Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA084081. Thomas C. Falls, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN P. J.
A jury found David Edward Gibbs (appellant) guilty of performing a lewd act upon a child under 14 in violation of Penal Code section 288, subdivision (a). The trial court sentenced appellant to state prison for the upper term of eight years.
Appellant appeals on the grounds that: (1) his due process rights were violated because there was insufficient evidence to support his conviction due to the inherent improbability of the complainant’s testimony; (2) prejudicial hearsay was improperly admitted into evidence; (3) testimony was improperly and prejudicially admitted under Evidence Code section 1108; and (4) admission of propensity evidence under section 1108 deprived appellant of his right to a fair trial and violated his rights of due process and equal protection.
All further statutory references are to the Evidence Code unless otherwise indicated.
FACTS
Prosecution Evidence
I. was five years old at the time of trial. She accurately described the body parts on drawings of a girl and boy. She called the penis on the boy doll a “peanut.” She identified appellant in court as her daddy, and said he did not live with her because he did bad things to her. He let her taste his peanut. Her mother was not there when this happened. White stuff came out of the peanut and got inside her mouth. Her daddy let her brush her teeth. The white stuff tasted like “nothing.” She did not touch her daddy’s peanut. The white stuff got on her stomach and on her dress, too-on the right upper chest area. After this happened, she and her daddy went downstairs and watched television.
As the prosecutor demonstrated with anatomical dolls, I. said appellant pulled his pants down. He said, “taste the peanut.” He said “put your mouth on it, no teeth, so I don’t bite him, and he squeezed it, and it [the white stuff] came out.” She told her mother, and her mother called the police. Her mother woke her up and the police officer talked to her. They then went to the police station.
I. said she uses her mother’s computer for games. She never saw any yucky stuff on computers, such as people without clothes. She never used her daddy’s computer. She knew the part of the girl’s body called the vagina because her mother taught it to her when she was a baby. Her mother also taught her the word “peanut” and what a peanut was. She had never seen any adult without clothes, including her dad.
I. had spoken about the case to her Grandma Clara and her mom in the car before trial. They said to be strong. She did not love her dad anymore because of what he did to her. She did not believe that he loved her “because he done bad stuff” to her. When asked if she remembered what happened apart from what people told her, including her mom and anyone else, she replied, “Yes. I mean, no.”
The trial court asked I. if she remembered what happened with her dad. I. said, “No.” When asked how she was able to tell the people in court what happened, and if people told her what to say, I. said “No, ‘cause my mom didn’t told me when I was taking a break outside.” When asked if she remembered herself that her dad did some bad things to her, she said, “Yes.”
A., I.’s mother, was married to appellant for seven years. They had two daughters-five-year-old I. and a two-year-old. A. initiated divorce proceedings because of what occurred on August 1, 2008. On that day, appellant picked up I. from school, and A. did not arrive home until approximately 6:45. I. was wearing the green dress in People’s exhibit No. 3. Appellant helped I. get out of her dress before her bath, which he did not usually do. A. finished helping I. get undressed. A. asked I. if she had brushed her teeth, and I. said she already had. A. said she had not seen I. brush her teeth after dinner. I. said, “Daddy told me to brush my teeth after he told me to taste his peanut.” A. said, “What?” and I. repeated what she had said. A. was in shock and knew immediately that I. was telling the truth “because of what [I.] had told [A.] in December.” A. then asked I., “Can you tell me about that?” I. repeated what her father had asked her to do. A. said, “that doesn’t sound good. What happened next?” I. replied that white stuff came out. A. asked her if she tasted it and asked what it was like. I. said it was “yucky.” A. told I. not to worry about it and that she would take care of it. A. took I.’s dress from the bathroom floor and put it under the sink.
A. knew that she “had to get out” and formed a plan. She left on the pretext of going to the gym and called her mother. She told her mother, who was an attorney, what had occurred. Her mother said she knew a sheriff and would contact the police. A. was not concerned that appellant would do something to her children while she was out of the house. She hid appellant’s keys so that he would not follow her. A. took I.’s toothbrush to her car in a plastic bag.
Police officers arrived at appellant’s and A.’s home at approximately midnight. They told A. to bring appellant downstairs. She awakened him and told him what was going on. He immediately began to deny everything, but A. did not listen. Appellant went downstairs. One officer stayed with appellant while Officer Bertha Parra (Officer Parra) of the City of Azusa Police Department went upstairs and spoke with A. and I. A. and I. then went to the police station, where they stayed all night. A. was not present when Officer Parra interviewed I. at the station. A police escort took A. and I. home at approximately 7:00 or 8:00 a.m., and A. packed some things. She noticed that appellant had cleaned the house, and a lot of I.’s clothes had been washed and placed on the couch.
When the prosecutor asked A. what had occurred the previous December, A. recounted that appellant had offered to watch I. while A. went to the gym. Later, while A. and I. were doing crafts, I. giggled and said she had seen “Daddy’s peanut.” When asked what she meant, I. repeated it. A. immediately took her children and drove to her parents’ house. She planned to return home to talk with appellant.
When appellant realized A. was gone, he went to her parents’ house. He found A. sitting in her car because her parents were not home. The children were asleep in the car. Appellant approached A., and she spoke to him through the car window. She asked him why he would do what I. said he had done. Appellant explained that while he was taking a shower, he suddenly remembered he had mistakenly left some pornography on his laptop. He put on a robe and went downstairs. He discovered that I. had seen the pornography because she had touched his computer. He later forgot to mention it to A.
Appellant convinced A. that I. had seen the pornography and thought it was her father on the screen. A. thought this was odd, but she wanted to believe appellant was not the type of person who would do what I. had described. Later, appellant showed A. an image of a Black man with his pants down and his penis exposed as evidence of what I. had seen. When A. asked I. if she had seen a picture of daddy on the computer, I. said “yeah.” A. told her that was not daddy. A. now believed I. had been merely agreeing with her.
Because I. said some white stuff from her daddy’s peanut got on her dress, A. kept the dress for someone to examine. A. gave the dress to Officer Parra after the officer spoke with I. that night. A. acknowledged that in her August 4, 2008 interview with Detective Henson, she said she put the dress with the pile of dirty clothes in her bedroom.
A. testified that I. did not like her father to pick her up from school and would panic every time A. left the house. I. had nightmares accompanied by bedwetting, but this stopped when she and the children moved to her parents’ home. A. did not teach I. to use the word “peanut, ” and A. believed I. learned that usage in school. She did teach her the word “vagina.”
Prior to this incident, appellant’s and A.’s marriage had been fine, and A. thought they had a healthy sex life. I. used only A.’s computer and would ask permission first. A. would then log onto the children’s games that I. liked. I. knew she was not allowed to use appellant’s computer.
Detective Terry Henson (Detective Henson) is the sex crimes and child abuse officer with the City of Azusa. He sent I.’s dress to the serology laboratory at Sheriff’s headquarters for testing. Before doing so, he used a black light on I.’s dress and saw three large and dense deposits of what he believed was semen on the front of the dress. There were also several smaller stains on the left side. He could not see any stains with his naked eye. He believed the toothbrush was not worth testing. The laboratory confirmed that the spots on the dress were semen. Reference samples were taken from I., A., and appellant. Appellant was a major contributor of the tested stain and I. was a minor contributor.
Detective Henson witnessed I. make a drawing of what she called a peanut during an interview with the Children’s Advocacy Center. She drew a small hole at one end of the “peanut, ” and she said that was where the white yucky stuff came out.
Luis Olmos (Olmos) is the senior criminalist who tested the green dress and found the presence of semen. He was not asked to determine the presence of amylase, which is a component of saliva. There were five stains that contained semen on the front of the dress and one on the rear side of the dress. The largest stain was approximately four inches by one inch. He did not test all of the stains on the dress. Olmos returned the samples he cut from the dress to evidence control where his coworker Susannah Jarvis (Jarvis) was able to retrieve them.
Jarvis received the sample cutting as well as reference samples from appellant, I., and A. She performed a DNA extraction on all of the samples. She separated the epithelial cells from the sperm cells in the sample. With respect to the epithelial-cell fraction in the sample cutting, the major contributor’s profile matched appellant’s profile. I. was included as a possible minor contributor to the profile, and A. was excluded as a possible contributor. The sperm fraction resulted in a single-source profile, and the profile matched appellant. The markers tested for the semen stain occur approximately once in 27 quintillion. Two internal reviews confirmed Jarvis’s findings.
Veronica Cardona (Cardona) interviewed I. while Detective Henson, the prosecutor, and two advocates in training observed behind a one-way mirror. A video recording of the interview was played for the jury. Cardona conversed with I. at first and ensured that the child knew not to guess any answers to questions and that she knew the difference between the truth and a lie. I. was told to say “I don’t know” if she did not know an answer, and she made liberal use of the phrase. She also at times gave answers that seemed to bear no relation to the question. Cardona showed I. a girl doll, and I. named all the body parts on the doll. She said that only girls have a vagina and boys have peanuts. She said she had not seen any “boy peanuts” or peanuts on someone else. She had not seen any grown-ups with their clothes off. When asked if she had seen a peanut with her eyes, at first she said “yes” and then she said “no.” When asked to draw a peanut, however, she made a drawing and said that “it has a little, tiny hole.” When asked how she knew that, she said, “Like, yucky things come out of there.... [¶] Like white.” She said “like, when you squeeze it from the bottom, and it comes out.” “Then-then it comes from-then-then the stuff comes all the way up here, ” and “then it comes like pouring out.” When asked what happens then, she replied, “End of story. Then that’s all.” When Cardona asked I. to help her understand “how you squeeze it, ” I. said “you push it... with the hand on the bottom of the peanut.”
After several non-responsive, rambling answers to Cardona’s further questions, I. said she talked to the officer “about my daddy’s peanut.” After a few more questions, I. said, “I told the officer I looked at my dad’s peanut after school, and I talk-chocolate pudding and-” I. was easily distracted and continually asked for food and a drink. When asked where she was when she saw her dad’s peanut, she answered, “In mommy’s and daddy’s bathroom.” “Daddy and me” were in the bathroom and she went there “because I was looking at his peanut.” After that, she was going to brush her teeth. On a “boy picture” I. showed where the white stuff came out. She did not know how she got to see the peanut. She saw it one time. After that she was going to brush her teeth “because my dad told me to.”
After several pages of fruitless inquiry while I. seemed to fidget and get out of her chair, Cardona asks if I. told the officer that something got on her dress. I. says “Yes” and says it was “the white thing” and “it came out from his peanut.” It went right next to the butterfly on her dress. Daddy put it there. She repeated that the white stuff came “from daddy’s peanut.” She could not answer how it came out of his peanut. The white stuff smelled like it was food. She said she told her mother where the white stuff came from and her mother took off her dress “and put different clothes on it.”
Toward the end of the interview, I. was clearly tired of the questions. When asked if a peanut did anything with her mouth, she said no. When asked if she told someone that a peanut did something to her mouth, she said she was still hungry. When asked if she told her mommy that something happened with her mouth and a peanut, I. said, “no.”
Officer Parra spoke with I. in her home, and Ilea told her that her dad “made her have her-his peanut and white stuff got on her mouth and on her dress.” Officer Parra recovered I.’s dress from A., who got it from the bathroom. Officer Parra then interviewed I. at 4:16 a.m. at the police station. The interview was recorded, and the recording was played for the jury.
After a few introductory questions, I. said her daddy picked her up from school and they went home. First, she had chocolate pudding and “he went upstairs in-in mommy’s and daddy’s bathroom....” She said that “he pulled down his pants and-” Detective Parra repeated, “Okay. He pulled his pants down.” I. said, “Yes. And he always-he always tells me to do that.” When asked what that was, I. replied, “He tells me to come upstairs and (inaudible) mommy came home.” She said her daddy just makes her do one thing: “He makes me look at his peanut.” She saw it once, and “he did it when we came home.”
With dolls, I. showed how her dad pulled his pants down. He let her leave her shorts on. Her dress was green. She was “standing behind the toilet” and he just showed it to her. He did not do anything with it. After that, she brushed her teeth. They were dirty because she was eating chocolate pudding. Her daddy told her to brush her teeth because she ate chocolate pudding.
I. later said she touched her daddy’s peanut with her hand. She also said “something came out of his peanut” and “something was gross.” It was white and it went on her dress, but she did not taste it because it was so yucky. It went in her mouth, too. The dress was stained where the butterfly is.
Photographs of the dress in People’s exhibit No. 3 shows that the largest stain was near the uppermost butterfly.
Officer Parra asked I. to show her what daddy was doing when the nasty stuff came out. I. said “he shooked it high like this” and “he just pulled it out-he just pulled his peanut then it came out.” She indicated he pulled it with his hand. I. just tasted a little bit because she did not like it. She put her mouth on his peanut “because he told me to.” There is a little hole where it comes out. She tasted a little bit, then it came out on the floor. After that, she brushed her teeth.
Detective Parra asked, “Was this the first time he does this to you?” I. replied, “Every time when he picks me up, we come home and he does that.” The detective asked, “Every time?” I. replied, “Uh-huh.” She added, “He did it today.” When asked if he had done it more than today, I. said, “After school then we did it.” She replied affirmatively when asked if he always does it after school. She did not like doing it. I. said she never used her daddy’s computer.
Defense Evidence
Appellant testified that he did not commit the acts of which he was accused. He loved his daughters very much, and he had never touched them in an inappropriate way. In December 2007 he accidentally left his laptop open with the picture of a naked man having sex with a woman. I. saw the picture. I. got her information about sex from things she had seen and heard at school and books A. had at home. He was very disgusted with A. and had asked A. to keep the books hidden in the closet. A. had two books on her nightstand, one of which was “The Good Girl’s Guide to Bad Girl’s Sex.” Appellant believed that A. was also showing I. her books as visual aids.
There had been instances where appellant had asked A. not to show I. R-rated movies and other inappropriate things on television. A. said that it was okay if A. was with I. when they watched them.
After the December 2007 incident, appellant thought they should all see a therapist. A. wanted to wait and decide later, but appellant opposed that. Appellant next suggested they consult someone at their church, but A. did not want to do so. She thought the issue would go away. Appellant was very upset about the accusation against him because he believed there was a time when they could have obtained the help that I. needed, and he believed it had exploded into something that it should not have.
I. had experienced nightmares and bed-wetting issues since she was two. I.’s doctor was aware of these problems.
Appellant and A. had experienced marital problems beginning in 2008. Appellant was concerned about cleanliness around the children. There were other issues such as cleanliness of their bedrooms, clothes all over the place, and keeping the clothes in a hamper. There was a lot of stress because A. was a very argumentative person, although appellant wanted to resolve the issues in a civilized manner.
I.’s use of the word peanut began in December 2007. Appellant asked A. about it, and she thought it came from school. Appellant pointed out that the videotape of I.’s interview with Detective Henson confirmed this.
On the day of the incident, appellant brought I. home from school at approximately 6:05 p.m. and gave her a snack of chocolate pudding. He told her to stay downstairs and watch television while he took a quick shower. I. went in the bathroom twice while appellant was in the shower. The second time, he was naked. He covered himself with a towel and asked her to go out. He put a robe on and helped her with the toothpaste. He put some baking soda on the toothpaste, and I. said it was yucky. I. went into the bathroom a third time when appellant was not dressed. He again covered himself and asked her to go out. He asked her to go downstairs, and she did. He later watched television with her until A. arrived at approximately 6:30 p.m. I. was wearing her green dress, but there were no semen stains on it, only a chocolate stain. He did not remove I.’s dress before her bath. I. could remove her own clothing. He went upstairs only to turn on the water for I.
On the evening in question, when A. returned from what she claimed was a trip to her gym, she began kissing appellant and indicated she wanted to make love. She performed oral sex on him, but he did not ejaculate in her mouth. A. had a garment of some kind that he thought was a towel, and he ejaculated onto that. Afterwards they watched television. A. threw the cloth she had used into a big pile of clothes that sits next to their bedroom door. A. was very affectionate and told him that she loved him. He was in shock when she woke him and said police were there. Appellant told Officer Parra that if there was semen on his daughter’s dress, it was possibly the dress in the pile of clothes.
DISCUSSION
I. Alleged Improbability of Victim’s Testimony
A. Appellant’s Argument
According to appellant, I.’s allegations were so spare as to be untenable. The details shifted from interview to interview. The details that were consistent were provided by A., whose conduct appeared to be directed toward having her husband convicted. Appellant also questions the physical evidence and states it was inexplicably convenient rather than inherently inculpatory.
B. Relevant Authority
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.) Thus, “our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.” (People v. Hill (1998) 17 Cal.4th 800, 849.) Reversal is only warranted where it clearly appears “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.)
We defer to the trier of fact’s evaluation of credibility. (People v. Snow (2003) 30 Cal.4th 43, 66.) Neither conflicts in the evidence nor “testimony which is subject to justifiable suspicion... justify the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (People v. Huston (1943) 21 Cal.2d 690, 693, overruled on another point in People v. Burton (1961) 55 Cal.2d 328, 352.) We make an exception only when the witness’s statements upon which the trier of fact relied are physically impossible or inherently improbable. “‘To be improbable on its face the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.’” (People v. Mayberry (1975) 15 Cal.3d 143, 150.) The falsity of the statements “‘“must be apparent without resorting to inferences or deductions.”’” (Ibid.)
C. Evidence Sufficient
Appellant compares I.’s testimony to that of an imaginary robbery victim and argues that if such robbery victim were “unable to consistently relate even the bare bones of the crime, could not recall from one moment to the next whether he had been robbed at gunpoint or simply glimpsed a robber, and was, despite having just been victimized, absolutely untroubled by this event except much later, after others had instructed him to be so bothered, if the primary complainant was not in fact the purported robbery victim but the robber’s estranged wife, who seemed to be gunning for her husband, there would be doubt sufficient to preclude conviction for robbery.” Not to put too fine a point on it, appellant’s awkward analogy fails miserably when one considers that the crime committed is a lewd act upon a four-year-old child by her father whom she trusts, resulting in her inability to comprehend the significance of what has occurred. Furthermore, the child in question is testifying about the event approximately one year later, when she is still only five years old.
Appellant cites United States v. Chancey (11th Cir. 1983) 715 F.2d 543 (Chancey) as an example of a case where the reviewing court rejected the credibility findings of the jury. Appellant quotes the court’s observation that, although the adult female victim claimed to have been kidnapped, “her every act and deed” attested to her complicity. (Id. at p. 547.) The court commented that, at times, “the testimony credited by the jury is so inherently incredible, so contrary to the teachings of basic human experience, so completely at odds with ordinary common sense, that no reasonable person would believe it beyond a reasonable doubt.” (Id. at p. 546.) Appellant carries over the court’s conclusions in Chancey to I.’s testimony and exploits the dialectics of her account. Appellant’s attempt to portray all of I.’s testimony as one mass of inconsistencies is not successful.
We believe that the central core of I.’s testimony consistently describes the single act with which appellant was charged and of which he was found guilty. The first statement that I. made when asked what bad things her father had done was, “He let me taste his peanut.” She went on to say her mother was not home, and white stuff came out of the peanut. Some white stuff got in her mouth and appellant “let [her]” brush her teeth. After that, they went downstairs to watch television. The white stuff got on her dress. In court, she demonstrated what had occurred by using anatomical dolls. She showed how appellant had pulled down his pants and his underwear and said “taste the peanut.” She told the jury that appellant said, “put your mouth on it, no teeth, so I don’t bite him, and he squeezed it, and it [the white stuff] came out.” The jury clearly believed this act occurred and was not swayed by I.’s confusion when certain questions escaped her comprehension, either due to their length or to her flagging attention.
It is true that when asked if other people told her what to remember I. said, “um, yes.” When asked what it was other people had told her, however, she replied only that they said she had to be strong. I. rambled a great deal when asked about the dress. However, when she said the white stuff came out of the peanut and spilled on her dress, and defense counsel asked her “Who told you that?” I. said “I saw it like it came on the dress.” As many times as defense counsel attempted to elicit that I. was told what to say, I. gave no clear answers to those questions. The most confusing of I.’s statements came when the court itself questioned her. She answered “yes” when asked if she remembered the bad things herself. She next answered “yes” when asked if she remembered the bad things because her mom or grandma told her to tell the judge that. This latter question was not a simple one, however, since the trial court began with a preamble, i.e., “Okay. And I know you don’t like talking about this, and I’m not going to get into too much detail, but are you telling me people-your dad did this to you because your mom or your grandma or somebody else told you to tell me that?” I., a five-year-old, might easily have been sidetracked by the trial court’s failure to ask a simple, direct question. The child also may have been confused because she was there, after all, to tell the judge what happened. On redirect examination, moreover, I. again said she saw “daddy’s peanut” and that white stuff came out of it. She accurately described a “peanut.” She drew a circle to show where the white stuff landed on a picture of her dress. On cross-examination, I. said she remembered that “because I saw it.”
After I.’s testimony, defense counsel argued to the court at sidebar that the child did not remember the event itself and that everything she said was told to her. The trial court astutely replied, “Actually, when you take a look at [CALJIC No.] 2.20.1, her testimony is really consistent. About an hour into her testimony... she basically starts to repeat anything you ask her, and I don’t know that she remembered what day it was by the time we got through with the cross-examining and cross-examining a witness who is five years old. I don’t find it inconsistent. I think that-I think that it’s just going to give you both things to argue and talk about.”
CALJIC No. 2.20.1 provides: “In evaluating the testimony of a child ten years of age or younger you should consider all of the factors surrounding the child’s testimony, including the age of the child and any evidence regarding the child’s level of cognitive development. A child, because of age and level of cognitive development, may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child. ‘Cognitive’ means the child’s ability to perceive, to understand, to remember, and to communicate any matter about which the child has knowledge.”
Like the trial court, we do not agree with appellant that I.’s description of the incident was “wildly inconsistent.” Her account of the incident where her father asked her to put her mouth on his penis was sufficiently consistent for the jury to evaluate her testimony and determine whether it was credible. The variations in I.’s accounts did not invalidate her testimony when one considers the consistency of the central theme of her story.
Appellant contends that reliance on I.’s testimony was particularly dangerous because the physical evidence was paltry. The evidence of appellant’s DNA in the stain on I.’s dress with I. being a possible minor contributor to the analyzed stain cannot be characterized as paltry evidence. According to appellant, the physical evidence was also “less inherently inculpatory and more inexplicably convenient.” We, on the other hand, are struck by the convenience of appellant’s version of events. Appellant’s testimony advantageously provided an explanation for every detail of I.’s and A.’s accounts. Appellant stated that there was a “tremendous amount of stress” in the marriage, in contrast to A.’s testimony. Appellant thus sowed the seed in the minds of the jurors that A. was “gunning for her husband, ” as appellant states in his opening brief, because of problems in the marriage. Appellant described A. as an extremely poor housekeeper who was a bad influence on I. because she allowed I. to acquire knowledge of a sexual nature. Appellant was “disgusted” by A.’s habit of leaving certain books in places where I. could see them and had asked her not to watch R-rated movies with I., thus inferring that I. had gained her knowledge of oral copulation due to A.’s negligence. He specifically mentioned that A. kept clothes all over the place, and he had wanted them kept in a clothes hamper, a detail that reinforces appellant’s explanation of how his semen got on I.’s dress. He described a pile of dirty clothing near the bedroom door where he “heard” A. throw the cloth that she had used to wipe the semen from herself that night after she performed oral sex on him. The cloth was “some type of garment.” Appellant implied that the garment A. used was I.’s dress. He described how I. saw him naked the day of the incident because she came in while he had just exited the shower and two more times while he was naked. He explained that he told I. to brush her teeth because she had eaten chocolate pudding. He said that he put toothpaste on the brush for her and then baking soda on top, which made her say it was yucky. Appellant said I. got chocolate pudding stains on her dress. With respect to the December 2007 incident, appellant said he had wanted to get therapy for I. and was concerned that if Ilea brought up the matter again, she would blame him for something that did not happen, but A. was not interested in seeking therapy. It is reasonable to assume that the jury members also noticed that appellant attempted to explain away every aspect of I.’s testimony, down to the yucky taste she experienced.
As appellant has noted, numerous cases have held that a conviction must not be based on the testimony of a complaining witness when that testimony is inherently improbable. (See e.g., People v. Headlee (1941) 18 Cal.2d 266, 267 [conviction may be set aside when evidence is so improbable as to be incredible and amount to no evidence at all]; People v Carvalho (1952) 112 Cal.App.2d 482, 489-491 [fantastic testimony and conduct of alleged victim challenged credulity and did not justify conclusion she was held captive]; People v. Casillas (1943) 60 Cal.App.2d 785, 794 [victim’s testimony was in one part or another perjurious]; cf. People v. Huston, supra, 21 Cal.2d at pp. 693-694 [discrepancies in child victim’s testimony did not vitiate it, and certain testimony that was subject to suspicion did not render commission of charged act incredible].) In order for testimony to be regarded as “inherently improbable, ” it must “involve a claim that something has been done which it would not seem possible could be done under the circumstances described.” (People v. Carvalho, supra, at p. 489.) Hence, the dismissal of testimony as inherently improbable is appropriate only in the most extreme circumstances, which are not present here.
In this case, the jury was instructed that discrepancies in a witness’s testimony do not necessarily mean that the testimony should be discredited, and the jury should consider whether a discrepancy relates to an important matter. (CALJIC No. 2.21.1.) The jury was instructed with CALJIC No. 2.20.1 on how to evaluate the testimony of a child of I.’s age. The challenged evidence merely presented a question of the child’s credibility and the weight to be given to her testimony. All of the inconsistencies in her testimony that appellant points out were apparent to the jury, which nonetheless believed her. We conclude that sufficient evidence supports the verdict.
II. Admission of Hearsay Evidence
A. Appellant’s Argument
Appellant argues that the following evidence was improperly admitted because it was hearsay: I.’s description to A. of what had occurred; Officer Parra’s testimony as to the details provided by I. in the bedroom upon being awakened; the videotape in which details of the allegation were given to Officer Parra by I.; and details of the allegation I. gave Cardona during the forensic interview on August 5, 2009. The trial court admitted all of this evidence pursuant to sections 1240 and 1360. According to appellant, the trial court essentially reasoned that the statements appeared trustworthy. Appellant contends that there was more proof adduced under sections 1240 and 1360 than was legitimate, and the proof was, moreover, untrustworthy.
B. Relevant Authority
“A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Section 1240 provides, “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” The requirements for this exception are: (1) there must be an occurrence startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must be made before there has been time to contrive and misrepresent, while the nervous excitement still dominates and the reflective powers are still in abeyance; and (3) the utterance must relate to the circumstance of the preceding event. (People v. Poggi (1988) 45 Cal.3d 306, 318.) “[E]ach fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.” (People Farmer (1989) 47 Cal.3d 888, 904, disapproved on another point in People v. Waidla (2000) 22 Cal.4th 690, 724.)
Section 1360 allows for the admission of hearsay statements by a person under 12 years of age describing an act of child abuse or neglect, in a criminal prosecution. This section safeguards the reliability of a child’s hearsay statements by requiring that: “(1) the court find, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances surrounding the statement(s) provide sufficient indicia of reliability; (2) the child either testifies at the proceedings, or, if the child is unavailable to testify, other evidence corroborates the out-of-court statements; and (3) the proponent of the statement gives notice to the adverse party sufficiently in advance of the proceeding to provide him or her with a fair opportunity to defend against the statement. [Citations.] We review a trial court’s admission of evidence under section 1360 for abuse of discretion.” (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367.)
Section 1360 provides: “(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply: [¶] (1) The statement is not otherwise admissible by statute or court rule. [¶] (2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. [¶] (3) The child either: [¶] (A) Testifies at the proceedings. [¶] (B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child. [¶] (b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement. [¶] (c) For purposes of this section, ‘child abuse’ means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code [which includes violations of section 288], and ‘child neglect’ means any of the acts described in Section 11165.2 of the Penal Code.”
C. Proceedings Below
Prior to trial, the trial court and the prosecution agreed with the defense that I.’s statements were hearsay. The prosecutor argued that I.’s initial statement to her mother was admissible under section 1240 as a spontaneous utterance. The initial statement to Officer Parra was admissible under either section 1240 or section 1360, and the interviews with Officer Parra and Cardona fell under section 1360. The defense argued that, if the victim testified, none of the hearsay statements should be admitted under section 352. They were cumulative and untrustworthy, since there was no physical evidence corroborating the statements. The trial court found that the semen on I.’s dress provided sufficient corroboration. The trial court believed that I.’s credibility was a jury issue. The trial court said that the statements appeared to be trustworthy, and its tentative ruling was to allow the statements under section 1360 if the child testified. After the child’s testimony, the trial court ruled that that all of the statements were admissible.
D. Evidence Properly Admitted
Appellant contends that the statements I. made to her mother about tasting appellant’s peanut were not spontaneous. They were made at least two or three hours after the incident and they were not made under any excitement or stress, but rather in response to A.’s request that I. brush her teeth. Appellant applies the same argument to the statements made to Officer Parra and the statements made in the recorded interview with the social worker, Cardona.
Appellant discusses at length the fresh complaint doctrine and points out that only facts and circumstances of the disclosure can be admitted, not the details of the alleged offense. According to appellant, “there was more proof adduced under Evidence Code sections 1240 and 1360 than is legitimate and less than was trustworthy; appellant’s conviction must therefore be reversed.” The record shows that the fresh complaint doctrine was not discussed below and that the evidence was admitted under sections 1240 and 1360, the latter of which appellant does not discuss.
Under the fresh complaint doctrine, “only the fact that a complaint was made, and the circumstances surrounding its making, ordinarily are admissible; admission of evidence concerning details of the statements themselves, to prove the truth of the matter asserted, would violate the hearsay rule.” (People v. Brown (1994) 8 Cal.4th 746, 760.) As appellant points out, the victim here made no complaint, and as we have pointed out, the victim was too young to know she had something of which to complain. Therefore discussing this theory is not useful.
The first mention of I.’s experience with her father was arguably admissible under section 1240, since she told her mother about it in response to a request to brush her teeth. It was spontaneous “in the sense that the information of abuse was imparted at the victim’s initiation.” (People v. Eccleston (2001) 89 Cal.App.4th 436, 446.) There clearly were no suggestions made by A. to I. in order to elicit a false accusation.
In any event, the evidence was admissible under section 1360. The record shows that the statute’s requirements were met in that there was a hearing to determine if the otherwise inadmissible hearsay statements had sufficient indicia of reliability, I. testified, and there was adequate notice to the defense. With respect to the indicia-of-reliability requirement, as discussed infra, the evidence was sufficiently trustworthy when considering the nonexclusive characteristics of reliable testimony set out in In re Cindy L. (1997) 17 Cal.4th 15, i.e., “(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate.” (Id. at pp. 29-30; see also Idaho v. Wright (1990) 497 U.S. 805, 821-822.)
As we have noted, I.’s story was spontaneous, and it was consistent in its core through its various repetitions in interviews and testimony. Furthermore, there was no evidence showing that I.’s mental state, which constitutes the second factor, was abnormal for a child of her age. She did not have any reason to dislike her father at the time of the incident. Although the terminology employed by I. was not unexpected in that she used merely descriptive terms, such as “white stuff, ” and euphemisms, such as “peanut, ” one is struck by her matter-of-fact account of the event and her knowledge of oral copulation. This indicates that, because of her young age, she had not understood that her father had done anything wrong. Her only complaint was that the white stuff was “yucky.” Yet, it “must be unusual for a child [of four] to be able to describe the emission of ejaculated semen.” (People v. Eccleston, supra, 89 Cal.App.4th at p. 447.) Lastly, the mere fact that I. was reluctant to brush her teeth twice in one evening does not suggest that she had a motive to fabricate the incident with her father. Her lack of understanding of what had really occurred bolsters the trustworthiness of I.’s spontaneous statement. She could not comprehend the significance and the consequences of the information she was giving her mother-I. had no idea she would get her father in trouble, as it were.
Thus, I.’s statements to her mother, Officer Parra, and Cardona meet all the criteria of section 1360, and they were properly admitted into evidence. There was no abuse of discretion.
III. Evidence Admitted Under Section 1108
A. Appellant’s Argument
Appellant argues that, since I. did not testify regarding a prior event, the People failed to establish the predicate relevancy of the evidence of the prior event, which was necessarily offered as evidence that the molestation had occurred before. The only proof of the December 2007 incident was hearsay evidence given by A. The People improperly introduced the evidence under section 1108 in order to unfairly strengthen the case in the People’s favor, and this was not the sort of prior evidence sufficiently relevant to pass due process muster. The evidence in the instant case was not overwhelming, and it cannot be shown beyond a reasonable doubt that the section 1108 evidence did not contribute to the verdict. Appellant also contends that the jury was told it could find the prior offense occurred by a preponderance of the evidence and could then use that prior offense to prove the current complaint beyond a reasonable doubt.
B. Relevant Authority
Section 1108 provides in pertinent part, that “[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Subdivision (d)(1)(A) of section 1108 provides that, for purposes of this section, a sexual offense includes “[a]ny conduct proscribed by Section... 288... of the Penal Code.” Section 1108 “does not supersede other provisions of the Evidence Code, such as normal hearsay restrictions and the court’s authority to exclude evidence presenting an overriding likelihood of prejudice under [Evidence Code] section 352. [Citation.]” (People v. Soto (1998) 64 Cal.App.4th 966, 984.)
“In enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is presumed admissible without regard to the limitations of Evidence Code section 1101.” (People v. Yovanov (1999) 69 Cal.App.4th 392, 405.) The admission of propensity evidence pursuant to section 1108 is still subject to the weighing process of section 352. (People v. Falsetta (1999) 21 Cal.4th 903, 916; People v. Yovanov, supra, at pp. 405-406.)
C. The Testimony
A. testified that she did not want to tell appellant what I. told her on August 1, 2008, because of what had occurred the previous December. The prosecutor then asked A. what happened in December 2007. A. said that appellant offered to watch I. while she went to the gym. When she got back, she and I. were doing a craft for Christmas, “and she kind of told me-she told me through giggling, I saw daddy’s peanut. And I said what? What are you talking about? Daddy showed me his peanut. You know, she was kind of like she-And I said, that’s-I don’t understand. And she repeated, I saw Daddy’s peanut. I said, oh, that’s not okay. And immediately my instinct was to flee. I grabbed the baby. I grabbed I. We got in the car.” She then described how she drove to her parent’s house only to find that appellant had followed her. He eventually convinced her that I. had seen some pornography on his laptop.
D. Evidence Properly Admitted
We first point out that, contrary to appellant’s assertion, the trial court did not instruct the jury that it could find appellant committed the prior act by a preponderance of evidence and then use that evidence to convict him of the charged offense. Secondly, we believe that the evidence was relevant, since it served to rebut the defense claim that I. was mistaken about what occurred on August 1, 2008, or that the act she described was suggested to her, or that A. had staged the incident. As the trial court stated when ruling that A.’s testimony on this subject was admissible: “everything that you have argued is that in effect, and I think that you are going to be arguing to the jury: Momma put the kid up to this. The only evidence is what the kid said, and clearly any mother can influence their child. Momma put the semen on the dress. This is momma’s vendetta against daddy.” Indeed, the principal defense argument at the hearing was that the case consisted of a made-up story with no physical evidence, because A. did not see any splotches on the dress when I. took it off. The defense hypothesized to the trial court that A. got semen from the defendant, put it on the dress, and then hid it so she would have evidence to support her argument. Therefore, the statement about what happened approximately seven months earlier became relevant.
The trial court was well aware it had to find the probative value of the evidence was not outweighed by its prejudicial effect in order to allow its introduction. A court’s weighing of these factors is sufficiently shown if the record allows a reviewing court to infer an implied finding in this regard. (People v. Padilla (1995) 11 Cal.4th 891, 924, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 823.) The trial court clearly believed the probative value of A.’s testimony would outweigh any prejudicial effect. The prior incident was less inflammatory than the more recent incident, there was no undue consumption of time, and the jury was not likely to be confused about the incidents. “Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) We find the record is sufficient to infer that the trial court properly considered all factors and engaged in the balancing process prior to making its ruling.
With respect to appellant’s complaints on the basis of hearsay, we note that the defense did not object to admission of the section 1108 evidence on the basis of hearsay. Therefore, appellant has forfeited any argument on this issue. (People v. Waidla, supra, 22 Cal.4th at p. 744.) The account of the December 2007 incident given by A. consisted largely of her own actions after hearing the one hearsay statement that her testimony contained, i.e., I.’s statement that she had seen her daddy’s peanut, which A. asked her to repeat. In reference to this evidence, appellant’s motion in limine discussed only lack of notice, lack of physical evidence of the current act, and the prejudice caused by the “unload[ing]” of “unidentifiable evidence.” During the hearing on the pretrial motions, counsel argued that bringing up the 2007 incident was prejudicial because it would give that incident false credibility, pointing out that the mother herself did not believe it in 2007. The argument then returned to I.’s statements to her mother, the police, and the social worker regarding the current incident.
Although the record is not clear as to the trial court’s basis for finding the evidence admissible, the ruling, if correct in law, will not be disturbed on appeal. (See People v. Smithey (1999) 20 Cal.4th 936, 971-972; People v. Gibson (1987) 195 Cal.App.3d 841, 853.) We conclude that A.’s testimony about the incident in December 2007 was admissible under the hearsay exception of section 1360 in conjunction with section 1108. In People v. Brodit (1998) 61 Cal.App.4th 1312 (Brodit), the court found that the trial court properly admitted hearsay testimony under section 1360 in the trial of a defendant convicted of molesting his nine-year-old niece in violation of Penal Code section 288.5, which prohibits continuous sexual abuse of a child. (Brodit, supra, at pp. 1317, 1318.) There were approximately 20 instances of abuse, and much of the evidence consisted of the victim’s out-of-court statements to her grandmother, her aunt, a counselor, a police detective, and a nurse practitioner, although the victim testified at trial. (Id. at pp. 1318, 1320, 1322, 1323, 1328.) The testimony of the victim’s statements to the nurse practitioner and a therapist were admitted pursuant to section 1253, but testimony about the victim’s statements to the other individuals was admitted under section 1360. (Brodit, supra, at pp. 1329-1330.) The Brodit court, employing the factors named in In re Cindy L., supra, 17 Cal.4th at page 15, found that the statements the victim made to these individuals were reliable. (Brodit, supra, at pp. 1329-1330.)
Section 1253 provides a hearsay exception for the statements of a minor under 12 years of age when the minor made the statement for purposes of medical diagnosis or treatment and described an act of child abuse or neglect.
I.’s statement to her mother in December 2007 was also reliable under the Cindy L. factors, just as her statements about the current incident to her mother and the authorities were trustworthy, as we discussed ante. I.’s statement that she had seen her father’s peanut was certainly spontaneous, made while she and her mother were doing crafts. There was no showing that I.’s mental state was abnormal or that she was angry at her father. Although she called her father’s penis a peanut, the information itself was out of the ordinary in the context in which it was uttered, and I. clearly had no motive to fabricate the statement. The trial court properly admitted the evidence of the December 2007 incident.
We also conclude that any error in admitting the evidence did not prejudice appellant. The evidence of the August 1, 2008 incident alone, consisting of I.’s testimony, her largely consistent accounts to Officer Parra, her mother, and Cardona, and the DNA evidence from her dress, indicate that admission of the testimony regarding the prior incident did not affect the verdict and was harmless beyond a reasonable doubt. (Yates v. Evatt (1991) 500 U.S. 391, 405, disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72; Chapman v. California (1967) 386 U.S. 18, 24.)
IV. Constitutional Violations Caused by Evidence Admitted Under Section 1108
A. Appellant’s Argument
Appellant contends that the California Supreme Court’s holding in People v. Falsetta, supra, 21 Cal.4th at page 917, rejecting a due process challenge to section 1108, must be reconsidered in light of Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769. In that case, the Ninth Circuit held that the trial court erred in reading a jury instruction that did not limit the jury to a permissible inference based on other crimes evidence, but rather invited the jury to draw the additional inference of criminal propensity. (Garceau v. Woodford, supra, at p. 775, reversed on another ground in Woodford v. Garceau (2003) 538 U.S. 202.) Appellant asserts that under the reasoning of Garceau v. Woodford, other crimes evidence admitted to infer criminal propensity violates the due process clause. Appellant also claims that section 1108 violates the equal protection clause because propensity evidence is admitted only in sex cases and excluded in all other prosecutions. He states that his convictions must be reversed due to application of section 1108 in his trial.
B. No Constitutional Violation
At the outset we observe that federal constitutional claims involving the admissibility of evidence are not reviewable on appeal unless the defendant timely objected on those grounds in the trial court. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20, People v. Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10.) Here, appellant failed to object to the evidence of his prior uncharged act on constitutional grounds. In any event, we conclude that his arguments are not convincing.
Garceau v. Woodford is, in the first instance, not binding on this court (People v. Avena (1996) 13 Cal.4th 394, 431) and, in the second instance, not relevant to the instant case. Garceau v. Woodford did not discuss the admissibility of prior sex offenses in a sex offense case. Rather, it concerned the jury instruction the trial court gave regarding evidence that the defendant had been convicted of murder in a prior case and that he manufactured illegal drugs, introduced pursuant to section 1101. (Garceau v. Woodford, supra, 275 F.3d at p. 773.) The California Supreme Court held that the jury instruction impermissibly allowed the jury to consider the evidence to show propensity to commit murder, but it concluded that the error was harmless because of the overwhelming evidence of guilt. (Id. at p. 774.) The Ninth Circuit disagreed with the finding that the error in the propensity instruction was harmless. (Id. at p. 777.) The court did not question the underlying admissibility of the other crimes evidence. Therefore, Garceau v. Woodford does not call into question the conclusion reached in Falsetta that section 1108 passes constitutional muster.
Furthermore, in U.S. v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1031, the Ninth Circuit held that Federal Rule 414, which concerns admission of evidence of another offense of child molestation, is constitutional. Employing a rationale similar to that of Falsetta, the Ninth Circuit held that Federal Rule 414 does not violate due process, equal protection, or any other constitutional guarantee in light of Federal Rule 403, which provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. (U.S. v. LeMay, supra, at p. 1031.) It thus appears that the Ninth Circuit itself has not adopted appellant’s interpretation of Garceau v. Woodford. Finally, it is not our role to reevaluate the holding of Falsetta that upheld the constitutionality of section 1108. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant also argues that because propensity evidence is admitted only in sex cases, section 1108 violates the equal protection clause. He claims that it discriminates on an irrational basis, since the recidivism rate for sex offenders is lower than that of other types of offenders. This argument was rejected in People v. Fitch (1997) 55 Cal.App.4th 172, 184, which held that “the Legislature reasonably could create an exception to the propensity rule for sex offenses, because of their serious nature, and because they are usually committed secretly and result in trials that are largely credibility contests.” (See also People v. Falsetta, supra, 21 Cal.4th at p. 918.) People v. Fitch, whose reasoning was endorsed by Falsetta, noted that the Legislature was free to apply this remedy to one area of the law and neglect others. (Falsetta, supra, at p. 918; Fitch, supra, at pp. 184-185; see also People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395.) Appellant’s arguments are without merit.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.