P. v. Nguyen

Filed 10/11/07 P. v. Nguyen CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Defendant Phong Nguyen appeals from a judgment of conviction of seven counts of forcible lewd acts upon a minor (Pen. Code, 288, subd. (b)(1)),^[1]one count of mayhem ( 203), and sentencing enhancements based upon the fact that the forcible lewd act counts involved multiple victims ( 667.61, subd. (b), 667.6, subd. (d)).) He contends that the trial court erred because (1) it admitted hearsay statements of the two sexual abuse victims; and (2) it failed to give lesser included offense instructions with respect to the mayhem charge. We reject these arguments and affirm the conviction.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Victims

The victims in this case, Lily, Lee and Lina, are three of five children of M. L. Nguyen. Defendant lived with Lily, Lee and Linas mother, and is the father of M. L. Nguyens two youngest children, Tony and Lin. At the time of the trial, Lily was 14, Lee was 13 and Lina was 11.

Lily testified at defendants trial that he began to live with her mother when she was seven or eight years old. She called him Dad, and described him as her stepfather. Their relationship was fun, and defendant was sometimes funny, cool, and the best stepdad I ever had.

Lily testified that, when she was in the first grade, defendant hit her on the nose with his fist. When her teacher asked her what had happened, she lied and said she had fallen and hit her nose. She was afraid the teacher might do something, and she felt that Tony and Lin need a dad in their life. Appellant also hit Lily with a broom handle.

B. Forcible Lewd Acts Against Lily Doe

1. Uncharged Incident

In the only uncharged incident of sexual abuse Lily described, Lily testified that defendant molested her for the first time when she was eight years old. She could not remember the date. It occurred when Lily was in her room at night and her mother was out of the house. Defendant tried to pull down her pants and spread her legs. She was afraid he would do the same thing to someone else and that other people might get hurt.

2. Easter 2001 -- Count One

Lilys maternal aunt, M. T. Nguyen, testified that she bought Lily a pair of in-line skates on April 7, 2001. Lily testified that, on Easter day of 2001 (April 15), Lily went skating with her aunt, fell and broke her arm. Her arm was in a cast and, the week after she broke it, she stayed home.

Lily testified that, during the week she was at home, which was also a school vacation week, defendant came into her room while she was in bed. Lily pretended to be asleep, while defendant pulled down her pants and underpants. Lily was on her back and defendant was on the floor, at her feet. She tried to hold her legs together, but defendant would not let her. He took off his pants and put his private part into her vagina. It hurt a little and she was scared. She did not scream because she was afraid defendant might cover her mouth and then she would not be able to breathe. The incident lasted about five or ten minutes.

Lily testified that she was afraid defendant would do something else bad to her and that he might do something to her sisters. She did not tell anyone about what had happened. She was worried that if she told her mother, defendant might try to hit her or do something bad to her.

3. Thanksgiving 2001 -- Count Two

Lilys aunt, M. T., testified that she went with Lily to buy a turkey for Thanksgiving at Albertsons on November 14, 2001. Lily recalled going to her aunts house after buying the turkey, putting it in the freezer and then going home to pack her clothes to spend Thanksgiving week at her aunts house. Lily stayed at home that night and her mother was away at a friends house.

Lily testified that, while she was lying in the bed she shared with her sister, Lina, defendant came to the side of the bed where she was sleeping and pulled her pants down. He pulled his own pants down and circled the tip of his private part around the outside of her vagina. Then he put the tip of his private part inside her vagina. Lily testified that she tried to kick defendant but that he grabbed her legs and she was unable to stop him. She did not make any noise and Lina did not wake up.

Defendant removed his private part, put Lilys pants back on her, put on his own pants and left the room. Lily went to her aunts house the next day. She did not tell her aunt what had happened because she was afraid defendant might hurt her.

4. Tenth Birthday 2002 -- Count Three

Lilys aunt, M. T., testified that in January, for her tenth birthday, she took Lily to Lake Tahoe. They came back to Oakland on Friday, January 11, 2002.

Lily testified that the week after she came back from Lake Tahoe with her aunt, she was alone in her room, trying to take a nap. Her mother was out of the house and the other children were in her brother Lees room. Lily testified that when defendant came into her room, she was lying on her side. He stood at her feet and turned her onto her back. He removed her pants and then took off his own pants. Lily did not scream or resist but instead pretended to be asleep. Defendants private part touched her in and around her vagina and then defendant put the tip of it inside her vagina. He removed his private part, and without saying anything, pulled up her pants and his pants and walked out. Lily pretended to be asleep throughout the incident and did not tell anyone what had happened. She testified, as she had with the other incidents, that she was afraid defendant might do the same thing to someone else, and that she was afraid defendant would hurt her if she told someone.

5. Christmas 2002 -- Count Four

Lily testified that when she was ten, and in the third grade, she spent Christmas with her aunt Diane. She was in her bed, with her sister Lina who was asleep when defendant came in the room. Lily testified that her eyes were closed, that defendant took of her pants and then his own. She tried to resist by swinging her arm, but she missed defendant. She also tried to kick him, but he grabbed her legs. He put his private part into her vagina and it hurt. She tried to scream, but he covered her mouth with his hand. He did not speak to her, but eventually stopped, pulled up her pants and left.

6. M. L.s Trip to Vietnam -- Count Five

Both Lily and her mother, M. L., testified that when Lily was in the fifth grade, her mother went to Vietnam for a month. While her mother was away, Lily was in her room alone taking a nap. Defendant came into the room, stood at her feet, took off her pants and, holding Lilys ankles in one hand, took off his own pants with his other hand. He spread her legs apart, and put his private part in her vagina. It was painful inside, but Lily did not scream. Defendant pulled up his pants, pulled up Lilys pants and left the room.

7. Lina Testimony about Defendants Sexual Abuse of Lily

Lina, Lilys younger sister, testified that during a day a few years before defendants trial, during the day, she walked past the bedroom she shared with Lily. She saw Lily lying on the bed and defendant standing up. Defendant was wearing a shirt, but his pants were partly down. Lina ran to her brothers room. She did not saying anything to anyone, including Lily, about what she had seen. She explained that she did not, because I was very small. I didnt even know nothing.

Lina also testified that she thought Lily had told her about what had happened between her and defendant a long time ago, before the police came and got her, but she could not remember. Lina also testified that she did think Lily had told her what defendant had done to her, but she could not remember the details.

8. Lilys Conversation with her Mother About the Incidents

Lily testified that, when her mother returned from Vietnam, she told her mother in two languages, Vietnamese and English, what defendant had done to her. They were in the car, coming home from school and Lily was sitting in the front with her mother. Her younger siblings were in the back of the car and were not listening to their conversation. She told her mother because she was beginning to get scared that he might do it to Lina because Im growing up soon, and then Lina havent yet, so he might do that to her. She didnt want to get her stepfather in trouble, but she told her mother because I want him to hurt nobody else.

She told her mother that he been doing like the thing -- he was putting his private part in my vagina. She couldnt really pronounce these words in Vietnamese, so I turned to English. Her mother didnt say anything, did not get upset, and Lily could not tell whether her mother understood her. When she spoke to her mother, some of the words she used were English and some of the words were Vietnamese. She was not sure how much English her mother understood and testified on cross-examination that she thought that her mother did not understand what she told her. Lily also testified that she could have explained what had happened in Vietnamese.

Lilys mother, M. L., testified that Lily spoke to her about something bad that happened to her either in the car or in the house. M. L. did not remember for sure, but when she spoke to me, she spoke half in English, half Vietnamese. This confused M. L. She thought [Lily] was telling me something about [defendant] touching her, but at that time, my children were making a lot of noise, and then Lily was talking in half Vietnamese, half English, and then I was confused. I thought maybe -- maybe something else. Maybe something happened in school, and she was complaining about, you know, her classmate or roommate -- her classmate in school. M. L. did not follow up. However, M. L. testified that she had Lily stay with M. L.s sister, Diane, when M. L. next went to Vietnam. M. L. said that she made that decision because Lily had told her what was going on with defendant. M. L. also testified that [i]f I had known that what happen, like today I knew about it, then I would not let my children, you know, alone, and let somebody did something to them.

9. M. L.s Trip to Vietnam in 2004 -- Count Six

M. L. returned to Vietnam in 2004. At about 2:00 or 3:00 p.m. on March 5, 2004, while M. L. was away shopping, and Lily was at home lying down in her room, watching television, defendant came in Lilys room and picked her up. He threw or shoved her against the wall in the corner where her bed was. She hit her head and lay on her side.

He forced her onto her back, pulled her pants and his down, spread Lilys legs and put his private part in her vagina. It hurt. She was afraid defendant might do something else bad to her and that he might do something bad to someone else.

10. Lily Tells Her Aunt and the Police About the Molestations

After the March 5, 2004, molestation, M. L. went to Vietnam and Lily stayed at her Aunt Dianes house. While she was there, Lily took $66 that was lying on a table.

Diane believed Lily had stolen the money. Diane told her she might have to go either to juvenile hall or back to defendants house. Lily began to cry and told her not to send her to defendants house because she was afraid of him.

When the police arrived, Lily gave them a statement. Lily identified her signature at the bottom of a document she prepared with the officer. She described three incidents, rather than all seven because there was not enough time to talk about all of them. Lily and her siblings went to a foster home, and then to a different foster home. She was enrolled in a school in Patterson, but then moved to Stockton for the seventh grade. At the time of the trial, she was living in Oakland with her mother.

11. Officer Sena Testimony

Officer Sena, of the Oakland Police Department, testified that he spoke to Lily on May 3, 2004, at the direction of Diane, Lilys aunt. Sena told Lily that taking money from her family isnt the right thing to do. Lily sat quietly and listened to him. He turned to Lilys aunt and said, if you continue to have a problem with Lily, maybe we should return her to her fathers. Lily broke out into a near panic state, according to Sena. When asked whether Lily said anything else, Officer Sena testified, over defendants hearsay objection, that she didnt want to go back to live with her dad, because he does a bad thing to her. She told Sena he [defendant] tries to make a baby with her.

Sena asked Lily when this happened. Lily told him it was on the March 5, 2004. She stated she remembers this date because her mother had gone shopping for a trip to Vietnam that day. She stated that day, she was in her room, sleeping on the bed with her sister, Lina when her stepfather, Phong, came into the room. [] . . . [W]hile she was sleeping in the bed, lying on her back, Phong had taken off her pants, and her underwear. She said he also tried to move her onto her stomach, but she resisted him, and continued to pretend to be asleep. Lily also told Sena that defendant pushed her towards Lina while he was in the bed with her, and that he put his private part into her vagina.

Sena also testified that Lily told him there were three incidents that happened to her like this, but she only remembered slight details of another incident that she described to me, which she said occurred about a year prior. And she said she believed there was another incident, but she didnt have any details for that. Sena did not try to get any additional details because he is not real comfortable dealing with situations like [that], but I do know that I completed . . . a basic preliminary investigation in this incident . . . . He did not probe further than the questions and answers he described.

After taking a statement from Lily, Sena called the Youth Services Division. Sena was instructed to take Lily and her siblings into custody. He took Lily, and went to the elementary school where Lina and Lee were enrolled. He was vague with the children about why he was there. He took Lina and Lee to the assessment center. While on the way there, he did not hear them discussing what was happening.

At the assessment center, Sena spoke with Lina privately. Over defendants hearsay objection, Sena testified that he asked Lina if her father had touched her in any way, in a bad way. He testified that [s]he described an incident to me. She said it happened about a year ago, and she stated that she was at home with her father, when he came in and picked her up, and took her to his room. She stated that while she was on the bed, he unzipped his pants. She told me she didnt know if he was wearing underwear or not. He just unzipped his pants. She stated he then began or actually he took off her or pulled down her pants or underwear, down to her knees, and used his left hand, and started feeling her chest. She stated that he did this for about five seconds, and then told her to go. She said that she got dressed, and then left.

12. Dr. Crawford -- Medical Examination of Lily

Dr. Crawford, the medical director of the Center for Child Protection at Childrens Hospital in Oakland, testified as an expert in pediatrics and the medical evaluation of child abuse and neglect. He testified about his review of Lilys medical history and the records of a medical exam performed on Lily on May 13, 2004.

Dr. Crawford testified that Lilys genitalia were unremarkable and that she was a healthy 12-year-old girl who appeared to be almost through puberty. He testified that these findings did not prove or disprove sexual abuse. Physical injuries to a childs genitals heal very quickly, and the likelihood of observable physical injury due to repeated genital to genital contact decreases over time, he said. Based on the records of the examination, Dr. Crawford was unable to form an opinion about whether Lily had had any sexual contact. He testified that there are cases where sexual abuse has occurred, without any remarkable physical findings. The presence of physical findings depends on the nature of the abuse, its timing and the context.

C. Forcible Lewd Acts against Lina Doe

1. Third Grade -- Count Seven

Lina testified that when she was in the third grade, during a time when her mother was in Vietnam, defendant came in her room, and woke her up. Her sister Lily was not there because she was at their grandfathers house.

Lina was sleeping in the bed she shared with Lily. Defendant told her to go to his room and then picked her up. Lina was afraid and began to wiggle around. Defendant put Lina in the bed in his room and Lina fell asleep. Defendant lay down on the bed. Lina was on her side and defendant was behind her. There was no one else in the room. Lina described defendant as wearing clothes, but his bottom part as uncovered. Defendant pulled her pants down, touched her bottom part, or pee-pee part with his bottom part, which Lina spelled as his d-i-c-k.

Lina testified that defendant moved his bottom part around on the outside of her pee-pee part for a few minutes. It did not touch the inside. It hurt. Defendant also touched Lina on the middle of her chest with his hand. He moved his hand toward one side of her chest and then to the other. Lina told defendant to stop because it was hurting. He stopped, and told Lina to get up. Defendant pulled up Linas pants and she ran back to her own room.

Defendant told Lina not to tell anyone about what had happened and Lina did not. She was afraid she would be in trouble if she did.

Lina did, however, tell the officer who came to her school and picked her up. He was the first person she told. Lina testified that she and her brother and sister did not know why they were in the police car. The officer took them to a place where they watched television and she also went into a room with him and talked to him.

2. Officer Senas Interview of Lina

Officer Sena brought Lina, Lily and their brother Lee to the Hayward Assessment Center. He spoke to Lina in a separate room, outside the presence of the other children. Over defendants hearsay objection, he asked her if her father had ever touched her in a bad way. Sena testified that, She described an incident to me. She said it happened about a year ago, and she stated that she was at home with her father, when he came in and picked her up, and took her to his room. She stated that while she was on the bed, he unzipped his pants. She told me she didnt know if he was wearing underwear or not. He just unzipped his pants. She stated he then began -- or actually, he took off her -- or pulled down her pants -- or underwear, down to her knees, and used his left hand, and started feeling her chest. She stated that he did this for about five seconds, and then told her to go. She said that she got dressed, and then left.

3. Dr. Crawford -- Medical Examination of Lina

Dr. Crawford testified that he reviewed the records of a medical examination of Lina on May 13, 2004. Dr. Crawford stated that he could not form an opinion, based on these records, of whether Lina had had any sexual contact.

D. Mayhem Against Lee Doe

1. Second Grade Broken Leg -- Count Eight

At the time of defendants trial, Lee was thirteen years old. He testified that a long time before the trial, possibly when he was in the second grade, his leg was broken. When it happened, he was with his mother and sisters, defendant, and defendants parents at defendants parents house in Oakland. It was night.

Lee and his sisters were all in one bed in a bedroom apart from the adults. They were supposed to be going to sleep. They were noisy and defendant came into the bedroom. Defendant was angry, and picked Lee up by his arm and a leg and threw him against the wall.

Lees leg was numb and he could not walk or stand up. Defendants father put some medicine on the leg and defendants mother called an ambulance. The ambulance took Lee to the hospital. Lees mother also went to the hospital. Lees mother was not in the bedroom when defendant hurt Lee, but she told Lee not to tell anyone that defendant had done this.

Lee was in the hospital for a long time. He had a cast on his leg for weeks and when the cast came off he could not walk right away but had to use crutches.

The doctors put metal in his leg and there were two scars on his leg after his stay in the hospital. The leg bothers Lee only when he runs more than a mile. Lee did not talk to anyone about defendant breaking his leg because he did not want to remember it.

2. M. L. Testimony

M. L. testified that when Lee was six years old, his leg was broken while they were visiting defendants parents at their house. M. L. did not see what happened, but heard defendant scold the children for making noise. She heard a sound like defendant had thrown Lee against a wall. M. L. heard Lee say his leg was broken and hurting. When she went in the room, Lee complained about the pain and said he could not walk. M. L. asked Lee why his leg was broken, and he told her that defendant had been holding him and had thrown him against the wall. M. L. called an ambulance.

M. L. testified that she told Lee not to tell anyone what had happened and to instead say that he had fallen and broken his leg. She did this because she was afraid that somebody would revenge and hurt at me and my children. Therefore, I have to ask him to lie. She was afraid that something would happen again. Although she did not want anything to happen to her family, M. L. wanted her five children to have a father, and defendant was better than no father.

3. Linas Testimony

Lina testified that she remembered when Lee was hurt at defendants parents house in Oakland. She knew she was supposed to be asleep but she was talking to Lee. She, Lee and Lily were all in the bed in the corner of the room when defendant entered the bedroom. He was angry. Lina stayed under the sheet, pretending to be asleep. Lee also pretended to be asleep. Lina did not see what happened but she thought that defendant grabbed Lee by his hand and leg and threw Lee against the wall. After he hit the wall, Lee landed on the floor.

4. Dr. Crawfords Testimony

Dr. Crawford testified that he reviewed Lees medical records. The injury to his leg was a very serious fracture to his femur, the largest long bone in the human body. The injury was an unstable fracture, in which two parts of the bone could move about, and sharp jagged edges would cut into soft tissue and grind into each other. Any movement of the leg would be very painful. For the average person, the injury would be excruciating and incredibly painful. Dr. Crawford testified that that when Lee arrived at the hospital, his leg would have been deformed, swollen, angulated and shorter.

On cross-examination, Dr. Crawford acknowledged that no report of child abuse was made when Lee came into the emergency room. He also testified that the injury to Lees leg was also consistent with the explanation given to the emergency room personnel -- that Lee had fallen from the bed to the floor while playing.

From looking at Lees medical records, Dr. Crawford could not say definitively, whether he had been thrown against a wall or had fallen off the bed, although he was of the opinion that simply falling would not typically result in the sort of injury Lee sustained.

E.Defense Case

1.Defendants Father

Defendants father testified that the adults were all in the living room of his house when Lees leg was broken, and the children were in the bedroom together playing and watching television. The adults heard Lee crying and went into the bedroom. Defendant went in the bedroom first. When defendants father went in, he saw that Lee as on the floor, hurt and unable to stand. Defendants father called 911, an ambulance arrived and Lee and defendant went to the hospital. Lees mother did not.

2.Defendant

Defendant testified that he had never physically molested or tried to have sex with either Lily or Lina. He thought the children were lying because he taught them that he hates stealing, and that if any of them were to steal something, he would hit them and kick them out of the house. Defendant did not know why Lily or Lina would lie to the police about Lees leg having been broken by defendant.

Defendant also denied throwing Lee at the wall or causing Lees broken leg. Defendant stated that he was in the living room at his parents house when he heard the children jumping around in the other room. He heard Lee cry. He was not in the same room as Lee when Lee was injured.

Defendant testified that he went into the room after Lee was injured and his parents followed him. He called the ambulance and followed it to the hospital. He could not remember if Lees mother went to the hospital, but he filled out the paperwork.

Defendant stated that he had never told the police that his wifes friends told the children to falsely accuse him because they were jealous of him because of his standard of living.

Defendant was arrested on May 24, 2004. He spoke to the police that day for the only time. He testified that he told the police he had gone into the room where the children were because they were making noise. He denied telling the police that he had picked up a stick before going in the room. Instead, he told the police, in Vietnamese, that he had picked up a chopstick before going in the room. Defendant stated that the police officer to whom he spoke did not speak Vietnamese very well and so believed he had used the word stick rather than chopstick.

Defendant denied having told the police that he had been yelling at Lee, that Lee saw him pick up a stick, became afraid and tried to jump away from appellant from one bed to another, and while doing this broke his leg. Defendant conceded later it was possible he gave the police this explanation for Lees injury.

Defendant testified that he never hit the children. He denied having told the police that he had stopped hitting the children three years before he was arrested and that he stopped because he did not like the way it looked. Defendant also testified that he did not remember telling the police that he was concerned about how others might see a stepfather torturing the stepchildren. He had not hit the children since 1997 and only yelled at them.

F.Officer Huy Nguyen

Officer Nguyen, an Oakland Police Officer, testified that her first language is Vietnamese and she speaks it fluently, having been born there and arriving in the United States when she was eleven years old.

Nguyen translated the interview of defendant conducted on May 24, 2004. She testified that although not everything defendant said could be translated from Vietnamese to English, she understood everything defendant said and he appeared to understand everything she said.

Nguyen testified that defendant stated that Lees leg was injured after he entered the bedroom with a stick in his hand. Defendant told them that Lee was afraid because defendant had a stick and Lee jumped from one bed to another and, in doing so, fell and broke his leg.

Nguyen testified that she is aware of the difference between a stick and a chopstick, that the two words are different in Vietnamese and she is familiar with both. Nguyen testified that defendant used the Vietnamese word for stick not for chopstick.

During the interview, defendant stated that Lily and Lina would lie. He did not say the same thing about Lee. Nguyen testified that defendant stated that Lily and Lina had been instructed by their mothers friends to lie because the friends were jealous of the familys lifestyle and happiness. Defendant was unable, however, during the interview to identify these friends.

Defendant said during the interview that he was the primary disciplinarian in the family. He was the person who actually hit the children, but he stopped doing so about three years earlier and allowed his wife to take on this role. He did this because he was tired of telling the children what to do when they would not listen. He also stated that he did not want his wifes friends to see him as a stepfather who tortured his stepchildren.

The jury convicted defendant on all counts. The parties stipulated that the jury had found defendant committed the offenses against more than one victim within the meaning of section 667.61, subdivision (e)(5).

Defendant was sentenced to an aggregate term of 34 years to life. This timely appeal followed.

III.DISCUSSION

A. Officer Senas Testimony

Defendant argues that the testimony of Officer Sena, in which he recounted Lily and Lenas statements to him about the incidents of abuse by defendant, was inadmissible hearsay and the trial court committed prejudicial error by admitting it.^[2]Although we conclude Lily and Lenas statements to Sena were inadmissible under any of the theories put forward by the People, the admission of Senas testimony regarding their statements to him was not prejudicial error.

The People first contend that Senas testimony was not hearsay and admissible under the fresh complaint doctrine. Under the fresh complaint doctrine, as articulated in People v. Brown (1994) 8 Cal.4th 746, 749- 750 (Brown)^[3], proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose--namely, to establish the fact of, and the circumstances surrounding, the victims disclosure of the assault to others-- whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of facts determination as to whether the offense occurred. Under . . . generally applicable evidentiary rules, the timing of a complaint (e.g., whether it was made promptly after the incident or, rather, at a later date) and the circumstances under which it was made (e.g., whether it was volunteered spontaneously or, instead, was made only in response to the inquiry of another person) are not necessarily determinative of the admissibility of evidence of the complaint. Thus, the freshness of a complaint, and the volunteered nature of the complaint, should not be viewed as essential prerequisites to the admissibility of such evidence.

We apply an abuse of discretion standard of review to the trial courts decision to admit evidence over a hearsay objection. (People v. Alvarez (1996) 14 Cal.4th 155, 203.) One essential requirement of the fresh complaint doctrine is that testimony regarding the complaint must be limited to only those details that are necessary to establish the fact of the complaint and the circumstances of its disclosure. (Brown, supra, 8 Cal.4th at p. 760.) Thus, in Brown, the court held that such testimony must be limited to the timing of [the victims] complaint and the circumstances under which it was made, omitting the content of the statements and specifically any description of the molestation itself. (Brown, supra, 8 Cal.4th at p. 764.) Similarly, in People v. Burton (1961) 55 Cal.2d 328 (Burton), the court made clear that the testimony should be limited to that which shows that the victims complaint related to the matter being inquired into, and not a complaint wholly foreign to the subject [citation]; that is, the alleged victim's statement of the nature of the offense and the identity of the asserted offender, without details, is proper. (Id. at p. 351, italics omitted.) Here, Senas testimony regarding the statements made by Lily and Lina went well beyond this permissible level of detail and, accordingly, its admission under the fresh complaint doctrine was error.

The People also contend that Senas testimony was admissible under Evidence Code section 1240, which codifies the common law exception to the hearsay rule for spontaneous declarations. This section provides that [e]vidence 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. (People v. Poggi (1988) 45 Cal.3d 306, 318.) The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . the mental state of the speaker. The nature of the utterance--how long it was made after the startling incident and whether the speaker blurted it out, for example--may be important, but solely as an indicator of the mental state of the declarant. (People v. Raley (1992) 2 Cal.4th 870, 892-893.)

Senas testimony was not admissible under Evidence Code section 1240 because Lily and Lenas statements about defendants molestation of them were not spontaneously declarations that relate to the circumstance of the occurrence preceding it. (People v. Poggi, supra, 45 Cal.3d at p. 318.) The disclosures of defendants actions by Lily and Lina came well after the actions occurred. At best, Lily disclosed this information to Sena under the stress of excitement from the possibility that she might be taken home from her aunts house. Lilys fear of the consequences of this return does not make her statements regarding the abuse spontaneous declarations. Nor is there any evidence that Lenas statements were spontaneous declarations following defendants abuse of her.

Finally, the People contend that Senas testimony was admissible because Lilys statements fell under the hearsay exception for statements of a declarants then-existing state of mind or emotion under Evidence Code section 1250. Evidence of a statement of the declarants then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is admissible when (1) The evidence is offered to prove the declarants state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or (2) The evidence is offered to prove or explain acts or conduct of the declarant. (Evid. Code 1250, subd. (a).) Lilys statements to Officer Sena were not statements of her existing state of mind, emotion, or physical sensation. They were recollections of past events and are, therefore, not admissible under Evidence Code section 1250.

As to Lena, the People contend that Lenas statements about the abuse were admissible under section 1360, which provides that in a criminal prosecution in which 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 (as defined in Evidence Code section 1360, subdivision (c) ) performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule. (Evid. Code, 1360 , subd. (a).) However, in order to be admissible under this section, the code requires that a hearing be held outside the presence of the jury in which the court finds that the time, content, and circumstances of the statement indicate reliability. (Ibid.) Moreover, the proponent of the statement is required to make known to the adverse party the intention to offer the statement and the particulars of the statement far enough in advance to provide the adverse party with a fair opportunity to prepare to meet the statement. (Evid. Code 1360, subd. (b), People v. Brodit (1998) 61 Cal.App.4th 1312, 1329-1330.) Nothing in the record indicates that defendant was given such advance notice, nor did the trial court make any of the required findings. Accordingly, Lenas testimony was not admissible under section 1360.

Nonetheless, we conclude that the courts error in admitting this testimony did not prejudice defendant. After examining the entire record, we are confident that it is not reasonably probable that a result more favorable to defendant would have been reached had this testimony been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Lily testified at trial. Her statements about the abuse were far more detailed and extensive than those to which Sena testified. (Sena testified that Lily described only three incidents to him.) Senas testimony, therefore, was cumulative of Lilys sworn testimony, which, under cross-examination, did not deviate from her statements on direct examination.

Further, the evidence of defendants guilt was overwhelming. Lilys account of the abuse was corroborated by her sister, Lina, who testified that she witnessed defendant standing in front of Lily with his pants down, and by her mother, who testified that Lily did make an effort, albeit a slightly confused one, to tell her about what was happening. Defendants denial that he had injured any of the three children was simply not believable. Moreover, as the People point out, the jury convicted defendant on all the charged counts, not simply the three Lily recounted to Sena. From this it is reasonable to infer that the jury found Lily and Lenas in-court testimony believable regardless of Senas far briefer account of what they told him.

B. Mayhem -- Lesser Included Offenses

The jury convicted defendant of mayhem ( 203). Defendant argues that the trial court erred because it did not, sua sponte, instruct the jury on the lesser included offenses of assault ( 240), battery ( 242), and battery with serious bodily injury ( 243, subd. (d). We disagree.

The trial court was required to instruct the jury on lesser offenses that are both included within mayhem and supported by the evidence. (People v. Barton (1995) 12 Cal.4th 186, 190, 194-195 (Barton).) [T]he existence of any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. [Citations .] Substantial evidence in this context is evidence from which a jury composed of reasonable [persons] could . . . conclude[ ] that the lesser offense, but not the greater, was committed. [Citations.] [] In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.] (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman ); Barton, supra, 12 Cal.4th at pp. 190, 201 & fn. 8.)

Although the People argue at length that the elements of battery and assault are not lesser included offenses of mayhem, an argument that is called into question by People v. Ausbie (2004) 123 Cal.App.4th 855, 860 fn. 2, disapproved on other grounds in People v.Reed (2006) 38 Cal.4th 1224, 1228 [simple assault and simple battery are lesser included offenses of mayhem] and People v. De Angelis (1979) 97 Cal.App.3d 837, 841 [assault is a lesser included offense of mayhem]), we need not decide this question because the trial court had no sua sponte duty to instruct on these offenses.

Defendant contends that the evidence before the jury supported theories of assault and battery, because the question of whether the injury Lee sustained was permanently disfiguring or disabling so as to be support a mayhem conviction was hotly contested. In making this argument, defendant ignores the uncontroverted evidence that, when Lee arrived at the emergency room, it was clear simply from looking at his leg that, as a result of defendants actions, it was the wrong shape due to the excruciating injury of an unstable fracture in which two parts of the bone separated by the fracture are free to move any way they want, if the extremity is moved. In addition to being the wrong shape, the leg was also a little bit shorter. If left untreated, the leg would heal in an abnormal motion, possibly with some long-term problems, both cosmetically as well as functionally, for the leg. In addition, the reconstruction of the leg caused two scars on Lees leg.

Mayhem must be found when a person unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless . . . . ( 203.) Here, the evidence was clear that the injury to Lees leg was disabling and disfiguring.

We reject defendants argument that, in determining whether to convict him of mayhem, the jury was required to disregard the evidence of Lees injury at the time Lee was taken to the hospital, and to consider only the injury after it had been surgically healed. We have long held that the possibility that a disabling or disfiguring injury may be medically alleviated is insufficient to alleviate the offense. (People v. Keenan (1991) 227 Cal.App.3d 26, 36, fn. 6; see also People v. Hill (1994) 23 Cal.App.4th 1566, 1572.) As we explained in Hill, were we to accept the contrary argument, a defendant who inflicts a serious injury that ordinarily would support a conviction for mayhem may avoid punishment for that offense if extraordinary medical efforts might, in the future, mitigate the disfigurement. Such a result would undermine the Legislatures intention to punish intentional disfigurement more severely than a simple assault causing relatively minor injuries and conflict with our communal sense that one should be held responsible for the natural consequences of his or her acts. [] Moreover, if evidence of medical alleviation were permitted to be used as appellant suggests, culpability might vary depending on the quality of the medical care available to the victim. It would thus be possible for two individuals to receive inconsistent verdicts and punishments for the very same acts simply because the victim of one could obtain superior medical care. We decline appellants invitation to endorse such a result and consequently reject his contention that evidence of medical alleviation may be used in a mayhem trial to prove an injury, permanent by its nature, may be corrected by medical procedures. (Id. at p. 1574.)

We held, therefore, that in a prosecution for mayhem, the word permanent can no longer be applied in its literal sense since medical technology is increasingly capable of effective cosmetic repair of injuries that would otherwise be permanently disfiguring. Advances in medical technology do not, however, in any way diminish the culpability of one who intentionally disfigures another. (People v. Hill, supra, 23 Cal.App.4th at p. 1574.)

Given the uncontradicted evidence of Lees disfiguring and disabling injury, and the alternative theory that defendant was not in the room and the injury was accidental, any finding that defendant was guilty of the lesser included offenses would by necessity have included a finding of guilt of the charged offense. The trial court, therefore, did not err in failing to instruct the jury sua sponte on the lesser included offenses of assault or battery. (Breverman, supra, 19 Cal.4th at p. 162.)

As for defendants argument that the court should have instructed on battery with serious bodily injury, although the injury to Lees leg would certainly be considered serious bodily injury, the court was only required to give this instruction if a jury composed of reasonable persons could have convicted defendant of the lesser offense (battery with serious bodily injury) and not the greater offense (mayhem). (Breverman, supra, 19 Cal.4th at p. 162.) Here, the evidence of the disabling and disfiguring nature of the injury was not in dispute. Had the jury found battery with serious bodily injury, it would necessarily have also found guilt of mayhem. In that circumstance, no sua sponte instruction was required.

Moreover, even if the failure to so instruct was error, the error does not warrant reversal. The failure to instruct on a lesser included offense is reversible error if and only if it is reasonably probable that the defendant would have obtained a more favorable result absent the error. (Breverman, supra, 19 Cal.4th at pp. 177-178.) Although the evidence may be legally sufficient to support an instruction on a lesser included offense, the relative weight of the evidence may compel the conclusion that there is no reasonable probability that the failure to instruct affected the result. (Id. at p. 177.) This court focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. (Ibid.) Here, the evidence available to the jury supported either a mayhem conviction or an acquittal and, in that context, there is no reasonable probability that the jury would have arrived at a result more favorable to the defendant even had the court instructed on assault, battery and battery with serious bodily injury.

IV. DISPOSITION

The judgment of conviction is affirmed.

_________________________

Haerle, Acting P.J.

We concur:

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Lambden, J.

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Richman, J.

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^[1]All further statutory references are to the Penal Code, unless otherwise noted.

^[2]Counsel did not argue the hearsay objection or request any sort of limiting instruction regarding it and nothing in the record indicates the trial courts rationale for admitting the testimony, hence the multiplicity of theories advanced by the People to explain its admission.

^[3]The People do not, in their briefing on the fresh complaint doctrine discuss Brown, despite the fact that it is our Supreme Courts most recent discussion of the fresh complaint doctrine and one which articulates the modern rationale for admitting such testimony and the standards under which such testimony may be admitted.