Filed 10/18/17 P. v. Davis CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. J. David Mazurek, Judge. Affirmed.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant and appellant Jeffrey Allan Davis, guilty of 11 counts of committing a lewd or lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (a).)[1] The trial court sentenced defendant to prison for a term of 28 years. Defendant contends the trial court erred by excluding expert testimony on the topic of police interrogation techniques and false statements. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. DEFENDANT’S CRIMES

The victim was born in March 1999. Defendant was the victim’s stepfather. On one occasion, when the victim was nine or 10 years old, defendant removed the victim’s clothing, defendant rubbed his fingers on the outside of the victim’s vagina and orally copulated the victim. After that incident, defendant touched the victim’s vagina more than 10 times and orally copulated the victim more than 10 times. Defendant also digitally penetrated the victim’s vagina more than five times.

On another occasion, when the victim was 11 years old, defendant called the victim into his bedroom, removed her pants and underwear, removed his own clothes, and engaged in vaginal intercourse with the victim. Defendant engaged in vaginal intercourse with the victim on more than 10 occasions. Defendant instructed the victim to orally copulate him, which she did. Defendant removed his penis from the victim’s mouth and ejaculated into a towel. The victim orally copulated defendant approximately three times.

The last time defendant touched the victim in a sexual manner she was 13 years old; he engaged in vaginal intercourse with her. Defendant told the victim not to tell anyone about the sexual contact because it would hurt the victim’s mother’s feelings.

In May 2012 a forensic medical exam was conducted on the victim. At the time of the exam, the victim said the last sexual contact occurred “at least a couple months prior to the exam.” The victim expressed concern that she was pregnant. The exam reflected the victim’s hymen was abnormal in that there were two healed tears in her hymen. The manner of the tears reflected they were created with “a lot of force.” The forensic examiner opined that the tears resulted from trauma.

In a prior case, in May 1994, defendant was charged with rape (§ 261, subd. (a)(2)) and continuous sexual abuse of a child (§ 288.5). Defendant pled guilty to sexual battery. (§ 243.4.) Defendant was sentenced to prison for a term of three years.

B. THE VICTIM’S CREDIBILITY

The victim told her brother, her cousin, and a friend about defendant’s sexual conduct. The victim’s cousin told a family member about defendant’s crimes. In approximately April 2009, when the victim was 10 years old, a social worker came to the victim’s house. The social worker asked if defendant touched the victim inappropriately. The victim denied any inappropriate touching had occurred. The victim denied the touching had occurred because the victim was scared.

In October 2010, when the victim was 11 years old, another social worker came to the victim’s house. The victim again denied that defendant had molested her. The victim told the social worker she had lied to her friend about defendant molesting her in order to retaliate against defendant because defendant did not allow her to have a boyfriend.

The victim told friends that she was not a virgin. The victim’s mother confronted the victim. The victim told her mother that she engaged in sexual intercourse with a boy. At that point, the victim was taken out of school and homeschooled.

In March 2012, when the victim was 13 years old, the victim’s mother or father took the victim to a police station. The victim spoke to San Bernardino Police Officer Donald Sawyer. The victim told Sawyer that defendant molested her using his fingers, but did not report that defendant engaged in vaginal intercourse with her. In May 2012, the victim spoke to San Bernardino Police Detective Chris Gray (the detective). The victim told the detective that defendant molested her and engaged in vaginal intercourse with her. The victim denied having engaged in intercourse with anyone other than defendant.

In November 2012, the victim sent defendant a message via Facebook. In the message, the victim apologized for lying to the police. The victim sent the message because defendant paid her $250 to send it. In December, the victim returned to the police station and recanted her report of molestation. The victim told the detective she had lied about the crimes because she did not like defendant.

The detective told the victim that if she had falsely reported the molestation, then she would go to juvenile hall. The victim was in an interview room at the police station for more than one hour. The detective yelled and used profanity. The victim was “a little” scared of the detective; the victim cried “on and off” during the interview. The victim asked to speak to her mother, but the detective denied her request.

When the victim’s father (Father) arrived, he was permitted to speak to the victim. Father was a probation officer. Father told the victim “somebody is going to be in trouble.” Father said that if the victim had filed a false police report, then she would be going to jail.

Eventually, the victim said she had not lied and that defendant did molest her. The victim reaffirmed her original report “[b]ecause it was the truth and [she] thought [the detective] was going to take [her] to jail if [she] said it didn’t happen and it was a lie.” The victim explained that she recanted because she did not want her half-siblings to not have a father, and it would be “hard if [defendant] couldn’t see his kids.” The detective told the victim that the victim would be taking a polygraph test. The victim said she would pass the polygraph test if she said defendant molested her.

After the victim reaffirmed that she had been molested, the detective told her that she would not be going to juvenile hall and asked if she wanted to recant her story again. After the victim reaffirmed that defendant molested her, she left the police station. At trial, the victim testified that defendant touched her vagina with his fingers, digitally penetrated the victim’s vagina, orally copulated the victim, had the victim orally copulate him, and engaged in vaginal intercourse with the victim.

C. INTERROGATION TECHNIQUES

The detective testified that polygraph examinations were sometimes mentioned during interviews as a ploy because the prospect of the examination tends to make people nervous. The ploy allowed officers to gauge the interviewee’s reaction and whether the interviewee was being honest. The detective also explained officers will sometimes lie to interviewees during interviews. For example, the detective lied to the victim about the possibility the victim would go to juvenile hall the day she recanted.

D. PRETRIAL MOTION

Prior to trial, the People moved to exclude the expert testimony of Dr. Richard Leo. The People explained that the defense planned to present Leo as an expert on false statements, in particular, how police interrogation techniques caused false statements. The People asserted (1) the research relied upon by Leo was faulty and therefore Leo’s opinion did not meet the standard for admissibility; (2) Leo’s testimony was irrelevant because it was the jury’s role to decide if the victim’s statements to the detective were true or false; and (3) Leo was not an expert because he did not have the necessary background for discussing police interrogation tactics.

Defendant opposed the People’s motion. Defendant asserted reliable research existed in the area of false statements. Defendant explained that Leo had the necessary background to qualify as an expert in police interrogation techniques. Defendant asserted Leo’s testimony was relevant because the detective coerced the victim, which created the risk of a false statement from the victim. Defendant asserted the jury needed to understand police coercion to better evaluate the victim’s statements to the detective.

The trial court held a hearing on the motion to exclude Leo’s testimony. The trial court said to defense counsel, “Help me out. Are there any other interrogation methods that have any bearing on this case other than, You’re 13. You’re in a tough spot. Somebody is going to jail. Either you are or he is.” The trial court asked defense counsel, “Can you tell me in what specific way Dr. Leo’s testimony would encompass something that’s beyond the understanding of common jurors?”

Defense counsel explained that the interview lasted more than one hour. The court asked defense counsel to provide specific statements or techniques employed during the interview that required expert testimony for the jury to fully understand. Defense counsel again responded, “Well, like I said, it’s an hour and a half.” The court again said it needed “more specifics.” The court explained that an ordinary person could understand the effect of the victim’s age, the victim being separated from her parents, and the victim being threatened with juvenile hall. The court remarked that it was not “a particularly sophisticated, psychological interrogation technique.”

The trial court again asked defense counsel to describe what part of the interview required an expert’s explanation. Defense counsel asserted Leo would help the jury understand the length of the interview, that the victim was separated from her mother, that the victim’s father was used to bolster the detective’s position, and that the victim was threatened with juvenile hall. The court responded that the detective’s methods appeared “pretty straightforward.”

The court granted the prosecution’s motion to exclude, without prejudice. The court told defense counsel that if he could provide the court with specific evidence from the interviews that would require an expert’s explanation, i.e., that were beyond the jury’s common experience, then the court would permit defense counsel to reargue the issue.

Approximately one week later, defense counsel reargued the issue. Defense counsel presented studies and articles concerning people’s beliefs regarding false confessions/statements. The trial court said the jury could understand the impact of the detective’s overt threat to the victim, regarding going to juvenile hall, without an expert’s explanation. The court concluded, “I don’t think that there’s anything that’s beyond the common experience that’s going to assist the trier of fact in this case.” The court excluded Leo’s testimony.

DISCUSSION

Defendant contends the trial court erred by excluding Leo’s testimony. Defendant asserts the error violated his federal constitutional rights to a fair trial and to present a complete defense.

The due process clause of the Fourteenth Amendment and the confrontation clause of the Sixth Amendment “guarantee[] criminal defendants ‘a meaningful opportunity to present a complete defense.’” (Crane v. Kentucky (1986) 476 U.S. 683, 690.) “As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.” (People v. Hall (1986) 41 Cal.3d 826, 834.) “The complete exclusion of defense evidence could ‘“theoretically rise to [the] level”’ [citation] of a due process violation. But short of a total preclusion of defendant’s ability to present a mitigating case to the trier of fact, no due process violation occurs.” (People v. Thornton (2007) 41 Cal.4th 391, 452-453.)

We examine whether the ordinary rules of evidence were violated. We apply the abuse of discretion standard of review. (People v. McDowell (2012) 54 Cal.4th 395, 426.) Expert testimony is admissible on any subject “sufficiently beyond common experience [such] that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).)

During the interrogation, the detective yelled at the victim, used profanity, and told her she would be sent to juvenile hall if she had lied about defendant molesting her. The victim was 13 years old, she was kept in the interview room for over one hour, and not permitted to see her mother when requested.

An expert was not needed to explain that a detective yelling at a 13-year-old crime victim and threatening to send her to juvenile hall would be intimidating to the 13 year-old. In turn, the jury’s common experience would include an understanding that an intimidated 13-year-old might lie in order to not be sent to juvenile hall, and thus, the victim’s reaffirmance of her statement that defendant molested her might have been false. In sum, the trial court could reasonably conclude expert testimony on police interrogation tactics and false statements would not assist the trier of fact because the tactics employed could be understood with common experience. Therefore, the trial court did not violate the ordinary rules of evidence.

Defendant asserts the trial court’s decision was an abuse of discretion because the detective used a variety of coercive techniques, such as the polygraph ploy, to persuade the victim, and thus expert testimony would have aided the jury. Defendant’s assertion is not persuasive because (1) the victim admitted the recantation was a lie prior to being told about the polygraph examination, thus, the polygraph ploy was not a persuasive technique that caused the victim to abandon her recantation; and (2) the jury was given evidence that the polygraph ploy is used to make people nervous, thus, the jury had knowledge that the polygraph ploy can be used to increase the pressure experienced by interviewees. Accordingly, we are not persuaded that expert testimony was required to further explain the polygraph issue.

Next, defendant asserts expert testimony was needed because jurors might not have understood that police officers routinely lie during interviews as a means of persuading interviewees. Defendant’s assertion is not persuasive because the detective testified that he sometimes lies to people during interviews. The detective also testified that he disbelieved the victim’s recantation. The jury could reasonably infer, without the assistance of an expert, that the detective’s purpose in lying to the victim was to pressure her into explaining why she recanted.

We now turn to the constitutional issue. We apply the de novo standard of review in examining whether defendant was precluded from presenting a defense such that the court violated defendant’s constitutional right to present a complete defense. (People v. Quiroz (2013) 215 Cal.App.4th 65, 70.)

Although defendant could not present Leo’s testimony, he presented the testimony of (1) the social worker who interviewed the victim in 2010, when the victim denied being molested by defendant and said she lied to her friend about the molestations because she was upset that defendant did not permit her to have a boyfriend; and (2) a defense investigator who testified the victim engaged in intercourse with a boy, i.e., someone other than defendant. Additionally, defense counsel cross-examined the detective. Defense counsel questioned the detective about the length of the interview with the victim, about the threat to send the victim to juvenile hall, about the victim crying during the interview, about the detective using profanity during the interview, and about the detective lying to the victim during the interview.

The record reflects defendant was permitted to present a defense. Defendant produced evidence of (1) the victim’s prior assertion defendant did not molest her; (2) a motive for the victim to lie about defendant molesting her; (3) an explanation as to how the victim’s hymen was torn by a person other than defendant; and (4) coercive techniques used by the detective during the December interview of the victim. Accordingly, we conclude defendant’s constitutional rights were not violated by the exclusion of Leo’s testimony because defendant was able to present defense evidence. (See People v. Linton (2013) 56 Cal.4th 1146, 1183-1184 [exclusion of expert testimony not a constitutional violation where jury was presented with other defense evidence].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

SLOUGH

J.