P. v. Despois
Filed 11/19/13 P. v. Despois CA1/1
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JEREMY R.
DESPOIS,
Defendant and Appellant.
A134466
(Solano
County
Super. Ct.
No. FCR273646)
Defendant
Jeremy R. Despois appeals from his conviction of two counts of committing a
lewd act on a child. He maintains the
trial court erred in excluding the testimony of a psychiatrist who would
testify as an expert witness regarding questioning techniques and
suggestibility of a child witness, and that it was error to deny his motion for
new trial on the basis his counsel was ineffective. We conclude there was no error, and affirm.
and Factual Background
Defendant
lived with K.J. and her children from 2008 through 2010. The couple began living together in
approximately May 2008. The oldest
child, M., was born in July 2004 and the youngest, in September 2009. Defendant was not the father of the three
older children.
In
mid-2008, M., who was then four years old, asked her mother why “white stuff
comes out of Jeremy’s peepee.†When her
mother asked M. to repeat what she said, M. responded “ ‘Never mind, mommy’ â€
and walked away. K.J. thought “I don’t
know; she’s a child. Maybe she’s just
saying things.â€
In
the latter part of 2009, K.J. was feeding their newborn daughter and defendant
said he would “go lay [the other children] down.†He was in the children’s bedroom for what
seemed to K.J. an unusually long time. She
had a “weird feeling†so she went to the children’s room and opened the door. When she did so, she hit defendant with the
door. He had been partially blocking the
opening of the door, and was crouched down and “acting just a little funny.†She noticed he was wearing “just his boxers
and his shirt,†but he had been wearing blue basketball shorts when he entered
the room. M., who was then five years
old, was lying in the bed drinking water. Water was spilling out of her mouth and she “looked
a little red and upset†and “wouldn’t talk.â€
A
couple of weeks later, K.J. was putting her sons down for a nap in the bedroom.
When she returned to the living room,
she saw M. laying “over [defendant’s] lap†and opening his pajama pants at the
fly area. Once defendant noticed her, M.
“jumped back in the fetal position and [defendant’s] eyes were open wide [¶] .
. . [¶] –like he was shocked.†M.
“didn’t talk [and] . . . seemed scared.†K.J. asked “What was going on?†Defendant responded “ ‘What the “F†do
you think is going on?’ †K.J.
reached inside his pants to see if he had an erection, which he did not. She and defendant argued about what had
happened.
“[P]robably
later that day†K.J. “asked [M.] why she was laying in [defendant’s] lap.†M. did not respond, but “turn[ed] her head
away and smil[ed].†K.J. had noticed
that when M. lied, she “usually will turn her head away and smile. She wouldn’t tell me anything.†K.J. did not “know if it was just me or if it
was what it was looking like.â€
A
few days later, in January 2010, K.J. tried to talk to M. again. She said she had “noticed something,†and asked
M. if defendant “ever made her do anything.†She used a “[c]alm, patient†tone of voice,
and did not mention a penis, oral copulation, or any specifics. M., who was then five and a half years old,
would not answer at first, but then asked if she was “ ‘going to get in
trouble?’ †K.J. responded “Baby,
you are not going to get in trouble.
Mommy is here. Mommy is going to
protect you, and mommy will make anything stop if you just tell me.†M. then told her mother defendant had done
something sexually inappropriate to her.
her defendant digitally penetrated her vagina, and forced her to perform oral
sex on him “six, seven, maybe a thousand times.†K.J. told M. “what she is doing [i]s a good
thing, and then I will make it stop, and it won’t ever happen again.†K.J. wasn’t sure what to do at that moment, because
defendant was still there and she loved him.
Two
days later, K.J. went to the police station. A police officer came to her apartment and
asked if they had any pornography, and she gave him permission to search. Police conducted two interviews of M., neither
of which were admitted in evidence.
A
few weeks later, K.J. was talking to M. about going to see a therapist and
explaining what a therapist was. M.
stated “out of the blue†that defendant “ ‘didn’t put his peepee in my
peepee or my butt, but he said when I get older, that we can do that whenever
we want.’ â€
M.
was six and a half years old and in the first grade at the time of her
testimony in February 2011. She could
not identify defendant in the courtroom, but testified “Jeremy†had a tattoo of
a sun on his right arm. Police Officer
Erwin Ramirez testified he had contacted defendant a year earlier, in February
2010. At the time, defendant was not as
thin as he was at the time of trial, and he had a tattoo of a sun and a joker
on his right arm.
M.
testified she told her mother defendant “stuck his private in my mouth.†He did it when they were on the couch and in
the bed in their apartment. M. first saw
defendant’s “private†when she went to get a drink of water and he “stuck it
out of his pants.†When asked if she
ever touched his private, M. testified “Only with my mouth.†The prosecutor asked why she touched his
private with her mouth, and M. responded “he did that.†The prosecutor asked “[h]ow did he do that?â€
and M. explained “Um, he kept pushing my head back.†She “kept trying to . . . close [her] mouth, but
he was too strong.†“[W]hite stuff†came
out of his private. M. “didn’t like†the
taste.
M.
told her mother “the day after he last stopped.†Her mother wanted M. to tell her. She did not tell her mother earlier because
she “was too scared, [she] . . . will get sent to [her] room.â€
M.
also testified she watched movies with defendant. They watched Farmland, Toy Story Two, and
movies with people who had no clothes on. M. “kept moving around†when they were
watching the movies with naked people, but defendant “just wanted [her] to
watch. He kept pulling [her] on the
couch.†M. did not want to watch the
movie because “[i]t was too disgusting.†They watched movies with naked people “[l]ots.â€
Defendant
testified he was in a relationship with K.J. for over a year and a half. He loved M. and viewed her as his daughter. Part of being her father involved “teach[ing]
her how to be a young lady†because M. “would sit with her knees up kind of
inappropriately or go to the bathroom with the door open, or with the boys
being around, or her butt crack would hang out.†He would tell her to “pull up [her] pants†and
“sit with [her] legs closed.â€
Defendant
explained M. walked in on him and K.J. when they were having sex on three occasions.
One time, M. saw him ejaculate on K.J.’s
stomach. Another time, he was
“performing oral sex on [K.J.] when [M.] barged in.†The third time, M. walked in on them when K.J.
was performing oral sex on defendant. K.J. testified M. never walked in on her and
defendant when they were engaged in sexual activity.
Defendant
testified he did not digitally penetrate M.’s vagina, she did not perform oral
sex on him, and he never watched pornography with her. He testified K.J. was lying about seeing him
in only his boxer shorts in the children’s bedroom.
Discussion
of Expert Testimony
Defendant
maintains the trial court erred in excluding the testimony of his proposed
expert witness, Dr. Lee Coleman, on false memory syndrome and child
suggestiveness, denying him a fair trial.
Expert
testimony is admissible if it is related to a subject sufficiently beyond
common experience that it would assist the trier of fact. (People
v. Brown (2004) 33 Cal.4th 892, 900; Evid. Code, § 801, subd.
(a).) On the other hand, “[e]xpert
opinion is not admissible if it consists of inferences and conclusions which
can be drawn as easily and intelligently by the trier of facts as by the
witness.†(People v. Torres (1995) 33 Cal.App.4th 37, 45.) We review the trial court’s decision on the
admissibility of expert opinion testimony for abuse of discretion. (People
v. Rowland (1992) 4 Cal.4th 238, 266.)
Defendant
concedes there is no published California case addressing “the admissibility of
expert testimony regarding the suggestibility of child witnesses and the forensic
interviewing of children.†California
has a “judicial policy disfavoring attempts to impeach witnesses by means of
psychiatric testimony. [Citations.] California courts have viewed such examinations
with disfavor because ‘ “[a] psychiatrist’s testimony on the credibility
of a witness may involve many dangers: the psychiatrist’s testimony may not be
relevant; the techniques used and theories advanced may not be generally
accepted; the psychiatrist may not be in any better position to evaluate
credibility than the juror; difficulties may arise in communication between the
psychiatrist and the jury; too much reliance may be placed upon the testimony
of the psychiatrist; partisan psychiatrists may cloud rather than clarify the
issues; the testimony may be distracting, time-consuming and costly.†’ [Citation.]â€
(People v. Alcala (1992) 4
Cal.4th 742, 781–782.) In general,
jurors are “considered to be equipped to judge witness credibility without the
need for expert testimony.†(
179, 189.)
Other
jurisdictions have taken differing approaches to this type of expert
testimony. Some jurisdictions have
admitted the expert testimony, reasoning “such testimony involves an area of
expertise beyond the ken of the average layman and, therefore, that the
defendant in a child molestation case is entitled to introduce expert testimony
for the limited purpose of providing the jury with information about proper
techniques for interviewing children and whether the interviewing techniques
actually utilized were proper.†(
S.E.2d 416, 417].) Others have excluded
it because “the subject matter was within the jurors’ common knowledge and
experience.†(People v. Johnston (N.Y.A.D. 2000) 273 A.D.2d 514, 518;
753–754 [“Defendant was entitled to explore the interviewing techniques that
were used and to argue to the jury that they may have influenced the children’s
testimony. Defendant was not entitled to
have his argument buttressed by the presentation of common knowledge in the
form of an expert scientific opinion.â€].)
In
this case, the prosecutor moved in limine to admit evidence of police
interviews of M. under Evidence Code section 1237, and to exclude the testimony
of Dr. Coleman, defendant’s proposed expert witness. In a January 31, 2010 police interview, M.
said she talked to her mother about defendant, but she did not remember. M. said she did not want to talk “[b]ecause
I’m just shy and I’m scared to talk.†She then began crying and saying she wanted
her mother. A different police officer
interviewed M. again the next day. M.
told her defendant made her suck his private parts. When defendant did that, M. said “[t]he nasty
stuff comes out. I don’t ever want to
taste it again.â€
The
defense submitted an offer of proof regarding Dr. Coleman’s proposed testimony,
stating he would “testify that the manner in which a child is interviewed and
counseled can affect whether a memory is true. [¶] . . . Specifically, he will testify
that the manner in which a child is questioned can cause them to lose the
ability to distinguish between what they know to be a memory and what events
have actually taken place. He is
prepared to testify that the manner in which all the parties (the parent of the
complaining witness, law enforcement, and clinical interviewers) can affect a
child and potentially cause false memories. [¶] . . . [¶] . . . Dr. Coleman is
prepared to testify that the manner in which the MDIC [Multi-Disciplinary Interview
Center] interview was conducted was substandard for various reasons [¶] .
. . [and] is prepared to testify that a false memory can inadvertently be
planted in a child’s head in a single conversation, even without an[] intent to
do so; specifically, the mother’s concerns about possible abuse prior to the
last incident. Moreover, the mother’s
tone and form of questions can affect the ability of the alleged victim to
properly recall history.â€
Prior
to trial, the court stated “Here are my thoughts concerning Dr. Coleman: I believe that should the [police interview] become
relevant and come in, . . . then his testimony would be relevant, and I would
allow it, because as I read the affidavits[
by defense, and my understanding of his expertise, much of it dealt with how
questions were asked of minors; so if that becomes an issue, which, in the [police
interview] I would allow him to testify. [¶] If the alleged victim testifies and .
. . the [police interview] and/or the questioning does not become an issue,
then I don’t see how it would become relevant.†The court indicated it would “revisit thisâ€
after M. testified.
After
the prosecution rested without introducing evidence of the police interviews of
M., the defense sought to have Dr. Coleman testify “to childhood development,
memory suggestibility, and potential impact of questioning techniques on the
child’s memory in general; testify to the somewhat fluid nature of a minor’s
perception of history and the effect that suggestive questioning, et cetera,
can have on a minor; specifically, that a false memory can be planted in the
matter of a single conversation, even in the absence of an intent on the part
of the planter. [¶] The second part
that I think is relevant is that he has reviewed the various interviews in this
case, including the original officer’s interview, the MDIC, the interview that
I did conduct myself and the investigator, as well as police reports. He would testify that the manner in which the
questioning took place in this case are of the nature which could lead to a
false memory implant being planted.â€
The
court stated “the Court’s initial ruling on this discussion was one of whether
. . . if we got to the MDIC and if there [were] questions concerning the
methodology of the questioning, I would give a tentative ruling of leaning
towards allowing Dr. Coleman to testify.
[¶] And [defense counsel] is correct in that the testimony, the
mere fact that an MDIC was not introduced into evidence is not a per se bar to
the testimony of Dr. Coleman as an expert. [¶] Again, these are . . . relevant, and
then does it pass the 352 test? . . .
[¶] When I review the testimony and the evidence before the Court,
that is, the testimony of the mother . . . concerning her observations of what
was occurring in her opinion with her daughter, and her pressing and
questioning of what happened to her daughter, I note in the testimony that . .
. [the questions were] all sort of what happened, and there was very little
leading. [¶] There were very little
questions that would lead to any sort of creating of a false memory. [¶] In other words, . . . there wasn’t
the type of questions of . . . ‘isn’t it true Jeremy did X, Y, Z to you?’ With the child parroting back, ‘Yes, he did
X, Y, Z to me.†[¶] They were very
much open-ended questions, and although there was a refusal often to answer the
questions, I didn’t sense that any of the issues that Dr. Coleman would testify
would be very relevant. I think they would
be relevant. [¶] However, when I
balance that under 352 of undue . . . delay, unnecessary confusion . . . in
light of the state of the evidence, I am going to deny your request to call Dr.
Coleman . . . .â€
title="">[3]
The
court found Dr. Coleman’s testimony relevant, but not “very relevant,†given
the lack of evidence of any suggestive questioning. The court properly weighed the limited
relevance of Dr. Coleman’s proposed testimony against the undue delay and
confusion his proposed testimony would cause. There was no abuse of discretion in excluding
the proposed expert testimony under Evidence Code section 352.
Neither
did exclusion of the proposed testimony deprive defendant of his constitutional
right to due process or to present a defense. “ ‘ “As a general matter, the
ordinary rules of evidence do not impermissibly infringe on the accused’s right
to present a defense.†’ †(
620.) Defendant had the opportunity to
have Dr. Coleman testify if he chose to introduce M.’s police interviews, which
he ultimately did not. He also had the
opportunity to cross-examine M. and her mother about the claimed suggestive
questioning and M.’s memory issues, and to argue his theory of “implanted†false
memory to the jury. Accordingly, he was
not denied his right to present a defense.
of Motion for New Trial
also contends the court erred in denying his
counsel was ineffective. He asserts
counsel failed to have his family and friends testify as character witnesses, promised
in opening argument he would present the testimony of Dr. Coleman regarding
suggestive questioning techniques, but then failed to make an adequate argument
for the admission of Dr. Coleman’s testimony, and failed to investigate and
introduce favorable psychological evidence under People v. Stoll (1989) 49 Cal.3d 1136 (Stoll).
title="">[4]
In order to
demonstrate ineffective assistance of counsel, “ ‘a defendant must show
that counsel’s performance was inadequate when measured against the standard of
a reasonably competent attorney, and that counsel’s performance prejudiced
defendant’s case in such a manner that his representation “so undermined the
proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.†(
668, 686. . . .)’ †(
1312, 1333.) “ ‘In determining whether
counsel’s performance was deficient, a court must in general exercise
deferential scrutiny [citation]’. . . . ‘Although
deference is not abdication . . . courts should not second-guess reasonable, if
difficult, tactical decisions in the harsh light of hindsight.’ †(Id.
at p. 1335, quoting People v. Scott
(1997) 15 Cal.4th 1188, 1212.)
“Defendant’s
burden is difficult to carry on direct appeal. We reverse on the ground of inadequate
assistance on appeal only if the record affirmatively discloses no rational
tactical purpose for counsel’s act or omission.†(People
v. Montoya (2007) 149 Cal.App.4th 1139, 1148.) “ ‘In some cases, . . . the record on appeal
sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was
asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation, these cases are affirmed on appeal. [Citation.]’ †(People
v. Avena (1996) 13 Cal.4th 394, 418–419, italics omitted.) “ ‘A reviewing court will not second-guess
trial counsel’s reasonable tactical decisions.’ [Citation.]†(People
v. Riel (2000) 22 Cal.4th 1153, 1185.) When defense counsel’s reasons are not readily
apparent from the record, we will not assume he or she was ineffective unless
the challenged conduct could have had no conceivable tactical purpose. (
926–927.)
Even
where deficient performance appears, the conviction must be upheld unless the
defendant demonstrates prejudice, i.e., that, “ ‘ “ ‘but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ †’ †(People
v. Anderson (2001) 25 Cal.4th 543, 569.)
Defendant
claims the court “found trial counsel had been deficient.†In denying the motion for new trial, the trial
court
sure I would say this is the worst case I have ever seen from a defense
perspective in terms of trial. But it
wasn’t real competent.†The court,
however, held it was the “second level that is a very difficult task for a
defense counsel to reach. And I don’t
think that IAC rises to that level where I can say it would be a different
result.â€
Even
if defendant’s counsel was ineffective in some respects, we likewise conclude
there was not a reasonable probability that but for trial counsel’s claimed
deficiencies, the result would have been more favorable to defendant.
The
evidence showed M. made two spontaneous statements to her mother implicating
defendant. In the first one, in
mid-2008, M. asked K.J. why “white stuff comes out of Jeremy’s peepee.†M. made this statement before either her
mother or police had asked her any questions about sexual abuse. M. also told her mother “out of the blueâ€
that defendant “ ‘didn’t put his peepee in my peepee or my butt, but he
said when I get older, that we can do that whenever we want.’ â€
Additionally,
M. testified in a manner consistent with a young child inexperienced in sexual
matters prior to her contact with defendant.
She told her mother defendant “stuck his private in my mouth.†She did not tell her mother before because she
was afraid she would be sent to her room. M. explained defendant put his penis in her
mouth when they were on the couch and in the bed in their apartment. When asked if she ever touched his private, M.
testified “Only with my mouth.†The
prosecutor asked why she touched his private with her mouth, and M. responded
“he did that.†The prosecutor asked “[h]ow
did he do that?†and M. explained “Um, he kept pushing my head back.†She “kept trying to . . . close [her] mouth, but
he was too strong.†“[W]hite stuff†came
out of his private. M. “didn’t like†the
taste. Though defendant attempted to
establish M.’s prior knowledge of sexual acts by testifying M. walked in on him
and her mother when they were engaged in giving and receiving oral sex and when
he was ejaculating on her stomach, M.’s mother testified M. never walked in on
them during sexual activity.
Furthermore,
M.’s mother testified not only about M.’s fresh complaint of abuse to her and
M.’s spontaneous declarations, but also about her own observations. She observed defendant coming out of the
children’s bedroom wearing only his boxers when he had worn basketball shorts
going in, and M. sitting up in bed with a red face and not speaking. She also observed M. lying over defendant on
the sofa and opening the fly of his pants. Defendant became angry when she asked what was
going on.
Defendant
denied the conduct to which M. and her mother testified. Much of his own testimony, however, undermined
his credibility. For instance, he
testified the five-year-old behaved sexually inappropriately, and that he had
to teach her the correct way to behave as a “young lady.â€
Defendant
maintains the prejudice to him is evidenced by the fact the judge hearing his
new trial motion “found his claims of innocence ‘not unreasonable.’ †This misrepresents the record. The trial
court, at sentencing, stated the defense attorney’s “position is not
unreasonable.†The defense attorney’s
position was that the court should impose probation rather than a prison term,
based on the defendant’s lack of prior convictions, character evidence
presented by his family at sentencing, and unlikelihood of further contact with
M. given that she had moved out of state. In denying probation, the court explained: “I’ve had much more serious, long continuous
sexual abuse [cases], horrible things, this is not that bad. . . . But it’s more than just a touching, more than
a fondling. When you force a four year
old to, uh, orally copulate and you ejaculate, that’s just very disturbing.â€
Given
the evidence before the jury, it is not reasonably probable the result would
have been more favorable to defendant had his attorney introduced character
evidence submitted by his family and friends, Dr. Coleman’s proposed testimony
about potentially suggestive questioning, or a Stoll assessment indicating defendant’s personality profile was not
consistent with that of a child molester.
The
judgment is affirmed.
_________________________
Banke,
J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
to an in limine agreement, the prosecutor only elicited whether defendant had
done something sexually inappropriate to M.
the form of a memorandum regarding Dr. Coleman’s testimony, not his affidavit
or C.V.
