P. v. Barroso

Filed 3/6/06 P. v. Barroso CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Vicente Barroso waived his right to a jury trial and, following a bench trial, was convicted of two counts of committing a lewd act upon a child. (Pen. Code, § 288, subd. (a).)[1] The court found true the special allegations that appellant had suffered two prior serious or violent felony convictions under section 667, subdivisions (b) through (i), and a prior conviction pursuant to section 667.61, subdivisions (a) through (c). Appellant was sentenced to a total term of 50 years to life in state prison. He challenges the trial court's admission of the minor's extrajudicial statements, contends the court erred in admitting testimony of a sexual assault nurse, argues he was denied his Sixth Amendment right to confrontation and raises a claim of ineffective assistance of counsel. We affirm.

FACTS

The minor victim, appellant's granddaughter, was seven years old at the time of the offense. She lives with her father and stepmother. The minor is a special education student who has an attention deficit disorder. She exhibits behavioral problems and is medicated with Ritalin.

From August 21 through August 24, 2004, the minor visited her biological mother. It was her first visit with her mother in approximately seven months. When she returned from the visit, her stepmother noticed that she looked frightened and asked her why. The minor said that "batman" had touched her again. Her stepmother asked who he was, and she said, "[m]y grandfather Vicente," her maternal grandfather. The minor pointed with her middle finger towards her vagina and said she was touched there and "in the back." She indicated that this happened in the bathroom at her grandfather's house. Her stepmother told her that she would need to tell her father what had occurred.

The minor's father testified that his daughter told him that the "bad man" (as distinguished from "batman" in stepmother's testimony) had touched her "in the front and back" and identified him as Vicente Barroso. Father immediately contacted the Oxnard Police Department, and Officer Wendy Baxter responded to the call. Officer Baxter spoke to the minor alone in her bedroom. The minor said that appellant had put his finger in her "front part" and "back part." Officer Baxter picked up a stuffed toy and asked her to show her with the animal what had happened. The minor demonstrated the touching of the front and back genital areas on the toy. She was taken to Safe Harbor medical facility in Ventura for an interview and examination.

1) Interview and Medical Examination

Detective Robin Whitney is a sexual assault investigator with the Oxnard Police Department. She interviewed the minor at the Safe Harbor facility. The interview was audio and videotaped. The minor told Detective Whitney that appellant had inserted his finger into her vaginal area.

The minor was examined by a nurse from the sexual assault response team (SART). The nurse looked for trauma to the vaginal and rectal area because the minor told her that something was put "inside her butt" and inside her "front private part." The nurse observed an abrasion and redness in the vaginal area which she photographed. There was a laceration on the outer portion of the rectal area and another laceration deeper into the rectum that was bleeding. She was unable to photograph the latter rectal injury. The nurse testified that the injuries were consistent with the history that the minor had given, and she suspected sexual abuse. The minor's injuries were in a state of healing that was consistent with a recent sexual assault.

2) Testimony of the Minor and Mother

During the minor's visit with her mother, they twice visited appellant's home. The house has two bathrooms, one upstairs and one downstairs. The minor testified that she went into the upstairs bathroom, took off her underwear and placed it on the floor. She sat on the toilet and, when she stood up, appellant entered the bathroom and touched her "front part" with his finger. Appellant touched between her legs and it hurt. The minor wiped herself and saw blood on the tissue. She left while appellant was still in the bathroom. In court, the minor was given a doll to show where appellant had touched her. She pointed to the area between the doll's legs.

The minor's mother testified that she was in the bathroom with her daughter on the day following the alleged offense. The minor was taking a bath and mother saw her put a squeaky toy in her genital area. Mother asked her what she was doing and she said that her father's neighbor "put a finger up her." Mother asked her if appellant had touched her and the minor responded that he had not. Mother subsequently told detectives that she believed her father (appellant) was capable of molesting the minor and that she does not leave the minor alone with him.

The minor's stepmother testified that her stepdaughter's behavioral problems began when she was three years old. The minor refused to bathe and sometimes scratched her arms and legs until she bled. She has thrown herself against the wall and ripped off the wallpaper. Stepmother has known the minor to lie, but believed the minor was telling the truth about the molestation. The minor has lied about eating candy and once said that she had not been fed at school. She has said that other people hit her and she has hit stepmother's five-year old son, then denied striking him. Father testified that he knew that she has lied about "little things." However, he believed her when she said appellant touched her because she was visibly distraught, crying very hard and shaking.

2) Arrest of Appellant

During their investigation, Detective Whitney and Officer Baxter spoke to appellant outside his front door. Appellant was not detained and agreed to ride with the police to be interviewed at the station. Before he got in the police car, Officer Baxter performed a routine pat-down and found a potato in appellant's right front pants pocket. It had been carved into a cylindrical shape, approximately three to four inches in length, and one to one and one-half inches in circumference. She returned the potato to his pocket and completed the pat-down.

Before going to the station, appellant asked to use the bathroom. He walked to the side of the house to urinate and returned to the car. After arriving at the station, the officers asked for the potato, but appellant stated he had thrown it away at the side of his house. He was arrested following the police interview. At trial, appellant testified that he did not carve the potato to look like a penis and did not put it in the minor's vagina or rectum. He threw it away because he was embarrassed for the police to see it.

3) Prior Acts of Sexual Misconduct

In 1986, the minor's mother told the police that her father (appellant) began sexually touching her when she was approximately seven or eight years old, while their family lived in Mexico. The touching continued after they moved to the United States and stopped when she reached age 13. At the time she spoke to the police, she was 15 years of age and a high school special education student.

Appellant was prosecuted for the offenses against mother. At a preliminary hearing in 1987, mother testified that he had followed her into the bathroom, put his hand down her pants and his finger in her vagina. Another time, she was lying in bed with her mother, and appellant got into bed and had sexual intercourse with her while her mother slept. On two separate occasions, her mother and one of her sisters walked into the bedroom and saw appellant and her having sexual intercourse. Appellant was convicted of one count of section 288, subdivision (a) for the molestation of mother. When called as a witness at the minor's trial, mother denied having made these statements, despite being presented with a transcript of the 1987 hearing.

The minor's maternal aunt was 27 years old at the time of the minor's trial. She was born in Mexico and came to the United States when she was nine. While in high school, she was a special education student. She was questioned about telling a school counselor in 1993, when she was 15 years old, that her father (appellant) had touched her sexually, beginning at age seven. At the minor's trial, aunt denied having made these statements. A social worker with Child Protective Services testified that, in 1993, she interviewed aunt who reported that appellant had sexually fondled her and penetrated her vagina. The touching occurred twice, both times when the family lived in Mexico.

The minor's grandmother testified that she once walked into a bedroom and saw appellant in bed with the minor's mother. This occurred in Mexico. Grandmother became very angry, grabbed appellant by the hair and pulled him out of the bed. She slapped him across the face and told him she did not want to see that again. She subsequently became very fearful that her husband might sexually touch her daughters.

DISCUSSION

Voir Dire of the Minor

The minor was called to the stand and questioned by the prosecution on voir dire to determine her competency as a witness. She was initially unable to answer the prosecutor's inquiries asking her to distinguish the truth from a lie. She answered a series of questions with "I don't know" or "I don't know what that means."

After a pause in the proceedings, the prosecutor questioned the minor further.

"[Prosecutor]: Let's say that you're at home and for whatever reason you hit your brother. . . . Okay?

"[The minor]: 'Kay.

"[Prosecutor]: And your mom asks you, did you hit your brother, and you say no, but you really did. Is that the truth or a lie what you would tell your mom?

"[The minor]: A lie.

"[Prosecutor]: How come?

"[The minor]: 'Cause I hit him.

"[Prosecutor]: Okay. And if you tell a lie, do you get in trouble?

"[The minor]: Yeah.

"[Prosecutor]: You do?

"[The minor]: No. I don't know.

"[Prosecutor]: I just want you to tell whatever the truth is. Okay?

"[The minor]: Okay.

"[Prosecutor]: So do you get in trouble if you tell a lie at home?

"[The minor]: Yes.

"[Prosecutor]: And do you know if it's better to tell the truth or tell a lie?

"[The minor]: To tell the truth.

"[Prosecutor]: Do you understand that the questions we ask you today, that you need to tell only the truth?

"[The minor]: Yeah.

"[Prosecutor]: And do you understand that that means to say what really happened?

"[The minor]: Yeah.

"[Prosecutor]: Okay. And if something didn't happen, do you understand that you need to say it didn't happen?

"[The minor]: 'Kay.

"[Prosecutor]: Do you understand that?

"[The minor]: Yeah."

Defense counsel argued that the minor's competency had not been established. He stated that the minor did not know the difference between the truth and a lie or understand her duty to tell the truth. The court responded, "I agree that the first questions might have been difficult to arrive at the decision--the last questions before the break seem[ed] to establish that she did understand what was true and not true. Whether you call it truth or lie, she indicated that she did understand and my recollection of my notes show that she did get in trouble if she didn't tell the truth at home." The court denied the defense request to question the minor on voir dire, concluding that it had not overcome the presumption that she was competent to testify. The minor then testified that she was molested.

"Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter." (Evid. Code, § 700.) A person may, however, be disqualified to be a witness if she is either incapable of expressing herself concerning the matter so as to be understood or incapable of understanding the duty to tell the truth. (Id., § 701, subd. (a); see People v. Mincey (1992) 2 Cal.4th 408, 444.) These are preliminary facts to be determined by the court and the party challenging a witness has the burden of proving disqualification. (People v. Anderson (2001) 25 Cal.4th 543, 573.) We will uphold the trial court's determination in the absence of a clear abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 360.)

Appellant claims the trial court erred by refusing to allow defense counsel to question the minor on voir dire to determine her ability to tell the truth. The trial court's refusal, he contends, was prejudicial error requiring reversal. Appellant does not argue that the court abused its discretion in determining that the minor was competent to testify. Rather, he contends the trial court denied him his Sixth Amendment right to confront witnesses by refusing to allow him to question the minor. Appellant maintains he was entitled to elicit her testimony because he bore the burden of proving disqualification.

The United States Supreme Court addressed this issue in Kentucky v. Stincer (1987) 482 U.S. 730 (Stincer). There, the defendant was prosecuted for sodomizing two female minors, ages seven and eight. Before evidence was presented, the court held an in-chambers conference to determine their competency. The defendant was excluded from the hearing, but his counsel was present. The trial court found that the minors were competent and permitted them to testify. On appeal, the defendant argued that he was denied his right to confrontation because he was excluded from the hearing.

The Supreme Court rejected this argument on several grounds. First, any questions posed at the competency hearing could have been repeated in open court upon cross-examination of the witnesses. (Stincer, 482 U.S. at p. 740; California v. Green (1970) 399 U.S. 149, 157-158.) This was defense counsel's opportunity to prove that the witnesses were not competent to testify and to undermine their credibility. (Stincer, at p. 744.) Moreover, a judge's responsibility to determine competency continues throughout trial. (Id. at p. 743.) If counsel's cross-examination had elicited evidence that the minors were not competent, counsel could have moved the court to reconsider its competency ruling at the close of their testimony. (Ibid.)

Here, the minor was questioned about her ability to tell the truth, and the prosecutor's inquiry satisfied the court. Defense counsel could have challenged her competency and credibility during cross-examination at trial. Had the minor's testimony raised questions about her competency at that time, counsel could have requested the court to reconsider its ruling. Appellant's right to confrontation was not violated by the trial court's refusal to permit the questioning of the minor on voir dire. For this reason, we reject appellant's argument that he was denied his right to present a defense.

Hearsay

Appellant was convicted of two counts of a lewd act on a child. The counts were based on two touchings, one vaginal and one rectal, in the bathroom of his house. The minor testified only that appellant touched her vagina. She said nothing, nor was asked, whether appellant touched her rectum. Several witnesses testified that the minor told them about a rectal touching. The court admitted these extrajudicial statements under the fresh complaint doctrine and as prior inconsistent statements. Appellant claims this was inadmissible hearsay, thus there is insufficient evidence to support his conviction on count 2. He also claims a violation of his Sixth Amendment right to confrontation.

We discuss appellant's argument in more detail below. We note, however, that evidence of a rectal touching was not based on hearsay testimony alone. It was also established by the testimony of the SART nurse describing the injuries she observed and photographic evidence of those injuries.

Fresh Complaint

Under the "fresh complaint doctrine" a victim's out-of-court statements disclosing an alleged sexual assault may be admitted for the limited non-hearsay purpose of showing that a complaint was made. (People v. Brown (1994) 8 Cal.4th 746, 756.) Such statements may be admitted "to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others . . . ." (Id. at pp. 749-750.) Care must be taken to exclude details of the molestation, lest the jury rely on these details as tending to prove the truth of the underlying charge. (Id. at p. 763.)

Appellant concedes that some of the testimony concerning the minor's statements was admissible to show that a complaint had been made concerning his alleged conduct. However, he claims that the testimony "went too far." Prior to trial, the court indicated it would allow evidence to show that a complaint was made, but it would not admit detailed statements concerning the substance of the complaint. While questioning stepmother, the prosecutor asked what part of the minor's body appellant touched. The trial court allowed the testimony, over defense objection, explaining, "[t]o the extent that I need to know whether the complaint concerns this case, I think a little more is appropriate. Again, it's not coming in for the truth, but to indicate that she made a complaint about something at this point in time that caused us to be here."

When father took the stand and began testifying about the minor's statements to him, defense counsel made a hearsay objection. The prosecutor argued that it was "fresh complaint" testimony and should be admitted. The court responded, "I guess we need to hear. If the answer gets too detailed, I'll certainly--again, it's not coming in for the truth regardless of what he says right now. But I'll need to hear the answer to know if it's too detailed."

According to father and stepmother, the minor said that her grandfather had touched her in the "front part" and "back part." This was the initial statement the minor made to stepmother to inform her of the molestation. Its admission was relevant to establish the existence of an alleged sexual offense and the identity of the offender. Neither father nor stepmother testified to the details of the molestation. Their testimony did not exceed what was necessary to establish that the alleged offense occurred. Moreover, this matter was tried to the court, not a jury. The record reflects that the trial court understood that the testimony was not coming in for its truth. There was no error.

2) Prior Inconsistent Statement

The remaining witnesses who testified that the minor told them about a rectal touching were the SART nurse, Officer Baxter and Detective Whitney. Defense counsel made a hearsay objection to the testimony of the SART nurse concerning the minor's report. The prosecutor indicated that she was offering the evidence to impeach her own witness and as a prior inconsistent statement. The court overruled the objection.[2] Officer Baxter testified to the statements that the minor made after the officer arrived at father and stepmother's home. The statement was allowed as a prior inconsistent statement to impeach the minor's testimony. Detective Whitney testified, over defense objection, to the statements that the minor made during the interview at the Safe Harbor facility.

"'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [¶] . . . Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subds. (a) & (b).) Evidence Code section 1235 provides an exception to the hearsay rule: the trial court may admit the prior statement of a witness if the statement is inconsistent with the testimony of the witness at trial. However, the statement may only be admitted if "[t]he witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] . . . [t]he witness has not been excused from giving further testimony in the action." (Evid. Code, § 770, subds. (a) & (b); People v. Garcia (1990) 224 Cal.App.3d 297, 303.)

We do not necessarily agree that the testimony outlined above constitutes inadmissible hearsay. However, appellant argues correctly that the court improperly admitted this evidence as a prior inconsistent statement. Although the minor testified that appellant had touched her vagina, she made no reference to her rectum nor was she questioned about a rectal touching. At the close of her testimony, the court excused her, saying, "You can go now," eliminating any opportunity for her to explain or deny the statements. Under these circumstances, it was error to admit this evidence as a prior inconsistent statement.

On appeal, appellant does not challenge the admissibility of the videotaped interview,[3] the physical evidence of rectal trauma, or the medical observations of the SART nurse. This evidence was sufficient to support appellant's conviction on count 2. The error admitting the prior inconsistent statements was harmless. It is not reasonably probable that a result more favorable would have resulted had the challenged testimony been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) We reject appellant's confrontation clause argument for the reasons stated above.

Expert Testimony

Appellant contends the trial court erred by admitting the testimony of the SART nurse, Deanna McCormick. Appellant objected at trial that McCormick was not qualified as an expert because she had insufficient medical training to render an opinion as to causation. He also contends that she improperly testified that the minor was a credible witness.

Appellant concedes that McCormick properly testified to her observations of the minor's physical condition. He contends, however, that there was no showing that she had special knowledge to determine whether an alleged victim's injuries "were the result of sexual penetration, self-inflicted, or of an innocent nature." Appellant also argues it was error to allow the nurse to testify that the minor's injuries were "consistent" with a sexual assault. This testimony, he claims, "was a thinly veiled opinion that [the minor] was a credible witness." Appellant has waived this latter objection by failing to raise it below. Nevertheless, we address both contentions.

Under Evidence Code section 720, subdivision (a), "[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." Such knowledge "may be shown by any otherwise admissible evidence, including [the expert's] own testimony." (Id., subd. (b).) A trial court's determination that a witness qualifies as an expert will not be disturbed absent a manifest abuse of discretion. (People v. Bloyd (1987) 43 Cal.3d 333, 357.)

McCormick testified that she has been a nurse since 1991 and a certified sexual assault nurse examiner since 1998. She obtained her certified graduate forensic nurse degree through Colorado University in 2000. She has performed at least 500 sexual assault examinations and testified as an expert at least 20 times. She described in detail how the examinations are conducted, the equipment used and the reporting protocol. We conclude that she was properly qualified to render an opinion as to causation.

McCormick testified that she "suspected" that the minor had been sexually abused and believed her injuries to be "consistent" with the history the minor provided before her examination. These statements do not, as appellant suggests, constitute an opinion as to the minor's credibility. The expert testimony was properly admitted.

Lay Opinion Testimony of Father and Stepmother

Appellant claims that the court improperly admitted the testimony of father and stepmother that they believed the truthfulness of the minor's allegations. Both testified that the minor has a tendency to lie, but they believed she was telling the truth when she said appellant had touched her. Appellant concedes that counsel did not object to this testimony below. He argues that, if his argument has indeed been waived, then trial counsel was ineffective in failing to object.

To establish ineffective assistance of counsel, one must show that his attorney acted unreasonably under prevailing professional norms and that prejudice resulted from the error. (People v. Lucas (1995) 12 Cal.4th 415, 436-437; People v. Ledesma (1987) 43 Cal.3d 171, 216.) Prejudice must be shown to be a "'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel." (People v. Williams (1988) 44 Cal.3d 883, 937.) Appellant's claim fails because it is not reasonably probable he would have obtained a better result had trial counsel objected to father's and stepmother's testimony. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)

Propensity Evidence

Appellant claims the trial court erred by admitting evidence of his prior acts of sexual misconduct under Evidence Code 1108. He acknowledges that we are bound by the holding in People v. Falsetta (1999) 21 Cal.4th 903 in which the admissibility of propensity evidence withstood a federal constitutional challenge. However, he raises his claim here to preserve it for federal review.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Mary Sanchez, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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

[2] The court admitted the evidence, indicating it knew of no reason that it was impermissible to impeach one's own witness.

[3] We cannot determine from the record whether the audio or videotape was entered into evidence.