Opinion
B219746
10-11-2011
THE PEOPLE, Plaintiff and Respondent, v. PERRY DARNELL FERGUSON, Defendant and Appellant.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA043271)
APPEAL from a judgment of the Superior Court of Los Angeles County, Bernie C. Laforteza, Judge. Affirmed.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Perry Darnell Ferguson, appeals the judgment entered following his conviction for committing a lewd act on a child under 14 years old (Pen. Code, § 288, subd. (a)). He was sentenced to state prison for a term of eight years.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
Defendant Ferguson was K.D.'s father, but the first time she had any contact with him was when she was 12 years old. She visited with him several times during 2003 and then in the summer of 2004 when she had just turned 13. These visits went well. Then, in the fall of 2004, K.D.'s mother was incarcerated so she went to live with Ferguson in Lancaster. K.D. initially slept on the living room couch, but when school started and she had to get up early, she slept in the master bedroom while Ferguson, his girlfriend Tanika and their young child slept in the living room.
K.D. testified that a few months after moving in, Ferguson came into the master bedroom in the middle of the night. He got under the blanket and started rubbing her thigh. Then he pulled down her pants, "moved his penis between [her] butt cheeks and started rubbing back and forth." After a few minutes, Ferguson ejaculated. A couple of nights later, he did the same thing. During the seven months K.D. lived with Ferguson, he touched her in the same way about 10 times. K.D. did not tell anyone about this "[b]ecause I was scared. Nobody was going to believe me." Ferguson told her "not to tell anybody" about this, that it was "just between us."
A couple of months after the first incident, Ferguson took K.D. to visit his cousin in Lompoc. They stayed in a hotel room which had two beds. Ferguson told K.D. to come over to his bed and lie down next to him, and she complied. Ferguson pulled down his pants and put on a condom. Then he pulled down her pajama shorts and put his mouth on her vagina. He put his penis in her vagina and ejaculated after five or ten minutes of intercourse during which he was moaning.
A week later, Ferguson took K.D. to another hotel. He told her to pull down her pants and he put on a condom. But then he said the air conditioning wasn't coming on and it was too hot for him to get an erection. When they got back home, he told K.D. to rub his penis and she complied. He had an erection, but he did not ejaculate.
In July 2005, K.D. went back to Sacramento to live with her mother. K.D. visited Ferguson again around Christmas that year after getting into a fight with her mother. She was now 14 years old. By this time, Ferguson and Tanika were living in a duplex. During this visit, Ferguson again "put his penis at the bottom of [her] butt cheeks." Another time during this visit Ferguson had sexual intercourse with her.
A few weeks after New Years, K.D. was visiting Rayshelle Reed, the mother of one of Ferguson's children. Ferguson had sex with Rayshelle, then took K.D. back to his house and had intercourse with her. Afterward, Ferguson told K.D. he loved her.
K.D. got into a fight with Ferguson when he dragged her out of a friend's house after refusing her request to spend the night. K.D. testified she was furious because Ferguson called her a bitch. After that, she returned to her mother's and never saw Ferguson again. K.D. did not tell her mother what Ferguson had done. Asked why, she testified: "I just didn't know what she would think of me. [¶] Q. What do you mean? [¶] A. Because I let him do it."
About a year later K.D. told a school counselor, Sherry Plummer, that Ferguson had touched her. K.D. told Plumber she had been 12 when Ferguson first touched her, but that was wrong; she had actually been 13. She made the same mistake with a Sacramento police detective and with Lancaster Police Detective Frederick McNutt.
K.D. testified Reed called her at one point and said, "[Y]our father told me that he had sex with you, it's fine." Reed said it was okay and she understood why Ferguson did it. K.D. hung up on her because she thought Reed was being disrespectful.
2. Defense evidence.
Raymond Anderson, a clinical psychologist with a special interest in the assessment and treatment of sexual offenders and victims of sexual crimes, testified Ferguson did not have any type of sexual deviant personality.
Anderson testified Ferguson "has none of the 4 personality functioning characteristics we talked about. None. And he has no conspicuous identifiable abnormal sexual attitudes or interests. So he's not similar to either preference mediated or situationally mediated incest offenders."
Tanika Hernandez testified she has been Ferguson's girlfriend for 14 years. They now have two children. When K.D. first came to stay with them, they were living in an apartment in Lancaster. K.D. slept on the sofa in the living room; she never slept in the master bedroom. Hernandez was a light sleeper and she would have noticed if Ferguson left their bed for any period of time. In Hernandez's opinion, Ferguson was a "loving, caring" father who made sure K.D. "had everything she needed." However, he was also strict: "[H]e'd have to know where she was at all times. She'd have to call and check in. If she wanted to go somewhere, she'd have to ask. He'd drop her off, and he'd know where she was."
Hernandez testified it took Ferguson an hour and a half to two hours to ejaculate after sexual touching commenced, and she never saw him have difficulty getting an erection in hot weather. Hernandez did not believe there had been any inappropriate sexual contact between Ferguson and K.D. during the time K.D. was living with them. Since Hernandez herself had been molested, she thought she "would be able to tell if he was doing that to her. I didn't see [anything]."
Rayshelle Reed testified she and Ferguson had a child. She was also K.D.'s best friend during the time K.D. was living with Ferguson. K.D. slept in the living room. K.D. never said Ferguson had touched her sexually and Ferguson never told her he had had sex with K.D. In her experience, Ferguson never had any difficulty getting an erection when the weather was hot. It usually took him one to two hours to ejaculate during sex.
Detective McNutt testified he conducted a nine-month investigation before the criminal complaint in this case was filed. During this time, he never contacted Ferguson, Reed or Hernandez. McNutt was convinced there had been sexual contact between K.D. and Ferguson based on a recorded telephone conversation between the two of them.
Although not introduced into evidence, the transcript of this phone conversation indicates the recording provided powerful circumstantial evidence corroborating K.D.'s testimony.
Karen Bailey is Ferguson's mother. When K.D. lived with Ferguson she slept on the couch. Bailey never saw Ferguson, Hernandez and their baby sleep on the living room floor so K.D. could sleep in the master bedroom. K.D. left Lancaster after having a big argument with Ferguson. K.D. told Bailey "she hated [Ferguson,] [h]e made her mad. He got on her nerves, stuff kids say when they're upset."
CONTENTIONS
1. The trial court erred by denying Ferguson's motion to compel production of records from a private counseling agency.
2. The trial court erred by denying Ferguson access to unredacted records from Children's Protective Services.
3. The trial court erred by excluding from evidence certain letters written by and to K.D.
4. The trial court erred by excluding evidence K.D. had called Reed a "bitch."
5. The trial court erred by instructing the jury with CALCRIM No. 1110 on the definition of "lewd and lascivious act."
6. The trial court erred by instructing the jury with CALCRIM No. 318 on the use of a witness's prior inconsistent statement.
7. There was cumulative error.
8. The trial court erred by imposing the upper prison term for Ferguson's conviction.
DISCUSSION
1. Documents from Strategies for Change.
Ferguson contends the trial court erred by refusing to compel pretrial production of certain records from Strategies for Change relating to psychological counseling received by K.D. This claim is meritless.
a. Background
Prior to the start of trial, defense counsel served a subpoena on a Sacramento organization called Strategies for Change, seeking all files and records relating to K.D. When Strategies for Change refused to produce the documents on the ground they were confidential, defense counsel filed a motion to compel.
The trial court ordered Strategies for Change to turn over information regarding Sherry Plummer or any other counselor who had treated K.D., and to disclose the reasons for K.D.'s treatment. Defense counsel subsequently complained the documents produced by Strategies for Change had been redacted and asked the trial court to order the production of unredacted copies. Relying on People v. Hammon (1997) 15 Cal.4th 1117, the trial court denied this request, saying that under Hammon it had probably been a mistake to order production of even the redacted documents.
b. Discussion.
Relying on People v. Reber (1986) 177 Cal.App.3d 523, Ferguson asserts the trial court improperly denied him access to the full, unredacted version of these records.However, Reber was overruled by Hammon: "In seeking disclosure of documents protected by the psychotherapist-patient privilege, defendant relied on People v. Reber . . . and cases following that decision. [Citations.] This line of authority, we now determine, is not correct. The court in Reber believed the confrontation clause of the Sixth Amendment (U.S. Const., 6th Amend.), as interpreted in Davis v. Alaska (1974) 415 U.S. 308 [94 S.Ct. 1105, 39 L.Ed.2d 347], required pretrial disclosure of privileged information when the defendant's need for the information outweighed the patient's interest in confidentiality. In authorizing disclosure before trial, however, Reber went farther than Davis required, with insufficient justification." (People v. Hammon, supra, 15 Cal.4th at p. 1123.)
Although Ferguson states he subsequently requested discovery of this material during trial, the only record citation he provides appears to relate to documents held by Children's Protective Services, not Strategies for Change.
Hammon pointed out Davis only dealt with disclosure at trial: "When a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon, as in Davis, to balance the defendant's need for cross-examination and the state policies the privilege is intended to serve. [Citation.] Before trial, the court typically will not have sufficient information to conduct this inquiry; hence, if pretrial disclosure is permitted, a serious risk arises that privileged material will be disclosed unnecessarily." (People v. Hammon, supra, 15 Cal.4th at p. 1127.) As our Supreme Court subsequently noted: "Under Hammon . . . psychiatric material is generally undiscoverable prior to trial." (People v. Gurule (2002) 28 Cal.4th 557, 592.)
Ferguson does not dispute the Attorney General's assertion the communications at issue here were covered by the psychotherapist-patient privilege because Evidence Code section 1010 defines "psychotherapist" to include marriage and family therapists. Hence, the trial court did not err by refusing to order pretrial discovery of the unredacted Strategies for Change records.
2. Unredacted records from Children's Protective Services.
Ferguson contends the trial court erred by denying his request to review unredacted records held by Children's Protective Services. This claim is meritless.
a. Background.
Defense counsel initially sought pretrial access to unredacted records held by Children's Protective Services (CPS) regarding an October 2007 report by K.D. that her mother had physically abused her. Asserting CPS had concluded this accusation was unfounded, defense counsel argued the CPS file regarding this incident was relevant because, if K.D. lied about her mother abusing her, she was also likely lying about Ferguson molesting her.
Both before and during trial, the trial court declined to grant access to the unredacted records under Evidence Code section 352 because the evidence was tangential and cumulative, and there was a danger of confusing the jury. However, the court ruled it would be proper for defense counsel to ask K.D. about the incident. K.D. acknowledged on cross examination having reported to CPS that her mother had thrown her against a wall.
b. Discussion.
" „[W]hen an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence's probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers "substantially outweigh" probative value, the objection must be overruled. [Citation.] On appeal, the ruling is reviewed for abuse of discretion.' [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1008.)
Here, allowing the requested evidence would have amounted to classic impeachment on a collateral matter, and would have raised the attendant problem of holding a trial within a trial. (See People v. Quartermain (1997) 16 Cal.4th 600, 625 [trial court did not abuse discretion by excluding impeachment on collateral matter].) K.D. testified she made a report to CPS that her mother had thrown her against a wall. CPS might have concluded otherwise, but the truth or falsity of K.D.'s report is not evidence directly relating to the charges against Ferguson.
The trial court did not err when it refused to grant Ferguson unrestricted access to the CPS files.
3. Exclusion of letters written by and to K.D.
Ferguson contends the trial court erred by excluding from evidence certain letters either written by K.D. or written to her. This claim is meritless.
Ferguson tried to put into evidence three letters, two letters written to K.D. by her close friend Tynisha, and one written by K.D.'s mother to Ferguson. Ferguson argues that, since "the defense was allowed to question [K.D.] regarding aspects of the contents of the letters, there was no legal basis to exclude the letters themselves." He also argues: "As the trial court stated on the record, the only basis for exclusion of the letters was the court's belief they weren't 'necessarily' needed. That is not a valid legal basis for exclusion of relevant evidence."
Ferguson's appeal brief asserts the trial court erroneously refused to admit three letters: defense exhibits F, G and H. Actually, Ferguson did not ultimately seek admission of exhibit H; rather, he sought to introduce exhibits F, G and I.
However, as the Attorney General correctly points out, Ferguson's appeal brief has misconceived the issue because the trial court did not exclude the letters as "unnecessary," but rather as inadmissible hearsay and more prejudicial than probative. The trial court concluded there were no inconsistencies between K.D.'s testimony and any material statements in the letters; hence, the letters did not constitute prior inconsistent statements under the hearsay rule. Ferguson fails to demonstrate the trial court's reasoning was faulty.
Ferguson's reliance on Kyles v. Whitley (1995) 514 U.S. 419 , is misplaced. In that case, the prosecution principally relied on six eyewitnesses who testified they had seen the defendant shoot the victim. But the prosecution failed to give the defense extra-judicial statements by those witnesses that "would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense. To begin with, the value of two of those witnesses would have been substantially reduced or destroyed." (Id. at p. 441.)
For instance, the state's best eyewitness had given a contemporaneous statement describing the gunman as 5 feet 4 inches or 5 feet 5 inches, whereas Kyles was six feet tall.
Here, on the other hand, the defense had merely argued the letters were relevant to show that K.D. had become sexually active at the age of 12 and Ferguson knew this; that K.D. told Tynisha she felt Ferguson was a strict disciplinarian and she resented him for this; and that K.D. never mentioned anything to Tynisha about Ferguson molesting her.
Given the extremely limited probative value of this evidence, we find its exclusion could not have violated any of Ferguson's constitutional rights. (See, e.g., People v. Jennings (1991) 53 Cal.3d 334, 372 ["Because the evidence in question would impeach the witnesses on collateral matters and was only slightly probative of their veracity, application of Evidence Code section 352 to exclude the evidence did not infringe defendant's constitutional right to confront the witnesses against him."].)
Moreover, the jury heard about the basic substance of the letters from K.D.'s testimony. Defense counsel had K.D. look at the letters and then answer questions. K.D. acknowledged she had told Tynisha she disliked Ferguson, he got on her nerves, that "he doesn't even trust me but I don't even care." She acknowledged writing that Ferguson was "tripping and off hinges," which referred to the fact he was "irritating" her "[b]ecause he was telling me I had to be home . . . 15 minutes after we got out of school." K.D. testified she wrote these letters to Tynisha because she was resentful Ferguson was disciplining her, she was angry he didn't trust her, and he had been "yelling at me and telling me not to do stuff for no reason." K.D. testified she informed her mother she had been sexually active since the age of 12, that her mother told Ferguson, and that Ferguson was concerned she "was going to turn out like my mom and get pregnant at 14."
The trial court did not err by excluding these letters from evidence.
4. Calling Reed a "bitch."
Ferguson contends the trial court erred by denying his request to have Rayshelle Reed testify K.D. had called her a "bitch." This claim is meritless.
Defense counsel told the trial court he wanted to have Reed testify K.D. called her a "bitch" in a courtroom hallway during the preliminary hearing. Counsel argued the evidence was relevant because K.D. denied the incident in her testimony, and it would tend to show her bias and prejudice toward Reed. The trial court concluded the proposed testimony was irrelevant because it failed to demonstrate bias toward Ferguson and, even if relevant, it would be too time consuming.
Ferguson argues the evidence was relevant because it contradicted K.D.'s testimony she got upset when he called her a bitch during a phone message he left on her friend's answering machine. But exactly the same point, i.e., that K.D. was testifying inconsistently about her reaction to vulgar words, was made by defense counsel's cross examination of K.D. regarding the message machine incident. In response, K.D. cogently explained the difference when she testified, "Your father is not supposed to call you any types of names like that." Contrary to Ferguson's argument, this evidence was not made more relevant by the fact that, in other contexts, K.D. herself used similarly vulgar language.
K.D. had testified Ferguson "called me a bitch. [¶] Q. Okay. And that's a terrible, terrible word that you felt he was calling you; right? [¶] A. Yes. [¶] Q. But fuck and shit it's okay for you to write in letters to your best girlfriend, right . . . ? [¶] A. I mean that's girl talk. [¶] Q. Oh, okay. And parent talk calling a daughter a bitch is, in your mind, a terrible, terrible thing? [¶] A. Yes."
Hence, the trial court did not abuse its discretion by excluding, under Evidence Code section 352, evidence that K.D. had called Reed a bitch.
5. CALCRIM No. 1110.
Ferguson contends the trial court erred by instructing the jury with the standard definition of child molesting (CALCRIM No. 1110) because the instruction removed an essential element of the offense by telling the jury: "The touching need not be done in a lewd or sexual manner." This claim is meritless.
Ferguson argues this language was incorrect because section 288, subdivision (a), "expressly requires that the defendant 'lewdly' commit the act." Ferguson is wrong.
"[T]he courts have long indicated that section 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the 'gist' of the offense has always been the defendant's intent to sexually exploit a child, not the nature of the offending act. [Citation.] '[T]he purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done. . . . If [the] intent of the act, although it may have the outward appearance of innocence, is to arouse . . . the lust, the passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the statute . . . ' [Citation.]
"Thus, throughout the statute's history, the cases have made clear that a 'touching' of the victim is required, and that sexual gratification must be presently intended at the time such 'touching' occurs. [Citations.] However, the form, manner, or nature of the offending act is not otherwise restricted. Conviction under the statute has never depended upon contact with the bare skin or 'private parts' of the defendant or the victim. [Citations.] Stated differently, a lewd or lascivious act can occur through the victim's clothing and can involve 'any part' of the victim's body. [Citations.]
"More recent authorities apply the same principles but tend to articulate them in more succinct terms. Like the jury instructions given in this case, modern courts state or imply that any touching of an underage child is 'lewd or lascivious' within the meaning of section 288 where it is committed for the purpose of sexual arousal. [Citations.]" (People v. Martinez (1995) 11 Cal.4th 434, 444-445; see also People v. Sigala (2011) 191 Cal.App.4th 695, 701 [based on Martinez, language in CALCRIM No. 1120 that, to violate section 288.5 (continuous sexual abuse of child) "the touching need not be done in a lewd or sexual manner," was correct statement of law].)
The instruction given by the trial court here was proper.
6. CALCRIM No. 318.
Ferguson contends the trial court erred by giving CALCRIM No. 318 (prior statements as evidence) with regard to the jury's consideration of a witness's pretrial statement. This claim is meritless.
The trial court instructed the jury: "You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways: one, to evaluate whether the witness's testimony in court is believable; and two, as evidence that the information in those earlier statements is true."
Ferguson complains this instruction "effectively tells the jury once they decide the witness made an out-of-court statement, the statement itself is evidence the statement is true," which "create[s] an improper presumption that a witness's sworn out-of-court statements are both true and deserving of greater belief than statements made in court under penalty of perjury." Ferguson also argues the instruction "removes from the jury's consideration the opportunity to use the evidence of a prior out-of-court statement as evidence the information in that statement is false."
This precise claim was rejected by People v. Hudson (2009) 175 Cal.App.4th 1025, with whose reasoning we agree: "CALCRIM No. 318 informs the jury that it may reject in-court testimony if it determines inconsistent out-of-court statements to be true. By stating that the jury 'may' use the out-of-court statements, the instruction does not require the jury to credit the earlier statements even while allowing it to do so. [Citation.] Thus, we reject defendant's argument that CALCRIM No. 318 lessens the prosecution's standard of proof by compelling the jury to accept the out-of-court statements as true. [¶] We also reject defendant's alternate argument that CALCRIM No. 318 disallows the jury from using 'the evidence of a prior out-of-court statement as evidence the information in that statement is false.' In considering this argument, we heed the well established rule that the ' "correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' [Citation.] Here, the trial court gave additional instructions that properly informed the jury of its prerogative to ignore any evidence found to be untrustworthy." (Id. at pp. 1028-1029; see also People v. Friend (2009) 47 Cal.4th 1, 41 [rejecting claim that similarly-worded predecessor instruction, CALJIC No. 2.13, was improper].)
Hudson pointed out the jury had been instructed with CALCRIM No. 226, "which provides in relevant part: 'You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] . . .[¶] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?' CALCRIM No. 226 informed the jury that it could accept or reject any testimony, and in making that determination could also consider past inconsistent statements. CALCRIM No. 226 negates the possibility, imagined by defendant, that the jury would believe itself bound to rely on out-of-court statements that it found noncredible." (People v. Hudson, supra, 175 Cal.App.4th at p. 1029.) The trial court here also gave this instruction.
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The trial court did not err by giving CALCRIM No. 318.
7. There was no cumulative error.
Ferguson contends that, even if harmless individually, the cumulative effect of these claimed trial errors mandates reversal of his convictions. Because we have found no errors, his claim of cumulative error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
8. There was no sentencing error.
Ferguson contends the trial court erroneously relied on the fact K.D. was "particularly vulnerable" when it imposed the upper prison term for his conviction. This claim is meritless.
Ferguson argues "there were no facts which would support a conclusion [K.D.] was particularly vulnerable, other than her age, which was an element of the offense." Not so. Had the perpetrator been, for instance, K.D.'s next door neighbor, then this vulnerability characterization arguably would have rested merely on the fact of her age. But here the perpetrator was her father and K.D. only came to live with him because her mother had been sent to jail. These two factors are not mere placeholders for K.D.'s age. The cases cited by Ferguson, for the principle that age alone cannot warrant an aggravated term in a child molesting prosecution, are cases in which the perpetrator was apparently not a parent. (See People v. Quinones (1988) 202 Cal.App.3d 1154; People v. Ginese (1981) 121 Cal.App.3d 468; People v. Flores (1981) 115 Cal.App.3d 924.
The trial court did not err by imposing the upper term.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P.J. We concur:
CROSKEY, J.
ALDRICH, J.