In re Aaron G.

Filed 9/19/07 In re Aaron G. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Q. Clay III, Judge. Affirmed.

Debbie M. Page, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

The juvenile court declared appellant Aaron G. to be a ward of the court after finding that he had committed one count of forcible lewd acts on a child (Pen. Code,  288, subd. (b)(1); count 3) and two counts of lewd acts on a child (Pen. Code,  288, subd. (a); counts 1 & 2). He was ordered into suitable placement. The victim was appellants younger brother, Anthony. At the time of the incidents, appellant was 12 years old and Anthony was 11 years old. At the adjudication hearing two years later, Anthony described three separate incidents in which he submitted to anal sex by appellant, against his will, after appellant forcibly bound his wrists and feet with masking tape (count 3), and after appellant blackmailed him (counts 1 & 2) by threatening to tell their grandmother about Anthonys consensual sexual relationship with another boy, Chris.

On appeal, appellant complains about his inability to cross-examine Anthony about the sex acts that Anthony had performed with Chris. He further maintains that there was insufficient evidence that he appreciated the wrongfulness of his conduct under In re Gladys R. (1970) 1 Cal.3d 855, 858 (Gladys R.). Finally, he argues that the trial court should not have admitted evidence that Anthony saw appellant place a two-year-old girl inappropriately on his lap, which was the reason Anthony decided to tell his grandmother what appellant did to him.

We find no merit in the contentions, and affirm.

FACTS

At the time of the incidents, Anthony lived at his grandmothers home and appellant lived with the boys father in the fathers two-bedroom trailer. Anthony slept in appellants bedroom when he stayed with his father and appellant on weekends. During one of those visits, in the middle of 2003, Anthony confided to appellant that he was having sexual contact with a male friend his own age, named Chris. Anthony asked appellant not to tell their grandmother about his relationship with Chris. Appellant initially agreed. Then he said he would keep the secret only if Anthony did whatever he asked him to do.

The subject came up again two or three weeks later. The boys were in appellants bedroom, at nighttime, with the door shut. Anthony agreed to appellants hitting hit him with a pillow in exchange for keeping the secret about Chris. The boys then masturbated each other. Appellant then told Anthony that he would refrain from telling their grandmother about Chris only if Anthony would have sex with him. Anthony agreed, only because of appellants use of blackmail. While Anthony lay face down on appellants bed, appellant pulled down Anthonys pants and underwear, and put his penis into Anthonys anus for three or four minutes. The sex act was painful. Afterwards, Anthony went to sleep.

The second incident was similar to the first. Appellant again threatened to tell their grandmother that Anthony and Chris were having some type of sexual relations. Anthony agreed to the sex act because of the threat. Appellant picked up a container of Vaseline, put Vaseline on his penis, and inserted it into Anthonys anus for one to five minutes. Anthony was not sure if appellant had used Vaseline the first time. Once again, the sex act was painful, and Anthony went to sleep afterwards.

According to Anthony, the third incident was worse. Appellant used masking tape to tape up Anthonys wrists behind his back and to tape his ankles. Anthony kicked and punched appellant, but could not resist very well because appellant was on top of his spine, and appellant was stronger, taller, and heavier. After wearing down Anthonys resistance, appellant again committed an act of anal sex for one to five minutes.

Anthony initially decided not to tell anybody what appellant did to him. He later changed his mind because of an incident that happened in his bedroom at his grandmothers house. Appellant and Anthony were alone in the room with a two-year-old girl who was like a little cousin. Appellant put the little girl on his knee and then moved her toward his penis, over his clothes. Anthony grabbed the girl and carried her out of the room. Anthony decided at that point to tell his grandmother what appellant did to him, but did not actually do so until appellant ran away from home and was gone for a few days.

The foregoing description of the incidents comes from Anthonys direct examination. He consistently repeated the same facts during detailed cross-examination over three days of court proceedings. The most significant fact he added during cross-examination was that appellant used force on all three occasions, by punching him. He testified that appellant raped him, all three times. Because of the discrepancy over whether all three incidents involved force, or the first two solely involved blackmail, the court later sustained the first two counts as lesser included offenses, lewd acts on a child, without force.

There also was testimony from the police detective who took a statement from appellant. Appellant told the detective that he and Anthony masturbated each other, and there were two occasions when they had anal intercourse. He said the first incident occurred after he and Anthony mutually decided to experiment with each other and have anal intercourse. For the second incident, appellant told Anthony that he wanted to have anal sex. Anthony at first refused. He consented to the sex act after appellant threatened to tell their grandmother about Anthonys sexual relationship with Chris. Appellant did not mention a third incident.

During the police interview, appellant also discussed his sexual relationship with an adult male.

DISCUSSION

1. Limitations on Cross-examination About Chris

Appellant makes a multipronged attack on his inability to question Anthony about what sex acts he had performed with Chris. He maintains that Anthonys testimony should have been stricken after he refused to say what he did with Chris; appellants Sixth Amendment right to meaningful cross-examination was violated; he was denied his right to the effective assistance of counsel, because his counsel could not effectively cross-examine Anthony; and Anthony should have been granted immunity from prosecution after he invoked the Fifth Amendment regarding what he did with Chris.

We find no merit in any of the arguments.

A. The Record

Anthony testified on direct examination on October 12 and 13, 2005. Cross-examination was supposed to start on October 19. Several continuances were then necessary, because the judge became ill, and because Anthony was hospitalized for depression and on suicide watches. Anthony was present in court on November 7, but was unable to testify because his psychiatric medication made him sleepy. He failed to come to court on November 8, so a body attachment was issued and held for the next day. On November 9, 17, and 23, he appeared in court and underwent extremely thorough cross-examination about the incidents with appellant. The only thing he would not discuss was what he did with Chris.

Specifically, on direct examination, Anthony testified that he submitted to nonconsensual anal sex by appellant because appellant threatened to tell their grandmother that Anthony was having sexual contact with Chris. After testimony ended that day, defense counsel was concerned that Anthony might need a lawyer. The court promised to have counsel available. The next day, November 7, the court said it had decided that advisory counsel was unnecessary as the prosecutor had said during an off-the-record discussion that the People did not intend to pursue charges against Anthony. When Anthony took the witness stand on November 9, defense counsel began cross-examination with the subject of Chris.

Anthony testified that he had a relationship with Chris, a neighbor who was three months younger. Anthony said he did not remember if that relationship involved sex. He denied telling a police officer that appellant caught him and Chris engaging in sex. He told appellant that something happened with Chris, but did not tell appellant that he was having sex with Chris.

Anthony then testified that he vaguely recalled what he did with Chris. He told his grandmother what he did, but he was not going to say it in the courtroom. At defense counsels request, the court admonished Anthony to answer the question. Anthony asked if his father and his fathers wife could leave the courtroom. Appellants counsel moved to strike Anthonys testimony on direct examination, because appellant was entitled to have his father with him in the courtroom. The court warned Anthony that he might end up in custody if he refused to answer. Anthony expressed a concern that he might be prosecuted for what he did with Chris. The prosecutor said that Anthony had already been told he would not be prosecuted. At that point, the court appointed counsel for Anthony.

Further cross-examination resumed after Anthony consulted with his counsel. He said his testimony on direct examination was the truth. He had told appellant and his grandmother what he did with Chris, but, on the advice of his counsel, he was not going to say in the courtroom what he told appellant he had done with Chris. Defense counsel objected that Anthonys invocation of the Fifth Amendment made it impossible to effectively cross-examine him about what caused the incidents. The court ruled that until the People offered Anthony immunity, he could assert a Fifth Amendment privilege.

Extremely detailed cross-examination about the incidents then ensued. Anthony answered all the questions, except that, on the advice of his counsel, he refused to say what he did with Chris, whether he had anal sex with Chris, whether he did the same thing with appellant that he did with Chris, and whether he had learned the sexual conduct he did with appellant from what he had done with Chris.

When Anthonys testimony was completed, defense counsel moved to strike it, because counsel had not been allowed to attack Anthonys credibility by exploring what he did with Chris. Counsel maintained that Anthony used the facts of what he did with Chris to fabricate a story about what he did with appellant. In denying the motion, the court ruled that the fact Anthony had a relationship with Chris had been established by the evidence, and there was no prejudice to the defense from Anthonys invocation of the Fifth Amendment privilege regarding exactly what he did with Chris.

B. Analysis

The Sixth Amendment right of confrontation includes the right to impeach a witness through cross-examination. (Davis v. Alaska (1974) 415 U.S. 308, 316.) If a defendant seeks to strike the direct testimony of a prosecution witness who invoked the privilege against self-incrimination during defense cross-examination, [t]he general rule . . . calls for exclusion of the direct testimony unless the refusal to answer affects only collateral matters. (Denham v. Deeds (9th Cir. 1992) 954 F.2d 1501, 1503, italics added.) The determination of what is a collateral matter depends upon whether the inquiry involved the elements or specific events of the crimes, or a matter that had a bearing only on the general credibility of the witness. (United States v. Gullett (6th Cir. 1983) 713 F.2d 1203, 1208-1209.)

The purpose of admitting evidence about a sexual relationship between Anthony and Chris is to throw doubt on Anthonys claims that appellant used blackmail and force to make him submit to anal intercourse. However, Anthonys voluntary sexual relationship with his friend Chris is very different from unwilling incestuous encounters with his brother, appellant. Assuming that Anthony would have testified that he had engaged in the same kind of sexual activity with Chris that he maintained happened with appellant, appellant would still have been guilty of committing lewd acts on a child, based largely on his own admissions.

Perhaps most importantly, the exclusion of evidence about the exact nature of Anthonys sexual encounters with Chris, if it was error, was not prejudicial. Anthony admitted a sexual relationship with Chris, and refused only to specify the exact acts he performed with Chris. Even if he had testified that he engaged in the same acts with Chris that appellant inflicted on him, the result would not have been different, in this court trial. The court, sitting as the trier of fact, would not have discounted Anthonys testimony that appellant made him submit to those sexual acts, simply on the ground that Anthony admitted engaging in voluntary sexual acts with another male. If Anthony was to be believed about appellants actions, he could not be disbelieved because he had engaged in the same sexual activity with someone else who was not related to him.

Appellant confessed to the police that he committed two acts of anal sex on Anthony, one of which was coerced by a threat to expose Anthonys relationship with Chris. His admissions corroborated Anthonys testimony that such acts occurred. The court could justifiably believe that appellants statement to the police was self-serving, on the issue of force, and that Anthony was telling the truth, regarding appellants use of force. Anthony gave a consistent, detailed version of the incidents, as he was forced to go over them repeatedly, during direct examination and cross-examination. The record shows that it was extremely unpleasant for him to describe what happened with appellant in the bedroom. There was no reason for him to lie about it. He never specified exactly what he did with Chris, but we can infer from his testimony that, unlike what happened with appellant, the acts with Chris did not involve coercion, force, or pain. Therefore, based upon Anthonys testimony, which was corroborated in part by appellants statement to the police, we conclude that if there was any error in the exclusion of what Anthony did with Chris, it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

2. The Gladys R. Issue

Appellant was 12 years old at the time of the incidents. Children under the age of 14 are incapable of committing crimes, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness. (Pen. Code, 26.) Therefore, [t]he juvenile court should consider whether a child appreciates the wrongfulness of her conduct in determining whether the child should be declared a ward under [Welfare and Institutions Code] section 602 . . . . (Gladys R., supra, 1 Cal.3d 855, 858.) The substantial evidence test applies to review of this issue. (In re Paul C. (1990) 221 Cal.App.3d 43, 52.)

The police detective who interviewed appellant had him fill out a Gladys R. form. Appellant told the detective that he knew when he was 12 years old that it was wrong to have anal intercourse with his brother. He had been taught by his school, his father, and other kids that a person who engaged in that type of behavior was a fag. He gave an example of something that he knew was right (taking out the trash), and things he knew were wrong (running away and drinking). The detective also posed similar questions to appellants father.

A minors knowledge of his acts wrongfulness may be inferred from the circumstances, such as the method of its commission or its concealment. (Inre Paul C., supra, 221 Cal.App.3d 43, 52.) Here, the acts occurred at night, when the boys were alone together in appellants room. Appellant knew Anthony was unlikely to report what happened in the bedroom, because Anthony was trying to maintain secrecy about what he had done with Chris. Appellant minimized what he did to Anthony when he spoke with the police, as he said there were a total of two acts of consensual anal intercourse, and did not mention that he punched Anthony or used tape to tie up Anthonys wrists and ankles. The combination of these circumstances supports the inference that appellant knew the wrongfulness of his conduct.

3. The Incident Involving the Little Girl

Anthony testified that he belatedly decided to tell his grandmother what appellant did to him after he was in his bedroom with appellant and a two-year-old girl and he saw appellant put the little girl on his lap and move her toward his penis. Appellants counsel objected that the testimony about the little girl was irrelevant. The trial court admitted the evidence on the ground that it was relevant, as Anthonys credibility was at issue, and the incident helped to explain why he finally came forward with his complaint. Appellant maintains that the evidence was irrelevant and constituted inadmissible other act evidence. (Evid. Code,  1101.) The contention lacks merit as the evidence was properly admitted for the reasons stated by the trial court. Moreover, in light of Anthonys testimony about what appellant did to him, his testimony about the brief incident with the little girl can have caused no prejudice.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J. RUBIN, J.

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