Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BF121725A, of Kern County. William D. Palmer, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Larenda Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted appellant Juan Gutierrez of violating Penal Code section 288.7, subdivision (a) by having sexual intercourse or sodomy with a child 10 years old or younger. He contends his conviction should be reversed because of insufficiency of the evidence and instructional error. We will affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
Gutierrez married M.G. in 1999. They had two children, J.G. and A.G. Gutierrez physically abused M.G. and, as a result, served time in state prison between 2001 and 2005. When Gutierrez was released, he returned to the family home in Bakersfield. The couple’s third child, Ar.G., was born in 2006.
In early 2007, Gutierrez asked M.G. to speak to A.G., claiming he saw A.G. inappropriately rubbing herself. M.G. spoke to A.G.; A.G. acknowledged touching herself; and M.G. told A.G. not to touch her private parts unless she was bathing.
By October 2007, M.G. felt that Gutierrez had become distant. M.G. spoke to Gutierrez about her feelings; he indicated nothing was wrong. Gutierrez, however, started staying out all night and, when M.G. pressed for an answer about where he had been, Gutierrez would hit her.
At one point, M.G.’s mother, T.R., took J.G. and A.G. to live with her for two months so that M.G. and Gutierrez could work through their problems. During this period, A.G. wanted to return home and complained that Gutierrez was favoring Ar.G. because she was allowed to live with their parents, while A.G. was not.
On November 1, 2007, Gutierrez’s sister was married. M.G. picked up Gutierrez from work that day, took him home to change, and then drove other family members to the wedding, leaving A.G. at home. When M.G. left the house, Gutierrez was shaving and needed to shower. About 20 to 30 minutes later, when M.G. returned to pick them up, Gutierrez was showering and A.G. was in her room. A.G. seemed very quiet.
They went to the wedding and then to dinner with Gutierrez’s family. A.G. was unusually quiet, was not eating much, and did not play much with the other children who were present. After dinner, A.G. went home with T.R.
On November 7, 2007, M.G. went to T.R.’s house to talk with A.G. in response to a call from T.R. When M.G. arrived, A.G. was hysterical and hiding under a desk. A.G. was crying; T.R. was acting nervous and would not tell M.G. what was wrong with A.G. A.G. finally calmed down enough to tell M.G. that Gutierrez had been touching her.
At that point, M.G. called Gutierrez and told him that a boy at school had been touching A.G. She lied because she wanted to know how Gutierrez would react. Gutierrez told M.G. it was her fault because of the way she allowed A.G. to dress.
M.G. went home after calling Gutierrez but could not confront him because he had left the house. When Gutierrez came home the next morning, M.G. confronted Gutierrez with A.G.’s accusation. Gutierrez called A.G. a “lying little bitch.” The argument became physical and Gutierrez threatened M.G. with a knife. He left the house before the police arrived.
About a week later, M.G. followed Gutierrez and his girlfriend. She confronted Gutierrez and told him he was going to prison for life for being a child molester. By this time, M.G. had contacted police concerning A.G.’s accusation against Gutierrez.
Gutierrez was charged with five counts of engaging in sexual intercourse or sodomy with a child 10 years old or younger, violations of section 288.7, subdivision (a). It also was alleged that Gutierrez had suffered a prior strike conviction and had served a prior prison term. On Gutierrez’s motion, counts 2 through 5 were set aside because the statute was not operative on the dates alleged in those counts.
At trial, A.G. testified that within a few months after Gutierrez was released from prison, he began touching her “private spot” or vagina. He always touched her while they were inside the house and when her mother was at work or the grocery store. If J.G. and Ar.G. were around, Gutierrez would send them to J.G.’s room.
A.G. stated that Gutierrez touched her vagina with his hands, sometimes over her clothing and sometimes under her clothing. A.G. also stated that Gutierrez touched her with his “private spot”—his penis—multiple times. When Gutierrez touched her with his penis, she was not wearing clothing. Sometimes Gutierrez partially inserted his penis in her vagina; other times he fully inserted his penis. A.G. also testified that Gutierrez put his penis into her “bottom.”
A.G. testified it was painful when Gutierrez put his penis into her vagina and her bottom, but she did not always tell Gutierrez that it hurt. Additionally, A.G. stated that sometimes she bled after Gutierrez touched her.
Gutierrez would tell A.G. how to position herself. When Gutierrez had his penis inside her, he would move back and forth. He started slowly and then progressed to moving faster and harder. A.G. sometimes would see “white stuff” come out the end of Gutierrez’s penis.
On the day of the wedding, Gutierrez touched her before they went to the wedding. He put his penis in her. He did not take off his clothes; he dropped his pants and pulled his penis through the hole in his underwear. The day after the wedding, T.R. took A.G. to the doctor because she was very quiet and did not seem to be feeling well. It was at the doctor’s office that A.G. started crying and told T.R. what Gutierrez had been doing to her. When T.R. got home, she called M.G. and asked her to come over right away.
A.G. initially did not tell anyone what Gutierrez was doing because he told her he would hurt her if she told anyone. He also told A.G. that if M.G. found out, he would hurt A.G. even more. A.G. had seen Gutierrez beat M.G. on numerous occasions and A.G. was afraid of him. Once, when A.G. tried to get away from him, Gutierrez kicked her in her side.
M.G. never saw blood on A.G.’s underwear or clothing. It was Gutierrez, however, who did the laundry. No adult males, other than Gutierrez, had access to A.G. overnight.
Dr. George Laven, a pediatrician and director of the child assessment center at Kern Medical Center, testified for the prosecution. According to Laven, even when there has been penetration, most child sexual assault exams are normal. He testified that if an exam is conducted more than 72 hours after an assault, any injuries from the assault might have healed and DNA or other secretions will have disappeared.
Laven examined A.G. on November 21, 2007, at which time he did not notice any bruising, lacerations, or scars. Laven could not complete the exam because A.G. was too tense and nervous.
Laven again examined A.G. on November 28. During this exam, Laven was able to examine A.G.’s hymen and determined that it had a deep “V”-shaped notch, which he had never seen before. The notch caused Laven to identify the hymenal opening as “indeterminate,” meaning that A.G. may or may not have been penetrated. Laven concluded that the appearance of A.G.’s vagina, however, was consistent with having had sexual intercourse with an adult male. Laven also testified that penetrating injuries of the hymen can heal, leaving no visible scar.
Dr. Earl Fuller, an obstetrician and gynecologist, testified for the defense. He testified that A.G.’s hymenal opening was 10 millimeters; the average for children is seven. He opined that if A.G. had been penetrated by an adult male, there would be tears that would leave a permanent scar. He opined that it was not possible for A.G. to have had sexual intercourse with an adult male on several occasions without damage to the hymen and scar tissue. A.G. had no scar tissue. If anal intercourse occurred, there would be scarring in the anal area. Again, A.G. had no scarring.
The jury convicted Gutierrez and, after a jury waiver, the trial court found the prior conviction and prior prison term enhancements to be true. Gutierrez was sentenced to a term of 51 years to life in state prison.
DISCUSSION
Gutierrez challenges his conviction on two grounds: (1) The evidence was insufficient to sustain the conviction as a matter of law, and (2) instructing the jury with CALJIC No. 2.20.1 was prejudicial error.
I. Sufficiency of the Evidence
Gutierrez contends the evidence was insufficient as a matter of law to sustain his conviction because there was no physical evidence to support A.G.’s claims, and Fuller testified it was not possible for A.G. to have been penetrated as she claimed without showing physical evidence of scarring.
Standard of Sufficiency of the Evidence
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is evidence that is “reasonable, credible, and of solid value.” (Johnson, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citations.] (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548 (Culver)), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367 (Frederick G.)). This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence (People v. Lenart (2004) 32 Cal.4th 1107, 1125).
Analysis
Gutierrez asks this court to reject the testimony of Laven, who testified his physical examination of A.G. was consistent with the child having had sex with an adult male. Gutierrez also insists that this court credit only the testimony of Fuller, who testified that A.G.’s physical condition indicated it was not physically possible for A.G. to have had intercourse with an adult male.
Laven, a pediatrician with extensive training in the area of child sexual abuse, and whose main role at the hospital was to examine children for signs of suspected abuse, testified that his physical examination of A.G. revealed that the appearance of her vagina was consistent with A.G. having had sexual intercourse with an adult male. Laven also testified, however, that he could neither confirm sexual abuse nor rule it out.
Fuller, an obstetrician and gynecologist who generally treated adult females, viewed a videotape of A.G.’s physical examination and opined that it was not possible for A.G. to have had sexual intercourse with an adult male without evidence of damage to the hymen and scarring, which he did not see in the videotape.
Lavin’s testimony is not “inherently incredible” as Gutierrez contends. While both Fuller and Laven had expertise in particular areas, only Laven had training and experience in the area of child sexual assault. Fuller had not read any of the studies regarding child sexual assaults, did not have any training in conducting child sexual assault exams, and testified he would not believe any of the studies if he had read or heard of them. Fuller’s lack of training and experience in dealing with child sexual assault victims is fatal to Gutierrez’s claim that Laven’s testimony was “inherently incredible.”
Essentially, Gutierrez asks us to reweigh the evidence and reject Laven’s testimony, while crediting only the testimony of Fuller. This we will not do; it is not the function of an appellate court to reweigh evidence. (Culver, supra, 10 Cal.3d at p. 548.)
Additionally, we reject Gutierrez’s claim that the testimony of A.G. and M.G. should be rejected because they were biased against him—A.G. because she was jealous of his favoritism of Ar.G. and M.G. because of his mistress. The jury was fully apprised of these issues and other potential reasons for any animosity or bias against Gutierrez. The jury was required to make credibility determinations and resolve factual disputes. This is part of its role and function as the trier of fact. (Frederick G., supra, 96 Cal.App.3d at p. 367).
Furthermore, A.G.’s testimony is not inherently untrustworthy because it may have had inconsistencies. A young child who has been subjected to sexual abuse is required to testify to the acts committed with sufficient certainty to support each count alleged and to the general time frame in which these acts occurred. (People v. Jones (1990) 51 Cal.3d 294, 316.) Additional details regarding the time, place, or circumstances of assaults may be helpful in assessing the credibility of the victim, but are not essential to sustaining a conviction. (Ibid.)
None of the testimony challenged by Gutierrez was so “inherently incredible” that this court would be justified in supplanting the jury’s credibility determinations. The jury, as is its province, has weighed the evidence, assessed the credibility of witnesses, and resolved any factual disputes. (Frederick G., supra, 96 Cal.App.3d at p. 367). We will not usurp the jury’s role by reweighing the evidence. (Culver, supra, 10 Cal.3d at p. 548.)
II. CALJIC No. 2.20.1 and Child Testimony
Gutierrez contends the trial court improperly instructed the jury with CALJIC No. 2.20.1, evaluation of the testimony of child witnesses. He argues that the instruction invaded the province of the jury, lessened the prosecution’s burden of proof, denied him the jury’s credibility assessment, prevented him from confronting the child witness, and consequently violated due process.
Discretionary Review
The trial court instructed the jury with CALJIC No. 2.20.2 at the request of the prosecution. Gutierrez neither objected to the request nor asked for any modification.
Section 1259 permits review without an objection where the instruction was an erroneous statement of law or had the effect of omitting an element of the charged offense. (People v. Duran (2001) 94 Cal.App.4th 923, 942-943; People v. Guerra (2006) 37 Cal.4th 1067, 1138.) This is not the case with CALJIC No. 2.20.1.
Section 1259 also permits an appellate court to review, in its discretion, any instruction given, even if no objection was made, if the substantial rights of the defendant were affected. (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 649-650.) We exercise our discretion and review the challenged instruction.
Analysis
Section 1127f states, in part: “In any criminal trial or proceeding in which a child 10 years of age or younger testifies as a witness, upon the request of a party, the court shall instruct the jury” with essentially the same language as contained in CALJIC No. 2.20.1. As given to the instant jury, CALJIC No. 2.20.1 stated:
“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.”
Gutierrez acknowledges that CALJIC No. 2.20.1 has been upheld repeatedly against attacks identical to those he raises. (People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574 (Jones); People v. Gilbert (1992) 5 Cal.App.4th 1372, 1392-1394 (Gilbert); People v. Harlan (1990) 222 Cal.App.3d 439, 455-457 (Harlan).) As explained in Gilbert:
“In People v. Jones (1990) 51 Cal.3d 294, the Supreme Court made clear that, far from ‘unduly inflat[ing]’ the child’s testimony, section 1127f ‘adopted the modern view regarding the credibility of child witnesses …’: ‘[I]t is now well established that a child’s testimony cannot be deemed insubstantial merely because of his or her youth.… [¶] Recent studies have undermined traditional notions regarding the unreliability of child witnesses, their untruthfulness, susceptibility to leading questions, or inability to recall prior events accurately. “Empirical studies have produced results indicating that most of these traditional assumptions are completely unfounded.” [Citations.]’ (51 Cal.3d at p. 315.) The instruction tells the jury not to make its credibility determinations solely on the basis of the child’s ‘age and level of cognitive development,’ but at the same time invites the jury to take these and all other factors surrounding the child’s testimony into account. The instruction provides sound and rational guidance to the jury in assessing the credibility of a class of witnesses as to whom ‘“traditional assumptions”’ may previously have biased the fact finding process. Obviously a criminal defendant is entitled to fairness, but just as obviously he or she cannot complain of an instruction the necessary effect of which is to increase the likelihood of a fair result. There was no denial of due process.” (Gilbert, supra, 5 Cal.App.4th at p. 1393.)
Gutierrez acknowledges the holdings of Harlan, Jones, and Gilbert, but asserts they were wrongly decided. He particularly attacks the analysis surrounding the language of the second sentence of CALJIC No. 2.20.1, which states, in part: “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.”
Harlan found that the word “perform” applies to nonverbal action and “merely advises the jury that due to the age and level of cognitive development, a child may act differently on the witness stand than an adult. It does not relate to the truth or falsity of the content of the child’s testimony. The language refers to one of many factors to be applied by a jury in determining a witness’s credibility, namely, the demeanor and manner of the witness while testifying.” (Harlan, supra, 222 Cal.App.3d at p. 455.)
Jones reaffirmed this interpretation: “The word ‘perform’ does not connote or direct the jury to apply the factor of demeanor in assessing credibility differently to a child witness than it would to an adult witness. The second sentence of CALJIC No. 2.20.1 … does not instruct the jury that because a child ‘performs’ differently on the witness stand, he or she for that reason alone is more credible than a non child witness. As we stated in Harlan, the second sentence, including the word ‘perform,’ ‘… refers to one of many factors to be applied by a jury in determining a [child] witness’s credibility, namely, the demeanor and manner of the witness while testifying. [Citation.]’ [Citation.] This advice does not remove the issue of credibility from the jury; in fact, it presupposes that the jury must make a determination of credibility, but only after considering all the factors related to a child’s testimony, including his demeanor, i.e., how he or she testifies on the stand, which encompasses the manner of speaking.” (Jones, supra, 10 Cal.App.4th at pp. 1573-1574; accord, Gilbert, supra, 5 Cal.App.4th at pp. 1392-1394.)
In People v. McCoy (2005) 133 Cal.App.4th 974 (McCoy), this court rejected arguments similar to those raised by Gutierrez and clarified Harlan’s interpretation of the instruction: “[CALJIC No. 2.20.1] straightforwardly tells the jury that a child may perform differently than an adult ‘because of’ the ‘level of’ his or her ‘ability to … communicate.’ [Citation.] The instruction expressly allows a reasonable likelihood that the jury did not construe the word ‘perform’ to apply only to ‘nonverbal action.’ [Citations.]” (McCoy, at p. 980.)
McCoy further noted that Harlan’s analysis of the word “perform” “ originate[d] entirely from case law, finds no support in CALJIC No. 2.20.1 or [Judicial Council of California Criminal Jury Instructions (2006)] CALCRIM No. 330, fails to diminish the persuasiveness of the holdings in Harlan and Jones, and has no impact at all on the holding in Gilbert. In express reliance on the holdings in Harlan, Jones, and Gilbert alike, we squarely reject [defendant’s] constitutional challenges to CALJIC No. 2.20.1.” (McCoy, supra, 133 Cal.App.4th at p. 980.)
As explained in McCoy, we agree with the analysis in Harlan, Gilbert, and Jones, and similarly reject Gutierrez’s constitutional attacks upon CALJIC No. 2.20.1.
Finally, we note that when reviewing the propriety of an instruction, it is necessary to view the instruction as a whole. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Here, the trial court instructed the jury with CALJIC No. 2.20 as to the factors relevant to assessing credibility of all witnesses, including the abilities to remember and communicate. There is nothing in CALJIC No. 2.20 to suggest these factors were not relevant to assessing a child witness’s testimony, and there is nothing in CALJIC No. 2.20.1 that tells the jury to ignore the factors listed in CALJIC No. 2.20. The essence and purpose of CALJIC No. 2.20.1 is to inform the jury that a child’s testimony should not be rejected merely because the witness is a child, and it does not tell the jury to give special deference to a child’s testimony.
We conclude the trial court did not err in instructing the jury with CALJIC No. 2.20.1.
DISPOSITION
The judgment is affirmed.
WE CONCUR: ARDAIZ, P.J., VARTABEDIAN, J.