
evidence but, because defense counsel’s questioning of Prewitt was “a
combination voir dire and cross-examination,” was required to indicate on the
record whether it found him to be qualified.
A trial
court has “broad latitude in fair commentary, so long as it does not
effectively control the verdict.” (
730, 768.) A trial court’s “ ‘comment on
the evidence must be accurate, temperate, nonargumentative, and scrupulously
fair. The trial court may not, in the guise
of privileged comment, withdraw material evidence from the jury’s
consideration, distort the record, expressly or impliedly direct a verdict, or
otherwise usurp the jury’s ultimate factfinding power. [Citations.]’
[Citations.]” (
542.) “The propriety and prejudicial
effect of a particular comment are judged both by its content and by the
circumstances in which it was made.” (
735.) Here, we find the trial court’s
comment was proper. It was, as merely
stated by the court, finding the expert to be qualified after defense counsel
argued otherwise.
C. Motion for Continuance.
Appellant
next contends that the trial court erred when it denied his motion for a
continuance so that he could prepare for cross-examination and
surrebuttal.
“…‘
“The granting or denial of a motion for continuance in the midst of a trial
traditionally rests within the sound discretion of the trial judge who must
consider not only the benefit which the moving party anticipates but also the
likelihood that such benefit will result, the burden on other witnesses, jurors
and the court and, above all, whether substantial justice will be accomplished
or defeated by a granting of the motion.
In the lack of a showing of an abuse of discretion or of prejudice to
the defendant, a denial of his motion for a continuance cannot result in a
reversal of a judgment of conviction.” ’ [Citations.] Entitlement to a midtrial continuance
requires the defendant ‘show he exercised due diligence in preparing for
trial.’ [Citation.]” (People
v. Fudge (1994) 7 Cal.4th 1075, 1105-1106.)
Appellant
argues that, since counsel was not familiar with CSAAS, he should have been
allowed a continuance in order to properly examine the expert witness. As argued by appellant, “Although it is hard to
know what counsel’s preparation would have produced, there is enough
controversy over CSAAS to believe he would have been able to contact an expert
to rebut Investigator Prewitt’s testimony.”
And yet, despite a claim that he had never heard of CSAAS, defense
counsel effectively cross-examined Prewitt on his qualifications and his
knowledge of CSAAS. He also asked him
numerous pointed questions about criticism of Dr. Summit and his initial paper
on CSAAS. Finally, the jury was aware,
through Prewitt’s testimony and jury instruction, that CSAAS was not a
diagnostic tool, but rather an explanatory tool to improve the understanding
and acceptance of how children may react and cope with sexual abuse.
It is not
reasonably probable that appellant would have achieved a more favorable result
if defense counsel had been allowed a continuance to prepare for
cross-examination and to perhaps, find an expert to rebut Investigator
Prewitt’s CSAAS testimony. (
836.) We therefore conclude that
appellant has not borne his burden of showing that the trial court abused its
discretion in denying his midtrial request for a continuance. (People
v. Beeler (1995) 9 Cal.4th 953, 1003.)
of A.F.’s Pretrial Statements.
Appellant argues that A.F.’s
prior statement to Deputy Ward and taped interview with Investigator Prewitt
should not have been admitted into evidence.
He contends the statement and video constituted inadmissible hearsay and
the video did not satisfy the statutory requirement for notice.
The trial
court admitted the statement and taped interview pursuant to Evidence Code
section 791, subdivision (b), and in the alternative, pursuant to Evidence Code
section 1360. We review a trial court’s
ruling on the admissibility of evidence for abuse of discretion. (People
v. Guerra (2006) 37 Cal.4th 1067, 1113.)
A. Factual and Procedural Background.
At trial,
defense counsel attempted to impeach A.F.’s credibility by questioning him
about several statements he made to officers prior to trial and his
testimony. Following A.F.’s testimony,
Deputy Scott Ward testified that he spoke to A.F. on March 25, 2008, and
asked him what had happened between him and appellant. Defense counsel objected on hearsay
grounds. The trial court overruled the
objection, stating it was a prior consistent statement pursuant to Evidence
Code section 791, subdivision (b), and admissible because “[t]here’s been an
express, implied charge made that the testimony was recently fabricated or
influenced by bias or some other improper motive.” Deputy Ward’s testimony then followed.
Following
Deputy Ward’s testimony, the trial court held a hearing to determine the
admissibility of Investigator Prewitt’s pretrial video interview of A.F. Defense counsel argued that the video was
inadmissible under Evidence Code section 791, subdivision (b), because A.F.’s
bias or motive for fabrication at trial was the same as at the time of the
interview. Defense counsel also argued
that the video was inadmissible under Evidence Code section 1360, because,
although he had received the video and transcript of the interview before
trial, he was not given notice of the prosecution’s intent to offer the video
into evidence.
The
prosecutor argued:
“… This discovery has been discussed informally and
certainly was provided to him.… I don’t
believe I ever went on the record and said, ‘I’m giving you notice under 1360
of my intent,’ but I certainly think, looking at the spirit of the statute or
at least the language, he was certainly given time to prepare or fair
opportunity to prepare to meet the statement. There’s no reason why we would
transcribe something if we didn’t intend to potentially use it. And as he stated, we gave him copies of the
video. We also gave him an audio only
copy.”
Following a
hearing in which Investigator Prewitt took the stand to testify about his
interview with A.F., the court admitted the entire recorded statement under
either Evidence Code section 791, or as rehabilitation or impeachment. The court added:
“… In the event some court, tribunal, or other entity
determines that this court is incorrect, Court would find it would be
admissible under 1360 of the Evidence Code.
Court’s had a hearing, it meets the following requirements: It would have already been determined to be
not admissible under any other statute or rule.
We had a hearing outside the presence of the jury. I’ll go through my determination as to the
reliability. [¶] The child did testify at the hearing, which
is a substantial factor in favor of the Court’s finding that this applies. The reasonable notice argument is overruled
because the People did everything they could to provide notice of intent to use
the statement; they provided the video and provided the transcription.…
“The Court has determined the child was able to
understand relevant concepts and to differentiate between what is true and what
is not. The statements provided by the
child in the interview were spontaneous, consistently repeated. The child demonstrated an understanding of
the statements and independence of thought.
The child had an abnormal understanding of sex for a person of similar
age. There did not appear to be a motive
for the child to fabricate. Leading
questions were not asked during the interview, and there was nothing in the
child’s mental state that would indicate untrustworthiness. Therefore, the Court finds that there is
evidence that corroborates the statement and provides sufficient indicia of reliability. So it’s going to get played for the
jury.”
B. Applicable Law and Analysis.
Evidence
Code section 791 provides:
“Evidence of a statement previously made by a witness
that is consistent with his testimony at the hearing is inadmissible to support
his credibility unless it is offered after:
[¶] (a) Evidence of a statement made by him that is inconsistent with
any part of his testimony at the hearing has been admitted for the purpose of
attacking his credibility, and the statement was made before the alleged
inconsistent statement; or [¶] (b) An express or implied charge has been made
that his testimony at the hearing is recently fabricated or is influenced by
bias or other improper motive, and the statement was made before the bias,
motive for fabrication, or other improper motive is alleged to have arisen.”
Appellant
argues, and respondent concedes, that the temporal component of Evidence Code
section 791 is not present here. To
admit a prior consistent statement to support a witness’s credibility, it is
not enough that the prior consistent statement was made before the witness
testified at trial. The prior statement
must have been made before the motive to lie arose. Typically, a witness’s consistent statement
made prior to trial, but not preceding an inconsistent statement or the
development of motive to fabricate, is inadmissible. “[I]f the consistent statement was made
alleged to have arisen, the logical thrust of the evidence is lost and the
statement is inadmissible.” (Cal. Law
Revision Com. com., 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foll.
§ 791, p. 688.) “The reason for
this limitation [on the admission of prior consistent statements] is that when
there is a contradiction between the testimony of two witnesses it cannot help
the trier of fact in deciding between them merely to show that one of the
witnesses has asserted the same thing previously.” (People
v. Gentry (1969) 270 Cal.App.2d 462, 473.)
Respondent
argues that the evidence was admissible under Evidence Code section 1360
instead. Appellant does not dispute
that A.F.’s pretrial statements to Deputy Ward and Investigator Prewitt met the
requirements of Evidence Code section 1360, subdivision (a), but argues that,
in the case of the video, the prosecutor did not satisfy the notice requirement
of subdivision (b).
We agree
that the trial court did not abuse its discretion in admitting A.F.’s
interviews with Deputy Ward and Investigator Prewitt under Evidence Code
section 1360. That section provides, as
relevant here, that:
“(a) In a
criminal prosecution where the victim is a minor, a statement made by the
victim when under the age of 12 describing any act of child abuse or neglect
performed with or on the child by another … is not made inadmissible by the
hearsay rule if all of the following apply:
“(1) The statement is not
otherwise admissible by statute or court rule.
“(2) The court finds, in a
hearing conducted outside the presence of the jury, that the time, content, and
circumstances of the statement provide sufficient indicia of reliability.
“(3) The child either:
“(A) Testifies at the
proceedings.
“(B) Is unavailable as a
witness, in which case the statement may be admitted only if there is evidence
of the child abuse or neglect that corroborates the statement made by the
child.
“(b) A statement may not be admitted under this section
unless the proponent of the statement makes known to the adverse party the
intention to offer the statement and the particulars of the statement
sufficiently in advance of the proceedings in order to provide the adverse
party with a fair opportunity to prepare to meet the statement.” (Evid. Code, § 1360.)
The notice
requirement of Evidence Code section 1360, subdivision (b), is “to give a
criminal defendant a fair opportunity to prepare his or her defense.” (People
v. Roberto V. (2001) 93 Cal.App.4th 1350, 1372.) The prosecutor in this case provided
pretrial discovery to appellant’s defense counsel, including the interview
video, a transcription of the interview video, and presumably, A.F.’s
statements to Deputy Ward as well.
Appellant’s argument that he had no fair notice to prepare to meet the
statements is without merit.
Even if the
notice was not given prior to trial, we discern no prejudice under any standard
of review. Appellant had sufficient
notice to have “a fair opportunity to prepare to meet the statement.” (Evid. Code, § 1360, subd. (b).) Aside from having been given a copy of the
video and transcript before trial, it was evident that A.F.’s pretrial
statements were vital to the prosecution’s case. At the preliminary
hearing, Deputy Ward testified about what A.F. told him on March 25,
2008. Deputy Ward also testified at the
preliminary hearing that he was present at the July 7, 2008, interview with
Investigator Prewitt, and he detailed what A.F. told Investigator Prewitt at
that time.
Error.
Appellant
contends that the cumulative impact of all of the above evidentiary errors
deprived him of a fair trial. We have
either rejected appellant’s claims of error and/or found that any errors,
assumed or not, were not prejudicial.
Viewed cumulatively, we find that any errors do not warrant reversal of
the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
654.
Appellant
contends that the terms imposed on counts 2 and 3 should have been stayed under
section 654.
A. Procedural Background.
Four counts
of sodomy were presented to the jury: count 1, aggravated sexual assault (based
upon forcible sodomy); count 2, forcible sodomy; count 3, sodomy; and count 7,
sodomy upon an unconscious person. All
four counts were alleged to have occurred between April 1, 2007 and July 26,
2007. The trial court sentenced
appellant on these counts as follows: count 1, 15 years to life; count 2, the
upper term of eight years; count 3, one-third the midterm of two years; and
count 7, one-third the midterm of two years.
During
closing, the prosecutor stated to the jury:
“[A]ll these … sodomy counts, except Count Seven, I
believe really have [to] do with the same event. A defendant can violate numerous Penal Code
Sections with the same … conduct. What
I’m arguing to you is that all of these counts have to do with the, I believe
he referred to it as ‘July 14th incident.’
The specific incident where he feigned being asleep, but he
wasn’t.”
The prosecutor also argued that, because A.F. described
numerous instances when he experienced pain and bleeding from his anus in the
morning, the jury could conclude that “he did it other times.”
At
sentencing, appellant’s defense counsel argued that any punishment imposed on
counts 2, 3 and 7 should be stayed under section 654 because no specific
findings were made by the jury regarding whether or not there was more than one
act and the information pled the same time period for all the counts.
The
prosecutor disagreed, stating:
“… It is true that I made an argument to the jury in
trying to anticipate any appellate arguments that appellate counsel’s going to
make, it is true that I argued to the jury that they could find that Counts 1,
2, and 3 all referred to the -- what I argued to be the July 14th event. That’s a specific incident that he described
in detail in court. [¶] However, during the MDIC[
the jury was provided with testimony that would substantiate additional counts,
Count 2 and Count 3. Actually more than
that, I believe he testified it happened more than four times, I forgot what
his actual estimate was, but it was definitely more than four. ”
In response
to questioning by the court, the prosecutor stated:
“[M]y argument is based on the fact that [A.F.] alleged
that this same conduct happened to him more than four times. So that’s why I’m saying that the Court could
in its discretion sentence him fully consecutive on Count 2 and Count 3. [¶]
The jury could have found the Count 1 and Count 2 referred to two
separate occasions, albeit within the same time frame that was alleged April
1st to July 26th of 2007.”
Following
some additional argument, the trial ruled:
“With respect to the argument under Penal Code Section
654, the Court would determine and agree with the People that Count 2 and Count
3 both being Penal Code Section 286 violations need to be found as true by the
jury before they can make a guilty finding among other things as to Count
1. [¶]
The code -- the way the testimony was presented, it appears to the Court
that the offenses as alleged in … Count[] 2 and Count 3 occurred at different
times and at different dates with respect to the offenses as alleged therein
with respect to the determinate term components.”
B. Applicable Law and Analysis.
Section
654, subdivision (a) provides:
“An act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall
the act or omission be punished under more than one provision. An acquittal or conviction and sentence
under any one bars a prosecution for the same act or omission under any
other.”
The
underlying purpose of section 654 is “to insure that a defendant’s punishment
will be commensurate with his culpability.”
(People v. Perez (1979) 23
Cal.3d 545, 552.)
“[T]he application of section 654 to any particular case
depends upon the circumstances of that case.
‘The initial inquiry in any section 654 application is to ascertain the
defendant’s objective and intent. If he
entertained multiple criminal objectives which were independent of and not
merely incidental to each other, he may be punished for independent violations
committed in pursuit of each objective even though the violations shared common
acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]
Whether the defendant maintained multiple criminal objectives is
determined from all the circumstances and is primarily a question of fact for
the trial court, whose finding will be upheld on appeal if there is any
substantial evidence to support it.” (
34, 38.)
“Although the question of whether defendant harbored a
‘single intent’ within the meaning of section 654 is generally a factual one,
the applicability of the statute to conceded facts is a question of law. [Citation.]”
(People v. Harrison (1989) 48
Cal.3d 321, 335.)
Here,
despite the prosecutor’s somewhat confusing argument to the jury, the evidence
supports multiple punishments on counts 1, 2, and 3. Aside from the July 14th incident when A.F.
pretended to be asleep, A.F. told Investigator Prewitt that appellant sodomized
him while he slept, on six or seven different dates. The first time occurred in June of 2007, and
on each occasions, he would awake the next morning and find his anus was bleeding
and his back was sore. And A.F. testified
at trial that aside from the July 14th incident, appellant put his penis in his
butt “way more than” three times.
And, as
argued by respondent, even if we were to find that counts 1, 2, and 3 relate
only to the July 14th incident, multiple punishment would still be appropriate
on those counts. A.F. told Investigator
Prewitt that the July 14th incident lasted about two and a half to three hours;
that during this time period, appellant put A.F.’s body in a certain position
and then inserted his penis into A.F.’s anus; that appellant would pull his
penis out, rest and think of another position, and repeated the process. According to A.F., appellant put his body
into about three to five different positions, which he described as on his
stomach, on his side, and on his back with his legs lifted up, during that one
occasion.
“[S]ection
654 does not bar multiple punishment
simply because numerous sex offenses are rapidly committed against a victim
with the ‘sole’ aim of achieving sexual gratification.” (People
v. Harrison, supra, 48 Cal.3d at p. 325.)
A “ ‘broad and amorphous’ view of the single ‘intent’ or ‘objective’
needed to trigger the statute would impermissibly ‘reward the defendant who has
the greater criminal ambition with a lesser punishment.’ ” (Id.
at pp. 335-336.) Therefore, multiple
punishment is appropriate here.
Acetate Treatment
Appellant
contends that the order for medroxyprogesterone acetate treatment, or “chemical
castration,” upon parole violates his right
to due process and amounts to cruel and unusual punishment.
A. Procedural Background.
The
probation report recommended that the trial court order appellant to undergo
“Medroxyprogesterone Acetate Treatment” (MPA) upon parole, pursuant to section
645, subdivision (a). At sentencing, the
court indicated it did not intend to make such an order. The prosecutor asked the court to reconsider,
stating it was appropriate in this case.
Defense counsel disagreed, stating that “probation assessed his level of
recidivism in the low to moderate range,” and that, due to appellant’s lengthy
sentence, he was “not going to be around children any time soon.” The court then ordered appellant to undergo
MPA upon parole.
title="">[3]
B. Applicable Law and Analysis.
Section 645
provides in pertinent part,
“(a) Any person guilty of a first conviction of any
offense specified in subdivision (c), where the victim has not attained 13
years of age, may, upon parole, undergo [hormone suppression] … in addition to
any other punishment … at the discretion of the court. [¶]
(b) Any person guilty of a second conviction of any offense specified in
subdivision (c), where the victim has not attained 13 years of age, shall, upon parole, undergo
[hormone suppression] … in addition to any other punishment .…”
Subdivision (c) includes the offenses for which the jury
convicted appellant.
Appellant
argues for the first time on appeal that the order for hormone suppression
violates the Due Process Clause of the Fourteenth Amendment and constitutes
cruel and unusual punishment in violation of the Eighth Amendment because the
trial court made no finding that appellant is a pedophile or that he was an
appropriate candidate for MPA treatment.
Whether a
form of punishment is unconstitutional under the Eighth Amendment is determined
based on an evaluation of evolving standards of decency, as reflected in
objective indicia of public attitudes toward a given sanction. (Atkins
v. Virginia (2002) 536 U.S. 304, 311-312 & fn. 7; Gregg v. Georgia (1976) 428 U.S. 153, 171; People v. Kennedy (2005) 36 Cal.4th 595, 640, disapproved on other
grounds in People v. Williams (2010)
49 Cal.4th 405, 459.) Moreover, even if
acceptable to the public, a punishment must not be excessive, either through
inflicting unnecessary pain or being disproportionate to the offense or
offender. (Ewing v. California (2003) 538 U.S. 11, 21.) Under the state Constitution, punishment can
be disproportionate in light of the nature of the offense or offender, the
sentences for similar offenses in this state, or the sentences for similar
offenses in other states. (
425-427.) The essential requirements of
due process are notice and an opportunity to respond. (In re
Large (2007) 41 Cal.4th 538, 552.)
By not
challenging the constitutionality of the order in the trial court, appellant
has failed to preserve the issue for review.
(People v. Norman (2003) 109
Cal.App.4th 221, 229.) We do not have
before us a developed record and appellant’s argument from which we can
evaluate what is likely a complicated medical procedure and associated physical
consequences. Habeas corpus proceedings
are the better forum to address the constitutionality of the order requiring appellant
to undergo MPA treatment if he is released on parole. It is also the better forum to address
appellant’s alternate argument that counsel was ineffective for failing to
object at trial. (See
426, overruled on other grounds in People
v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds
in People v. Hill (1998) 17 Cal.4th
800, 823, fn. 1.) We therefore decline
appellant’s invitation to reach the merits of his claim.
DISPOSITION
The judgment
is affirmed.
_____________________
LEVY, J.
WE CONCUR:
_____________________
WISEMAN, Acting P.J.
_____________________
CORNELL J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] This
is referred to in appellant’s opening brief as “the second statement given by
A.F. to law enforcement in July 2008.”
