People
v.
Fischer

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREESep 12, 2018
G055047 (Cal. Ct. App. Sep. 12, 2018)

G055047

09-12-2018

THE PEOPLE, Plaintiff and Respondent, v. ABEL MARTIN FISCHER, Defendant and Appellant.

Rene Paradis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12HF1355) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Rene Paradis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Craig H. Russell, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant Abel Martin Fischer of three counts of lewd and lascivious acts against a child under the age of 14. On appeal, Fischer challenges the admission of fresh complaint testimony from three witnesses, arguing that such evidence was cumulative to the point of being prejudicial, exceedingly detailed, and not always preceded by a limiting instruction. He also challenges the admission of testimony concerning a journal entry that the victim made about the abuse. These contentions lack merit. We affirm the judgment.

I

FACTS AND PROCEDURAL HISTORY

A. The Incidents of Abuse

Fischer was accused of sexually abusing his ex-girlfriend's young daughter, whom we will call "C." C., her siblings, and her mother lived with Fischer for a few years when C. was in kindergarten, first grade, and second grade. According to C., Fischer touched her sexually multiple times during that period.

The record does not provide a last name for the victim. We refer to her by her first initial only to protect her privacy. (See Cal. Rules of Court, rule 8.90(b)(4).)

C. testified that on one occasion in particular, Fischer was taking care of her and her younger sister while their mother went to a Narcotics Anonymous meeting. C. and her sister were watching movies with Fischer in his bed. Fischer was wearing boxers and had no shirt on. C. was underneath the covers, and Fischer put his hand under her clothes and rubbed her vagina. He then pulled her on top of him and pushed her up and down against his penis. He told her to put her mouth on his penis, which she did, and then told her she "wasn't doing it right." At some point, C.'s underwear was taken off. Fischer got out of the bed, pulled C.'s legs to the side of the bed, and licked her vagina. He then picked her up and rubbed her body against his again. C. became very scared and searched for her underwear. She could not find her underwear, so she crawled underneath the covers, off the bed, and out of the bedroom, crying the whole way.

In addition to that incident, C. estimated that Fischer touched her vagina another 10 to 15 times. Every such incident happened in Fischer's bed, except one occasion where he rubbed her vagina through her clothes while in the car. B. C.'s Journal Entry and the Discussion with Her Mother

C. testified that when she and her mother were living with Fischer, C. wrote in a journal that her mother and Fischer slept naked in the room together and that Fischer had "licked [C.'s] thingy." Her mother found the journal, confronted C. about it, and asked C. if she meant that Fischer had licked her vagina. C. said, "yes," and she started to cry. The mother then brought C. to Fischer, ripped the page out of the journal, and asked her in front of him if the journal entry was true. This time C. answered, "no," because she was afraid of Fischer. C. could not recall how old she was at the time she made the journal entry, but she believed it was toward the end of her time living with Fischer. She did not recall him touching her again after he was confronted with the journal.

C.'s mother testified that she remembered reading C.'s journal when C. was about six years old, that she was concerned about what she read, that she had suspected from C.'s behavior that something was going on, and that she questioned C. about the journal. However, the mother did not remember the specifics of what she read in the journal or the specifics of her conversation with C. The mother also did not recall having any conversation with C. and Fischer about what C. wrote, nor did she recall tearing a page out of the journal. She testified that if she had read what her daughter claimed to have written, she probably would have talked to Fischer about it and told her ex-husband (C.'s father) about it. C. C.'s Complaints to Her Friends

C. testified that years later, when she was 14 years old, she told her best friend A.B. what had happened. She also testified that when she was 15 years old, she told another friend, M.B., about it.

C.'s testimony was corroborated by A.B. and M.B., both of whom testified briefly at trial. A.B. testified that when they were 14 years old, C. told her "that a man named Abel" "gave her oral" and "touched her on her vagina with his hands," and that C. said she had written about it in a journal when she was younger. M.B. testified that C. told her that one of her mother's boyfriends had touched her in areas where he should not have (M.B. could not remember where). M.B. asked C. why she had not told anyone about it, and C. explained that she had written about it in her diary, but her mother had found the diary and ripped it up. D. C.'s Denials That Abuse Occurred

On cross-examination, C. testified that she also told A.B.'s cousins about the abuse. This disclosure resulted in a report to Social Services, which asked C. whether she had been touched inappropriately. C. twice denied that any abuse had occurred, first during her initial discussion with Social Services and again later that day in a subsequent discussion with both Social Services and her parents.

At trial, C. explained that she denied the abuse to Social Services and her parents because "it was embarrassing," she was "ashamed," and she "didn't want to tell people that something like that happened to [her]." When asked why she disclosed the abuse to friends but not her parents, C. explained that she "was comfortable speaking to someone [her] own age." E. C.'s Complaint to Her Parents

C. testified that when she was 16 years old, she was using drugs, getting poor grades, and getting in trouble outside of school, and her parents (who were divorced) gave her an ultimatum of going to military school or to rehab. They tried to drug-test her, and C. told them, "[y]ou guys don't even know what I've been through. You don't know what's happened to me." C. then told them about the abuse by Fischer.

C.'s mother similarly testified at trial that she and her ex-husband were making C. take a drug test, that C. became "hysterical" and "didn't think we understood what she was going through," and that C. then disclosed the molestation. F. Fischer's Interview

C.'s disclosure to her parents led to law enforcement investigating the abuse. As part of the investigation, a Sheriff's Department investigator called Fischer to ask him about C.'s claims. During the phone call, which was recorded, Fischer denied C.'s allegations, but he admitted that he had touched C.'s vagina at her mother's request to inspect it for a yeast infection or red spot or to see if "maybe a bug got up there." When asked if he ever put his finger inside her vagina to check for the bug, he answered, "Sure." He also said it was possible that he put his face about an inch away from her vagina while he was examining it. When asked about the number of times he touched C.'s vagina to inspect it, he answered, "I couldn't tell you if it was one time or two times or three times or a dozen." He also stated it was possible that C. had put her mouth on his penis while he was asleep, but he denied deliberately orally copulating with her. G. Proceedings in the Trial Court

C.'s mother denied ever making such a request.

Fischer was charged with three counts of lewd acts against a child under the age of 14 in violation of Penal Code section 288(a). At trial, the prosecution called C., her two friends (A.B. and M.B.), her mother, the investigator who interviewed Fischer, and a psychologist who testified as an expert witness regarding Child Sexual Abuse Accommodation Syndrome (CSAAS) (a pattern of behaviors in which children who are molested by people they know tend not to report the abuse right away). The audio recording of Fischer's telephonic interview was also played for the jury. Fischer did not testify at trial, but two character witnesses testified on his behalf.

The jury found Fischer guilty on all three counts, and the trial court sentenced him to 10 years in prison. Fischer appeals.

II

DISCUSSION

A. Standard of Review

"[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence." (People v. Waidla (2000) 22 Cal.4th 690, 717.) The trial court's exercise of that discretion "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." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) B. The Fresh Complaint Doctrine

This case principally involves the fresh complaint doctrine. Historically, the doctrine permitted the admission of "evidence that the alleged victim of a sexual offense disclosed or reported the incident to another person shortly after its occurrence." (People v. Brown (1994) 8 Cal.4th 746, 748-749 (Brown).) The historic purpose of admitting such evidence was to prevent the trier of fact from erroneously inferring that no complaint had been made and from further erroneously concluding that no sexual assault had occurred. (Ibid.) The doctrine was premised on the assumption that a victim of sexual abuse always promptly discloses it. (Id. at p. 749.)

In Brown, the California Supreme Court observed that the historic justification for the doctrine was no longer sound, and it revised the formulation and parameters of the doctrine to reflect "a more accurate understanding of the proper basis for the admission" of evidence regarding a sexual abuse victim's extrajudicial complaints. (Brown, supra, 8 Cal.4th at p. 749.) It held that "proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred. Under such generally applicable evidentiary rules, the timing of a complaint (e.g., whether it was made promptly after the incident or, rather, at a later date) and the circumstances under which it was made (e.g., whether it was volunteered spontaneously or, instead, was made only in response to the inquiry of another person) are not necessarily determinative of the admissibility of evidence of the complaint. Thus, the 'freshness' of a complaint, and the 'volunteered' nature of the complaint, should not be viewed as essential prerequisites to the admissibility of such evidence." (Id. at pp. 749-750.) The Court reasoned that the absence of a prompt complaint is not necessarily a reliable indicator of whether a sexual offense occurred, but that misconceptions of how victims respond to sexual assault remain quite prevalent among jurors. (Id. at p. 761.) Thus, evidence of the fact and circumstances of a victim's complaint may be relevant for the nonhearsay purposes of "'eliminate[ing] any unwarranted skepticism arising from lack of evidence of a prompt complaint'" and to shed light on why the victim may have delayed complaining. (Ibid.)

The doctrine "originated in 'sexist notions of how the "normal" woman responds to rape.'" (Brown, supra, 8 Cal.4th at p. 757, citing State v. Hill (1990) 121 N.J. 150, 170.)

Importantly, fresh complaint evidence is admissible only "for the limited purpose of showing that a complaint was made by the victim, and not for the truth of the matter stated. [Citation.] Evidence admitted pursuant to this doctrine may be considered by the trier of fact for the purpose of corroborating the victim's testimony, but not to prove the occurrence of the crime." (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522; see also People v. Manning (2008) 165 Cal.App.4th 870, 880.) Consequently, fresh complaint testimony must be "carefully limited to the fact that a complaint was made, and to the circumstances surrounding the making of the complaint"; it must not include the details of the alleged offense. (Brown, supra, 8 Cal.4th at p. 762.) "Caution in this regard is particularly important because, if the details of the victim's extrajudicial complaint are admitted into evidence, even with a proper limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault." (Id. at p. 763.) This limitation is necessary to "eliminat[e] or at least minimiz[e] the risk that the jury will rely upon the evidence for an impermissible hearsay purpose." (Id. at p. 762.) C. Analysis

At trial, the defense tried to call into question C.'s credibility by highlighting her multiple denials of abuse over the years and her delay in reporting the abuse. We thus find no abuse of discretion in the trial court's decision to admit the fresh complaint evidence — namely, C.'s complaints to A.B., M.B., and her mother. "[T]he fact that the disclosure[s] [were] made and the circumstances under which [they were] made [were] relevant to the trier of fact's determination as to whether the offense occurred." (Brown, supra, 8 Cal.4th at pp. 749-750.)

Fischer argues that the admission of multiple fresh complaints was cumulative and thus more prejudicial than probative. We find no abuse of discretion. "Trial courts, of course, must exercise their discretion to exclude under Evidence Code section 352 evidence that is unduly cumulative." (People v. Brady (2010) 50 Cal.4th 547, 583.) But here, the trial court did just that. During the pretrial conference, the prosecution expressed a desire to present fresh complaint testimony by six different witnesses. After discussing the admissibility and scope of the prosecution's proposed fresh complaint evidence at length with counsel for both sides, and after weighing the probative and prejudicial value of the fresh complaints under section 352, the court ruled that the prosecution could present fresh complaint evidence from only three of the six proposed witnesses. "[T]he weighing of probative, though possibly cumulative, evidence against its potentially prejudicial nature is a matter entrusted to the sound discretion of the trial court" (People v. Medina (1995) 11 Cal.4th 694, 749), and we find no abuse of discretion in the court's ruling. Notably, Fischer does not cite any case holding that the admission of multiple fresh complaints was unduly cumulative and thus prejudicial.

All further undesignated code references are to the Evidence Code unless otherwise noted.

Fischer next argues that A.B.'s testimony was more detailed than necessary and went beyond what is permissible under the fresh complaint doctrine. We disagree. On direct examination, A.B. testified that when they were 14 years old, C. told her "that a man named Abel" "gave her oral" and "touched her on her vagina with his hands." On cross-examination, defense counsel asked A.B. to tell her "exactly" what C. told her, and A.B. reiterated her answer in slightly more detail. A.B.'s testimony was brief, it was far less detailed than C.'s account, and it was similar in level of detail to fresh complaint testimony deemed acceptable in other cases. (See, e.g., People v. Burton (1961) 55 Cal.2d 328, 337, 351, disapproved on other grounds in Brown, supra, 8 Cal.4th at p. 756 ["'He made me play with his peter'"]; People v. Butler (1967) 249 Cal.App.2d 799, 804- 806 ["'He said the man was sucking his thing'"]; People v. Cordray (1963) 221 Cal.App.2d 589, 594 ["'She said he had pulled her pants down and he had kissed her between the legs'"].) No error has been shown.

Fischer next complains about the timing of the trial court's limiting instructions. More specifically, he complains that although a limiting instruction was given right before A.B. testified, no parallel instruction was given when M.B. and the mother testified, prompting the jury to give M.B.'s and the mother's testimony more credence. This argument fails for several reasons. First, it is speculative. Second, Fischer did not request a limiting instruction at any time during M.B.'s or the mother's testimony. Third and perhaps most importantly, the jury was clearly instructed at the conclusion of trial regarding this issue: "As to [the testimony by A.B., M.B., and C.'s mother] regarding circumstances surrounding [C.'s] disclosure regarding the alleged sexual act, that testimony only was admitted for the limited purpose of establishing that a complaint of sexual abuse was made [and] not as proof that the information contained in such disclosure is true. You may consider this evidence for that limited purpose and for no other. Any other evidence not related to the sexual acts shall be considered and judged as indicated in the jury instructions that . . . have been provided to you." Fischer asserts that this concluding instruction was no substitute for an immediate warning. However, the timing of instructions "is in the trial court's discretion." (People v. Dennis (1998) 17 Cal.4th 468, 533-534 ["the trial court is not obliged to give limiting instructions the moment they are requested or when the limited evidence is presented; subsequent instruction can be sufficient in a proper case"].) We find no error in the timing of the court's limiting instructions.

Prior to A.B.'s testimony, the trial court instructed the jury that "the circumstances surrounding [C.'s] disclosure to this witness are admitted for the limited purpose of establishing that a conversation or a complaint was made and not as to the proof of that information that is contained therein. So you may consider this evidence just for the limited purpose of not for the truth of the matter asserted but for showing that a complaint or a statement was made to this young lady." --------

Even if there were errors regarding the scope of the fresh complaint testimony or the trial court's limiting instructions, any such errors were harmless. It is not reasonably probable that Fischer would have attained a more favorable outcome if the fresh complaint evidence had been excluded or if additional limiting instructions had been given. (Manning, supra, 165 Cal.App.4th at pp. 880-881 [applying harmless error analysis to trial court's failure to give limiting instruction on fresh complaint evidence]; Ramirez, supra, 143 Cal.App.4th at p. 1526 [similar].) The prosecution's case included direct testimony from C., Fischer's lengthy interview, and expert testimony regarding CSAAS. The jury had the opportunity to hear directly from C. and judge her credibility. (Indeed, during deliberations the jury asked to hear her testimony again.) The jury thus "did not have to rely on her secondhand statements to other people, but was able to hear her directly and judge her credibility" firsthand. (Manning, supra, 165 Cal.App.4th at p. 881.) This obviously diminished the importance of her fresh complaints. Moreover, in terms of the potential for causing prejudice, the fresh complaint testimony was brief, it was only a small part of the case, and it was consistent with and cumulative of C.'s testimony. Cumulative statements that repeat facts established by other means are not prejudicial. (See People v. Blacksher (2011) 52 Cal.4th 769, 818, fn. 29.)

Lastly, Fischer argues that A.B.'s and M.B.'s testimony about what C. claimed to have written in the journal was inadmissible double hearsay. The record is somewhat unclear as to the basis of the admission this testimony. During the pretrial conference, the trial court indicated that the testimony was not necessarily fresh complaint evidence but would be admitted as relevant nonhearsay evidence. At trial, however, the court indicated that the testimony was admissible under the fresh complaint doctrine. Neither side has cited any authority as to whether a statement in a diary or journal can constitute a fresh complaint, but we need not decide that issue here because the statement in the journal was admissible as a prior consistent statement. (§§ 791, subd. (b), 1236; see also Brown, supra, 8 Cal.4th at p. 749, fn. 1 [noting that fresh complaint evidence "also may be admissible for a hearsay purpose (i.e., to prove the truth of the content of the statement) under an exception to the hearsay rule"].) The defense insinuated at trial that C.'s allegations of abuse were fabricated or influenced by bias or improper motive (i.e., that C. fabricated the abuse to deflect punishment for her drug use), so evidence about what C. wrote in her journal years before that alleged bias arose was admissible as a prior consistent statement to support her credibility. Fischer seems to concede on appeal that C.'s testimony about her journal entry was admissible as a prior consistent statement. A.B.'s and M.B.'s testimony regarding the journal entry was consistent with C.'s testimony, so even if A.B.'s and M.B.'s testimony was inadmissible, the error was harmless.

III

DISPOSITION

The judgment is affirmed.

MOORE, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.