P. v. Diaz

Filed 4/19/07 P. v. Diaz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Mark Anthony Diaz appeals from a judgment of conviction of continuous sexual abuse of a child under 14 (Pen. Code,  288.5, subd. (a))[1] (count one) and child endangerment ( 273a, subd. (b)) (count four). ( 1237, subd. (a).) The jury also found true two special allegations alleged as to count one. ( 1203.066, subds. (a)(1) and (a)(8).) The crimes occurred while defendant was babysitting L., the minor victim, in her home.

On appeal, defendant raises claims of insufficiency of the evidence as to count one, instructional error as to the allegation under section 1203.066, subdivision (a)(1), error in denying a motion for mistrial, and ineffective assistance of counsel. In addition, defendant asks this court to review a sealed record to determine whether it contains any relevant, non-privileged information that should have been turned over to the defense.

A. Procedural History

On December 9, 2004, an information was filed against defendant Diaz. It alleged four counts: continuous sexual abuse of a child under 14 ( 288.5, subd. (a)) (count one); two forcible lewd or lascivious acts ( 288, subd. (b)(1)) (counts two and three), and child endangerment ( 273a, subd. (b)) (count four). The information also included, as to counts one through three, special allegations under section 1203.066, subdivisions (a)(1) (commission by use of force, violence, duress, menace, or fear) and (a)(8) (substantial sexual conduct with victim under 14 years of age) pertaining to probation ineligibility.

During trial, defense counsel moved for a mistrial after a police officer, testifying on behalf of the prosecution, indicated that he had interviewed defendant. The court denied the motion.

Following a jury trial, defendant was found guilty of counts one and four.[2] The jury also found true, as to count one, the allegations pursuant to section 1203.066, subdivisions (a)(1) and (a)(8). The trial court imposed a sentence of 16 years on count one and a concurrent term of 89 days on count four. It imposed a restitution fine of $3200 ( 1202.4) and a parole revocation restitution fine of $3200 suspended ( 1202.45).

B. Evidence

Beginning in about April or May 2003, defendant, who was a paternal second cousin to L., began babysitting her approximately three to four days a week from about noon to 5:00 p.m. Her mother and father both worked full-time and they had lost their subsidized day care. The father started work at about 12:00 p.m. L.'s brother got out of school at 2:45 p.m.

Rosie Perez, defendant's younger sister, watched L. for about two months before Perez had a baby in September 2003. Defendant did not babysit L. during this period of time. When L. started kindergarten in late August 2003, defendant sometimes picked her up from school at 11:30 a.m. and then brought her home to her family's apartment and watched her there. There were a few times that L. did not want to go with defendant after school and defendant called the parents at their work to pick up L. from school. L. told her mother "she hated Marky" and "[s]he was always calling him names."

On February 17, 2004, about a month after defendant had stopped babysitting L., James Reed, another paternal cousin, was taking care of L. at her home. L.'s mother, who was not feeling well, was sleeping in the bedroom and her father was at work. Reed and L. were sitting together on the living room couch watching TV when L. put her hand on his knee and started to slide her hand up his thigh toward his crotch. James grabbed her hand, said "no," and told her, " 'You only put your hand on cousin Jimmy's knee." L. told Reed that she could make him feel good and that she had done that to "Big Mark," meaning her paternal cousin Mark, whom James identified as defendant. L. said that cousin Mark would close the blinds so no one could see in and she would make him feel good all the time. She said she touched cousin Mark between the legs and he would touch her between her legs and make her feel good. She whispered that cousin Mark told her not tell anybody. She told Reed, " 'If you want I'll touch you too.' "

Reed recalled that L. had spoken in a normal voice at first but then had whispered in his ear. Reed did not ask any questions and let L. say whatever she wanted to say. Reed tried to indicate to L. that such touching was not okay. He then woke up L.'s mother and told the mother that he had to "do something real quick" and he would "be right back." Reed, who was feeling scared, confused, and shocked, went to another unit in the same apartment complex, where he spoke with his aunt (defendant's mother) and his cousin Rosie (defendant's younger sister). His aunt told him to call the police.

Reed returned and spoke with L.'s mother in the mother's bedroom and told her in general what L. had said, but did not go into detail. The mother called the police. When he spoke to a police officer, Reed did not go into the details because others were within hearing distance and he was having a difficult time talking about what happened. He and defendant had "always been very close their whole lives." Reed finally revealed everything L. had said at the preliminary hearing.

Rosie Perez testified that after Reed had told her what happened with L., she went to L.'s apartment later that day and tried to speak to L. in her bedroom. Perez asked L. if she could tell Perez what she had told cousin Jimmy and L. said, "No." They played together for a few minutes and then Perez asked again whether L. "wanted to talk about what she had told Cousin Jimmy." Again, L. said, "No." After playing with toys together a while longer, Perez asked L. if she was ready to tell her what she had told cousin Jimmy. L. said, "Okay," but stayed real quiet. Perez asked, " 'Can you tell me?' " While looking down, L. "said really low, 'Mark touched me[.]' " Perez did not ask anything else.

San Jose Police Officer Pete Lovecchio testified that he responded to a call and spoke with the victim and her mother on February 17, 2004. The mother told Officer Lovecchio that, whenever defendant had been mentioned during the last few months, her daughter had become "noticeably irritated" and had said "she did not like him because he was mean."

Officer Lovecchio interviewed L. in her bedroom in the presence of her Aunt Sarah. The officer questioned L. and ascertained that she understood the difference between telling the truth and lying. While asking "non-pertinent questions" L. was "very relaxed and playful" but "her demeanor changed very noticeably" when talking about her cousin Mark. She became fidgety and lowered her voice, looked away or moved closer to her aunt or grasped her aunt's hand and her mood became "very serious, somber."

L. told the officer that her cousin Mark was the cousin who picked her up from school and said that he was mean to her. When asked whether cousin Mark ever touched her, she initially replied, no." When asked again after being reassured by the officer that she would not get into trouble for telling the truth, she indicated that cousin Mark had touched her. When asked where defendant had touched her, she pointed to her groin. Officer Lovecchio asked her to show him on the Pooh Bear where she had been touched and "[s]he pointed to the area in between the legs of the bear at the bottom of the torso." She indicated that she had told defendant that "mommy doesn't like that" and defendant had responded, "I don't care." She said she had pushed his hand away. At various times, Officer Lovecchio tried to ask how many times the touching had occurred. One time she paused and then answered, "only once."

Later in the interview with Officer Lovecchio, L. indicated that defendant had become very mad and yelled at her on three or four occasions. He had once "grabbed her by her hair and dragged her to her room" and yelled at her to clean it up. On either that occasion or another, he struck her, causing her nose to bleed.

The next day L.'s mother asked her what defendant had done to her. L. said that defendant had touched her and pointed to her vagina. L. also told her mother that defendant had hit her.

San Jose Police Officer Alex Nguyen interviewed L. at her home on February 23, 2004 and again at the Children's Interview Center on February 24, 2004. During the initial conversation, L. identified, on diagrams of a little girl and a boy, the body parts that she called their "business." The officer asked L. whether anyone had ever done anything to hurt her. She answered, "Markie [sic]." The officer asked, "what did he do?" L. answered, "he zipped his pants." When the officer asked her to tell him what happened, she stated, "He takes his business out." She said, "He need to . . . put it in my mouth and . . . he closed the blinds." She indicated that had happened "like one time" in the living room of her mom's house and she did not like it. When asked if anyone ever touched her on her business, she replied, "Markie [sic]." She told the officer that she had said to defendant that her "mom doesn't like" and she had shoved his hand off. When the officer subsequently asked whether it happened one day or many days, L. answered, "Many days."

During the second interview, L. indicated that she was in kindergarten and her brother was in second grade. After ascertaining that L. understood the difference between telling the truth and telling a lie, Officer Nguyen had L. identify body parts. The officer used drawings of a little girl and a little boy. L. indicated that the "business" on a girl and on a boy is used to go to the bathroom. When the officer asked L. to show him on the diagrams where defendant had touched her, she pointed to the area she called her "business" on the front of the little girl diagram and she pointed to and circled the buttocks on the back of the little girl diagram.

L. indicated through questioning by Officer Nguyen that "Marky" had touched her on her "business" with his hand and it had happened "many days." The touching had occurred while they were sitting on the living room couch. L. recalled that defendant told her to go lock the door and close the blinds and, when she did not do as she was told, he closed the blinds and locked the door. He then touched her "business" over her clothes and told her not to tell anybody. When asked if he touched her business on any other day, she replied, "this one time." She said Marky also showed her "his business" and told her to touch his "business" but she did not. "[H]e zipped it back up 'cause . . . he heard my mom and dad . . . coming up the stairs." L. indicated that, on the same day, he also touched her "butt" over her clothes with his hand. She indicated that they were in the living room watching cartoons.

Officer Nguyen testified that, at the time of the interviews, L. was about five years old, four feet tall, and 80 pounds. Officer Nguyen interviewed defendant in March 2004. The officer stated that defendant was approximately 37 years old, 5 feet 6 inches tall, and a little less than 210 pounds.

On November 9, 2004, before the preliminary hearing, the mother spoke with L. The mother told L. that they were going to court and asked if L. needed to tell her something. L. said, "Marky put his privacy in her pee-pee." L., who was crying, also told her mother that "she didn't want to tell [her mother] because she was scared" and she thought her mother was mad at her. Her mother reassured L. that she was not mad and hugged her.

According to Officer Nguyen, L. had testified at the preliminary hearing that defendant touched "her private place," referring to her vaginal area, with his hand. She had stated that defendant showed his private to her. She had further indicated that defendant touched her "private" with his "private" five different times. Officer Nguyen recalled that L. had said she had been touched on one day but, at another point, L. had said she had been touched on many days. He remembered that, at one point, L. had testified that she had been touched over her clothes but, at another point, L. had testified that she had been touched under her clothes. The officer confirmed that L. had trouble counting past the number five.

Mary Ritter, a registered nurse and children sexual assault response team coordinator examined L. on November 18, 2004 and found no evidence of penetrating genital trauma. This finding did not rule out the possibility of the alleged sexual contact.

At trial, L., then six years old, indicated that defendant, whom she identified in the courtroom, had touched her in a way she did not like with his hands. When asked to show where he touched her, she pointed between the legs of a teddy bear. She confirmed that he touched her between her legs with her clothes on and underneath her clothes. This touching occurred at her home on the living room couch. At first, she indicated this touching happened only one time. But when subsequently asked whether defendant touched her between her legs with his hand on different days, L. answered, "yes." She stated that it happened "[o]n every single day." When asked if defendant touched her every time he babysat her, L. replied, "Yes." When asked if defendant had ever closed the blinds before touching her "private place with his hand," she answered, "Yes." When asked if defendant had locked the door when he touched her private place with his hands, she answered, "Yes."

She confirmed that defendant had pulled her hair while babysitting her. On another day, he had once hit her nose, causing it to bleed, and she "got scared." L. denied, however, that defendant showed his private place to her or touched her with his "private place" or "put his private place" on her "private place."

On cross-examination, L. was asked how many times defendant touched her private area on the couch. She replied, "When he baby-sitted [sic] me." She was then asked, "How many times?" She replied, "One." She was then asked whether defendant touched her private area one time on the couch and she answered, "Yes." She indicated that defendant was sitting next to her on the couch when he touched her. After some other questions, defense counsel inquired, "Did Markey [sic] touch your private on more than one day?" She replied, "No." She also confirmed on cross-examination that she was punched in the nose one time.

Recordings of Officer Nguyen's two interviews of L., the first an audio recording and the second a DVD, were played for the jury.

Carl Lewis, a criminal investigator for the District Attorney's Office, testified regarding child sexual abuse accommodation syndrome. He described the syndrome as a group of common features of child abuse, namely secrecy, helplessness, accommodation to a situation in which the child is trapped, disclosure that is delayed, conflicted, and unconvincing, and retraction. He explained that a child may disclose child abuse little by little in order to gauge adult reaction.

A school psychologist who had conducted assessments of L. testified that testing in kindergarten had indicated a weakness in short term memory but her long term memory was shown to be within average range. Further testing was conducted in first grade. The psychologist concluded, based upon her training and experience, the victim was within the average range for IQ. But the psychologist determined that the victim was very weak in the area of auditory processing of information, which meant she had a visual as opposed to auditory learning style. While the victim experienced difficulty following multi-step oral directions, the victim could still "learn very well." She clarified that "[g]rasping the concept of the difference between the truth and a lie" involved long-term memory.

The resource teacher at the elementary school attended by the victim testified regarding academic achievement tests administered to the victim. She tested in the average range for her age in broad reading, broad math, and broad written language. In first grade, her test scores were lower. In the teacher's opinion, L. had great difficulty understanding abstract math concepts. She was able to distinguish between quantities of five or fewer but demonstrated difficulties with quantities greater than five. The teacher, based upon her training and experience, also determined that L. has a learning disability in auditory processing. This does not mean that "she cannot remember something that personally happened to her." L. qualified for the Resource Specialist Program and eventually moved to a special day class at another school.

C. Sufficiency of the Evidence to Prove Continuous Sexual Abuse of a Child

Defendant contends that "[L.]'s testimony was too generic to support a conviction under section 288.5 because there was no evidence from which a reasonable trier of fact could conclude that three or more months passed between the first and the last alleged act of molestation." Section 288.5, subdivision (a), which defines the crime of continuous sexual abuse of a child, provides in pertinent part: "Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in . . . three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child . . . ." He maintains that "[t]here is no evidence, not even any generic time reference, as to when the acts allegedly occurred" and "it is pure speculation to conclude that three or more months passed between the first and the last act of molestation." He also asserts that "[L.]'s testimony, that defendant touched her every time he babysat her, is so grossly inconsistent with all of [L.]'s prior statements that this testimony is incredible and does not rise to the level of substantial evidence."

The People counter that the testimony of L.'s mother establishing the time frame during which defendant babysat her daughter together with L.'s testimony that defendant touched her every time he babysat provides sufficient evidence to satisfy the time element of the offense. We agree.

"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Barnes (1986) 42 Cal.3d 284, 303 . . . ; People v. Johnson, supra, 26 Cal.3d at pp. 576-578 . . . .) On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Johnson, supra, 26 Cal.3d at pp. 576-577 . . . .) [] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (Barnes, supra, 42 Cal.3d at p. 303 . . . .) Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. (Id. at pp. 303-304 . . . ; see also People v. Mayberry (1975) 15 Cal.3d 143, 150 . . . [reviewing claim of inherent improbability of testimony].)" (People v. Jones (1990) 51 Cal.3d 294, 314.)

In People v. Jones, supra, 51 Cal.3d 294, the California Supreme Court concluded that generic testimony regarding child molestation may be regarded as sufficient evidence. (Ibid.) As to the sufficiency of such generic testimony, the court explained: "The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g. lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us') to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction." (Id. at p. 316.)

The requisite time frame was established by the evidence of the time period during which defendant babysat L., which was provided by L.'s mother, combined with L.'s statements from which the jury could infer that defendant regularly touched L. between her legs with his hand during the months of babysitting her. Although the inconsistency of L.'s statements out of court and in court may have resulted in a justifiable suspicion regarding the truthfulness of any particular statement regarding the frequency of acts of lewd or lascivious touching, the jury had the responsibility to resolve those evidentiary conflicts and the evidence supporting the conviction cannot be rejected by this court as insubstantial. The jurors were in a better position than this court to observe witnesses' demeanor and to hear nuances in their testimony.

"Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (People v. Huston (1943) 21 Cal.2d 690, 693 . . . .)" (People v. Maury (2003) 30 Cal.4th 342, 403.) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. (People v. Maury, supra, 30 Cal.4th at p. 403 . . . .) Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. (Ibid.) Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (People v. Allen (1985) 165 Cal.App.3d 616, 623 . . . .)" (People v. Young (2005) 34 Cal.4th 1149, 1181.)

" ' "Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by [the trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.]" ' " (People v. Mayberry (1975) 15 Cal.3d 143, 150.) The evidence supporting defendant's conviction of continuous sexual abuse of a child was neither physically impossible nor inherently improbable without regard to inferences and deductions.

D. Section 1203.066, Subdivision (a)(1)

Section 1203.066, subdivision (a)(1), renders a person convicted of violating section 288.5 ineligible for probation "when the act is committed by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (See  1203.066, subd. (c)(1) [section applies if facts are pled and admitted or found true].) Defendant contends that the trial court's instruction on this special allegation was "confusing and misleading" because it failed to make "clear that the jurors had to unanimously find that appellant used force, duress, menace, or fear of immediate and unlawful bodily injury on [L.] or another person when he committed three or more acts of molestation." He asserts that the jury as instructed could have improperly found the allegation to be true after determining that he "committed any one of the three acts under section 288.5, subdivision (a) by force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . ." Defendant suggests this is what occurred because L. described only one instance in which he arguably used force.

In addition to defining the crime of violating section 288.5 alleged in count one, the trial court instructed: "Defendant may be found guilty [of count one] if the proof shows beyond a reasonable doubt and you unanimously agree that the defendant committed three of these acts [of lewd or lascivious conduct]. It is not necessary that you unanimously agree on which acts constitute the required number." The court further explained: "It is alleged in count 1 that in the commission of the crime therein described that the defendant committed an act by the use of force, duress, menace or fear of immediate and unlawful bodily injury on the victim or another person. If you find defendant guilty of violating Penal Code section 288.5 subdivision (a), as charged in count 1, you must then determine whether defendant used force, duress, menace or fear of immediate and unlawful bodily injury on the victim, or another person in order to commit the crime."

"When reviewing ambiguous instructions, we inquire whether the jury was 'reasonably likely' to have construed them in a manner that violates the defendant's rights. (Cf. Estelle v. McGuire (1991) 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385.)" (People v. Rogers (2006) 39 Cal.4th826, 873; see People v. Smithey (1999) 20 Cal.4th 936, 963 ["If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction"].) Although the challenged instruction did not spell out that the jurors had to find each act of lewd or lascivious conduct comprising the crime of continuous sexual abuse of a child was committed by one of the means specified by section 1203.066, subdivision (a), the court's instruction to the jurors that they must "determine whether defendant used force, duress, menace or fear of immediate and unlawful bodily injury on the victim, or another person in order to commit the crime" so necessarily implied. The crime consisted of three or more acts of lewd or lascivious conduct and the trial court so instructed. In addition, this implied meaning was reinforced by the prosecutor, who told the jury in closing argument that "in committing the acts in count 1, the three acts of touching [L.] over a three-month period, . . . [defendant] used force, duress, menace or fear, et cetera." Contrary to defendant's assertion, it is not reasonably likely that the jurors misunderstood the instruction to mean that the requirements of section 1203.066, subdivision (a)(1), were satisfied if only one of the acts of lewd or lascivious conduct was committed by the use of force, violence, duress, menace, or fear.

The limited evidence of force does not, as asserted by defendant, suggest the jurors misconstrued the challenged instruction. The prosecutor argued to the jury that the circumstances disclosed defendant committed the violation of section 288.5 by the use of duress,[3] not force. Defendant does not argue on appeal that the evidence was insufficient to establish duress.

Furthermore, any possible error in failing to expressly instruct the jury that it was required to find that all acts of lewd or lascivious conduct comprising the violation of section 288.5 were committed "by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person" was harmless under any standard. L.'s generic testimony did not distinguish between the means of accomplishing the genital touching by defendant. There was no factual basis upon which the jurors could reasonably find duress as to only one or two, but not all, acts of lewd or lascivious conduct constituting the crime of continuous sexual abuse.

E. Denial of Mistrial Motion

Before trial, the People requested that "there be no questions or inference made regarding the content of [defendant's interview] statement [to Officer Nguyen] by defense counsel" on the ground that defendant's statement was inadmissible, self-serving hearsay. The trial court granted the motion because it was not aware of any hearsay exception allowing the introduction of such evidence. At trial, the prosecutor asked Officer Nguyen whether he had talked to defendant. The officer answered "yes," and was then asked what day he had talked to defendant. Defense counsel objected on relevance grounds but the court overruled the objection. After the officer testified that he had interviewed defendant on a particular date, defense counsel objected again on unspecified grounds and an off-the-record sidebar conference was held. The court overruled the objection. The examination of Officer Nguyen continued and the prosecutor elicited testimony regarding defendant's age, weight, and height.

During an afternoon break later in the day, defense counsel explained her objection for the record. She stated: "I think that to sort of mention [the interview] and kind of leave it hanging out there that there was an interview conducted between Mr. Diaz and the detective is highly prejudicial because it leads jurors to believe that there's some sort of confession that the defense is suppressing which is not the case." Defense counsel requested a mistrial.

The prosecutor pointed out that the in limine motion applied to the content of the interview not the fact the interview had taken place and indicated the questions were foundational so that the jury would understand on what the officer was basing his statements regarding defendant's appearance. The trial court indicated that it believed that a question asking whether the officer had talked to defendant did not carry the same connotation as would a question asking whether the officer had taken a statement from defendant. The court explained that it had overruled the objection for that reason and denied the motion for a mistrial.

On appeal, it is argued that the trial court erred because, in exercising its discretion, it failed to take heed that Officer Nguyen had "blurt[ed] out the fact that he interviewed appellant." "A witness's volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice. (See People v. Wharton (1991) 53 Cal.3d 522 . . . [motion for mistrial properly was denied because court's admonition and witness's later testimony under cross-examination dispelled prejudice]; People v. Rhinehart (1973) 9 Cal.3d 139, 152 . . . [witness's inadvertent answer was insufficiently prejudicial to justify a mistrial].)" (People v. Ledesma (2006) 39 Cal.4th 641, 683.) " 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' (People v. Haskett (1982) 30 Cal.3d 841, 854 . . . .)" (Ibid.) "A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial." (People v. Bolden (2002) 29 Cal.4th 515, 555.)

The record before us does not demonstrate that defendant's chances of receiving a fair trial were irreparably damaged. The officer's statement regarding the interview was made in answer to a direct question and there was no suggestion that he was inadvertently divulging information withheld from the jury. The question impliedly was related to the questions that followed regarding defendant's height and weight and the jury could reasonably infer that the interview was the source of the officer's personal knowledge.

Furthermore, the jury had no factual basis for inferring that defendant made any incriminating statement during his interview with the officer. It was given the standard instruction regarding the determination of the facts: "You must determine what facts have been proved from the evidence received in the trial and not from any other source." We have no reason to believe that the jurors violated this instruction and improperly speculated that defendant had confessed or made damaging admissions to Officer Nguyen. "We presume that jurors comprehend and accept the court's directions. [Citation.] We can, of course, do nothing else. The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions. [Citation.]" (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) The trial court's denial of the motion for mistrial did not constitute an abuse of discretion.

F. Ineffective Assistance of Counsel

Defendant complains of his trial counsel's failure to object to the admission of out-of-court statements made by L. Before trial, the People requested a judicial ruling that the victim's out-of-court statements would be admissible under the statutory hearsay exception established by Evidence Code section 1360. This section allows admission of reliable out-of-court statements made by a victim of child abuse who is under the age of 12 in criminal prosecutions.[4] (Evid. Code,  1360, subd. (a).) Child abuse includes any "act proscribed by Section . . . 288.5 of the Penal Code." (Evid. Code,  1360, subd. (c).) The court thought the statements would qualify under the statutory exception but indicated that, if that turned out not to be true, the statements could be challenged later. At trial, a number of witnesses related statements made by L. without objection.

Defendant maintains that his trial counsel should have objected to the admission of L.'s out-of-court statements to Reed, her mother, her aunt, defendant's sister, and Officers Lovecchio and Nguyen on the ground that the statements were unreliable and, therefore, inadmissible under Evidence Code section 1360. Defendant asserts that the statements were unreliable because they were not spontaneous, L. was very young when the statements were made and she had a learning disability, she did not use any unusual sexual language or references learnable in only the circumstances of child molestation, and the evidence "failed to show that [L.] understood the duty to tell the truth" and was able to "distinguish between truth and falsehood." He also argues that L. had a motivation to lie because she thought defendant was a mean babysitter in ways unrelated to sexual molestation.

In order for a child's statement to be admissible under Evidence Code section 1360, the court must find "that the time, content, and circumstances of the statement provide sufficient indicia of reliability." (Evid. Code, 1360, subd. (a)(2).) As to a nonexclusive list of circumstances qualifying as indicia of reliability, defendant directs us to In re Cindy L. (1997) 17 Cal.4th 15 and In re Lucero L. (2000) 22 Cal.4th 1227, neither of which involved Evidence Code section 1360.

In re Cindy L., a dependency case pre-dating the enactment of the statutory hearsay exception provided by Welfare and Institutions Code section 355 regarding hearsay evidence in a social study,[5] recognized a judicial "child dependency exception to the hearsay rule." (In re Lucero L., supra, 22 Cal.4th at p. 1231.) The judicial exception provided that "the out-of-court statements of children who are subject to juvenile dependency hearings pursuant to Welfare and Institutions Code section 300 may be admitted in that proceeding if the statements show particular indicia of reliability, if the statements are corroborated, and if interested parties have notice that the statements will be used. (Cindy L., supra, 17 Cal.4th at p. 29.)" (Ibid.) The court concluded that the minor's statement, which was made to a preschool teacher's aide and disclosed sexual touching by her father, bore "particular indicia of reliability" because it was a "spontaneous response to [the aide's] comment" that she should not touch herself, she repeated the statement consistently to two social workers and to the police investigator, and she had no motive to lie in that the evidence showed that the minor "loved her father and had no wish to harm him." (In re Cindy L., supra, 17 Cal.4th at p. 35.)

In In re Lucero L., supra, 22 Cal.4th 1227, also a dependency proceeding, the Supreme Court determined that an incompetent minor's hearsay statements contained in a social study were admissible under Welfare and Institutions Code section 355, even if the statements failed to satisfy the requirements of the judicial hearsay exception recognized in In re Cindy L. (Id. at pp. 1242-1243.) The court rejected the parent's due process contention that "the allowance of such hearsay without the opportunity for cross-examination" necessarily violated the United States and California Constitutions. (Id. at pp. 1243-1244.) The Supreme Court determined, however, that due process precluded a court from relying exclusively on such statements "unless the court finds that 'the time, content and circumstances of the statement provide sufficient indicia of reliability.' (Cindy L., supra, 17 Cal.4th at p. 29 . . . .)" (In re Lucero L., supra, 22 Cal.4th at p. 1247.)

In refusing to impose an additional corroboration requirement for admission of statements of an incompetent child declarant similar to that required by In re Cindy L., the court in Lucero observed that "the United States Supreme Court has held in the context of a child sexual abuse prosecution that the confrontation clause of the Sixth Amendment to the United States Constitution is not offended by the introduction of and full reliance on the child victim's hearsay so long as it meets the test of reliability. (Idaho v. Wright, supra, 497 U.S. at pp. 820-823 [110 S.Ct. at pp. 3149-3150].)" (In re Lucero L., supra, 22 Cal.4th at p. 1249.) The court concluded: "The standard of evidence cannot be higher under the due process clause in a dependency hearing than under the confrontation clause in a criminal trial." (Ibid.) The court declared: "At least in the case of a truth incompetent minor, the court may rely exclusively on these out-of-court statements only 'if the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility. . . .' (Idaho v. Wright, supra, 497 U.S. at p. 820 [110 S.Ct. at p. 3149].)" (Ibid.)

Idaho v. Wright (1990) 497 U.S. 805 [110 S.Ct. 3139] was decided in the context of Ohio v. Roberts (1980) 448 U.S. 56 [100 S.Ct. 2531], which had held that the federal constitutional right to confrontation permits admission of an unavailable witness's out-of-court statement if the statement "bears adequate 'indicia of reliability' in that it "falls within a firmly rooted hearsay exception" or is made under circumstances showing "particularized guarantees of trustworthiness." (Id. at p. 66.) In Idaho v. Wright, supra, 497 U.S. at page 821, the United States Supreme Court indicated that evidence possessing "particularized guarantees of trustworthiness" must be "so trustworthy that adversarial testing would add little to its reliability. [Citations.]" The court "agree[d] that 'particularized guarantees of trustworthiness' must be shown from the totality of the circumstances" but that "the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief." (Idaho v. Wright, supra, 497 U.S. at p. 819.) It clarified that "if the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial." (Id. at p. 820.)

In regard to statements made by a child victim of sexual abuse, the court in Idaho v. Wright identified a number of possible reliability factors, including but not limited to spontaneity and consistent repetition, the declarant's mental state, the declarant's use of terminology unexpected of a child of similar age, and lack of motive to fabricate. (497 U.S. at pp. 821-822.) It emphasized that the identified factors were "not exclusive" and courts had "considerable leeway in their consideration of appropriate factors." (Id. at p. 822.) It explained that the relevant facts were those relating to "whether the child declarant was particularly likely to be telling the truth when the statement was made." (Ibid.)

After Idaho v. Wright, In re Cindy L. and In re Lucero L. were decided, Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] abrogated the holding in Ohio v. Roberts, supra, 448 U.S. 56. In this case, L. testified at trial and defendant raises no claim under Crawford v. Washington, supra, 541 U.S. 36[6] on appeal. Defendant has not cited authority establishing that Evidence Code section 1360 necessarily demands the degree of reliability formerly required by Idaho v. Wright or Ohio v. Roberts to avoid constitutional infirmity under the Sixth Amendment's confrontation clause or by In re Lucero L. to avoid a violation of due process, namely reliability rendering cross-examination of marginal utility.

Although there were factors weighing against a finding of reliability, there were also indicia of reliability. The young victim had direct, personal knowledge of any touching done by defendant while babysitting her. Her February 17, 2004 behavior with Reed indicated she had experienced touching inappropriate for someone her age. Her precocious touching of and comments to Reed occurred without his prompting or her apparent understanding of the larger implications either for herself or defendant. Her interaction with Reed did not convey any kind of ill-will toward defendant. Perez did not lead L. but merely asked L. to repeat what she had told Reed earlier in the day. In speaking to various family members and police officers, L. indicated some kind of inappropriate touching had occurred. Trained police officers sought to ascertain whether L. understood the difference between telling lies and truth. Officer Nguyen elicited her promise to tell the truth. L.'s comment to her mother that "Marky put his privacy in her pee-pee" was in response to the general question whether L. "needed to tell her something" before the preliminary hearing. The question was not directed at eliciting this particular information and it was not suggestive of the answer.

Additionally, the record did not demonstrate she lacked understanding of the difference between the truth and lies. The officers who interviewed L. were careful to ascertain that she understood the difference between telling the truth and lying. At trial, both the prosecutor and defense attorney questioned L. to determine her capability to understand the requirement of telling the truth. The trial court concluded that L. had "certainly demonstrated that she knows the difference between truth and a lie" and she understood that she would get in trouble if she did not tell the truth. The trial court found her competent to testify and this finding is not challenged on appeal. "[C]ontradictory testimony does not suffice to show incapacity to understand the duty of truth [telling] . . . ." (People v. Avila (2006) 38 Cal.4th 491, 589.)

As recognized in Crawford, "[w]hether a statement is deemed reliable depends heavily on which factors the judge considers and how much weight he accords each of them." (Crawford v. Washington, supra, 541 U.S. at p. 63.) It is not clear that each of L.'s hearsay statements would have been excluded upon objection on the ground that it did not meet the reliability requirement under Evidence Code section 1360. If such objections had been interposed at trial, the trial court may have reasonably concluded that L.'s statements to Reed, and perhaps others, bore sufficient indicia of reliability to come within this statutory hearsay exception. Furthermore, even on appeal, defendant suggests that admission of prior inconsistent statements to impeach would have been a proper tactic. If defense counsel had sought to exclude L.'s hearsay statements on direct examination and had impeached her testimony with prior inconsistent statements, the prosecutor would have sought to rehabilitate her credibility by admission of prior consistent statements. (See Evid. Code,  791.) In light of this alternative, defense counsel may have concluded that allowing the jury to hear all L.'s out-of-court statements was a better strategic choice for defendant.

Defendant acknowledges that the failure to object to evidence ordinarily does not constitute ineffective assistance because the decision whether to interpose an objection to inadmissible evidence is a tactical choice (see People v. Majors (1998) 18 Cal.4th 385, 402). But he asserts there could have been no reasonable tactical basis for his counsel's failure to object because the victim's hearsay statements were "clearly inadmissible and extremely prejudicial." We disagree.

" 'In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.' (People v. Ray (1996) 13 Cal.4th 313, 349 . . . .)" (People v. Williams (1997) 16 Cal.4th 153, 215.) "A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689 [104 S.Ct. 2052, 2065, 80 L.Ed.2d 674].) Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. (Id. at p. 690.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 . . . .)" (People v. Maury, supra, 30 Cal.4th at p. 389.) It is not enough that a particular tactic proved unsuccessful. (See Strickland v. Washington (1984) 466 U.S. 668, 689 [104 S.Ct. 2052].)

Defense counsel may have believed that no material benefit would be gained by interposing hearsay objections and the best approach was to allow all statements to be admitted to maximize the number of inconsistencies, which might provide the jury with a basis for questioning L.'s credibility and finding reasonable doubt. Defense counsel began closing argument by asserting that the issue in the case was the inaccuracy of the information presented to the jury. She emphasized the many inconsistencies in the statements made by L, especially after repeated questioning by adults, and urged the jury to find defendant not guilty. Defendant has failed to establish, based upon the appellate record, that his counsel's failure to object to L.'s hearsay statements constituted deficient performance falling below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688.)

G. Derivative Victim Restitution

The probation report indicated that L.'s mother was taking medication as a result of this case. The mother was paying for it "out of her pocket" and "spending $18.00 to $21.00 every other month." At sentencing, the court indicated that it had reviewed a document relating to the mother's medication and a letter from the mother. The prosecutor asked for copies to be attached to the probation report. The probation officer agreed that the mother was a derivative victim if she was receiving medical care as result of the offense.

Defense counsel did not contest the monetary amount claimed by the mother but rather objected on the ground that the mother was not a named victim and an issue of causation existed because the mother had taken the medication previously. The court asked whether defense counsel wanted an opportunity to present evidence on the issue of causation. The court indicated that the issue was whether the defense could "refute her claim that she took [the medication] as a result of this case" and not whether she had taken it before. Defense counsel opposed the restitution order on the ground that the prosecution had not presented evidence that defendant was "the sole cause of the need for the medication" but submitted the matter without presenting any evidence.

The court found that there was an adequate showing that the mother was a derivative victim and defendant failed to refute that her "use of these drugs was occasioned by [his] actions . . . ." It ordered defendant to pay $126.86 in restitution to the victim's mother. The court stated that the amount of restitution "may be revised if she continues to have this issue." When the court indicated uncertainty about how that revision would occur, the prosecutor stated: "[T]he state prison system will deal with that. I think that there's a counselor that gets assigned and any claims go through there." The court added nothing further to its order regarding restitution.

Defendant argues that the open-ended restitution order must be reversed because there was insufficient evidence to support an award over $126.86 and the restitution amount "is not sufficiently definite to permit enforcement." The People contend that the restitution order properly "directed another agency to consider any future claims for victim restitution," citing People v. Lunsford (1998) 67 Cal.App.4th 901. Lundsford upheld a restitution order directing the Office of Revenue Reimbursement to determine the amount of victim restitution because the proper amount could not be ascertained at the time of sentencing. (Id. at pp. 903-904.) We reject defendant's argument but on a different basis than that suggested by respondent.

Section 1202.4, subdivision (f), states, with an exception not relevant here: "[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court." It further provides: "The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the proceeding held to decide the motion." ( 1202.4, subd. (f)(1).)

The language regarding the court's power to modify a restitution order was added by statute in 1996. (Stats.1996, ch. 629, 3, p. 3467.) The Legislative Counsel's Digest regarding that amendment states: "The bill would require an order of examination to be held if the defendant requests a restitution hearing. The bill also would require a victim to receive at least 10 days' notice before any subsequent proceeding held, or court order made, to modify a restitution order." (Legis. Counsel's Dig., Sen. Bill No. l685 (1995-1996 Reg. Sess.) Summary Digest, p. 243; see Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 46, fn. 9 [digests of Legislative Counsel are relevant to statutory interpretation].)

Under section 1202.4, as amended, the power to modify a restitution order remains with the court. At this point, no request for modification, no showing in support of modification, and no modification order has been made. The court's restitution order continues to require payment of only $126.86 to the victim's mother. Defendant does not challenge that sum. No legal basis for overturning the restitution order has been presented.

H. Review of Sealed Record

In the court below, defendant sought in camera review of the records of L.'s psychotherapist to determine whether they contained exculpatory evidence or evidence relevant to credibility. After its review, the court ordered limited disclosure and then directed the undisclosed documents to be sealed. Defendant asks this court to review the sealed documents to determine whether they contain relevant and non-privileged

evidence that should have been turned over to the defense. We have reviewed the sealed records and find no error in the court's limited disclosure of records.

The judgment is affirmed.

______________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] The court instructed the jury that if "you find the defendant guilty of count 1, you must find him not guilty of counts 2 and 3" and "[i]f you find the defendant guilty of count 2 or count 3 or guilty of both counts 2 and 3, you must find the defendant not guilty of count 1 . . . ."

[3] The judicial definition of the term "duress" is the " 'direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' (Pitmon, supra, 170 Cal.App.3d at p. 50 . . . .)" (People v. Leal (2004) 33 Cal.4th 999, 1004 [ 288, subd. (b)(1)], italics omitted.) This is the definition of "duress" given to the jury. "The total circumstances, including the age of the victim, and his relationship to defendant are factors to be considered in appraising the existence of duress." (People v. Pitmon (1985) 170 Cal.App.3d 38, 51.) Other factors that might bear upon the susceptibility of a child to intimida