P. v. Gonzalez

Filed 10/11/07 P. v. Gonzalez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

On April 28, 2006, defendant Felipe Jesus Gonzalez was convicted at jury trial of inflicting corporal injury on his spouse, Jeanina, violating a protective order resulting in physical injury to her in doing so, and aggravated sexual assault predicated on sexual penetration by a foreign object by force on his then 14-year-old step-daughter, Elena. Defendant was sentenced to 15 years to life for the sexual assault with a consecutive three-year prison term for inflicting corporal injury on a spouse. On appeal, defendant claims he was denied a fair trial because of procedural, evidentiary, and instructional errors that tilted the outcome in the prosecutions favor in what, otherwise, was a close case.

FACTS

Defendant and Jeanina,[1] who were married in 2000, lived with their two children, James and Diamond, aged four and one in 2004, Jeaninas two children, then 10-year-old Anthony and then 12-year-old Elena, and Jeaninas aunt, Charlotte F., at Charlottes house in San Jose.

At trial, Jeanina testified that at 10:00 p.m. on August 20, 2004, defendant came home from work, went into the bedroom, sat down on the bed, and took off his work boots. Jeanina had been waiting for him to come home to tell him that their 10-year relationship was over and he had to move out immediately. Defendant wanted to stay and work things out for the kids.

Defendant and Jeanina started to argue; defendant stood up with one boot back on and the car keys in his hand. Jeanina told him he could not take the car. When he objected, she told him she would report it stolen if he took it. He was upset. Yelling and cursing started; Jeanina could not remember whose voice was the first raised or what words started it. Defendant threw the car keys at Jeanina and agreed to leave. From one step away, she threw his other work boot at him. It hit his ear and he yelped. Jeanina explained later she did not hit him with the boot because the boot wasnt in my hand anymore when it connected with defendants ear.

Then defendant stood up and pushed Jeanina because he was trying to get his jacket and she was trying to get up. She later told police that it all started when defendant pushed me back. The officer clarified that back meant backward. Mutual pushing started and defendant punched Jeanina pretty hard in the face with a closed fist, cutting her mouth which started bleeding. She landed on the bed on her back; defendant sat on her chest and tried to strangle her. Jeanina could not breathe and tried to get defendant to stop, which he did when he saw her bleeding. Defendant got up and ran out of the house. Jeanina was afraid and crying.

Jeanina had not left the room because [t]hats my room. She stood her ground about three steps away from defendant, not trying to have a confrontation, she testified, but to make the point that defendant had to leave. She also testified that she could not leave the room because the door was locked.

During the argument, Elena heard a bang in the bedroom and told her Aunt Charlotte, who knocked and opened the door to see what was going on. Jeanina told Charlotte not to come in. Jeanina testified that Charlotte did not come in because she could not. Charlotte testified she was in her bedroom watching TV with two of the children, did not go to Jeaninas and defendants room, and did not learn of the fight until one of her nephews told her their daddy ran out the door. Jeanina and defendant continued to argue. Finally, Elena saw defendant run out of the house and her mother crying and bleeding from the face. Elena was angry and upset at defendant for hitting her mother.

At 10:36 p.m., Jeanina called 911, telling the operator, my husband just came home and hit me. She did not mention that the hitting was preceded by arguing. Officer George Chavez arrived, photographed Jeaninas injuries and interviewed her. She was upset, distraught, crying, and bleeding. Jeanina said defendant had punched her in the face several times. Chavez informed Jeanina that there was a protective order against defendant. Jeanina knew only that there was a peaceful contact order resulting from a domestic violence incident she reported after she and defendant argued, pushed, and hit each other in November 2001.

In that incident, Jeanina scratched defendant and tore his shirt trying to chase him out of the house. Defendant pled no contest to misdemeanor inflicting corporal injury on Jeanina (Pen. Code, 273.5, subd. (a)) on November 22, 2002. Charlotte had seen this incident also. She passed Jeaninas and defendants bedroom door which was open. When she glanced in, she saw defendant hit Jeaninas head while holding her in a headlock. Charlotte yelled; defendant looked up; Jeanina extracted herself and hit and scratched defendant back and hit or clawed defendants face. Jeanina told him to get out and he left, after which she called the police.

Around 11:30 p.m., Jeanina was transported by ambulance to Kaiser Hospital. She told Jody Maxwell, a Kaiser emergency room nurse, and the treating physician, Dr. Ramavtar Singh, that its the first time he hit me although he had bruised her before. At trial, Jeanina claimed she could not remember any conversation with a nurse or seeing a doctor. Maxwell screened and examined Jeanina around 11:35 p.m., and gave her an ice pack for her lip. Maxwell saw no injuries other than the lip abrasion with swelling, although Jeanina complained of pain in her left arm and left flank. Jeanina did not tell Maxwell she had been choked.

About 1:00 a.m., Singh treated Jeanina for a small abrasion on the lower lip. She complained of soreness in the muscles and soft tissues of her left arm and the left side of the chest. Dr. Singh saw no bruising elsewhere on her body, no bleeding, no evidence of choking, no injury to her forehead, no abrasions or scratches to her face, and no other physical symptoms.

On December 1, 2004, Elena told Jeanina about the molest. Jeanina wanted to know why Elena was upset when Jeanina suggested she ask defendant for help with her homework, and Elena said Jeanina would not believe her. Finally Elena said that defendant had raped her. Shocked, Jeanina asked Elena to explain. Elena said that one day when she was at home with her two brothers and defendant, and was wrestling with defendant in the bedroom, defendant held her down, put his hands down her pants and touched her inside her vagina. Elena said she pushed him off or kicked him and ran into her aunts room and locked the door, and started crying. Jeanina explained that was molesting, not raping.

Jeanina testified that defendant and all four kids frequently engaged in play fighting, which they considered wrestling, and that sometimes she would wrestle with them. She confronted defendant with the accusation but he denied it. Jeanina reported the molestation to Elenas doctor the next day; he told Jeanina to contact the police.

The next day, Jeanina told Officer Sean Vernon that her husband molested her daughter. He and Sergeant Weger conducted a tape-recorded interview. Elena was nervous and uncomfortable. Detective Robert LaBarbera of the sexual assault investigations unit conducted a follow-up interview. Elena told LaBarbera that defendant penetrated her with his thumb and it hurt. He requested that she take a SART (sexual assault response team) exam, but she declined because she felt uncomfortable about having someone examine her body, and she realized that after so long theres nothing there.

LaBarbera stated that Elena told him the first person she told about the alleged molest was her mother. She told Detective Vernon that she first told her friend Nicky. LaBarbera made no effort to find Nicky. Elena did not like the idea that LaBarbera was going to interview her brothers.

Jeanina and Elena testified at the preliminary hearing, after which, in a letter dated September 15, 2005, to Elena, defendant wrote that he wished he had walked away the night I hurt your mom, that he was sorry if he hurted [sic] you on [sic] any kind of way; that he was sorry if he let Elena down, broke the promise he made to her mother by not being there for you kids, or hurt her mother.

Elena was 14 and almost five feet, seven inches tall when she testified.[2] She had known defendant almost all her life; he had lived with Jeanina and her two children for five years before they married. Defendant was like a parent to Elena sometimes and they got along sometimes.

Elena testified the incident on August 20 started when her mother upbraided defendant for not changing diapers or helping out around the house, and she told him she was getting sick of it. They argued in the living room, then continued in the bedroom behind a closed door. The arguing continued for about five or 10 minutes more after Charlotte knocked on the door.

Elena had witnessed the incident between Jeanina and defendant at her Aunt Normas house the day after Thanksgiving 2004. Jeanina had taken her there to go to the movies with one of defendants sisters. Defendant and Jeanina had gotten into an argument at dinner the day before, and Jeanina took the children and left. The next day, Jeanina and defendant started arguing outside. Jeanina was in the car and defendant was standing next to it. Elena found out they were arguing when defendant walked into the house really mad, and her mother followed yelling at him. Her car side-view mirror was broken; Elena saw the pieces on the ground.

The molest occurred a week or two or maybe a month before August 20. Elena was at home with her brothers and defendant. She was play-wrestling with defendant--something they all did often for fun with the objective being to pin the other person down. They were in the bedroom on the bed. Defendant pinned her down on her back, held her hands over her head with one of his hands, put his hand in her sweat pants inside her underwear, and inserted his thumb inside her vagina. Elena yelled at defendant to stop. She tried to get his hand out of her pants and get away. It happened pretty quickly.

Defendant straddled Elena and would not get off. There was space between their two bodies even though her back was propped up on pillows when this happened. She struggled, then got one of her legs free and kicked him in the stomach and off of her. She could not explain how she managed to get her leg free and kick defendant in the stomach if defendant was kneeling straddling her on a soft bed. Elena ran into her aunts room, locked the door, and started crying. She stayed there until Jeanina came home.

Elenas brother Anthony was giving their brother James a bath in the nearby bathroom during this time. The bedroom door was wide open. She did not call for help. However, Jeanina testified Elena told her she did call out to Anthony and he responded that he could not come. Elena did not tell anyone else including her mother. She initially told police that she did tell her friend Nicky, but at preliminary hearing she testified her mother was the first person she told. At trial, she testified she told Nicky that something was happening that made her uncomfortable, but when Nicky did not reply, she assumed that Nicky disbelieved her.

Elena testified that defendants action made her angry and sad. Defendant had not done anything like that before and had never shown sexual interest in her before. Afterward, she acted normal around defendant because she did not want anyone to figure out what had happened. They still wrestled and there were occasions when he accidentally brushed against her breasts or thighs. She admitted that she had told police earlier that after the alleged August 20 incident, she was touched five or six times in a way that made her uncomfortable. However, she testified at trial, she remembered nothing in his conduct that made her uncomfortable and the brushings were accidental.

When the family started seeing defendant again before Thanksgiving 2004, Elena felt she had to tell her mother what had happened because she did not want the couple to get back together. After the mirror-breaking incident, Elena was afraid defendant might hit her mother, one of the kids, or her. Once she told her mother about the molest and it was reported to the police, she refused to take a SART exam. She acknowledged that she initially told police the alleged molest occurred after defendant hurt her mothers lip, however, after checking her calendar, she realized it occurred about one week earlier. She was not positive about that date; it could have happened in July or August.

Other witnesses included Jeaninas 13-year-old nephew, Patrick H., who testified that sometime in the summer of 2004, he saw defendant and Elena wrestling around in his aunts swimming pool about four or five feet away from him, and he saw defendant touching Elenas crotch. The sun was up and it was a hot day. Patrick said it was the middle of the day.[3] He said as soon as he saw defendants hand near Elenas crotch, he swam away. Then Elena and defendant swam away from each other and did not wrestle anymore.

Patrick knew what horseplay was, and when asked if playing was what was going on between Elena and defendant, he said, [i]t could have happened. However, when asked [w]hats the difference between the touch that you told the district attorney about that made you feel uncomfortable and the other wrestling that was going on between Elena and Felipe? Patrick answered, There was no difference. He agreed on cross-examination that he was not even sure whether he saw it, but on redirect examination, he denied making all this up, and remembered seeing it. He did not tell anyone about it when it happened because he didnt want nobody to ever see it. He said he did not think about telling his mother, but he finally did in the summertime when he was out of school about two weeks after the incident. [S]he sat us down and asked if we have ever been touched.

Patricks mother, Leann L., the girlfriend of defendants brother, testified Patrick told her that something that upset him involving defendant in his Aunt Normas swimming pool happened when he was 11 or 12 years old. He told her when she asked him and his brother if they had ever been touched a couple of weeks after he saw it happen.[4]

At trial Carl Lewis, a senior criminal investigator for the district attorneys office, testified as an expert regarding Child Sexual Abuse Accommodation Syndrome (CSAAS). Lewis testified that CSAAS is a behavior pattern, not a syndrome, composed of observed behaviors. He described it as a group of common features of child abuse, including secrecy, helplessness, accommodation to a situation in which the child is trapped, and delayed, conflicting, and unconvincing disclosure. Secrecy generally means that the offender isolates the child before he abuses her and then prompts the child to keep the abuse secret. Helplessness describes the fact that the child is not ready to resist the sexual advances of an adult and will gradually disclose the abuse by giving signals that something is wrong. Accommodation to a situation in which the child is trapped means that the child will find a way to cope with the burden of carrying the secret and, in many cases, may pretend that nothing is wrong. Disclosure that is delayed and conflicted refers to the internal conflict that the child has as he or she weighs the pros and cons of disclosing the abuse, which can lead to a delay in reporting it. Unconvincing disclosure describes a disclosure of the abuse at a time when it makes the child less credible, for example, during a heated argument or while the child is being punished.

Lewis testified that CSAAS is not a diagnostic tool for determining whether a child has been molested although some prosecutors have misused it by trying to prove that the child has been abused.

Lewis acknowledged that CSAAS cannot be used to identify someone who has been abused because any behavior is consistent with CSAAS. Hence, neither delaying in reporting nor immediately reporting is inconsistent with CSAAS. Similarly, neither displaying helplessness nor its opposite is inconsistent with CSAAS.

The Defense

Defendant called his best friend, Dominick Ruiz, a good friend, David Robles, his brother-in-law, Luis B., his cousin, Karla Huesca, and her husband, Meftali Moya, to testify to defendants nonviolent character and Jeaninas jealousy, anger, argumentativeness, and lack of truth. Of the witnesses, only Robles had seen a physical incident. Jeanina was kind of like thrust toward him, and [h]e maybe handled her and just stopped her.

Defendants sister, Lilia G., saw defendant in 2001 when he went back to his and Jeaninas home to collect some belongings. After defendant was in the house for about 10 minutes, he ran out of the house with Jeanina chasing him. Defendant was scratched around the left shoulder and his shirt was half torn. Lilia identified two photographs of Jeanina showing the angry expression she wore every day. She opined that defendant was not violent and that Jeanina was very jealous and could be dishonest.

San Jose Police Officer Jeff Rickel responded to a call to Charlottes home on November 23, 2001, where she reported she saw defendant land a single punch to Jeaninas left cheek. Immediately after the punch, Jeanina pulled defendants shirt, hit and scratched at him, and forced him from the house. The officer offered a protective order, but Jeanina declined.

Finally, Elenas good friend Karina G. shared a room with her in defendants and Jeaninas home for a couple of months. They were like sisters and shared many secrets. She talked to Elena after the accusation was made public. When Elena talked about it, she assumed a babyish tone, playing with her fingers and made barely any eye contact. Her manner was tense and evasive and different from other times when she shared something important. That was the first time Elena ever told her that defendant had done anything improper to her.

Defendants trial began on April 4, 2006. In motions in limine, the trial court ruled that if defendant testified, he could be impeached with two 2002 sexual offense convictions based on consensual acts with two 15-year-old minors, unlawful sexual intercourse with a minor (Pen. Code, 261.5) and oral copulation with a minor (id., 288a, subd. (b)(1)). The court also allowed Elenas aunt to accompany Elena to the witness stand, and Jeanina to sit in the audience when Elena testified, as Elenas support persons, under Penal Code section 868.5 (section 868.5).

Defendant was convicted of aggravated sexual assault of Elena, count 1 (Pen. Code, 269, 289, subd. (a)); corporal injury on a spouse, count 2 (id., 273.5, subd. (a)); and violation of a protective order that results in physical injury to another person, a misdemeanor, count 3 (id., 273.6, subd. (b)). The trial court found true that defendant suffered a prior conviction for which he served a separate prison term. (Id., 667.5, subd. (b).)

Defendant was sentenced to 15 years to life on count 1, a consecutive three-year term on count 2 which was stayed under Penal Code section 654, and 60 days in jail for count 3. The court struck the punishment for the prior prison term in the interests of justice. This appeal ensued.

ISSUES ON APPEAL

On appeal, defendant contends the court erred in: (1) permitting Elena to testify with a support person on the stand and one in the audience without requiring the prosecution to show need; (2) failing to exclude an uncharged sex offense under Evidence Code section 352;[5] (3) barring the defense from using a forensic mannequin in cross-examining Elena; (4) refusing a defense request to instruct on self-defense; and (5) excluding character evidence of Jeaninas reputation for violence. Defendant also asserts (6) the cumulative errors denied defendant a fundamentally fair trial to his prejudice; and (7) alternatively, any waiver resulting from defense counsels failure to make specific and timely objections to the admission of evidence constituted ineffective assistance of counsel.

SUPPORT PERSON

Defendant contends that the trial courts failure to require a showing of need for special protection before allowing Elena to be accompanied to the witness stand by a support person violated his right to confront his accuser as well as his rights to due process and a fair trial under the Fifth and Fourteenth Amendments to the federal Constitution. The trial court allowed Jeanina, who was to testify before Elena, to sit in the audience during Elenas testimony and Elenas aunt, Randi Sylva, who was her support person during the preliminary hearing and who was not herself a witness, to sit behind Elena in the witness box.

Section 868.5 entitles a prosecuting witness in a case involving listed sexual and nonsexual assaults, including Penal Code section 289, penetration of the anus or genitalia by a foreign object, to two support persons, one of whom may accompany the witness to the witness stand and the other of whom may remain in the audience during the witnesss testimony. If one or both persons chosen are also prosecuting witnesses, the prosecution shall present evidence that the persons attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness. Upon that showing, the court shall grant the request unless information presented by the defendant or noticed by the court establishes that the support persons attendance during the testimony of the prosecuting witness would pose a substantial risk of influencing or affecting the content of that testimony. ( 868.5, subd. (b).)

Defense counsel objected that absent any showing of need, the court should not allow special treatment of one witness, Elena, because it divides the focus of the jurys attention when two people are in the witness stand, and because the witness is treated differently from every other witness which directly contradicts the instruction to the jury that the testimony of all witnesses must be judged by the same standard. (CALCRIM No. 226.) Counsel suggested that the support persons be seated in the front row so the witness could see them, and that she be able to take a break any time she wanted. Counsel stated the special treatment of a witness accompanied to the stand by a support person gets an implicit signal from the Court that she is a victim. She--her testimony is to be believed. There is no--and she deserves to be evaluated differently than [sic] every other witness. Defense counsel argued that this would violate defendants due process, confrontation and cross-examination rights and violate his right to a fair trial.

The prosecutor told the court that she was told by the preliminary hearing prosecutor that during the preliminary hearing, the witness had to leave the stand, was out in the hallway in her mothers arms crying, number one. . . . [] The second thing is the victim has very clearly expressed that she wanted her mother and . . . aunt in the courtroom. She is very upset about doing this. She finds it very stressful and hard to come in and testify against the man who is [sic] her stepfather her entire life.

Defense counsel, who was present at the preliminary hearing, contradicted this characterization of Elenas behavior. He stated that Elena was calm throughout the prelim. About midway she said she would like to take a break now in a calm manner. She took a break. She didnt break down. She didnt cry. She didnt appear emotionally distressed whatsoever.

The trial court stated it did not believe there was a substantial risk of influencing or affecting the content of Elenas testimony and allowed Elenas aunt, Randi Sylva, to accompany her to the witness stand, Jeanina, the first prosecution witness, to sit in the audience while Elena testified, and a YWCA person who was not a witness and who did not have knowledge of the case also to be present in the courtroom. The court stated that in its courtroom the support person sits in the witness stand behind the witness and does not obstruct the jury view of the witness. Further, the court stated it would personally instruct the support persons that they were not to prompt, sway, or influence the witnesss testimony in any manner whatsoever.

Defendant claims that there was no proceeding to take evidence in the matter, even though he requested it and that there was no evidence before the court that Elenas needs required that her aunt accompany her at the stand as opposed to supporting her from the front row of the audience. He argues that the prosecutors description of Elena crying in her mothers arms during the preliminary hearing and stating that she wanted her mother and aunt in the courtroom was not a showing why these problems could not be accommodated by unobtrusively seating the two women in the audience.

Finally, defendant claims that the court failed to find that seating Elenas aunt on the stand was necessary to protect Elena from being traumatized by defendants presence in the courtroom and that the trauma would have to be more than mere nervousness or excitement, or some reluctance to testify. (Maryland v. Craig (1990) 497 U.S. 836, 855-856.) Defendant states that without these findings, the requirements of Coy v. Iowa (1988) 487 U.S. 1012, 1021, and Maryland v. Craig, supra, 497 U.S. at pages 855 through 856, were not met.

[T]he Supreme Court has held that the use of statutorily authorized special procedures must be based on a showing of the need of the individual witness. Use of a procedure that infringes on the confrontation clause may not be based on nothing more than a generalized finding underlying such a statute . . . when the exception is not firmly . . . rooted in our jurisprudence. [Citation.] [Citation.]

Maryland v. Craig teaches how specific the finding of necessity should be. The trial court must hear evidence and determine whether use of the . . . procedure is necessary to protect the welfare of the particular child witness who seeks to testify. [Citation.] The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. [Citations.] . . . Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimus, i.e., more than mere nervousness or excitement, or some reluctance to testify. (People v. Adams (1993) 19 Cal.App.4th 412, 443 (Adams).)

We are satisfied that the procedure utilized by the court complied with subdivision (b) of section 868.5. The need for a hearing was triggered by Jeaninas also being a witness. The prosecution presented facts on Elenas mental state in its written motion which was in the process of being heard. The facts stated at the hearing on the motion showed that to some extent, Elena had been upset during the preliminary hearing. The prosecution verbally stated current facts which showed that at the time of trial, Elena felt stress about testifying and that she requested support.

Defense counsel attempted to rebut the prosecutors representations about Elenas conduct during the preliminary hearing based on his personal observations to the contrary. Defense counsel did not present rebuttal evidence of Elenas then-present state of mind or request time to do so. Defense counsel did not argue that the prosecutors showing was defective. His emphasis was that there had to be something other than just the presumption that there is going to be trauma.

There was. There was some evidence that Elena suffered trauma at the preliminary hearing. Defense counsels observations did not negate the effect of the trial prosecutors representation based on information from the preliminary hearing prosecutor. Nor was the trial prosecutors report on Elenas contemporary stress about testifying about defendant and on her stated desire for support at the trial impeached by her prior self-control.

Defendant complains that the trial court failed to find that seating Elenas aunt at the stand was necessary to protect Elena from trauma [that was] more than mere nervousness or excitement, or some reluctance to testify. (Maryland v. Craig, supra, 497 U.S. at pp. 855-856.) He claims that he asked for a hearing on need and that the court denied it.

The reporters transcript shows that defense counsel argued that need had to be established, but did not request live testimony from Elena or any other witness on the issue of Elenas need. The parties and the court proceeded on the facts stated by both counsel. Defense counsel asked the court to reserve the ruling on this issue even up to the time the witness testified. However, the prosecutor responded with the information about Elenas current state of mind, giving the court facts justifying a ruling then.

It was clear that the motion was based on the statute and that both parties were aware of the requirements of the statute for establishing need or not. Both parties had the opportunity to fully and fairly state the evidence they had and to argue the issue. The prosecutions evidence showed that the support persons attendance was both desired by the prosecuting witness for support and that it would be helpful to the prosecuting witness. ( 868.5, subd. (b).) Defendants objection did not include information that the support persons attendance would pose a substantial risk of influencing or affecting the content of the prosecuting witnesss testimony. (Ibid.) The trial courts finding was supported by the evidence before it. The court complied with section 868.5. Defendant was not denied a hearing on the issue of need. It was not reasonably probable that a result more favorable to the defendant would have occurred if the court had heard live testimony on the issue.

Nor was there any interference with defendants Sixth Amendment right to confrontation and cross-examination by seating Elenas aunt in the witness box. Defendants confrontation clause complaint focuses on jury observation of demeanor and that the section 868.5 procedure singles out the prosecuting witness for special treatment which injects into the trial extra-evidentiary matters that skew the truth-finding process. Defense counsel presented a fairness argument that the supported witness should not be presented to the jury in a way to not implicitly tell the jury that she should be treated differently, or the Court believes her, or that she is a victim.

Defendant cites this courts opinion in Adams, supra, 19 Cal.App.4th 412, in which we found that allowing a witness to testify supported by another person at the witness stand has an effect on jury observation of demeanor. (Id. at p. 441.) However, we also recognized that the state has a transcendent interest in protecting the welfare of children. (Id. at p. 442.) Since Elena was 14 years old at the time of trial, she was an alleged child victim of sexual assault whom the state had a compelling interest to protect. (Ibid.)

In this case, defendant does not cite anything any of the support persons did that might have improperly influenced the witness or the jury, or anything which might show that the aunts presence posed a substantial risk of influencing the testimony or the jury, or did, in fact, influence it. (People v. Kabonic (1986) 177 Cal.App.3d 487, 498.) The court instructed the support person not to prompt, sway, or influence the jury in any way and the court admonished the jury of the limited purpose of the support persons presence and that it was not to discuss her presence during deliberations because it was not evidence. The aunt did not speak during Elenas testimony and no other references to her appear in the record. The court did not at any time deem the presence of any of the support persons improper within the meaning of section 868.5, subdivision (b). (See People v. Patten (1992) 9 Cal.App.4th 1718, 1731-1733.)

The instances defendant cites to support his claim of prejudice from the procedure are discrepancies in testimony or inferences defendant draws which are more germane to sufficiency of the evidence or credibility of witnesses arguments than to prejudice. For example, defendant states that Elenas descriptions of herself and [defendant] . . . made it impossible for [defendant] to straddle Elena on his knees as she laid [sic] on the bed, hold her arms over her head with his one hand, and then put his hand inside her pants and insert his thumb into her vagina . . . . [] No medical or physical evidence corroborated Elenas claim. She refused to take a SART test . . . . [] There was no change in her behavior after the alleged touching . . . . She continued to wrestle with [defendant] [five or six times]. [(Second brackets original.)] [] The bedroom door was open. In addition, Elena told her mother she called Anthony who was taking a bath with his brother and he refused to come. Jeanina could not confirm that with Anthony, and at trial, Elena denied she called to Anthony. Finally, Elena did not like the idea that Detective LaBarbera was going to interview her brothers, from which defendant draws the inference that Elena knew that Anthony would not confirm her story.

Questions of inherent prejudice arise when it is contended that a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process. [Citation.] When a courtroom arrangement is challenged as inherently prejudicial, the first question is whether an unacceptable risk is presented of impermissible factors coming into play, which might erode the presumption of innocence. (Adams, supra, 19 Cal.App.4th at p. 435.)

In this case, we have seen no instance of improper conduct and defendant has shown us nothing from which we can conclude he was prejudiced, that is, that impermissible factors came into play to sway, influence, or affect the testimony of the witness or the deliberations of the jury. The trial court did not err in allowing the presence of the support persons, including the aunt on the stand, and there was no prejudice.

EVIDENCE EXCLUDABLE UNDER SECTION 352

1. Propensity Evidence

Next, defendant complains that admission of Patricks testimony that he saw defendant touch Elenas crotch in a swimming pool in 2004 or 2005 as evidence of a prior sex offense to prove defendants criminal disposition rendered his trial fundamentally unfair and deprived him of due process of law[6] and violated section 352.[7] The testimony was admissible as propensity evidence under section 1108.[8] The jurors were instructed they could use this story to prove defendant had a disposition to commit the charged aggravated sexual assault, if they found by the preponderance of evidence that the prior act occurred. The prosecutor argued that the jury should use this story as proof of defendants guilt of aggravated sexual assault on Elena.

Defendant asserts that the testimony should have been excluded under section 352 because the danger of undue prejudice from that evidence far outweighs any slight probative value of evidence or prior or post uncharged sex offenses. Hence, the trial court abused its discretion in admitting the evidence because the courts decision exceeds the bounds of reason.

The People submit that defendant forfeited his claim by failing to make a timely and specific objection grounded in section 352 in the trial court. ( 353; People v. Anderson (2001) 25 Cal.4th 543, 586.) The People state that defendant did object in the trial court that the evidence was unreliable and should not be admitted because Patrick and his mother had made inconsistent statements regarding when Patrick first reported the incident and Elena had never made a statement regarding its occurrence. However, since defendant had not alerted the court he relied on section 352, the People assert that defendant should not be allowed to raise the issue now for the first time. (People v. Williams (1997) 16 Cal.4th 153, 205.)

The People are wrong. Defendant properly raised what he calls the pool incident in his written motion in limine under the main heading Prior Sex-Related Crimes [Penal Code,] 261.5[, subdivision] (c); 288a[, subdivision] (b)(1), Late Discovery of Additional Act of Sexual Misconduct, subheading III. Evidence to be Excluded Pursuant to Evidence Code 352, and sub-subheading The court should exclude any reference to the supposed pool incident. The issue was discussed at the hearing on the motion in limine with reference to section 1108, which necessarily includes section 352.

In stating its decision, the trial court stated in some detail why it was disallowing instances of sexual intercourse and oral copulation with two 15-year-old victims, but ruled simply that after engaging in the same analysis [of the pool incident], pursuant to Evidence Code [section] 352, the Court finds that the probative value of evidence substantially outweigh[s] any prejudicial effect. . . .

Prejudice as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponents position or shores up that of the proponent. The ability to do so is what makes evidence relevant. (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008 (Vorse).) Section 352 prejudice applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. [P]rejudicial is not synonymous with damaging. (People v. Karis (1988) 46 Cal.3d 612, 638.) [E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose. (Vorse, supra, 53Cal.App.4th at p. 1009.)

A court faced with testimony of uncharged sexual conduct must consider its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendants other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. (People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).)

[T]he probative value of other crimes evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense. [Citation.] We also observed that the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jurys attention would not be diverted by having to make a separate determination whether defendant committed the other offenses. (Falsetta, supra, 21 Cal.4th at p. 917.)

In this case, the trial court clearly had the purpose of section 1108 and the requirements of section 352 in mind when considering the admissibility of the evidence. The record shows that the charged incident and the pool incident occurred around the same time, the summer of 2004, to the same victim, and with essentially the same approach, that is, defendant was playing with Elena (wrestling on a bed in the charged incident and in a swimming pool in the other) and then digitally penetrated her in one and lewdly touched her in the latter.

The testimony about the uncharged incident was brief and did not involve undue consumption of time, and the conduct involved in the uncharged incident (touching Elena outside her body) was less egregious than that of the charged incident (inserting a thumb in her vagina) and very less egregious than that of the two excluded incidents (sexual intercourse and oral copulation).

Although there was no conviction in the pool incident, a conviction is not required for the uncharged conduct to be admissible under section 1108. (People v. Johnson (2000) 77 Cal.App.4th 410, 419, fn. 6.) Also there was a witness to the offense. Although Patrick allowed at the end of cross-examination that he was not sure whether he saw the incident, he was clear on the details: where he was, who else was there, what the other people were doing and where they were when it happened, who was in the pool, the time of day, what defendant and Elena were doing in the pool before the touching, and what they did afterwards. The incident upset him. He did not tell either parent about it until asked. The parental inquiry occurred within two weeks or a relatively short time thereafter. The degree of certainty Patrick showed in the totality of his testimony that the pool incident happened and his mothers corroboration as to the content of his testimony was sufficient to admit it. The weight of the evidence was for the jury to determine.

Finally, the trial court properly instructed the jury on the limited purpose of the evidence, that the prosecutor had to prove the uncharged incident happened by a preponderance of the evidence, but that the prosecutor had the burden of proving the charged conduct beyond a reasonable doubt. The uncharged offense was not so dissimilar as to be more prejudicial than probative; there was no error in admitting the testimony and no denial of due process or a fair trial.

2. The Forensic Mannequin

Defendant asserts that his right to confront his accuser was violated by the trial courts barring him from using an accurately-sized forensic mannequin to show the physical impossibility of the sexual assault as Elena described it. The prosecution had objected in a motion in limine that it would traumatize Elena to re-enact the incident and that the mannequin was so dissimilar to her person that it would be highly inaccurate and misleading.[9]

Defense counsel stated the mannequin was manufactured for courtroom settings, was fully moveable, modeled on Elenas exact measurements, and could be positioned exactly as Elena directed. Counsel argued that defendant was entitled to have his evidence judged by the same standard used to permit the prosecution to make Power Point presentations; use dolls to have the witness point to where they were touched, and use diagrams to have the witness point and circle and aid the jury in understanding the testimony. Defense [sic] stated both parties would have access to the mannequin. Further, because positions are relevant, the mannequin is relevant; the prosecutors objections go to weight only, and the defense is entitled to have the jury see the visual aid to evaluate the credibility of Elenas testimony.

The court ruled the defense could use the mannequin as a proctor^[[10]] in closing arguments. It may be used with other witnesses from the defense, but I will not allow the mannequin to be used while you are cross-examining Elena Doe, thats pursuant to [section] 352.

Defense counsel made no use of the mannequin during trial, but cross-examined Elena about the positions she and defendant assumed during the alleged molestation. Defense counsel stated during closing argument: [I]n opening statement I told you that I was going to bring a mannequin in to demonstrate to you that this was physically impossible. I bought a mannequin. I have it in my office. Its dressed in sweats and a T-shirt. But I was on the ground with the mannequin trying to demonstrate it. Someone walked by my office. And the embarrassment I felt at that point to people that know me prevents me from actually coming in here and straddling a mannequin and showing you the impossibility of the act. So I will leave this to your good sense and to your own common sense and knowledge of anatomy.

Defense counsel then explained that the incident was impossible as described because Elena measured five feet six inches at the time of the crime although she testified she was four inches shorter back then. Defendant was also five feet six inches tall. Kneeling with his body between her legs with a knee on each side, . . . there would be no space for him to put his hand through his legs. And then she also said that she was on pillows to even prop her up more. There is really no space between the groin and the stomach area if he is straddling her. But . . . even more, the hands are over the head. Her limbs are as long as [defendant]s. Her hands are held over her head. So he is elongated over her body, stretched up toward over her head. So his chest is sort of in her head area in order to keep the hands above the head. And then he takes his hand, gets it . . . inside the underwear, and gets the thumb, which is the farthest digit from the tip of the finger, . . . take the longest stretch to get the thumb inside of the vagina. . . .

And how does she explain it now? Well, she was a lot smaller back then when she actually wasnt. And then imagine this. So he has got both of his legs straddling her body. Got her hands over her head. Somehow she gets her leg . . . through his legs to kick him in the stomach. . . . [A]ctually, I think its physically impossible for that to have happened . . . how someone could be straddling around your stomach area with your [sic] holding your hands above your head and how that person could then take a leg, get it through your legs and then kick you in the stomach if you are on a bed and propped up on pillows.

The prosecutor countered that the incident was physically possible, [o]ne, because it happened. Two, just some common sense things again . . . . [Elena] is maybe a size 2 soaking wet. If you are on your knees above her, there is no way her body is going to fill that entire gap. . . . Think about the distance from the knee to the hip. She was about this big around. There is plenty of space. She told you that his knees were lined up with her hips. Perfect access. She told you that he is above her and his hand is sliding down under the pants, down towards her vagina, and then his thumb goes in. Pretty darn physically possible. Common sense.

Mannequins may be used as illustrative evidence to assist the jury in understanding the testimony of witnesses or to clarify the circumstances of a crime (People v. Cummings (1993) 4 Cal.4th 1233, 1291), even though [they] may have some prejudicial effect. (People v. Robillard (1960) 55 Cal.2d 88, 99 (Robillard), overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 648-649.) In Robillard, the mannequin was a perfectly proper method of introducing highly relevant evidence. It was extremely important in this case to present the manner in which defendant had shot the officer. No one saw the shooting. Therefore, the prosecution was entitled to demonstrate the position of the wounds in the officers body in order to substantiate its theory that defendant had literally executed the officer in order to escape detection. (Robillard, supra, 55 Cal.2d at p. 99.)

In this case, defendant states using the mannequin to cross-examine Elena was essential because only she knew exactly what positions were taken and had the capacity to describe what she claimed to have happened. This was critical and relevant because it would have a tendency to disprove the critical fact at issue of whether the molest occurred.

Defendants and Robillards situations are not analogous. In Robillard, the mannequin was used to illustrate something static--the position in which the officers lifeless body was found and the position of the six bullet wounds to demonstrate the manner in which the defendant had shot him. The stillness of the mannequin was exactly illustrative of the officers body. The first round of shots felled the officer and the three shots at close range were fired when he was lying there. (Robillard, supra, 55 Cal.2d at pp. 99-100.) No one was able to testify at trial to witnessing the actual shooting and describing how it happened. Thus, the evidence using the mannequin prepared by the county pathologist was not cumulative to other evidence in the case.

In this case, the defense wanted to create a visual image of a fluid interaction between two persons by use of an inert figure. It was like using one frame from a stop motion study as illustrative of the entire range of movement being studied. A mannequin lying on its back with its hands over its head in the position Elena described before defendant moved his other hand to her waist preparatory to sliding it down her abdomen, was not necessarily illustrative of Elenas position at the time defendant accomplished the touching, nor would a static mannequin be able to show how Elenas position changed when she was trying to (and, according to her, did) draw up her leg to kick defendant.

Aside from the difficulties of accurately portraying Elenas movements, defendant did not have a second, defendant-sized, mannequin to show alterations in defendants position vis--vis Elena as he moved. A live actor playing the part of defendant would not have solved the problem because he or she would have (probably unintentionally) interjected uncontrollable variables into the visual representation of the crime. Defense counsel, himself, pointed out one of the possible problems in final argument by confessing the embarrassment he felt in being seen rehearsing the demonstration.

With these difficulties, the proffered demonstrative evidence could not have provided an accurate depiction of the crime. Furthermore, the evidence was cumulative to Elenas description of the incident and not helpful to the jurys understanding of the defense. The probative value was substantially outweighed by the probability of prejudice, of confusing the jury, and of unduly consuming time. In addition, the evidence was not critical to the jurys understanding of the defense. The witnesss testimony was comprehensible and defense counsels argument was thorough in describing the difficulties counsel believed to exist. Consequently exclusion of the mannequin did not deny defendant a fair trial, due process, confrontation, and compulsory process.[11] The trial court did not err in excluding the mannequin.

REFUSAL TO INSTRUCT ON SELF-DEFENSE

Next, defendant asserts that the court violated his constitutional rights to due process,[12] trial by jury, confrontation, counsel, and compulsory process in refusing his requested instruction on self-defense[13] on the ground that substantial evidence did not exist in the record to support giving the instruction. At an instruction conference, defendant stated he believed the record contained sufficient evidence, the prosecution said it did not, and the court agreed there was not sufficient evidence and stated it would not give the instruction.

The trial court must instruct on self-defense if requested when the request is supported by sufficient evidence. (People v. Breverman (1998) 19 Cal.4th 142, 157.) In this context, substantial evidence is evidence [which is] sufficient to deserve consideration by the jury, i.e., evidence from which a jury composed of reasonable men could have concluded that the particular facts underlying the instruction did exist. (People v. Wickersham (1982) 32 Cal.3d 307, 324, overruled on another point in People v. Barton (1995) 12 Cal.4th 186, 201.) A trial court should not measure the substantiality of the evidence by undertaking to weigh the credibility of the witnesses, a task exclusively relegated to the jury. (People v. Flannel (1979) 25 Cal.3d 668, 684 (Flannel), overruled on other grounds as stated in In re Christian S. (1994) 7 Cal.4th 768, 777-778.) Doubts as to the sufficiency of the evidence should be resolved in favor of the accused. (Flannel, supra, 25 Cal.3d at p. 685, fn. 12.)

There was no direct evidence of defendants state of mind at the time of the instant offense or any of the other incidents.

Jeaninas throwing the boot which cut defendants ear after he threw the car keys at her was not evidence from which the jury could have inferred that defendant feared bodily harm at Jeaninas hands. Nor was the mutual pushing that ensued substantial evidence from which defendant could believe that bodily harm to his person was imminent. (People v. Sedeno (1974) 10 Cal.3d 703, 718, disapproved on another ground in Flannel, supra, 25 Cal.3d at pp. 684-685, fn. 12, and People v. Breverman, supra, 19 Cal.4th at pp. 148-149.) An act of self defense is justified when the defendant holds an honest andreasonable belief that bodily injury is about to be inflicted upon him. (People v. Goins (1991) 228 Cal.App.3d 511, 516.) The threat of bodily harm must be imminent (In re Christian S., supra, 7 Cal.4th at p. 793), and the right of self-defense is limited to the use of such force as is reasonable under the circumstances. (People v. Pinholster (1992) 1 Cal.4th 865, 966.)

Evidence that the victim had threatened or assaulted the defendant on a prior occasion is admissible to support a self-defense claim. (People v. Moore (1954) 43 Cal.2d 517, 527-529.) The evidence from which, defendant states, the jury could infer that Jeanina had initiated and inflicted injury on [defendant] in the past, and that [defendant] on August 20, 2004 actually and reasonably believed physical injury was imminent was not persuasive. Furthermore, the November 2001 encounter including mutual hitting during an argument and ending with Jeaninas scratching defendant and tearing his shirt, did not constitute evidence--since Jeanina, the only percipient witness who testified, could not remember who started the fight, or who was the first person to initiate physical contact--that Jeanina was the aggressor in the past.

Defendants experience with Jeanina was one of mutual physical and verbal altercations in which he apparently prevailed. Jeanina was uncontradicted in her claim that she acted only in self-defense during their altercations. Other witnesses who testified they had seen defendant and Jeanina argue a lot did not testify they had ever seen Jeanina physically attack defendant. At the instant trial, the parties stipulated that defendant had been convicted of inflicting corporal injury on Jeanina on a prior occasion, and the photograph revealed a bruise on Jeaninas cheek as a result of the incident. Finally, defendant later apologized to Elena for hurting her mother, Jeanina.

None of the evidence of Jeaninas inconsistencies or exaggerations (its the first time he hit me to the Kaiser nurse; to the police, that he punched her a number of times on August 20; when testifying at trial, that defendant had gotten physical more than five times in the past, but at preliminary hearing, it was 10 times; a failure to mention that defendant strangled her until almost a year after the initial complaint; or the inclusion of episodes consisting of mere bad words in her listing of violent fights); nor the testimony of defendants character witnesses that Jeanina did not tell the truth, constitutes substantial evidence that Jeanina honestly and reasonably represented a physical threat to defendant, causing a need for self-defense to arise