P. v. Overstreet



















Filed 2/6/13 P. v. Overstreet CA3













NOT TO BE PUBLISHED











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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

----






>

THE PEOPLE, Plaintiff and Respondent, v. RANDY OVERSTREET, Defendant and Appellant.

C070488 (Super. Ct. No. 08F09989)

A jury convicted defendant Randy
Overstreet of attempted sexual intercourse
with a minor and found true allegations that he had four prior prison
terms. The trial court sentenced him to
13 years in state prison.

Defendant now contends (1) the trial
court erred in admitting a recorded out-of-court interview with the victim
pursuant to Evidence Code section 1360, and (2) defendant’s trial counsel was
ineffective in failing to object to other out-of-court statements made by the
victim.

We conclude (1) the trial court did
not abuse its discretion in admitting the victim’s interview statements because
the evidence provided sufficient indicia of reliability; and (2) regarding
defendant’s claim of ineffective assistance, he does not establish prejudice
because the challenged statements were admissible as spontaneous declarations.

We will affirm the judgment.

BACKGROUND

The eight-year-old victim lived with
her mother, her three siblings, and defendant (her stepfather). One night in July 2008, the victim was on a
couch watching television after her mother went to bed. Defendant, dressed only in boxer shorts, was
watching television from another couch in the same room. He asked the victim to rub his feet, as she
had done before. She went onto
defendant’s couch and began rubbing his feet.
Next, she straddled defendant’s legs and started rubbing his legs while
facing him. Defendant pulled down his
shorts to expose his “privates” as the victim rubbed his legs. The victim pulled down her pajama bottoms and
underwear and moved up closer to his “privates.” She got onto his penis as she had seen her mother
do. Defendant’s penis rubbed her
“private” and she sat there for awhile.
The victim moved around side to side and defendant’s penis got “slimy.” She eventually got off defendant and put on
her clothes. Her “private” felt
tingly.

The victim went upstairs and woke
her mother. The mother described the
victim as “freaked out,” “really anxious” and “scared.” The victim told her mother that she got on
top of defendant and he had been inside her a little bit. The victim’s legs were feeling weird and she
was scared she might be pregnant. The
mother called the police later that morning.


Sacramento Police Officer Jonthomas
Deardorf interviewed the victim. She
told Officer Deardorf she was in the living room with her brother and defendant
when defendant asked her to rub his feet.
She took off some of her clothes and defendant stuck his thing about two
inches inside her. It was dark and she
did not see his private; “grease” came out of his thing; and she was sore
afterward. The victim also related an
incident about a year earlier, when defendant put his tongue on her private
part.

Cathy Boyle, a pediatric nurse
practitioner at U.C. Davis Medical Center, examined the victim. The victim said defendant’s penis went into
her private after he asked her to rub his feet.
She got on top of defendant and his penis then went “[b]etween my legs a
little.” Defendant’s penis “felt like a
water balloon, like greasy stuff was coming out.” The victim woke her mother and said her legs
were shaking and she might be pregnant.
Boyle identified some irregularities in the victim’s hymen but no
obvious injury, and Boyle believed it was likely within normal limits.

The victim was also interviewed at a
special assault forensic evaluation (S.A.F.E.) center on August 8,
2008. In the interview, the victim said she had
been sleeping on a living room couch when defendant, who was on another couch,
asked her to rub his feet. She climbed
on him and straddled his legs. Defendant
slid his boxers down, and she decided to slide down her pajama bottoms and
underwear. Defendant’s thing went a
little bit inside her; it felt tingly and she felt it should stop. Defendant had an “accident” and went inside
her “about like this much.” She felt
greasy stuff come out of his thing.

During the S.A.F.E. interview, the
victim also related an earlier incident.
Her mother was at a doctor’s office and the victim was at home with one
of her brothers and defendant. Defendant
told her to go upstairs to the bedroom.
Defendant took off his outer clothing and the victim did the same. He pulled her underwear down and started
rubbing on her vagina with his finger when her mother called on the phone.

The victim also told the S.A.F.E.
interviewer that defendant showed her a book containing pictures of naked
people with tattoos.

A search of the house revealed a
book of tattoos as described by the victim.
A plastic bag under the bed contained a magazine called “Family Stuff,”
which had several graphic stories of sexual acts between family members.

However, the victim’s aunt had told
a child protective services (CPS)
investigator that the victim had a problem with lying. And the mother’s cousin saw defendant around
children many times and said defendant always behaved well around them. The cousin said the victim had a problem
telling many small lies.

A jury convicted defendant of
attempted sexual intercourse with a minor (Pen. Code, §§ 664/288.7, subd.
(a))href="#_ftn1" name="_ftnref1"
title="">[1] and found true allegations that he had four
prior prison terms (§ 667.5, subd. (b)).
The trial court sentenced him to 13 years in state prison.

DISCUSSION

I

Defendant contends the trial court
committed prejudicial error in admitting the recorded S.A.F.E. interview of the
victim pursuant to Evidence Code section 1360.href="#_ftn2" name="_ftnref2" title="">[2]

A

The People submitted an in limine
motion to admit the tape of the victim’s interview with a specialist at the
S.A.F.E. center. A transcript of the
interview was not attached to the People’s motion. Defendant opposed the motion, asserting that
many of the victim’s responses were narrative and nonresponsive to the
questions, and many were in response to leading questions.

During the interview, when asked if
anyone told her what to say, the victim replied “Um, no.” The interviewer then asked: “Oh, okay.
Anyone tell you not to say something?”
The victim replied: “My mom
did.” Asked what her mom told her not to
say, the victim replied: “Me and my dad
were, um -- me and my brother were sitting on the couch and then me and my dad
had a little -- an accident.”

The interviewer asked what she meant
by an accident. The victim replied: “Ah, like I’m on top of him and like he went
-- he went inside of me about like this much.”
After the interviewer said, “Okay,” the victim continued: “But then I stopped ‘cause I knew it was
wrong.” The interviewer said, “Oh,” and
the victim went on: “And then I went
upstairs to my mom and told her.”

The interviewer asked: “And then what happened?” The victim replied: “And then my legs went like shaking.” After the interviewer said “Uh-huh,” the
victim continued: “--and then mom
started to shake. She was all shaking
like this.” After the victim said this
was because her mom was scared and did not know what to do, the interviewer
said: “Okay. And I want to hear more about that. Um, let me ask you -- ‘cause you said mom
told you not to say something.” When the
victim made no response, the interviewer asked:
“What did she tell you not to say?”
The victim replied: “She told me
not to say what I just said.”

The interviewer asked what it means
to tell the truth. The victim
responded: “That means if you tell the
truth, um, if you don’t tell the truth you’ll have like a dot on your head --
like a mama dot or a daddy dot and that -- that means if you’re lying or
not.” In response to further questions,
the victim said it would be a lie to call a pen a pencil, but it would be true
to call a pen a pen. When the
interviewer asked, “[W]hat could happen to kids if they tell a lie,” the victim
answered: “Um, they’ll like get in
trouble.”

The interviewer told the victim she
wanted her to talk about “true things” and to tell the interviewer if she did
not understand a question. If the victim
did not know the answer to a question, it was okay for her to say so. The interviewer asked, “tell me again what --
what you were saying at first.” The
victim said “we had an accident” when she got on top of her dad and he put his
“thing” inside her body “this much.” The
interviewer drew out more details of the incident, asked her “what happened” or
interjecting “uh-huh” as the victim provided additional details. The interviewer then asked if “anything like
that happened before” and the victim provided details of an earlier incident. The victim then provided more details of the
2008 incident.

The trial court admitted the tape,
finding “that the time, content and circumstances of the statement provide
sufficient indicia of reliability.”

B

Evidence Code section 1360 “creates
a limited exception to the hearsay rule in criminal prosecutions for a child’s
statements describing acts of child abuse or neglect, including statements
describing sexual abuse. [Citations.] [Evidence Code] Section 1360 safeguards the
reliability of a child’s hearsay statements by requiring that: (1) the court
find, in a hearing conducted outside the presence of the jury, that the time,
content, and circumstances surrounding the statement(s) provide sufficient
indicia of reliability; (2) the child either testifies at the proceedings, or,
if the child is unavailable to testify, other evidence corroborates the
out-of-court statements; and (3) the proponent of the statement gives notice to
the adverse party sufficiently in advance of the proceeding to provide him or
her with a fair opportunity to defend against the statement. [Citations.]”
(People v. Roberto V. (2001)
93 Cal.App.4th 1350, 1367, fn. omitted.)

An appellate court reviews a trial
court’s admission of evidence pursuant to Evidence Code section 1360 for abuse
of discretion. (People v. Roberto V., supra, 93 Cal.App.4th at
p. 1367.) Under that standard “
‘reversal of the judgment is not required, unless the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.’
[Citations.]” (>People v. Hovarter (2008)
44 Cal.4th 983, 1004.)

Defendant asserts the trial court
committed an abuse of discretion because “there is no indication that the court
ever read the transcript or viewed the DVD of the interview.” Defendant makes this assertion because “[a]
transcript of the interview was apparently not made an exhibit” to the
prosecutor’s motion. But it appears
defendant is speculating, because he then adds that “if the court did have
access to the transcript of the interview,” its ruling would still be an abuse
of discretion in any event.

Here, the content of the interview
was known to the parties before the trial and defendant specifically mentioned
the content in arguing to the trial court that the interviewer asked leading
questions and that the victim’s answers were often nonresponsive or
narrative. In making its ruling, the
trial court expressly stated that its ruling was based in part on the content
of the interview. We must presume the
trial court was aware of the content of the interview absent evidence to the
contrary.

Defendant further asserts that the
trial court abused its discretion because the content of the interview did not
show it was reliable. But the interview
occurred one week after the incident and the victim described the incident
almost spontaneously after being asked if anyone told her what not to say. She then described the incident again in
response to open ended, non-leading questions, and her description was for the
most part consistent with her prior statements on the subject. In addition, the victim indicated an
understanding of the difference between the truth and a lie, and she expressed
an understanding that children should not lie.
The S.A.F.E. interviewer was not a police officer and the interview took
place at a neutral location rather than at a police station. The evidence shows indicia of reliability.

Under these circumstances, the trial
court did not abuse its discretion in admitting the recording of the S.A.F.E.
interview.

II

Defendant also contends his trial
counsel provided ineffective assistance in failing to object to the mother’s
trial testimony regarding statements the victim made to her about the
incident.

A criminal defendant has a href="http://www.mcmillanlaw.com/">right to the assistance of counsel. (Strickland
v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692].) This right “entitles the defendant not to
some bare assistance but rather to effective assistance.” (People
v. Ledesma (1987) 43 Cal.3d 171, 215, italics omitted.) “To establish entitlement to relief for
ineffective assistance of counsel the burden is on the defendant to show
(1) trial counsel failed to act in the manner to be expected of reasonably
competent attorneys acting as diligent advocates and (2) it is reasonably
probable that a more favorable determination would have resulted in the absence
of counsel’s failings. [Citations.]” (People
v. Lewis (1990) 50 Cal.3d 262, 288.)

Here, the trial court granted the
People’s in limine motion to admit “prior disclosure of fresh complaints”
pursuant to People v. Brown (1994)
8 Cal.4th 746, which permits admission of fresh complaint evidence for the
nonhearsay purpose of establishing the circumstances under which the victim
reported the offense to others. The
trial court specified that admission was limited to establishing the fact of,
and the circumstances surrounding, the victim’s disclosure of the alleged
offense. (Brown, supra, 8 Cal.4th at pp. 762-763.) This limitation in excluding the details of
the alleged sexual incident was appropriate because “a jury may well find it
difficult not to view these details as tending to prove the truth of the
underlying charge.” (>Brown, supra, 8 Cal.4th at
p. 763.) Nonetheless, during trial,
the victim’s mother testified that the victim woke her up and told her she got
on top of defendant, he had been inside her a little bit, her legs were feeling
weird, and she was scared she might be pregnant. Defendant’s trial counsel did not object to
the testimony.

Defendant contends his trial counsel
was ineffective in failing to object. He
argues the victim’s statements to her mother describing the details of the
incident “were both inadmissible hearsay in general and violated the court’s in
limine holding on the issue.” He adds
that his defense focused on attacking the victim’s credibility, but the
mother’s testimony undermined that strategy and thus prejudiced the
defense.

We conclude, however, that defendant
has not established prejudice because the victim’s statements to her mother
were admissible as spontaneous declarations.

Evidence Code section 1240
provides: “Evidence of a statement is
not made inadmissible by the hearsay rule if the statement: [¶]
(a) Purports to narrate, describe, or explain an act, condition, or
event perceived by the declarant; and [¶] (b) Was made spontaneously while the
declarant was under the stress of excitement caused by such perception.”

“ ‘To render [statements] admissible
[under the spontaneous declaration exception] it is required that (1) there
must be some occurrence startling enough to produce this nervous excitement and
render the utterance spontaneous and unreflecting; (2) the utterance must have been
before there has been time to contrive and misrepresent, i.e., while the
nervous excitement may be supposed still to dominate and the reflective powers
to be yet in abeyance; and (3) the utterance must relate to the circumstance of
the occurrence preceding it.’
[Citations.]” (>People v. Poggi (1988) 45 Cal.3d
306, 318.)

Here, the victim made the statements
in response to a startling event -- defendant’s sexual contact with her -- and
the victim made the statements almost immediately after the offense. Her statements described the incident to her
mother, and according to her mother’s testimony, the victim was in a highly
agitated state when she made the statements.

Accordingly, even if defense counsel
had objected to the testimony on the ground that it exceeded the scope of the
fresh complaint doctrine, the statements would still have been admissible as
spontaneous declarations. Trial counsel
need not raise futile objections to forestall ineffective assistance claims. (People
v. Frye (1998) 18 Cal.4th 894, 985, disapproved on other grounds in >People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22.) Defendant’s claim of
ineffective assistance lacks merit.

DISPOSITION

The judgment is affirmed.





MAURO , J.





We concur:





BLEASE , Acting P. J.





HOCH , J.