Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 07NF1498, Glenda Sanders, Judge.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Joaquin Estrada Delgado was convicted of committing multiple lewd acts upon his daughter and stepdaughter. Defendant challenges his convictions on several grounds. We reject each of defendant’s challenges, and affirm the judgment.
First, defendant argues his convictions for committing lewd acts upon his stepdaughter must be reversed because the jury might have convicted him for acts committed outside the applicable limitations period. We conclude there was substantial evidence of lewd acts committed solely during the limitations period supporting the jury’s verdicts.
Second, defendant contends the jury was improperly instructed that it could consider evidence that defendant had committed uncharged sexual offenses upon his stepdaughter as proof of his propensity to commit the charged sexual offenses upon his daughter and stepdaughter. Defendant forfeited any argument that additional or clarifying instructions should have been given by failing to raise any specific objection in the trial court. Nevertheless, we conclude the evidence of uncharged sexual offenses was properly admitted under Evidence Code section 1108, and the jury was properly instructed as to its consideration of that evidence with CALCRIM No. 1191.
Third, defendant argues the trial court erred in admitting a videotape and transcript of his daughter’s interview with the Child Abuse Services Team (CAST). The CAST interview was properly admitted, in its entirety, pursuant to Evidence Code section 1360. Defendant’s right to confrontation was not violated by admission of the interview, because his daughter was present at trial and subject to cross examination. Although the interviewer was not present at trial and not available for cross examination, this did not violate defendant’s confrontation rights because the interviewer’s questions were not testimonial statements subject to the confrontation clause.
Finally, defendant contends the trial court erred by admitting evidence of domestic violence between him and the mother of his daughter and stepdaughter. The evidence was relevant to explain why the girls did not report defendant’s abuse sooner, or try to stop him from committing lewd acts upon them, and was also relevant to support a single count of aggravated assault with the intent to commit rape upon defendant’s daughter. In contrast to the evidence of defendant’s repeated, substantial sexual abuse of his daughter and stepdaughter, the evidence of his arguments with his then wife were far from prejudicial, and no error occurred.
Statement of Facts and Procedural History
Defendant married M. in 1996. At the time, M. had a daughter, K., who was born in June 1985. Defendant and M. had three children, including A., who was born in April 1995.
Defendant began sexually molesting K. when she was about six years old. K. testified defendant regularly fondled her genitals, and later her breasts. The molestations took place in defendant and M.’s bedroom, in K.’s bed, and in defendant’s van while he drove K. to the swap meet. When K. was 10 years old, defendant pulled K.’s underwear to the side and orally copulated her. Defendant continued to fondle K.’s breasts on an average of twice a week until she was 15 years old. K. testified defendant touched her breasts at least one time every year from the ages of 11 through 15.
K. never told M. about the abuse, because K. was scared of defendant, and she was embarrassed, was ashamed, and thought defendant’s conduct was her fault. When defendant and M. were going through a divorce in April 2001, K. told a social worker about defendant’s sexual abuse. K. then told a law enforcement officer about the abuse, but refused to go to court to testify against defendant. K. never told A. about defendant’s abuse because she thought A. was too young to understand. When M. told her that A. had accused defendant of molestation, K. decided to speak with the police again.
A. lived with M. after her parents’ divorce. For about one year, all of A.’s visits with defendant were supervised. After she began having unsupervised visits with defendant, he began molesting her. When she was seven years old, defendant touched A.’s vaginal area. Also when A. was seven, defendant lay on the floor of his bedroom, blocking the door with his body, and sat A. on top of him and engaged in sexual intercourse with her. Defendant also fondled A.’s genitals and breasts, and digitally penetrated her on multiple occasions. Defendant sodomized A. on three occasions, once when she was seven or eight years old, and twice when she was 11. Defendant orally copulated A. once when she was 10 or 11 years old.
When A. started menstruating at age 10, she told defendant, hoping he would stop molesting her. Defendant, however, continued to engage in sexual intercourse with A., never using a condom. These sex acts occurred at defendant’s home, in his van, or in other people’s houses. When defendant committed these acts upon A. in the van, he would cover the windows with blankets. Once, when she was 10 years old, A. did not have her period for three months, and thought she was pregnant. She hit herself in the stomach and leaned over her bedframe to try to terminate the suspected pregnancy. A. had not been pregnant, however, and her periods started again. The last time defendant had sexual intercourse with A. was in January or February 2007.
M. testified she saw defendant put his hand under K.’s bedcovers one night while K. was sleeping. When she asked what he was doing, defendant replied he was covering K. with a blanket. Although M. was aware of K.’s disclosure in 2001 of defendant’s molestations, she did not speak to A. about the allegations against defendant because she thought A. was too young to understand. In March or April 2007, M. told A. about K.’s accusation against defendant. A. then broke down and told M. that defendant had been molesting her since she was seven years old.
One of A.’s brothers testified that while his parents were married, he saw defendant standing next to K.’s bed as she slept, “petting” her thigh and breathing heavily. After the divorce, defendant would bring movies to the house, and would lie with A. on the floor, covered by a blanket, while watching them. The brother would see movement and touching under the blanket.
Defendant was charged in an information with 10 counts of committing lewd acts upon a child under age 14 (Pen. Code, § 288, subd. (a) [counts 1, 3 11]); two counts of committing lewd acts upon a child of 14 or 15 years of age (Pen. Code, § 288, subd. (c)(1) [counts 12 & 13]); and one count of aggravated assault with the intent to commit rape (Pen. Code, § 269, subd. (a)(1) [count 2]). The information alleged defendant had committed the acts upon more than one victim (Pen. Code, §§ 667.61, subds. (b), (e), 1203.066, subd. (a)(7)), and alleged substantial sexual conduct with a child as to counts 1 and 3 through 8 (Pen. Code, § 1203.066, subd. (a)(8)). A jury convicted defendant of all charges, and found all enhancements true.
Counts 1, and 3 through 8 were alleged to have been committed upon A., and counts 9 through 11 were alleged to have been committed upon K.
The allegations of substantial sexual conduct with respect to counts 9 through 11 were dismissed by the prosecution at the close of evidence at trial.
The trial court sentenced defendant to a total determinate term of two years eight months, plus an indeterminate term of 165 years to life. Defendant timely appealed.
Discussion
I.
Statute of Limitations
Defendant argues his convictions for counts 9 through 13 must be reversed because the jury was not instructed that it must unanimously agree upon acts occurring after January 1, 1996.
Defendant argues that prosecution for any acts occurring before January 1, 1996 would be barred by the applicable statute of limitations. Count 9 was alleged to have occurred between January 1, 1996 and mid June 1997. The jury was instructed that the various charges were alleged to have occurred during specific date ranges, and was instructed with CALCRIM No. 207 that “[t]he People are not required to prove that the crime took place exactly on that day or in that time period but only that it happened reasonably close to that date or time period.”
K. testified defendant orally copulated her when she was 10. K. would have turned 10 in June 1995, and the act of oral copulation could have occurred any time between June 1995 and June 1996. Because the jury was instructed that the prosecution only needed to prove the crime occurred reasonably close to the dates alleged in the information, defendant argues the jury could have based its verdict in count 9 on acts occurring before January 1, 1996. Therefore, defendant argues the prosecution failed to prove any lewd conduct occurred within the limitations period on count 9.
Counts 10 through 13 were alleged to have occurred during date ranges beginning in June 1997, and continuing through June 2001. Because the date ranges for those counts are so far removed from January 1, 1996, we agree with the Attorney General that no error based on the “reasonably close” language could have occurred.
But the information alleged, and the jury was instructed, that the applicable date range for the lewd act alleged to have been committed in count 9 was from January 1, 1996 through mid June 1997. This count, therefore, covers the second half of K.’s 10th year, as well as her 11th year. K. testified defendant committed at least one lewd act upon her every year from ages 11 through 15. Therefore, there was substantial evidence supporting the jury’s verdict, even if we completely exclude the act of oral copulation and any other sexual abuse K. testified occurred when she was 10 years old.
As alleged in the information, counts 9 through 13 were timely filed, and would not be barred by the statute of limitations. The Attorney General argues defendant has forfeited this issue on appeal. We address the issue on the merits to forestall an ineffective assistance of counsel claim. (See People v. Butler (2003) 31 Cal.4th 1119, 1128.)
II.
CALCRIM No. 1191
Defendant next argues his due process rights were violated when the jury was instructed with CALCRIM No. 1191, regarding the jury’s consideration of evidence of other uncharged crimes, because that instruction permitted the jury to apply two different standards of proof to evidence of molestation by defendant. Defendant has forfeited this issue on appeal by failing to object to the instruction or request modification or clarification in the trial court; nevertheless, we will address defendant’s argument on the merits.
The jury was instructed with CALCRIM No. 1191 as follows: “The People presented evidence that the defendant committed certain lewd acts upon a child that were not charged in this case. This crime (Lewd Acts upon a Child) is defined elsewhere in these instructions. [¶] You may consider this evidence of uncharged lewd acts only if the People have proved by a preponderance of the evidence that the defendant in fact committed those uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, you may also conclude that the defendant was likely to commit, and did commit, the charged offenses. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses. The People must still prove the charges beyond a reasonable doubt.”
Defendant’s trial counsel made only a general objection to CALCRIM No. 1191, and did not request any additional instructions be given or modifications be made. In discussing the jury instructions, the following colloquy occurred:
“The Court: All right. That brings us to [CALCRIM No.] 1190. No problem there. [¶] And then [CALCRIM No.] 1191, evidence of uncharged sex offense.
“[Defendant’s counsel]: No, Your Honor.
“The Court: Is that to be given?
“[Defendant’s counsel]: We discussed it, and I think the district attorney is going to be referring to it anyway. I mean, I think the testimony from the witness arguably there could be many, many more charges, so I think the court needs to give it, and I’m sure the district attorney will be referring to it in her closing.
“The Court: And the standard is different, preponderance of the evidence.
“[The deputy district attorney]: Correct.
“The Court: All right. So you are asking for that, [deputy district attorney]?
“[The deputy district attorney]: Yes.
“The Court: Yes. [Defendant’s counsel], you object?
“[Defendant’s counsel]: I object for the record, but I understand that the court is going to be giving it.
“The Court: Right. All right. I am giving it.”
A defendant has an obligation to request additional or clarifying jury instructions if he or she believes an instruction is incomplete or confusing. (People v. Dennis (1998) 17 Cal.4th 468, 514.) The trial court has no sua sponte duty to modify or clarify CALCRIM No. 1191 absent a request from the defendant. (People v. Reliford (2003) 29 Cal.4th 1007, 1015, fn. 2 [considering CALJIC No. 2.50.01]; see People v. Schnabel (2007) 150 Cal.App.4th 83, 87 [“The version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to... CALCRIM No. 1191”].) The failure to object to an instruction on the specific grounds asserted on appeal forfeits the issue. (People v. Geier (2007) 41 Cal.4th 555, 590.)
What is clear from the above quoted colloquy is that defendant’s trial counsel acknowledged K.’s testimony about uncharged prior lewd acts committed by defendant was properly admitted under Evidence Code section 1108, and that CALCRIM No. 1191 was the proper instruction to address that evidence. Defendant’s counsel did not argue the instruction was incomplete, or needed modification or clarification, but simply made an “object[ion] for the record.” Any argument that the instruction was confusing or incomplete has been forfeited.
Even if we were to reach the merits of defendant’s argument, we would find no error. Defendant contends CALCRIM No. 1191 was unduly confusing and violated his due process rights because it applied two different burdens of proof to the same types of charged and uncharged acts upon the same victim, K. Defendant suggests that CALCRIM No. 1191 only applies when the victim of the uncharged act is different from the victim of the charged act. Defendant is wrong. In People v. Yovanov (1999) 69 Cal.App.4th 392, 404, the appellate court affirmed the admission of evidence of uncharged sex crimes committed upon the same victim of the charged sex crimes: “Here, the uncharged sex acts were very much like the charged acts of molestation, and Kristy was a victim in both categories of misconduct. The uncharged sex acts were also close in time insofar as they led up to and continued after the charged offenses. The sheer frequency of the uncharged acts also bolsters their relevance because it suggests a pattern of criminal behavior. In short, the evidence of uncharged sexual misconduct was highly probative and corroborative of Kristy’s allegations regarding the charged offenses.”
Defendant relies heavily on People v. Quintanilla (2005) 132 Cal.App.4th 572, 582 583, in which the appellate court held it was error to instruct the jury it could consider evidence of charged acts of domestic violence to draw an inference of propensity to commit other charged acts of domestic violence. That case is inapplicable because, here, the jury was not asked to consider evidence of charged, but rather uncharged, sexual offenses to draw an inference of defendant’s propensity to commit the charged acts. The Quintanilla court’s overarching concern was that evidence of charged offenses could never be excluded as part of the Evidence Code section 352 balancing process, which is crucial to the court’s decision to admit or exclude evidence under Evidence Code section 1108.
The jury here was clearly instructed that some uncharged sexual offenses could be considered for propensity, based on the dates on which they occurred. Defendant’s argument that his due process rights were violated fails.
III.
Admission of CAST Videotaped Interview
Defendant argues the trial court erred by admitting into evidence A.’s videotaped CAST interview. Defendant’s argument has three parts: (1) the interview was hearsay, and was not within any exception; (2) the admission of the interview violated his confrontation rights, under Crawford v. Washington (2004) 541 U.S. 36 (Crawford); and (3) the court failed to give a limiting instruction regarding the jury’s use of A.’s statements in the interview. We address each subargument in turn.
A. A.’s CAST interview was not inadmissible hearsay.
Evidence Code section 1360 authorizes admission in evidence of out of court statements made by minors describing acts of child sexual abuse: “(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply: [¶] (1) The statement is not otherwise admissible by statute or court rule. [¶] (2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. [¶] (3) The child...: [¶]... Testifies at the proceedings.” (Evid. Code, § 1360, subd. (a)(1), (2), (3)(A).)
Defendant concedes the portions of the CAST interview describing defendant’s acts of sexual abuse upon A. were admissible under Evidence Code section 1360. Defendant contends, however, that the trial court erred by failing to redact from the interview A.’s statements that she feared she had become pregnant by defendant at age 10, and that she had attempted to terminate the pregnancy by hitting herself in the stomach. The trial court found that the portions of the CAST interview defendant sought to exclude “go to [A.’s] credibility as to whether the alleged acts occur[red].” The court therefore concluded the portions defendant sought to exclude were substantially more probative than prejudicial, and denied defendant’s request to redact the interview.
On appeal, defendant argues the trial court should have redacted the portions of the interview where A. mentioned domestic violence occurring between defendant and M., and further argues A.’s statement that he might have abused other women, including K., should not have been admitted. Defendant did not object to the admission of the CAST interview on these bases in the trial court.
The trial court did not abuse its discretion. A.’s fear of becoming pregnant as a result of the sexual abuse inflicted by defendant, and her attempts to terminate a suspected pregnancy, were a part of the abuse she suffered.
Defendant also argues the CAST interview was not admissible as a “fresh complaint.” The trial court did not admit the CAST interview under the fresh complaint doctrine, so we need not consider this argument.
B. Defendant’s rights of confrontation were not violated.
Defendant next argues the admission of the CAST interview violated his confrontation clause rights under Crawford, supra, 541 U.S. 36. Crawford provides that testimonial hearsay may not be offered against a defendant at trial unless the declarant is unavailable at trial and the defendant has had a prior opportunity to cross-examine the declarant. (Id. at p. 68.) Crawford, however, is not implicated in this case for the simple reason that A. testified at trial, and defendant was permitted to confront and cross examine her. Nothing in Crawford or its progeny holds that when a victim is present and testifies at trial, his or her earlier statements to the police, a parent, or other individuals are inadmissible.
Defendant’s argument on this point ventures off on a strange tangent. Defendant argues that because the social worker who interviewed A. did not testify at trial, the CAST interview should have been excluded. Defendant is wrong. In Davis v. Washington (2006) 547 U.S. 813, 822, footnote 1, the United States Supreme Court held, “even when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the Confrontation Clause requires us to evaluate.” (Italics added.) A. was available at trial, and was subject to cross-examination by defendant’s counsel. The interviewer’s unavailability does not implicate defendant’s rights of confrontation.
Defendant attempts to compare this case to Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, ___ [129 S.Ct. 2527, 2530 2531], where the government offered affidavits from state laboratory analysts confirming the substances found on an accomplice and inside a police cruiser in which the defendant was being transported were cocaine. The Supreme Court held the analysts’ affidavits were testimonial statements, and the defendant’s confrontation clause rights had been violated by admitting those statements without making the analysts available for cross examination. (Id. at p. ___ [129 S.Ct. at p. 2532].) In reaching its conclusion, the Supreme Court noted the affidavits “are incontrovertibly a ‘“solemn declaration or affirmation made for the purpose of establishing or proving some fact.”’ [Citation.]” (Id. at p. ___ [129 S.Ct. at p. 2532].) The court further held the affidavits “are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ [Citation.]” (Id. at p. ___ [129 S.Ct. at p. 2532].) By contrast, the questions posed by the social worker to A. were not the functional equivalent of in court testimony; if anything, they were the equivalent of in court questioning. (See People v. Samayoa (1997) 15 Cal.4th 795, 843 [counsel’s questions are not evidence]; CALCRIM No. 104.) The social worker’s questions did not prove any facts in the case against defendant. Therefore, those questions were not testimonial statements, and are not affected by Crawford or Melendez-Diaz v. Massachusetts.
C. Limiting instruction
Finally, defendant argues the trial court erred by failing to give a limiting instruction regarding the jury’s consideration of the CAST interview. As explained ante, the CAST interview was properly admitted in its entirety, and was not admitted only for a limited purpose. Any failure to provide a limiting instruction therefore could not be prejudicial error, and the trial court properly instructed the jury with CALCRIM No. 318, regarding its use of the CAST interview to evaluate A.’s in court testimony and as evidence that A.’s statements in the CAST interview were true.
Defendant’s argument that this is an “extraordinary case” where the evidence is so highly prejudicial and minimally relevant that a limiting instruction was required to be given sua sponte fails, for all the reasons set forth, ante.
IV.
Admission of Evidence of Domestic Violence
Defendant argues the trial court erred by allowing evidence of domestic violence between him and M. The court concluded the evidence was relevant to K.’s and A.’s credibility, particularly as to why they did not report the abuse earlier, and found that the probative value of the evidence outweighed any prejudicial effect. We review the trial court’s ruling for abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230.)
K. testified she did not say anything to stop defendant’s act of oral copulation because, in part, she “was afraid of what he might do.” When asked to explain why she was afraid of defendant, K. testified: “[T]he relationship that I saw between him and my mom. I was afraid that he would turn that against me or, um, that if I were to say something, my mom would try and defend me. And then there would be some kind of conflict between them, and so I feared for my mom as well.” K. also testified she had witnessed several incidents between M. and defendant, making her afraid of defendant, because “I saw him like hit her, and strangle her, and pull her hair, and, um, push her and stuff. So I just always grew up with that. The way that I saw him was a very-like an aggressive person.”
A. testified she did not tell defendant to stop when he was committing a lewd act upon her because she was scared: “[H]e was bigger than me, and like before my mom and dad got divorced, they would fight. And I never saw them fight. Just go in the room and close the door. And my brother and I walk up to the door, and put our ear against the door, and hear shouting, and hear mom get hit, and they would come out.” A. also testified she did not tell M. about defendant’s molestation because she was scared of him; A. did not provide further testimony about domestic violence between her parents.
In response to questioning by defense counsel, M. testified that during their marriage, there were instances of violence by defendant against her, and by her against defendant. M. did not testify as to any details about the domestic violence, while testifying that she and defendant had many arguments in front of the children.
During her CAST interview, which was played in full for the jury, A. stated she was scared to tell M. about defendant’s abuse because her parents “fought a lot, ” and she was afraid that if she told anyone defendant “would get mad and... come back and hurt me or my family or something.”
The trial court correctly determined the testimony was relevant to explaining why K. and A. did not report the abuse earlier; it was also relevant to explaining why they did not try to stop defendant from committing the acts upon them, and to support the charge of aggravated assault with the intent to commit rape. (People v. Brown (1994) 8 Cal.4th 746, 762 [evidence giving context to delayed disclosure of sexual abuse is admissible, even if it is hearsay].)
Especially when contrasted with the significant evidence of repeated, substantial sexual molestation upon his daughter and stepdaughter, the evidence of domestic violence between defendant and M. was not prejudicial.
Disposition
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.