Opinion
H032328
2-9-2009
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALVARADO GARCIA, Defendant and Appellant.
Not to be Published in Official Reports
I. INTRODUCTION
Defendant David Alvarado Garcia was convicted after jury trial of two counts of committing lewd or lascivious acts upon his girlfriends daughters, A. and M., who were both under the age of 14 years (Pen. Code, § 288, subd. (a)). The trial court found true the allegations that defendant had one prior conviction for lewd conduct (§ 667.61, subds. (a) & (d)) and two prior convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12). The court sentenced defendant to 150 years to life in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) the trial court erred in admitting expert testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS) and the error rendered the trial fundamentally unfair; (2) the trial court erred in instructing the jury regarding the relevance of CSAAS; (3) the trial court erred in limiting defense counsels cross-examination of A. under Evidence Code sections 782 and 352 and deprived defendant of his rights of confrontation, to present a defense, and to due process; and (4) his rights to assistance of counsel, a fair trial, and to be present at critical stages of the proceeding were violated when the trial court engaged in ex parte communication with the jury.
For reasons that we will explain, we determine that defendants contentions are without merit and we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
On July 12, 2007, defendant was charged by amended information with two counts of committing lewd and lascivious acts on a child under the age of 14 years (§ 288, subd. (a)). A. was the alleged victim in count 1, and M. was the alleged victim in count 2. The lewd acts were alleged to have occurred between August 1, 1998 and August 31, 2001. The information further alleged as to all counts that defendant committed violations of section 288 against more than one victim (§ 1203.066, subd. (a)(7)), and that defendant had one prior conviction of lewd conduct with a minor (§§ 288, subd. (a), 1203.066, subd. (a)(5), 667.61, subds. (a) & (d)). The information also alleged that defendant had two prior convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12).
Pretrial Motions Regarding CSAAS and Cross-Examination of A.
Prior to trial, defendant filed a motion seeking to limit expert testimony regarding CSAAS and a motion seeking to cross-examine A. regarding her report that she had been molested by her stepfather. The trial court denied both motions.
The Trial
The Current Offenses
A. was born in 1991 and M. was born in 1994. Their mother, Sarah, met defendant in 1995 or 1996 and the two began a romantic relationship. In August 1998, Sarah, A., and M. moved into an apartment. Defendant moved into the apartment shortly thereafter. A. and M. were in elementary school at the time. Defendant helped take care of the children, and he sometimes watched them when Sarah was not at home.
At the time of trial in July 2007, M. was 13 years old. M. testified that when she was in first grade, defendant touched her chest twice a week, over her clothing, with his hands. The touching occurred in her bedroom, which she shared with her sister, and in her mothers bedroom over a two or three month period. M. described defendants touching as being "[l]ike a squeeze" and that it lasted longer than five seconds. It made her feel "not good." She "[s]ometimes" told him to stop, and he "[s]ometimes" complied. M. testified that no one else saw the touching, although she does not remember whether anyone else was in the same room when it occurred. She testified that she felt scared when defendant "mean[ly]" told her not to tell anyone about what he was doing.
M. testified that on one occasion, defendant got angry at her but she could not remember why. He grabbed her neck and lifted her off the ground, choking her. He told her not to tell anybody and that if she did, he would kill her. Upon questioning by defense counsel regarding why defendant was angry, M. indicated that she had told defendant to stop, said no to something he wanted her to do, or had done something wrong but she could not "remember what that was."
M. testified that she felt defendants penis touch her "front area" when she was in the bathroom. She explained that he approached her directly and put the front of his body against her body for more than five seconds but less than ten seconds, and it made her uncomfortable.
During the time period when defendant was touching her, M. did not tell her mother because she "was uncomfortable to tell her." She testified that after she told her mother that defendant had been touching her, the touching stopped. When she told her mother, her mother "got upset" over what had happened to her. Her mother "got into a fight" with defendant about it that same day. M. testified that defendant was angry and he "slammed" her head into a table, causing a cut on her lip. Defendant did not live with them after that day.
M. testified that she saw defendant do the "same stuff" to A., meaning "[t]he hand to chest," one time.
A. was 15 years old at the time of trial in July 2007. A. testified that during one school year, between third and fifth grade, defendant "often" rubbed her vagina with his penis while lying on top of her in her bed. Defendant did not say anything to her when it occurred. She did not remember whether he threatened her not to tell anyone. She testified that she did not remember whether she or defendant had clothes on when it occurred. She also did not remember whether she saw defendants penis, but she did feel it. She did not remember the details of a specific incident, but she had no doubt that defendant was touching her. She testified that she learned about "good touching and bad touches" when she was in middle school. She did not remember anyone else being present in the room when the touching occurred.
A. testified that the touching stopped when her mom "kicked him out of the house." The touching made her feel "uncomfortable," and she did not immediately tell anyone about it because she was embarrassed. At some point, she told a friend that defendant had been touching her. The police then talked to A. about it in early 2006.
A. did not see defendant acting violently with her mother or sister. She testified that she was afraid of him but did not remember why.
M. and A.s mother, Sarah, testified that in or about the summer of 2001, after one of her daughters had "said something" that made Sarah "think that [defendant] had exposed himself," she told defendant that he "needed to leave for a little while." She did not "tell him why," and defendant was angry and did not want to leave. Defendant ultimately moved out that day. Sarah testified that she did not recall whether M. was present when she argued with defendant about moving out. She also testified that she did not remember defendant pushing M.s face into a table and causing a cut lip.
A few weeks after defendant moved, he returned to the apartment. He "pushed [Sarah] down on the bed" and she "had to fight him off." Sarah thereafter obtained a restraining order against him.
Sarah testified that she did not know, until the police came to her home in January 2006, that defendant had touched her daughters in a sexual way. She did not remember defendant expressing a temper towards her children.
Cynthia Cooke, a patrol sergeant with the San Jose Police Department, testified that while she was an investigator with the Sexual Assault Investigation Unit, she interviewed M. and A., as well as their mother, Sarah, on February 6, 2006. An audio recording of portions of M.s interview was played for the jury. The jury also received a written transcript of the recording at the time it was played. M. indicated in the interview that defendant had touched her chest, including her breasts, three times a week for about three months. M. did not remember all the details of the incidents. Regarding the bathroom incident when defendants penis touched her, she indicated that she and defendant were clothed and defendant did not take his penis out of his clothes. She also indicated that it had occurred at least one other time when she was in a bedroom. She indicated that she had never seen defendant naked and had never seen his penis.
Campbell Police Officer Gary Berg interviewed defendant, who was in police custody, on May 17, 2006. Officer Berg testified that he told defendant that M. and A. had made some disclosures regarding "things that were happening in the house when he was watching them." Defendant indicated "he had never watched the children" and denied being alone with them in the house. Defendant maintained that Sarah was "brainwashing" the children and "trying to turn the kids against him." Defendant described an incident, which he characterized as accidental, in which he finished taking a shower and the children saw him nude when he came out of the bathroom. Defendant indicated that the incident became an issue and Sarah "attempted to use it against him to get a restraining order."
Officer Berg asked defendant whether he might have brushed up against the children or touched their chests. Defendant indicated that he had bathed the children at Sarahs request and "he would use soap on all parts of the body including breast, vagina and buttocks." Defendant acknowledged that M. "would try to swim away and make comments about wanting her mom to bathe her."
According to Officer Berg, defendant initially denied hugging the children. Later, in response to Officer Berg indicating that the children had talked about defendants hand brushing their breasts, defendant explained that the contact could have occurred during a "hug" or "while he was rubbing their backs or shoulders." Defendant indicated that the hugs were normal and did not involve inappropriate behavior.
Defendant acknowledged teasing M. and stated that "he would pinch [M.s] ass." Officer Berg testified that "during this conversation about touching [M.] and her friskiness, [defendant] almost made like an animal growling sound, something similar like that." Officer Berg also testified that defendant admitted to making comments to A. about her buttocks, such as saying it was "large and like her mothers" and referring to it as "a ghetto booty." Defendant told Officer Berg that the comments were not meant in a sexual way and "he was just joking around." He later indicated that he was sorry if he had caused emotional damage to the children. He acknowledged that when they went camping, "he would chase the girls around and slap their buttocks."
Officer Berg testified that defendant told him about "situations when the girls might have been in their rooms changing or undressing" and "he would peek in." They would tell defendant to "get out" and he would tell them "to take care of their booty."
Officer Berg asked defendant whether he remembered an incident, as reported by one of the children, regarding defendant grabbing the child and telling her not tell her mother after something had happened. In response, defendant described an incident in which he had walked into the childrens bedroom while they were naked and changing. He told Officer Berg that it was accidental and that "he told the girls dont tell their mom because he didnt want her to trip."
When defendant was told that one of the children had reported that his penis had rubbed up against her when they were fully clothed, defendant indicated that "[M.] had walked in on he and Sarah while they were watching a pornographic film." Defendant subsequently explained to Officer Berg that the incident reported by the child might have occurred when he was giving a hug or it might have been an accident.
Defendant generally indicated to Officer Berg that "he had made a mistake and that his heart was in the right place for them." Defendant later referred to the accidental nature of the conduct. Officer Berg testified that when he asked defendant about the accidents, defendant "started talking about, in his words, the hard-ons and the little brushes and shit . . . ." Defendant indicated that it was not his intention to hurt them, what he had done was out of love, and if they were emotionally scarred he hoped it would heal. Defendant also indicated to Officer Berg that "there are accidents that might have gone too far," some of his interaction with children might be misinterpreted, and he hoped the children could forgive him. Defendant told Officer Berg that if he could see the children, he would tell them "his general feelings of being sorry." Officer Berg testified that "the position defendant was portraying" during the interview was that he did nothing sexual in nature and that it was all misinterpreted.
Officer Berg gave defendant the opportunity to write a letter. On two pages, defendant wrote: "Dearest Sarah, [A.], [M.] [¶] Its been so very long! I know that scar[s] are deep in the heart! I to[o] must live with scar[s]! Mostly for making your y[o]ung hearts fear what only me[a]nt the best for thee. But instead I made you see me as a monster. Im not at all this beast. Please find it within your hearts to remember Daddy! was wrong in his ways of touch or play. I never me[a]nt [] any scar[s]. Please dont make my life! as I have put yours! `fear Please dont take my life from me. That monster is dead, and this old man is what is left! [¶] Sarah, [A], [M] Dont hate me! Remember the good and bury the past. I wish you all the best and I pray for the best. [¶] Spare Daddy. [¶] Please, that monster is dead! [¶] Love David Garcia [¶] 5-19-05" On a third page, defendant wrote: "Sarah please spare my life the monster is dead. Please." Defendants three-page statement was admitted into evidence.
The Child Sexual Abuse Accommodation Syndrome
Carl Lewis testified as an expert on CSAAS. He explained that CSAAS is based on clinical observation, and "[t]he point of [CSAAS] is to remind us to put . . . aside" the "preconceived ideas about how we think a child abuse victim should act" and instead "look at the whole picture."
Lewis testified that there are five categories of CSAAS: secrecy; helplessness; entrapment and accommodation; delayed, conflicted, unconvincing disclosure; and retraction. Secrecy describes the fact that the molestation often "occurs when the child is alone or isolated with the offender." The offender "can do things verbally or nonverbally to reinforce that sense of secrecy," such as warning that the child will get in trouble if the child tells anyone. The childs sense of helplessness may arise from the power imbalance between the child and the adult offender, and the sense of helplessness may be reinforced by the childs ineffective efforts to communicate about the behavior and stop the abuse. Entrapment and accommodation refer to the child feeling trapped by ongoing abuse or the burden of carrying a secret, but being able to "carry on" through "accommodation mechanisms." In this regard, some children may act as if nothing is wrong, while other children may exhibit a change in performance at school or other behavioral changes. The category of disclosure has three subparts. First, there is often a delay between the abuse and the childs disclosure of the abuse. Second, the child might go through an internal conflict as to whether to disclose the abuse by "weigh[ing] the pros and cons of disclosing." Third, "[w]hen a child does make a disclosure of sexual abuse, its often done in a way and at a time and in a manner that would make the child seem unconvincing." Regarding the category of retraction, the child may "minimize or completely retract [the] earlier allegation" of abuse due to the "chaos brought into the childs life and the childs familys life" after the disclosure. If the disclosure is reported outside the family, there is a lot of attention focused on the child and the family, such as from law enforcement, child protective services, the medical community, and the criminal justice system. The child may be left with the feeling that all this "trouble" was caused because the child "told," and the child may "want to go back to the way things were."
The Prior Offenses
The prosecution introduced into evidence for the jury to consider court records showing that defendant had been convicted in 1993 of a lewd and lascivious act on a child under the age of 14 (§ 288, subd. (a)) and annoying or molesting a child (§ 647.6).
Jury Verdict, Findings on the Priors, and Sentencing
The jury found defendant guilty on both counts of lewd conduct (§ 288, subd. (a)). Defendant waived jury trial on the alleged priors and, following a court trial, the court found true the allegations that defendant had one prior conviction for lewd conduct (§ 667.61, subds. (a) & (d)) and two prior convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12).
On October 12, 2007, the court denied defendants written Romero motion and sentenced him to 150 years to life in prison. Defendant filed a timely notice of appeal.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
III. DISCUSSION
Admissibility of Expert Testimony Regarding CSAAS
Defendant contends the trial court erred in admitting expert testimony regarding CSAAS and the error rendered his trial fundamentally unfair.
Background
Prior to trial, defendant filed a motion seeking to preclude the prosecutor from introducing expert testimony about CSAAS to establish that the children were molested, to require the prosecutor to identify any alleged myths about molestation victims that the prosecutor intended to dispel through expert testimony, and to limit the prosecutor "to introducing evidence of victims as a class to dispel myths."
At the hearing on the motion, the prosecutor argued that expert testimony regarding CSAAS was relevant to the "category of delayed, conflicted, and inconsistent reporting," and Lewis would testify as to victims as a class and not to the specifics of defendants case. Defense counsel objected to Lewis testifying at all and argued that CSAAS testimony was unnecessary and would mislead the jury into believing that the children had been molested.
The trial court overruled the objection to exclude Lewiss testimony. The court observed there was "late," "delay[ed]," and possibly "conflicted reporting" by the children, and they did not exhibit certain reactions that people might expect after being molested. The court believed expert testimony would be "helpful to the jury." The court explained that a limiting instruction would be given and Lewis would not be allowed to state an opinion as to whether the children were molested.
Prior to Lewiss testimony, and again at the close of evidence, the trial court instructed the jury pursuant to CALCRIM No. 1193 that Lewiss testimony about CSAAS "is not evidence that the defendant in this case committed any of the crimes charged against him." The judge admonished the jury that CSAAS evidence may be considered "only in deciding whether or not [A.] and/or [M.]s conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of each girls testimony."
Legal Principles
The opinion testimony of an expert witness is admissible if it is, among other things, "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . ." (Evid. Code, § 801, subd. (a).) " `[T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission . . . . [E]ven if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jurys common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men [or women] of ordinary education could reach a conclusion as intelligently as the witness." [Citation.]" (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300 (McAlpin).)
Expert testimony regarding CSAAS may be "admissible solely for the purpose of showing that the victims reactions as demonstrated by the evidence are not inconsistent with having been molested." (People v. Bowker (1988) 203 Cal.App.3d 385, 394 (Bowker).) The need for this type of evidence arises when the defendant attacks the childs credibility by suggesting that the childs conduct after the incident, such as a delay in reporting, is inconsistent with the childs testimony claiming molestation. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1383 (Gilbert).)
CSAAS evidence may not be used to determine whether a childs molestation claim is true. (Bowker, supra, 203 Cal.App.3d at p. 393.) "Because the line between impermissible use of expert testimony to prove the child was abused, and permissible use of such testimony to ` "explain the emotional antecedents of abused childrens seemingly self-impeaching behavior . . . ." [citation], is by no means a bright one, the better practice is to limit the experts testimony to observations concerning the behavior of abused children as a class and to avoid testimony which recites either the facts of the case at trial or obviously similar facts. [Citations.]" (Gilbert, supra, 5 Cal.App.4th at pp. 1383-1384.) In addition, CSAAS evidence must be tailored to counter "a specific `myth or `misconception suggested by the evidence." (Bowker, supra, 203 Cal.App.3d at pp. 393-394.) "In the typical criminal case, . . . it is the Peoples burden to identify the myth or misconception the evidence is designed to rebut." (Ibid.) However, the People need not expressly state which evidence is inconsistent with a finding of abuse. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino).) "It is sufficient if the victims credibility is placed in issue due to the paradoxical behavior . . . . [Citations.]" (Id. at pp. 1744-1745.) Admission of CSAAS evidence "is not error merely because it was introduced as part of the prosecutions case-in-chief rather than in rebuttal. The testimony is pertinent and admissible if an issue has been raised as to the victims credibility. [Citations.]" (Id. at p. 1745.) Lastly, the court must instruct the jury that "the experts testimony is not intended and should not be used to determine whether the victims molestation claim is true." (Bowker, supra, 203 Cal.App.3d at p. 394.)
"[T]he decision of a trial court to admit expert testimony `will not be disturbed on appeal unless a manifest abuse of discretion is shown. [Citation.]" (McAlpin, supra, 53 Cal.3d at p. 1299.)
Analysis
In asserting that the trial court erred in admitting expert testimony regarding CSAAS, defendant makes a number of contentions.
First, defendant contends that although the prosecutor and the court primarily relied on the delay in reporting as a basis for admitting Lewiss testimony, there was no delay in reporting because "[M.] testified she told her mother about the molestations a couple of months after it started." Defendant further argues that because M.s explanation for the delay in reporting—she was too uncomfortable to talk about it—was "perfectly plausible," there was no need for expert testimony on this issue.
In making this argument, defendant has acknowledged that M. did not immediately report his conduct to her mother. According to M.s testimony, there was a delay of two to three months from when the conduct began. In addition, A. delayed reporting defendants conduct for several years. The fact that M. offered a reason for not immediately disclosing defendants conduct—because she was uncomfortable—did not render expert testimony about delayed reporting unnecessary. The jury may have questioned whether feeling "uncomfortable" was a sufficient inhibitor to reporting the conduct that each of the children had described. Further, defense counsel in argument to the jury referred to the time frame between when the incidents occurred and when they were reported, in the context of contending that "there isnt a lot of evidence" in this case. In view of the evidence regarding delayed reporting and the attack on the childrens credibility by the defense, we determine that expert testimony regarding delayed reporting would assist the jury in its assessment of the childrens credibility and was therefore properly admitted by the court.
Second, relying on jury voir dire, defendant contends that there was no need for testimony about CSAAS. He asserts that the jurors in this case "revealed no misconceptions about how victims of child sexual abuse would normally react." In arguing that several prospective jurors indicated "they would have difficulty giving [him] a fair trial because they assumed the accusations were true," defendant claims that "the jury pool in this case held no myths about child victims of sexual abuse."
As defendant acknowledges, none of these individuals, except one, served on the jury. One juror did state that defendant "doesnt come across as a sympathetic figure" and the juror "concluded, therefore, [he] needed to be more diligent to pay attention to the evidence." The jurors comments, however, did not establish that there was no need for expert testimony regarding CSAAS. Further, although prospective jurors were asked whether they had any expectations as to how someone who has been molested should appear or act on the witness stand, they were not asked about their beliefs relating to the behaviors associated with CSAAS. " `[E]ven if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. " (McAlpin, supra, 53 Cal.3d at p.1300.) Expert testimony regarding common reactions of child molestation victims " `is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused childrens seemingly self-impeaching behavior. " (Id. at p. 1301.)
Defendant next argues that some jurors, because of their particular experiences, would have "disabused" other jurors of any preconceived myths.
We do not agree with defendant that certain jurors past experiences eliminated the need for expert testimony regarding CSAAS. One juror was an elementary school teacher who had reported to the principal that a child "look[ed] abused." Another juror was a "special educator" at the elementary school level and in the past had volunteered as a teachers aide to work with abused children who had been removed from their families. In this earlier role, the juror did not talk to the children about the nature of their abuse and only worked in the classroom. A prospective juror stated that his sister told a relative that she had previously been molested. The prospective juror indicated that he initially did not believe the molestation had occurred. After he "got to know the situation better," he thought it did occur, although he never talked to his sister about it and it was never "purely established." It is not clear from the record whether this prospective juror was selected to serve on the jury.
The record does not reflect the extent of the knowledge of these individuals regarding the reactions of children as a class to abuse. In any event, " `[t]he jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission . . . . " (McAlpin, supra, 53 Cal.3d at p. 1299.) Here, nothing in the record suggests that due to the experiences of these individuals, expert testimony regarding CSAAS " `would add nothing at all to the jurys common fund of information " about the behavior of abused children as a class. (Id. at p. 1300.) Lewiss testimony regarding CSAAS would have assisted the jury by providing a broader context on delayed reporting and by potentially explaining that other behaviors exhibited by A. and M. were not inconsistent with a finding that they had been subjected to lewd conduct by defendant. Moreover, the California Supreme Court has cautioned that "[a] juror may commit misconduct by receiving or proffering to other jurors information about the case that was not received in evidence at trial. [Citation.] . . . "[I]t is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a jurors own claim to expertise or specialized knowledge of a matter at issue is misconduct. [Citation.]" (In re Lucas (2004) 33 Cal.4th 682, 696, italics omitted.)
Defendant also suggests that the "general population" no longer has misconceptions about the reactions of child abuse victims, unlike when CSAAS was first identified by Dr. Summit. CSAAS evidence is routinely admitted in child sexual abuse cases. (See People v. Brown (2004) 33 Cal. 4th 892, 905-906; see McAlpin, supra, 53 Cal.3d at pp. 1300-1301.) To the extent our Supreme Court has recognized that such evidence may be relevant, useful, and admissible in a given case, as an intermediate court, we are in no position to rule otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455)
Third, defendant contends that Lewiss testimony about CSAAS was not limited to a specific misconception presented by the evidence. Rather, Lewis described all five categories and gave CSAAS a "scientific gloss."
We disagree with defendants characterization of the record. As we explained, expert testimony regarding delayed reporting was pertinent to the childrens testimony that they did not immediately disclose defendants conduct. Although the prosecutor did not identify the other behaviors associated with CSAAS—such as secrecy, helplessness, entrapment and accommodation, and retraction—the prosecutor was not required to do so. (Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) Testimony by the prosecutions witnesses on direct and cross-examination implicated these behaviors. Most of the incidents appear to have occurred when defendant was alone with one child, and defendant warned M. not to tell anyone. This was relevant to the category of secrecy. Helplessness was implicated by the power imbalance in the relationship between the children and defendant, who was involved in taking care of them. Testimony from the children and their mother suggested that the children had a normal relationship with defendant, including that the children had fun playing video games and going on trips with him. Lewiss testimony regarding accommodation, that children will act as if nothing is wrong, would have informed jurors that such behavior does not necessarily mean that the abuse did not occur. There was also testimony implicating the category of retraction, as when M. told Sergeant Cooke that defendant touched her chest three times a week but testified at trial that it only happened twice a week, and she told Sergeant Cooke that defendants penis had touched her twice but only disclosed one incident at trial. Lastly, the defense in this case was that the children were not credible in their testimony about defendants conduct. Based on the record, CSAAS evidence was thus relevant to " `disabuse jurors of commonly held misconceptions about child sexual abuse " and to show that the childrens reactions were not inconsistent with having been subjected to abuse by defendant. (McAlpin, supra, 53 Cal.3d at pp. 1301.)
Citing Bowker, supra, 203 Cal.App.3d at page 393, defendant asserts that "Lewiss testimony `describ[ed] the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused. " In Bowker, the Court of Appeal determined that the trial court did not properly limit expert testimony regarding CSAAS although the error was held to be harmless. (Id. at pp. 394-395.) The Bowker court observed that the expert testimony was admitted in the prosecutors case-in-chief, which suggested that it was not introduced to rebut the defenses attacks on the victims credibility. (Id. at p. 394.) The court also noted that the expert "testimony accounted for nearly 70 pages of reporters transcript and was replete with comments designed to elicit sympathy for child abuse victims and solicitations that children should be believed." (Ibid.)
In contrast, in this case, testimony by the prosecutions witnesses on direct examination and cross-examination implicated misconceptions associated with the five categories of CSAAS. At the same time, the evidence regarding CSAAS did not play as prominent a role in the prosecutions case as it did in Bowker. Lewiss testimony on direct examination and cross-examination covered slightly more than one-half the number of pages of the reporters transcript as the testimony in Bowker. The prosecutor only made a few, cursory references to Lewiss testimony in opening argument and briefly referred to his testimony twice in closing argument. Moreover, Lewis did not make statements "designed to elicit sympathy" for child abuse victims. (Bowker, supra, 203 Cal.App.3d at p. 394.) We thus find Bowker distinguishable from the present case.
Further, in viewing Lewiss testimony as a whole, we do not believe his references to such concepts as "syndrome," "diagnosis," and "validation" added a "scientific gloss" or gave an " `aura of infallibility " to the CSAAS evidence, as suggested by defendant.
Lewis acknowledged that "a great deal of controversy" existed over use of the phrase "syndrome." He testified that Dr. Summit, who "coined the term Child Sexual Abuse Accommodation Syndrome," wrote that he "wishes he had called it a pattern" rather than a "syndrome," although Dr. Summit believed that "in medical terminology it meets the definition of a syndrome in that it elicits factors that could lead a diagnostician to a possible diagnosis." Lewis further testified that CSAAS is Dr. Summits "clinical opinion" based on years of observation in treatment centers for offenders and victims. Lewis indicated that Dr. Summit wrote a "report on validation for his syndrome," and that validation included admissions by offenders who corroborated their victims claims of abuse and indicated that the victims had minimized the extent of the abuse.
Lewis explained, however, that CSAAS is "not . . . a condition which someone can suffer" and "is not a diagnosis" or a diagnostic tool. He indicated that CSAAS cannot be used to determine whether a child was in fact molested. Rather, it provides "background information." "The point of [CSAAS] is to remind us to put . . . aside" the "preconceived ideas about how we think a child abuse victim should act" and instead "look at the whole picture." Lewis testified that as an employee in the district attorneys office, it was possible that he saw a report about defendants case, but he had no memory of the case and had not discussed the facts of the case with the prosecutor. He clarified that he was only presenting information on CSAAS and was not rendering an opinion on what might have occurred in this case. The jury was also admonished before Lewis testified about CSAAS, and after the close of evidence, that Lewiss testimony about CSAAS "is not evidence that the defendant in this case committed any of the crimes charged against him." We believe that Lewiss own testimony viewed as a whole, along with the jury instructions, eliminated the risk that the jury might misuse the CSAAS evidence to conclude that the children had been abused by defendant.
Fourth, defendant contends the instruction given to jurors regarding CSAAS "compounded the error in admitting Lewiss unrestricted testimony about the Syndrome." We have explained that the admission of Lewiss testimony concerning CSAAS was not erroneous. As we will explain infra, in connection with defendants argument concerning CALCRIM No. 1193, the instruction is proper. We therefore conclude that the trial court did not "compound[]" any error by giving the instruction in this case.
Lastly, defendant contends that he was denied a fair trial by the admission of expert testimony regarding CSAAS. "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendants trial fundamentally unfair. [Citations]." (People v. Falsetta (1999) 21 Cal.4th 903, 913.) The use of CSAAS evidence at trial does not render the trial fundamentally unfair. (Patino, supra, 26 Cal.App.4th at p. 1747.) In this case, the CSAAS evidence admitted was relevant to the issues presented in the case and, as it was properly limited, did not render defendants trial fundamentally unfair.
Jury Instructions Regarding CSAAS
Defendant contends the trial court erred by instructing the jury that it could use CSAAS evidence to evaluate the credibility of A. and M. Referring to the last phrase in CALCRIM No. 1193, defendant argues that the jury instruction "advises the jury it can use Syndrome evidence in evaluating the credibility of the alleged victims testimony," which is the same as telling the jury "to use the evidence to determine whether the molestation[] claims are true." Defendant contends that the instruction "lightened the prosecutors burden of proof" by permitting the jury to find him guilty based "on testimony that assumed the molestation happened."
Prior to Lewiss testimony, the trial court instructed the jury pursuant to CALCRIM No. 1193 as follows: "You will hear testimony from Mr. Lewis regarding Child Sexual Abuse Accommodation Syndrome. Mr. Lewiss testimony about Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant in this case committed any of the crimes charged against him. You may consider this evidence only in deciding whether or not [A.] and/or [M.]s conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of each girls testimony." The court admonished the jury with a similar instruction at the close of evidence.
When a criminal defendant contends that a jury instruction is erroneous, this court inquires " `whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." (Estelle v. McGuire (1991) 502 U.S. 62, 72, quoting Boyde v. California (1990) 494 U.S. 370, 380.) In conducting this inquiry, we must consider the challenged instruction in the context of all the instructions given by the trial court. (People v. Frye (1998) 18 Cal.4th 894, 957, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22, petn. for rehg. pending, petn. filed Jan. 20, 2009, time for grant or denial of rhg. extended to April 3, 2009.)
Expert testimony regarding CSAAS is inadmissible "to prove that the victim was in fact abused on this occasion. [Citations.] But in such a case such expert testimony `is admissible to rehabilitate [the victims] credibility when the defendant suggests that the childs conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. [Citations.] [Citation.]" (Gilbert, supra, 5 Cal.App.4th at p. 1383.)
We observe that CALCRIM No. 1193 specifically informs the jury that expert testimony regarding CSAAS "is not evidence that the defendant committed any of the crimes charged against him." The instruction also tells the jury that it "may consider this evidence only in deciding whether or not [A. and/or M.s] conduct was not inconsistent with the conduct of someone who has been molested and in evaluating the believability of [each girls] testimony." By disabusing the jury of misconceptions it may hold regarding how sexually abused children as a class behave, CSAAS evidence is relevant and admissible "if an issue has been raised as to the victims credibility." (Patino, supra, 26 Cal.App.4th at p. 1745.) Credibility and believability are synonyms. (See Blacks Law Dict. (8th ed. 2004) p. 396, [defining "credibility" as "[t]he quality that make something (as a witness or some evidence) worthy of belief"].) Accordingly, jurors may use the evidence in evaluating an alleged victims credibility or believability, because the evidence regarding CSAAS informs them that some beliefs they may hold about the behaviors of sexually abused children as a class may be incorrect. We also observe that the trial court instructed the jury pursuant to CALCRIM No. 220 [the "defendant in a criminal case is presumed to be innocent"]. Thus, when CALCRIM No. 1193 is considered as a whole, and in context with CALCRIM No. 220, it is not reasonably likely that the jury would have understood that the expert testimony regarding CSAAS could be considered to determine whether the abuse of A. or M. occurred, thereby lightening the prosecutions burden of proof.
Limitation on Cross-Examination of A.
Defendant contends that the trial court erred in limiting his counsels cross-examination of A. under Evidence Code sections 782 and 352 and violated his federal constitutional rights of confrontation, to present a defense, and to due process. Defendant asserts that evidence concerning A.s accusations of molestation against her stepfather and her refusal to testify against him was relevant to (1) support the theory that A. had misinterpreted defendants conduct, and (2) her motive in the case against defendant.
Background
Prior to trial, defendant brought a motion "seek[ing] to introduce evidence falling under Evidence Code sections 780 and 782 for the purpose of challenging" A.s anticipated trial testimony. In particular, defendant sought to examine A. regarding her report of molestation by her stepfather. In an affidavit in support of the motion, defense counsel stated that "[A.]s allegations against [defendant] came to light in the course of an investigation into allegations that she was also sexually molested by . . . her stepfather." According to defense counsel, A. refused to testify at the preliminary examination in the case against her stepfather and the acts alleged in the case against her stepfather were "more egregious." Defense counsel asserted that it was "necessary to cross examine [A.] . . . regarding any prior acts of molestation by [her stepfather] in order to ensure that acts committed by him are not inadvertently attributed to [defendant]." Defense counsel also contended that "[A.]s willingness to testify about the molestation in this case, and her refusal to testify about the same topic in the other case raises the possibility of an ulterior motive for her allegations against [defendant]. The existence of such motives would have a direct bearing on the credibility of her testimony and statements against [defendant]." Defense counsel maintained that defendants "ability to bring this evidence of the complaining witness sexual conduct is indispensable to preserve his right to a fair trial under the Sixth Amendment of the United States Constitution."
At the hearing on the motion, defense counsel argued that A. should be questioned about "the events that occurred" with her stepfather, because it was "highly probative" as to whether she was "confusing" or "misinterpreting events that might have happened with [defendant] based on what was currently happening with" her stepfather. Defense counsel also wanted to ascertain A.s reasons or motives for testifying against defendant, but not testifying against her stepfather.
In opposition, the prosecutor argued that defense counsels "affidavit does not establish questions or sufficient evidence that goes to [A.s] veracity or credibility." The prosecutor explained that although A. did not testify at the preliminary hearing in the case against her father, a detective did testify about what A. had reported and it involved "more serious conduct." The prosecutor provided a letter that A.s mother, Sarah, had sent in March 2006 "to the District Attorneys Office prior to the three strikes committee review of the case . . . ." In the letter, Sarah asks that her husband, A.s stepfather, not be given a lengthy prison sentence because it would pose "serious emotional and financial hardships" for the family. According to the prosecutor, Sarah had testified that she wrote the letter "at the behest of" A. The prosecutor maintained that "the difference" between the two cases "has to do with the relationship" between A. and her stepfather.
Near the end of the hearing on the motion, the trial court indicated that it would read the police reports and the transcript of the preliminary hearing in the case against A.s stepfather.
The next day, the trial court heard further arguments from counsel before issuing its ruling. Among other things, defense counsel contended that A.s willingness to "come forward" in one case but not in the other "perhaps . . . is an issue of whether . . . she is not telling the truth on one or the other or not on either of the cases."
The trial court denied defendants request and indicated that evidence concerning what happened to A. with respect to her stepfather and why she refused to testify in that case would be excluded. In making its ruling, the court indicated that it had read certain documents in the case against A.s stepfather, including the testimony of A., the testimony of Sarah, and the statements that were given to police by M., A., and her stepfather.
The trial court explained: "I dont feel there is any basis on anything we know that [the] defense can show or make a showing of false accusations that would really go to [A.s] truth and veracity. And if I were to let [defense counsel] go into the area of this other case, under [Evidence Code section] 352 the probativeness is very minimal at this point and time consuming . . . ." The court expressed concern about having "another trial" on whether A. was molested by her stepfather and stated that it would be "very confusing" to the jury and "time consuming." The court also believed it would be "impossible or very near impossible" for defense counsel to show that A.s accusations against her stepfather were false, in view of the stepfathers statements or "admission" to the police.
The trial court also found the allegations in each case to be "very different in magnitude" and there was no reason to believe that A. had confused the incidents. The court stated that although both cases involved touching of the breasts and vaginal area, the allegation against defendant "was over the clothing, never touching skin to skin." In contrast, in the case against A.s stepfather, the court stated that "the allegations were not only was it under the clothes, but the incident where she recounts to the detective that he had scissors and cutting her underwear off to get to her vaginal area, that he tried to penetrate her and that she was clenching her legs close[d] so he couldnt get into her and he was lying on the bed with her. It was much, much more an egregious situation than the facts that are alleged underlying the charges against [defendant]. [¶] There is no indication that [there] is or will be confusion with [A.] . . . that somehow she is so weak-minded that she could confuse the situation with [defendant] and the situation with her stepfather . . . ."
The trial court found that defendants arguments "really call for the court to speculate. This could be possibly what could happen." The court explained: ". . . I think that we have to look at the purpose of the Evidence Code [section] 782 as to protect those persons who are or [are] alleged to have been victims of sexual abuse whether they are adults and [e]specially when they are children. It really seems to be somewhat of a fishing expedition."
The trial court also reasoned that there were "ample ways of impeaching any testimony [A.] gives in this matter without going into the other situation where apparently she was victimized." The court noted that defendant would be able to impeach A. to the extent her trial testimony differed from her statements to police or her testimony at the preliminary hearing. Defendant would also be able to question A.s sister and mother about what A. told them.
Lastly, regarding A.s willingness to testify in one but not the other case, the trial court stated: "[C]ertainly there are myriads of reasons why she did not want to testify against her stepfather. And I think that we can make our own suppositions based upon the evidence or the testimony that was at the preliminary hearing and the letter that was written to the district attorney asking for lenient treatment of [A.s stepfather], father of I think of two children, but at least —," whereupon the prosecutor interjected, "Yes, half siblings of [A.] and [M.]." The court continued: "So the children of the mother Sarah with [A.s stepfather], so its a very different relationship that the mother and the victims have with [A.s stepfather] than with [defendant] that I think was just sort of out of their life once it was revealed to the mother."
Analysis
"Only relevant evidence is admissible [citations], `and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citations.] [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 337 (Harris).) "`Relevant evidence means evidence, including evidence relevant to the credibility of a witness . . ., having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Unless prohibited by statute, the jury, in determining the credibility of a witness, may consider "any matter that has any tendency in reason to prove or disprove the truthfulness of [the witnesss] testimony at the hearing," including the extent of the witnesss capacity to perceive, recollect, or communicate any matter about which the witness testifies, and the existence or nonexistence of a bias, interest, or other motive. (Evid. Code, § 780.) Even if evidence is relevant, the court has the discretion to exclude it if "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
Evidence Code section 780 states in full: "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] (a) His demeanor while testifying and the manner in which he testifies. [¶] (b) The character of his testimony. [¶] (c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies. [¶] (d) The extent of his opportunity to perceive any matter about which he testifies. [¶] (e) His character for honesty or veracity or their opposites. [¶] (f) The existence or nonexistence of a bias, interest, or other motive. [¶] (g) A statement previously made by him that is consistent with his testimony at the hearing. [¶] (h) A statement made by him that is inconsistent with any part of his testimony at the hearing. [¶] (i) The existence or nonexistence of any fact testified to by him. [¶] (j) His attitude toward the action in which he testifies or toward the giving of testimony. [¶] (k) His admission of untruthfulness."
Evidence of a victims sexual conduct may be limited by the court. "In prosecutions brought pursuant to section 288, Evidence Code section 782 provides for a strict procedure that includes a hearing outside of the presence of the jury prior to the admission of evidence of the complaining witnesss sexual conduct. [Citations.] Evidence Code section 782 is designed to protect victims of molestation from `embarrassing personal disclosures unless the defense is able to show in advance that the victims sexual conduct is relevant to the victims credibility. [Citation.] If, after review, `the court finds the evidence relevant and not inadmissible pursuant to Evidence Code section 352, it may make an order stating what evidence may be introduced and the nature of the questions permitted. [Citation.]" (People v. Bautista (2008) 163 Cal.App.4th 762, 782 (Bautista).)
Evidence Code section 782 states in part: "if evidence of sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780, the following procedure shall be followed: [¶] (1) A written motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness. [¶] (2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated. . . . [¶] (3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant. [¶] (4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court."
In general, a trial courts ruling on the admissibility of evidence is reviewed under the abuse of discretion standard. (Harris, supra, 37 Cal.4th at p. 337.)
Defendant contends that evidence of A.s sexual conduct with her stepfather could have supported a defense that she and her sister, M., misinterpreted defendants conduct, or that their memories of defendants conduct could have been affected by their stepfathers acts. The trial court, in ruling that defendant could not question A. about the molestation accusations against her stepfather, found that the allegations against A.s stepfather were "very different in magnitude" as compared to the allegations against defendant, and there was no indication that A. was confused or could be confused about the situation with defendant and the situation with her stepfather. On appeal, defendant does not disagree with the trial courts description of the differences between the accusations in the two cases, nor does he point to anything that might suggest that A. could have confused the incidents or the perpetrators. Further, based on the childrens descriptions of defendants conduct, the jury could readily evaluate whether defendants acts had been misinterpreted by the children or whether defendant had engaged in lewd conduct.
Under these circumstances, we determine that the trial court reasonably concluded that evidence that A. had been molested by her stepfather had little or no probative value as to whether defendant engaged in lewd conduct with A. The trial court therefore acted within its discretion by precluding such evidence as potentially confusing to the jury and time consuming (Evid Code, § 352) and by protecting A. from further " `embarrassing personal disclosures. " (Bautista, supra, 163 Cal.App.4th at p. 782.)
Regarding inquiry into A.s refusal to testify against her stepfather, defendant asserts that Evidence Code section 782 governs a victims prior sexual activity and this section "was not implicated" because the issue was A.s motive to testify in defendants case.
Regardless of whether Evidence Code section 782 applied to this issue, we determine that the trial court did not abuse its discretion in prohibiting this line of inquiry. As the trial court explained, there may have been many reasons why A. did not want to testify against her stepfather as compared to defendant, who was "out of" A.s life after certain information was revealed to her mother. Moreover, evidence that A. may have been seeking leniency for her stepfather was not probative of her motive for testifying in the case against defendant, nor was it probative of whether defendant engaged in lewd conduct. Defendants contention that A. may have accused him in order to "deflect attention from her stepfather" is unpersuasive, as defendant acknowledges that A.s accusations against both men "came to light" at the same time. In addition, defendants argument, raised for the first time in his reply brief on appeal, that "[t]he prosecutor had a hold over A." and she had a "motive to testify as favorably as possible for the prosecution" in this case "in hopes of obtaining a lower sentence for her stepfather" in the other case, is speculative and without factual support in the record.
We further conclude that defendants constitutional rights to confront witnesses, to due process, and to present a defense were not violated by the trial courts exclusion of testimony regarding A.s accusations against her stepfather and her refusal to testify against her stepfather. A criminal defendant has a federal constitutional right to confront witnesses against him or her. (U.S. Const., 6th Amend.; Pointer v. Texas (1965) 380 U.S. 400, 406-407.) Undue restrictions on a criminal defendants cross-examination of a prosecution witness may amount to a deprivation of the right of confrontation. (Davis v. Alaska (1974) 415 U.S. 308, 318.) However, " `[t]he Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." [Citations.]" (United States v. Owens (1988) 484 U.S. 554, 559.) As we explained, a trial courts ruling on the admissibility of evidence generally is reviewed under the abuse of discretion standard. " `[U]nless the defendant can show that the prohibited cross-examination would have produced "a significantly different impression of [the witnesses] credibility," [citation] the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.] " (People v. Carpenter (1999) 21 Cal.4th 1016, 1051 (Carpenter).)
A criminal defendant is also entitled to present a defense. "`[D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard. [Citation.] A mere limitation on the form of evidence presented is not, however, a due process violation. [Citations.]" (People v. Carlin (2007) 150 Cal.App.4th 322, 335.) "As a general matter, the `[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendants right to present a defense. [Citations.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
In this case, defendant failed to demonstrate that the proposed cross-examination of A. concerning the molestation accusations against her stepfather would have more than minimal probative value, if any, regarding A.s ability to perceive or recollect events involving defendant, or regarding her motive to testify against him. We also observe that defendants trial counsel asked A. about the incidents at issue, her relationship with defendant in general, and the difference between her testimony at trial and a prior statement to police. These questions tested the accuracy of A.s memory as well as her interpretation of the incidents involving defendant. Defense counsel also challenged each childs credibility during argument to the jury and the childrens interpretations of the incidents. Defendant thus was not precluded from presenting evidence concerning A.s credibility or, more generally, from presenting a defense. Although A.s credibility was a key issue in this case, we determine that defendants proposed questioning of A. with respect to the case against her stepfather would not have " `produced "a significantly different impression" " of her credibility in the case against defendant (Carpenter, supra, 21 Cal.4th at p. 1051), nor did the limitation on such questioning implicate due process concerns.
Trial Courts Communication with Jury
Defendant contends the trial court erred when it engaged in ex parte communication with the jury. Defendant maintains that he never waived his constitutional rights to assistance of counsel, a fair trial, and to be present at critical stages of the proceeding, and those rights were violated when the trial court communicated with the jury. Defendant asserts the error was prejudicial because the court "talked to the jury about the law and the facts concerning the critical issue in the case, whether there had been any sexual touching."
Background
The jury was instructed that if it found defendant not guilty of the charged crimes for lewd conduct, it may convict him of a lesser crime. The jury was instructed that simple battery (§ 242) is a lesser crime of lewd conduct (§ 288, subd. (a)), and assault (§ 240) is a lesser crime of both battery and lewd conduct.
During argument to the jury, defense counsel referred to M.s testimony about being choked by defendant. Defense counsel stated that the jury could find defendant guilty of the lesser included offense of battery for that act. Following arguments and instructions to the jury, the court recessed for the day and asked to see counsel in chambers. The in-chambers conference was not reported.
The jurors began their deliberations the next afternoon. Shortly after the deputy escorted the jurors to the jury room, the deputy returned to the jury room with the judge and the court reporter. The attorneys and defendant were not present. The following discussion took place between the judge and the jury:
"THE COURT: One is very easy, and that is Im going to give you six copies of the jury instructions. If you wish more, please let the bailiff know and well provide more. Thats the easy one. [¶] There was an instruction that I was reading to you yesterday and I thought it was sort of an abrupt ending and not the usual. I had misplaced the second page. Its very short here. So this was the very last instruction. Your verdict on each count and any special finding must be unanimous. That means that to return a verdict all of you must agree to it. That was my last sentence yesterday. It is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses or what your verdicts should be. You will be given a verdict form. Theyre actually two forms. One for each count. [¶] As soon as all jurors have agreed on a verdict, the foreperson must date and sign the appropriate verdict forms and notify the bailiff. If youre unable to reach a unanimous verdict on only one or only some of the charges, fill in those verdict forms only and notify the bailiff. Return any unsigned verdict forms. [¶] Now, the last issue is that during Ms. Angels — defense attorneys closing arguments, she inadvertently misstated the law to you. And that had to do with the lesser included offense of battery. [¶] Battery is a lesser included offense to the charges of the 288(a). There is an element in a battery — excuse me, that 288(a), that is not a battery. That is doing the touching with a certain specific intent, generally a sexual intent. So it would be a touching. That is just missing that one issue or that one element. She cited the example that related to [M.]s testimony where [M.] testified to an act where the defendant had his hands on her neck or throat and she was lifted off the ground. That was not a count that was relied upon by the prosecution as a basis for the charged offense of 288(a). It may have occurred at the same time that there was an act that would be the basis of the 288, but that alone is not a basis for the 288(a); therefore, its not a lesser included offense of the 288(a), and she apologizes. She didnt know until I spoke with her after court that she had misstated that. It was not intentional on her part at all. She, as I said, didnt realize thats what she had said as an example.
"A JUROR: I wanted to ask, its a count on [M.], count on [A.], and then I thought there was a third count of abuse or physical abuse to [M.]. Thats not — so theres only two?
"THE COURT: Theres only two, Count 1 to [M.], one to [A.]. If you unanimously find the defendant not guilty as to the charged offenses, then you can look to the two lesser included offenses.
"A JUROR: Nothing about abuse?
"THE COURT: It was only the sexual things that came out during the testimony, but it was not a basis for the sexual touchings. I should state this is the Garcia matter. We are in the jury deliberation room and all 12 of our jurors are present.
"A JUROR: Can I ask, if we had a question — I tried to give a question yesterday. We wanted to wait until the jury — I had a question about something on the testimony that — the paper we had, it was that I wanted to look at it before we got them back. Theres a last name on there. Theres a little girls last name. I wanted it marked off.
"THE COURT: Thank you. I did notice that. I will take those transcripts, and thank you for bringing that to my attention. I noticed it at the time. We will do that. Thank you. Then they will be returned to you." (Italics added.)
The clerks minutes indicate that the judge "read[] an additional jury instruction" in the jury room, the judge explained that defense counsel had made a misstatement in argument to the jury regarding a lesser included offense, the judge noted that the jury may request additional copies of the jury instructions, and the jury wanted a last name deleted on an exhibit. The minutes reflect that shortly after the judge exited the jury room, the clerk "contact[ed] both attorneys informing them of the above action taken with the jury. Both attorneys were satisfied with the action taken." The minutes do not reflect the juror questions and the answers given by the court, nor do the minutes indicate that the attorneys were informed about the courts answers to juror questions.
Approximately four hours after the judge exited the jury room, the following proceedings took place:
"THE COURT: We are outside the presence of the jury. Both counsel are present. Mr. Garcia is present, and the investigating officer is present. I just wanted to put on the record that I neglected to read the last few paragraphs of the final instruction, 3550. I believe it is the concluding instruction. So I read that to the jury this afternoon, and in the exhibit of the transcript of the interview of [M.] her last name is at the bottom of page one, and I directed my clerk to white that out from the record.
"[PROSECUTOR]: Thank you very much, Your Honor."
The court and the parties then had a brief discussion regarding an exhibit, and a recess was taken by the court. A few minutes later, the jury returned with its verdict.
Analysis
There is a "general proscription against ex parte communications with a deliberating jury . . . ." (People v. Hawthorne (1992) 4 Cal.4th 43, 70 (Hawthorne).) " `Penal Code section 1138 requires that any questions posed by the jury regarding the law or the evidence be answered in open court in the presence of the accused and his or her counsel, unless presence is waived. Communication between judge and jury during deliberations without affording defendant and counsel an opportunity to be present impinges on a defendants constitutional right to the assistance of counsel. [Citations.] [Citations.] Ex parte instructions also implicate the defendants right to personal presence at all trial proceedings. [Citations.]" (Id. at p. 69.)
As our Supreme Court has explained, " `[i]t is most undesirable that anything should reach a jury which does not do so in the court room. . . . " (Hawthorne, supra, 4 Cal.4th at pp. 70-71.) "[T]he trial court should not entertain, let alone initiate, communications with individual jurors except in open court, with prior notification to counsel. [Citation.] `This rule is based on the precept that a defendant should be afforded an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendants case. [Citations.] [Citation.]" (People v. Wright (1990) 52 Cal.3d 367, 402 (Wright).)
"[A] trial courts instructions to a jury in a criminal case are given at a `critical stage of the proceedings and therefore, without the presence of counsel and absent a stipulation, comprise both constitutional and statutory error." (People v. Dagnino (1978) 80 Cal.App.3d 981, 988.) In Hawthorne, our Supreme Court stated that "[t]he standard of review in assessing the impact of an improper communication between the court and a deliberating jury is not clear." (Hawthorne, supra, 4 Cal.4th at p. 68, fn. 14; see also People v. Jenkins (2000) 22 Cal.4th 900, 1027 [recognizing that "cases have applied varying standards of review to claims of error under section 1138, some applying the standard of review for federal constitutional error involving denial of counsel at a critical stage, and some a lower standard for nonconstitutional error"].) Because Hawthorne did not resolve the issue, we will apply the more onerous standard — whether the error was harmless beyond a reasonable doubt. (See Wright, supra, 52 Cal.3d at p. 403 ["Although such communications violate a defendants right to be present, and represented by counsel, at all critical stages of his trial, and thus constitute federal constitutional error, reversal is not required where the error can be demonstrated harmless beyond a reasonable doubt."].)
In this case, the judge, before entering the jury room, had instructed the jury pursuant to CALCRIM No. 3550 and admonished the jury as follows: "If you need to communicate with me while you are deliberating, send a note through the bailiff. It is to be signed by the foreperson or by one or more members of the jury. [¶] To have a complete record of this trial, it is important that you not communicate with me except by a written note. If you have questions, I will talk with the attorneys before I answer. So it may take some time. You should continue your deliberations while you wait for my answer. I will answer any questions in writing or orally here in open court." Thus, the judge was cognizant of the proscription against ex parte communications with the jury.
On the record before us it appears, however, that the attorneys agreed or otherwise consented to the judge communicating with the jury outside the presence of counsel. This inference arises from (1) the unreported, in-chambers conference that occurred after arguments and instructions to the jury, (2) the judges comments in the jury room indicating that the court had talked to defense counsel about a misstatement in argument and defense counsel had offered an apology, (3) the clerks minutes reflecting that the clerk contacted the attorneys regarding the judges ex parte communications shortly after the judge exited the jury room and no objection was raised by the attorneys, and (4) the judges comments to defendant and counsel a few hours later confirming that ex parte communications had taken place and no objection was raised by defendant or counsel.
Acknowledging that the attorneys agreed or consented to ex parte communications between the judge and the jury, each party has addressed the issue of waiver in their briefs on appeal. Defendant maintains that "[t]here is no basis in the record to find" that he, as opposed to his counsel, "voluntarily and knowingly waived" his constitutional rights to be present and to counsel—rights he asserts were violated when the judge entered the jury room and instructed the deliberating jury. The People respond that defendant "agreed to the procedure of having the court correct defense counsels mistake directly with the jury. . . . Although [defendant] may not have anticipated the court responding to juror questions, [defendant] interposed no subsequent objection to the courts ex parte communications."
Because the courts in-chambers discussion with counsel before entering the jury room was not reported, we do not know the scope of any agreement by counsel regarding the courts ex parte communications with the jury. The record does reflect that defense counsel and subsequently defendant, in the presence of counsel, were made aware of the fact that the court had engaged in ex parte communications with the jury and no objection was raised by defendant or his counsel.
Nonetheless, we do not agree with the Peoples assertion that defendant has waived his entire claim. To the extent defendant or his counsel was informed that the court intended to communicate, or had communicated, with the jury, the record does not reflect that defendant or his counsel were notified that the judge would, and did, answer questions from the jury. Thus, to the extent defendant or his counsel waived an objection to the judges presence in the jury room to communicate certain matters to the jury, the record does not reflect that the waiver included juror questions being answered by the judge in defendants or his counsels absence. (See People v. Neufer (1994) 30 Cal.App.4th 244, 251 ["defense counsels consent to having testimony read back in his absence did not embrace having jury questions—not yet asked or formulated—answered in his absence"].)
Because we determine that neither defendant nor his counsel waived a claim of error concerning the courts responses to juror questions, we need not reach the issue of whether defendants constitutional rights to be present and to counsel may be waived by counsel alone, or must be waived by defendant himself.
In this regard, we find the cases cited by the People regarding waiver—People v. Delgado (1993) 5 Cal.4th 312 (Delgado) and People v. Jennings (1991) 53 Cal.3d 334 (Jennings)—distinguishable. In Delgado, the "defendant was promptly notified of both the ex parte communication and the written question, agreed with the court and prosecution on the proper response to be given to the written inquiry, and requested no additional instructions." (Delgado, supra, 5 Cal.4th at page 331; but see Delgado v. Rice (C.D. Cal. 1999) 67 F.Supp.2d 1148 [granting petitioner a conditional writ of habeas corpus, which would become unconditional and permanent unless proceedings for a new trial were initiated against him].) In Jennings, the court informed counsel of its discussion with the jury, "including the substance of its comments" in response to juror questions, and told counsel to review the court reporters notes and to let the court know whether any further comment or admonition to the jury was necessary. (Jennings, supra, 53 Cal.3d at p. 383; see also People v. Chagolla (1983) 144 Cal.App.3d 422, 433 [judge informed counsel of the substance of the communications; if counsel had "doubts about the accuracy or completeness of the judges recollection," the jurors could have been questioned about their recollection, but counsel failed to object or request that these steps be taken].)
In this case, because we do not have a record of the unreported chambers conference and the extent of defense counsels agreement to ex parte communications by the judge, we conclude that defendants consent or agreement "did not embrace having jury questions—not yet asked or formulated—answered in his absence." (People v. Neufer, supra, 30 Cal.App.4th at p. 251.) However, in view of the record in this case, we conclude that the error was harmless beyond a reasonable doubt. It appears that defense counsel acknowledged that her argument to the jury included a misstatement. In the jury room, the court clarified the law with respect to defense counsels misstatement and explained that defendant could not be convicted of the section 288, subdivision (a), charge on the basis of testimony concerning abuse, such as M.s testimony that defendant took her by the neck and lifted her off the ground. This clarification was to defendants benefit. Defendant does not claim otherwise on appeal, nor does he assert that the courts clarification of the law or of the charges was incorrect. Further, the courts references to "sexual things" and "sexual touchings" simply indicated to the jury that the testimony about conduct by defendant of a sexual nature, which several witnesses (including M., A., and Sergeant Cooke) testified to, was the basis for the lewd conduct charges (§ 288, subd. (a)), whereas the testimony about abuse in general, such as the choking of M., was not a basis for the lewd conduct charges. In making references to "sexual things" and "sexual touchings," the court did not "endorse[] the view [that] improper sexual things had taken place," as asserted by defendant. We also observe that while in the jury room, and before making these comments, the court admonished the jury pursuant to CALCRIM No. 3550, by instructing the jury: "It is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be."
Moreover, the evidence of defendants guilt was compelling in this case. Although there were conflicts in the evidence, and jurors had to evaluate the credibility of M. and A., the minors each testified that defendant had touched them inappropriately on more than one occasion, and M. testified that she had seen defendant engage in inappropriate touching of A. The testimony by the minors also indicated that defendants conduct was sexual in nature and was not accidental on defendants part. Officer Berg testified about defendants responses to questions about the minors reports, and the jury was provided with defendants written statement. Although defendant admitted having contact with the minors, he denied inappropriate contact with them. The jury had to evaluate defendants responses and written statement and concluded that he had engaged in lewd conduct with the minors. Moreover, the jury also considered evidence that defendant had been previously convicted of lewd conduct on a child under the age of 14 years (§ 288, subd. (a)) and annoying or molesting a child (§ 647.6).
In sum, the courts ex parte communications with the jury reflected an attempt to clarify that there were only two charges; those charges pertained to lewd conduct under section 288, subdivision (a); there was no separate charge pertaining to abuse; and any testimony concerning nonsexual abuse could not be a basis for the section 288, subdivision (a), charges. As these clarifications were correct, the court did not suggest its view of the evidence or what the verdict should be, and as the evidence of defendants guilt was compelling, we conclude that defendant did not suffer an impairment of rights sufficient to affect the verdict. (Hawthorne, supra, 4 Cal.4th at p. 69.)
Having concluded that the error was harmless, we nonetheless observe that "[t]he United States Supreme Court has cautioned: `Any ex parte meeting or communication between the judge and the foreman of a deliberating jury is pregnant with possibilities for error. . . . [E]ven an experienced trial judge cannot be certain to avoid all the pitfalls inherent in such an enterprise. . . . [I]t is difficult to contain, much less to anticipate, the direction the conversation will take at such a meeting. Unexpected questions or comments can generate unintended and misleading impressions of the judges subjective personal views which have no place in his [or her] instruction to the jury—all the more so when counsel are not present to challenge the statements. (United States v. United States Gypsum Co. (1978) 438 U.S. 422, 460 [(Gypsum)].)" (People v. Bradford (2007) 154 Cal.App.4th 1390, 1411-1412, fn. omitted.) As noted by the Fourth District Court of Appeal, "[w]hile the Gypsum courts comments pertain to ex parte discussions between a trial judge and a jury foreperson, the reasoning applies with equal force, or perhaps more so, to a situation where, as here, the judge engages in private communications with the jury as a whole." (Id. at p. 1412, fn. 9.)
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR:
MCADAMS, J.
DUFFY, J.