P. v. Allen

Filed 8/28/07 P. v. Allen 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Brian Keith Allen was charged with six counts of lewd and lascivious conduct with a minor under the age of 14 (Pen. Code, 288, subd. (a)),[1] three counts involving F. and three counts involving J.[2] Defendant was convicted by jury of two of the counts involving F. The jury found him not guilty of the third count involving F. and not guilty of the three felony counts involving J. However, with regard to each of the counts involving J., the jury found defendant guilty of the lesser-included offense of misdemeanor simple assault ( 240). The jury found the enhancement allegation that defendant had committed lewd and lascivious acts on more than one child under the age of 14 not true. It also made special findings related to the statute of limitations on the charges involving J.

In a bifurcated proceeding, the court found true enhancement allegations that defendant had suffered one prior conviction within the meaning of the Three Strikes law ( 667, subd. (b)-(i), 1170.12) and that he had a prior serious felony conviction under Proposition 8 ( 667, subd. (a)). The court denied defendants Romero[3] motion and sentenced defendant to 15 years[4] in state prison on the felony counts plus 180 days concurrent on each of the misdemeanor counts.

Defendant contends the trial court committed prejudicial error and violated his due process rights when it refused to admonish the jury to disregard a police officers testimony after the officer testified that she had reason to believe F. had suffered sexual abuse. We find no prejudicial error and no deprivation of defendants due process rights and affirm the judgment.

Defendant has filed an original petition for writ of habeas corpus in this court (In re Allen on Habeas, Case No. H031021) in which he challenges his conviction on the grounds of false evidence based on F.s post-trial recantation of her trial testimony. Approximately 11 weeks after sentencing, F. contacted defendants appellate counsel and told him she had lied at trial. We have requested and received an informal response from the Attorney General and a reply from the defendant in a letter brief. Upon filing the opinion in this case, we shall also issue an order to show cause before the superior court why defendant is not entitled to the relief requested.

Facts

I. Prosecution Case

A. Evidence Regarding Sexual Abuse of F.

F. was 12 years old when she testified at trial. When F. was about six years old, both of her parents had drug problems. They no longer lived together and fought over custody of F. Ultimately, the court placed F. with her paternal grandmother (Grandmother). Grandmother and F.s mother (Mother) arranged for F. to visit Mother one or two weekends a month.

By the time F. was eight years old, Mother was living with defendant. When F. visited Mother and defendant, F. slept in the living room or in Mothers room. Defendant worked in construction and got up around 5:00 a.m. to go to work. According to F., on more than one occasion, defendant came into the living room where she was sleeping, lay on top of her and rubbed his penis against her bottom. The last time, he did it over her pajamas. She woke up and defendant said he was just covering her up.

Once, F. woke up and found her pajama bottoms pushed down to the middle of her thighs. Her underwear was still on. Defendant was there, standing in front of her.

A night or two before her 10th birthday, F. slept in the same bed with Mother and defendant. Mother slept in the middle, between F. and defendant. F. woke up and found defendant rubbing his penis up against her bottom. Defendant went into the bathroom. F. rolled over to the edge of the bed, towards the bottom of the bed. Defendant returned. His penis was hanging out of a hole in his pajama pants. He came up to her and briefly touched her mouth with his penis. F. turned onto her back. Defendant leaned over her, reached for the headboard, pointed his penis toward her vagina, and started moving back and forth over her pajamas. Defendant rubbed his fingers through her hair and his penis touched her bottom. He then put $75 in her hands, told her not to tell anyone, and left for work.

Mother woke up about 20 minutes later. F. and Mother went back to sleep for a couple of hours, then got up.

That day, F. told her friend, J.B., who lived in the same apartment building as Mother, what had happened. Later that day, F. called Grandmother and told her what had happened. Grandmother told F. to tell Mother. F. said she was afraid to tell Mother because she feared Mother would not believe her. F. handed Mother the phone and Grandmother told Mother what had happened. Grandmother offered to pick F. up, but F. wanted to stay with Mother and defendant.

When Mother got off the phone, she called defendant and told him to come home. When defendant got home, Mother sat F. down and told her to talk to defendant. F. looked at her mother, waiting for her to do something. Mother told F. not to look at her, that this was between F. and defendant. Defendant said he would never do that to her and Mother agreed. Defendant and Mother told F. to convince Grandmother it did not happen. F. got scared and told defendant and Mother it did not happen because she wanted to stop talking to them about it. The family had planned to go to Six Flags Marine World the following day to celebrate F.s 10th birthday. Mother told her that if this happened to her, she would have to go home and was never going to see Mother again. F. wanted to go to Marine World with Mother on her birthday.

F. has only seen Mother once since her 10th birthday. Once, in a telephone conversation, F. told Mother it did not happen and it was all a mistake. F. wanted Mother to come get her and Mother said she could not because of what F. had said defendant had done to her. F. offered to tell them it did not happen. Once, F. called her maternal aunts house because she wanted to talk to Mother. Her aunt told her that she could not talk to Mother because of what she had said about defendant; that it was all F.s fault, and that she would never see Mother again.

Milpitas Police Officer Cindy Spaulding testified regarding her interviews of F. in April and July of 2004. Officer Spaulding assisted the primary investigating officer, Greg Mack, with the interviews because F. did not feel comfortable discussing the matter with a male officer. Grandmother first reported this matter to the sheriffs office in Sonoma County, where she resides with F. Based on information Spaulding received from that countys sheriffs office, Spaulding testified she had reason to believe F. had been the victim of sexual abuse. On cross-examination, defense counsel suggested Officer Spaulding put words in F.s mouth.

Officer Mack also testified regarding the investigation. On April 15, 2004, Grandmother made a pretext telephone call to defendant that was recorded by the police. The purpose of the call was to obtain admissions from defendant that supported the allegations. The jury heard a tape recording of the pretext call. During the telephone call, defendant told Grandmother he did not do anything to F. He said that when he woke up, he found F. in bed with him and Mother. She was hanging over the edge of the bed. He picked her up and placed her back in bed. He said that he had an erection, that F. may have seen his erect penis by accident, and that his penis could have accidentally touched her face, but he was not sure. Later, he stated repeatedly that his penis touched her by accident. Defendant denied touching F. on other occasions. He pleaded with Grandmother to allow F. to come visit and promised nothing would happen to F.

F.s friend, J.B. testified that F. had told her that she was in her mothers room and defendant tried to take her clothes of or something like that.

B. Evidence Regarding Sexual Abuse of J. and Her Sister, A.

Nineteen-year old J. testified that when she was five years old, defendant dated her mother. Defendant lived with J., her mother, and sisters from 1991 through 1993. At age five, J. wet the bed almost every day. Defendant would wake her in the morning, put her on his lap, and check her to see whether she had wet the bed. He touched her vaginal area under her clothes. He put his fingers in her vagina and moved his hand, rubbing her genitals for 20 to 30 seconds. He also patted her butt. This conduct occurred two to three times a week for more than a few months. When she wet the bed, defendant hit J. with his hand or an exercise belt. She did not tell her mother what was happening because she was afraid of defendant because he hit her.

Sometimes, when her mother was in school, defendant made J. and her sister, A., watch pornographic movies with him. This occurred less than five times.

A., who was 24 years old at the time of trial, corroborated J.s testimony. She recalled that defendant touched J.s vaginal area and butt to see if she had peed on herself. He also hit J. with his hand, a belt, a workout belt, and switches. A. was terrified of defendant because he was very abusive toward them.

A. testified that she had also been molested by defendant. One night, when A. was eight years old and her mother was at church, defendant came out of the shower with nothing on but a towel and asked A. whether she wanted to learn to fight. He told her that if she did, he would give her some jelly beans. He took her into a bedroom and told her to take her clothes off. She took off her pants and shirt, but refused to take off her underwear. They wrestled on the bed; when she was on her back, defendant pinned her arms above her head. The towel fell off and defendants penis was on her stomach. He began moving from side to side. She got frightened and told him to get off. He did. He gave her the jelly beans and told her not to tell her mother.

A. told her mother what happened. Her mother broke down and went to a mental health facility for a while. Defendant went to jail. Defendant called A. from jail and said he was sorry and asked her to tell them she had lied. He promised to be nice and take her shopping. A. recalled telling someone that she made it up and defendant did not do it. She recanted her story because she was afraid of defendant and thought things would change. The prosecution did not charge the acts involving A. in this case because the statute of limitations had run.

C. Evidence Regarding Child Sexual Abuse Accommodation Syndrome

Criminal investigator Carl Lewis testified as an expert witness on child sexual abuse accommodation syndrome (CSAAS) and interviews of child molestation victims. He told the jury that CSAAS is a theory that assists adults in understanding delays in reporting child sexual abuse. Lewis discussed five features of CSAAS, including secrecy; helplessness; entrapment and accommodation; delayed, conflicted, unconvincing disclosures; and retraction. A sense of secrecy may cause a child not to disclose the conduct or fear the outcome if she discloses. The child usually discloses as a process rather than a one-time event. The child is often trapped by having to keep a secret and finds a way to accommodate, by acting as if nothing is wrong, changing his or her performance in school, rebelling, or using drugs. Disclosure is often delayed because of the dynamics of the relationship or the childs maturity. A child may minimize the degree of the sexual assault because of the reactions of adults. Lewis explained that retraction is common and can occur in degrees. People close to the child may complain about the trouble caused by the allegations of abuse which may cause the child to change her story. Sometimes it is easier for adults to hear that the child made it up rather than that the abuse actually occurred. The purpose of CSAAS is to encourage adults who encounter child abuse to keep open minds.

II. Defense Case

Child psychiatrist Dr. Lee Coleman testified as an expert in memory suggestibility and the impact of interviewing techniques on a childs memory. He testified that suggestive questions may cause a child to give inaccurate answers. He stated that Officer Spauldings interviewing techniques were unacceptable because Officer Spaulding made up her mind about what had happened and then sought to have F. confirm her view by using suggestive, leading questions. The officer did not consider who had been speaking with F. or determine whether family members could have influenced the child.

Coleman stated that the pretext call was not good practice. He criticized the police for not seeing Grandmother as someone who needed to be interviewed about her impact on the case as opposed to someone who could help them gather evidence. Coleman criticized the police for telling F. about the pretext call because it told F. that Grandmothers version of events was true. According to Coleman, one cannot ignore that Grandmother was an interested party and had been talking to F. for three weeks before the matter was reported to the police and that Grandmother had strong feelings about defendant.

Coleman also testified that sleep impacts memory and that dreams occur in the intermediary state between sleep and awake states. Coleman criticized the investigation because no one had questioned who may have talked to J. and A. or asked whether their memories had been influenced. Coleman testified that CSAAS is a misleading theory that is dangerous for the trier of fact. The fact that a child delays reporting or says nothing may mean that nothing happened. He explained that an initial allegation may be false and the retraction may be true.

A social worker testified regarding her investigation of the alleged abuse of J. and A. in the 1990s. She told the jury that J. had been molested by someone else (Nillo) and that J. had denied that anyone other than Nillo had molested her. Her notes regarding her interview with A. in 1990 were consistent with the story A. told in court, except A. said she did not see or feel defendants penis. In addition, A. later retracted her story. The social worker closed the case after she determined that defendant no longer lived in the household and that, therefore, the children were no longer in danger.

F.s aunt testified that F. had told her: (1) that the allegations that defendant touched her were not true; (2) that she had made a mistake; and (3) that Grandmother told her she had to stick with her story.

Mother testified for defendant. She is married to defendant. She testified regarding an on-going dispute with Grandmother regarding visitation with F. Mother recalled the incident just before F.s 10th birthday. Mother was awake. F. was falling out of bed. Defendant picked her up and placed her back in bed. Both Mother and defendant reassured F. that it was okay. F. curled up in bed. When defendant left for work, he kissed F. goodbye and gave her $75 for her birthday. According to Mother, Mother was awake and nothing of a sexual nature occurred.

Mother described her telephone conversation with Grandmother on the day of the incident. Mother had defendant come home. She wanted to straighten things out right away because she loves both F. and defendant. When Mother asked F. what defendant had done, F. said I dont know. I guess I got scared. I was asleep and felt something tugging on me and I got scared. The three of them talked and cried for two to three hours. F. called Grandmother and said she was startled in her sleep and had made a mistake. Grandmother told Mother it was all cleared up and she would not do anything about it. Everything was fine when they went to Marine World the following day. F. was supposed to visit the next weekend, but Grandmother would not return Mothers calls. Mother did not hear from F. for six months.

According to F.s aunt and Mother, Grandmother (who is Caucasian) used racial slurs when talking about defendant (who is African American).

Discussion

Defendant contends the trial court committed prejudicial error and violated defendants due process rights when it refused to admonish the jury to disregard the officers testimony after Officer Spaulding testified that she had reason to believe F. had suffered sexual abuse.

On cross-examination, defense counsel asked Officer Spaulding questions about her interview of F., including:

Q: Did you tell [F.], . . . before shed talked about what happened[,] that you already had a little bit of an idea as to what happened?

A: Yes.

Q: You didnt think that was guiding her?

A: No.

Q: Do you think its not guiding her to say its going to get kind of graphic?

A: Maybe a little.

On redirect, the prosecution asked Officer Spaulding:

Q: Officer, you were asked about some statements you made to [F.] relating to []Here is where we are going to get graphic.[] Did you have some knowledge about the prior disclosure that [F.] had made prior to making that statement []And here is where we are going to get graphic[]?

A: Just a Sonoma County Sherriffs report that I had a quick chance to review.

Q: And from that report did you have some reason to believe that [F.] had suffered sexual abuse?

A: Yes.

Defense counsel objected stating that it was an improper question. The court overruled the objection. Defense counsel asked whether he could make further comment outside the presence of the jury and the court agreed.

Outside the presence of the jury, defense counsel moved for a mistrial, arguing that it was improper to ask the officer whether she believed some sort of crime had occurred. He also asked the court to admonish the prosecutor.

The prosecution responded: Your Honor, if I asked the question inartfully, certainly my bad but as I recall the issue had been raised as to whether or not this officer . . . had been too leading or too suggestive in her questioning of [F.] about particular details, and in particular in saying things like []This is where it gets graphic.[] And so I had to establish the officers state of mind, and I believe I asked a question along the lines of []What information did you have that would lead you to believe that some sexual assault had occurred[] . . . seeking essentially for her to establish she had a report from Sonoma County and that explains why she is asking the questions in the way she is. This was an issue very much raised by the defense and this was in response.

Defense counsel argued: And my argument is you can never ask an officer whether or not they believe a crime has been committed. He could simply have asked, []Did you have a prior report, did the prior report contain certain information?[]. But you cant ask []Do you believe a violation has occurred?[]. . .  because that suggests to the jury maybe theres some other information the officer had. . . . Its suggestive of something else thats out there. Just like a D.A. cannot say []I believe a crime is committed.[]

The court denied the motion for mistrial. Defense counsel did not ask the court to admonish the jury regarding the alleged impropriety of the prosecutions question and the witnesss response.

Forfeiture

On appeal, defendant does not challenge the courts order denying his motion for mistrial. He argues instead that the court should have admonished the prosecutor and instructed the jury that it was improper for the prosecution to ask the witness whether she believed a crime had been committed.

The Attorney General notes that defendant requested a mistrial and admonishment of the prosecutor below, but did not ask the court to admonish the jury. He contends defendant forfeited this issue by failing to ask the court to admonish the jury. He also argues that even if defendants request is construed as a request to admonish the jury, defendant forfeited the issue by failing to press for a ruling below.

Defendant responds that the courts order on the motion for mistrial was clear and encompassed any other remedies that may have been available to address the error at issue.

We conclude defendant has preserved the issue for appeal by objecting on the legal ground that it was improper to ask the officer whether she had reason to believe a crime had been committed, regardless of the remedy requested to address the alleged error. We shall therefore address the merits of the claim.

Failure to Admonish Jury to Disregard Officer Spauldings Testimony

A witness may not express an opinion on a defendants guilt. (People v. Torres (1995) 33 Cal.App.4th 37, 47, [citation].) The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. (Torres, supra, at p. 47, [citation]; see Evid. Code, 805.) Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77 (Coffman).)

In Torres, a police officer testified regarding the difference between robbery and extortion and opined that the crime committed in that case was a robbery. (People v. Torres, supra, 33 Cal.App.4th at p. 44.) The court held that it was improper for the officer to testify regarding the meaning of the terms robbery and extortion and to express the opinion the crimes committed in that case were robberies. The court concluded that under the facts of the case, expressing the opinion the crimes were robberies was tantamount to expressing the opinion that the defendant was guilty of the robbery and first degree felony murder charged in the case. (Id. at pp. 47-48.) However, the court held that the error was not prejudicial because the evidence supported a finding on all the elements of robbery and negated a necessary element of extortion. Therefore, the jury could not have reached any other conclusion but that the defendants acts constituted a robbery. (Id. at p. 52.)

In Coffman, one of two codefendants admitted on cross-examination that charges of kidnapping, kidnapping for robbery, and robbery were true, that his codefendant was a willing participant, and that they were acting as a team. The Supreme Court concluded the testimony was not improper because the witness merely conceded the truth of the allegations against him and described the degree of his codefendants participation in committing the offenses. The court concluded that the witness had not expressed an opinion regarding his codefendants guilt. (Coffman, supra, 34 Cal.4th at pp. 76-77.)

In this case, the prosecutor asked Officer Spaulding whether she had some reason to believe that [F.] had suffered sexual abuse. The question was asked in the context of refuting defense allegations that Officer Spauldings questions were leading and overly suggestive. It established, by way of background, that F. had already reported the matter to the Sonoma County Sherriffs office and that Officer Spaulding had reviewed the Sonoma County Sherriffs report before questioning F. Thus, it tended to refute defendants claim that the officers questions were overly suggestive. In our view, the question did not ask the officer to comment directly on the question of defendants guilt. She stated merely that based on the report to Sonoma County, she had reason to investigate the allegations of sexual abuse.

Even if we were to conclude the question was improper, it did not prejudice defendants opportunity for a fair trial. We review the allegedly erroneous admission of improper opinion testimony on the question of the defendants guilt under the prejudice standard set forth in Peoplev.Watson (1956) 46 Cal.2d 818, 836 (Watson) and determine whether it is reasonably probable the defendant would have received a more favorable result in the absence of any error. (Coffman, supra, 34 Cal.4th at p. 76; Watson, at p. 836.)

Officer Spaulding did not testify that she believed the allegations of the sheriffs report from Sonoma County, merely that she had reviewed the report. Dr. Coleman testified extensively regarding flaws in the investigation, including Officer Spauldings interview of F. He opined that Spauldings interview techniques were unacceptable. He said Spaulding made up her mind about what the truth was and sought to have F. tell her things that confirmed that version of events. According to Coleman, Spaulding used suggestive, leading questions and guided F. to certain accusations. In addition, Spaulding failed to determine who had been talking to and influencing F. and whether those persons had an agenda. He noted that F. had three to four weeks of undiluted contact with Grandmother before reporting the matter to police. As noted previously, Coleman criticized the officers use of the pretext call and opined that it told F. whose version of events was true and did not allow the officers to investigate all the possibilities. Coleman also criticized the interview techniques the officers used when interviewing J. and A.

Moreover, F. was subject to extensive cross-examination regarding what Spaulding said and did during the interview and Spauldings assumptions about the case. The jury saw the entire videotape of Spauldings interview of F. and a transcript of the interview was in evidence. The jury was able to assess F.s credibility, based both on her testimony at trial and her statements in the videotaped interview with Officer Spaulding. In addition, the jurors were able to determine whether the interview techniques employed by the officers were leading as defendant alleged, since the police interviews of J. and A. were also in evidence. Officer Spauldings statement that she had reason to believe F. had suffered sexual abuse supported defendants theory that the police officers investigating the matter had prejudged the case. In summary, defendant thoroughly explored the question of whether the police officer had prejudged the case and the extent to which their prejudices may have influenced the investigation.

For all these reasons, we conclude that it was not reasonably probable the defendant would have received a more favorable result in the absence of the alleged error resulting from the courts failure to admonish the jury to disregard the Officer Spauldings testimony that she had reason to believe F. had suffered sexual abuse.

Defendant argues the courts failure to admonish the jury violated his federal due process rights. [T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th428, 439.) As noted previously, we find no prejudice under the state law Watson standard. For these same reasons, we conclude there was no error that rendered the trial fundamentally unfair.

Disposition

The judgment is affirmed.

____________________________________________

McAdams, J.

WE CONCUR:

________________________________

Bamattre-Manoukian, Acting P.J.

________________________________

Duffy, J.

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

[2] The victims were identified in the trial court by their first names and a Doe designation. We shall refer to them by their first initials only.

[3] People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[4] The court calculated the 15-year sentence as follows: six years in prison (two times the lower term of three years because of the strike prior) on the first felony conviction and four years consecutive on the second felony conviction (one third the doubled midterm) plus five years for the section 667, subdivision (a) enhancement.