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People v. Guzman

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jul 24, 2017
No. G052989 (Cal. Ct. App. Jul. 24, 2017)

Opinion

G052989

07-24-2017

THE PEOPLE, Plaintiff and Respondent, v. MANUEL GUSTAVO HERNANDEZ GUZMAN, Defendant and Appellant.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alastair J. Agcaoili, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10SF0415) OPINION Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

INTRODUCTION

A jury convicted Manuel Gustavo Hernandez Guzman (Defendant), as charged, of two counts of aggravated sexual assault of a child under the age of 14 (Pen. Code, § 269, subd. (a)(4)), five counts of lewd and lascivious acts upon a child under the age of 14 (id., § 288, subd. (a)), one count of sexual intercourse or sodomy with a child under the age of 10 (id., § 288.7, subd. (a)), and two counts of oral copulation or sexual penetration of a child under the age of 10 (id., § 288.7, subd. (b)). The jury also found true allegations that, as to each of the counts, Defendant committed the offense charged against more than one victim. The trial court sentenced Defendant to a total of 55 years-to-life in prison.

Defendant contends the trial court erred by: (1) receiving in evidence a video recording and transcription of his postarrest police interview because his statements made in the interview were involuntary and the product of psychological coercion; and (2) admitting evidence of statements by one of the victims to her mother disclosing the sexual abuse.

As to the first contention, our independent review of the record, including the video recording of the postarrest interview, leads us to conclude Defendant's statements made during the interview were voluntarily and freely made and were not the product of prohibited coercion. As to the second contention, we conclude the trial court did not err by admitting evidence of statements made by one victim to her mother for the limited, nonhearsay purpose of showing the fact and circumstances of the complaint. We therefore affirm the judgment.

FACTS

We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)

I.

Acts of Sexual Abuse

Defendant is the former husband of V.S., who is the aunt of S.R. and S.C. S.R. was born in 1998. In 2008, S.R.'s mother was deported, and S.R., along with her four siblings, went to live with Defendant and V.S. Defendant and V.S. had one child of their own, Vr. S.C. was born in 2000 and lived with her mother and eight siblings near Defendant and V.S.

Starting sometime in 2010, when S.R. was in the fifth or sixth grade, Defendant started touching her in inappropriate places, including her vagina. Sometimes Defendant would touch S.R. over her clothing, and sometimes he would pull down her underpants. Defendant would make S.R. touch his penis and place her mouth on it. At least once, Defendant placed his mouth on S.R.'s vagina, and at other times Defendant touched S.R.'s vagina or buttocks with his penis or tried to digitally penetrate her.

During the period of time in which Defendant was abusing S.R., he was also abusing S.C., who was about eight years old. On more than one occasion, when S.C. visited Defendant and V.S., he would touch or place his mouth on her vagina. There were times when S.C. did not have any clothing on when she was with Defendant. This conduct happened in the garage or a bedroom, and always in S.R.'s presence. While at work, S.C.'s mother and father often left S.C. and her brother with Defendant. S.C. also saw Defendant place his mouth on S.R.'s vagina.

In an interview with an investigator from the Orange County Sheriff's Department, S.C. stated that once Defendant grabbed her by the hands, pushed her onto a bed, got on top of her, and placed his penis inside of her vagina. S.C. recalled other times when Defendant put his tongue in her vagina, asked her to orally copulate him, and touched her breasts (over her clothing) with his hand.

A transcript of this interview was received in evidence as Exhibit 9B.

During a Child Abuse Services Team (CAST) interview, S.R. related an incident in which Defendant molested her and S.C. while they were lying in bed. Defendant locked the bedroom door, pulled down S.R.'s and S.C.'s pants, pulled down his own pants and underwear, put S.C. on top of him, and moved his hips. When Defendant was finished with S.C., he put S.R. on top of himself and did the same thing.

A transcript of the CAST interview was received in evidence as Exhibit 2B.

II.

Report of Sexual Abuse and Investigation

In July 2008, S.C. told her mother that Defendant had touched her inappropriately. S.C.'s mother immediately made a report of sexual abuse to Riverside County Child Protective Services, but apparently no action was taken. S.C. no longer went to V.S.'s home.

In March 2010, Defendant asked his four-year-old son, Vr., if he wanted to sleep with him. Vr. said, "no." When Defendant tried to take Vr. from V.S., who was holding him, Vr. said "no, let me go" and "[d]on't touch me." V.S. asked Vr. why he answered his father in that way, and Vr. replied, "that's what [S.R.] tells my dad when he touched her." V.S. spoke with Vr., then went to the police. V.S. asked Defendant to leave the house, but he refused to go voluntarily.

In April 2010, two investigators with the Orange County Sheriff's Department and a social worker interviewed S.R. The next month, an Orange County Sheriff's Department investigator interviewed S.C. S.R. was interviewed by CAST.

On May 12, 2010, sheriff's deputies arrested Defendant at a hospital where he had gone to be treated for severe depression. He was taken to a sheriff's station where sheriff's investigator Myrna Caballero interviewed him in Spanish, his first language. He denied that he had ever touched S.R. inappropriately and said that S.R. had once touched his groin by accident while they were playing a game.

DISCUSSION

I.

The Trial Court Did Not Err by Denying Defendant's

Motion to Exclude Evidence of His Postarrest Interview.

A. Background

1. Introduction

Defendant contends the trial court erred by denying his motion to exclude a video recording and a transcript of his postarrest interview conducted by Caballero. The video recording was received in evidence as exhibit 11A and the transcript was received as exhibit 11B. Defendant argues that Caballero took advantage of his fragile mental state and that the statements he made during the interview were the products of improper interrogation practices.

2. Defendant's Arrest and Interview

At 3:00 p.m. or 4:00 p.m. on May 12, 2010, Defendant checked himself into a local hospital because he was depressed and had suicidal thoughts. V.S. had told him to leave the house and that she did not want to see him again. At the hospital, he was interviewed by a nurse, placed in a bed, seen by a physician, and given medication.

Sheriff's deputies arrested Defendant in the afternoon of May 12, 2010, and took him, dressed in his hospital gown and pajamas, to the sheriff's station. Caballero interviewed Defendant in a carpeted room furnished with a coffee table and cushioned chairs. The interview was conducted in Spanish. Caballero spoke in a calm and even tone throughout the interview, which lasted about 50 minutes.

At the beginning of the interview, Caballero identified herself as an investigator and asked Defendant how he felt. He said he felt "[t]ranquilo," translated as "[c]alm." Caballero read Defendant his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and he confirmed he understood each one. Defendant talked at first about his marital problems and said his wife had kicked him out of the house. He had gone to the doctor because he felt depressed and confused and, suddenly, the sheriff's deputies arrived and arrested him for molesting his child.

Caballero told Defendant that she had spoken with S.R. and S.C., who had told her "everything." Caballero told Defendant that S.R. had been examined at a hospital, and there was DNA evidence showing that S.R. had sex with a man. Caballero explained what DNA evidence is and told Defendant there was evidence that he had "touched her." Defendant replied (English translation), "[r]ight now you say that, that I touched her . . . [n]o . . . [l]ike I play with the, with all the children." Caballero told Defendant there was evidence he had touched S.R.'s vagina with his penis. He responded: "No. That's what I don't understand. How is it that?" When Caballero told him "it's the truth," he said, "I can't believe it."

Caballero repeated the claim that she had evidence Defendant inappropriately touched S.R. Defendant denied any wrongdoing. He stated several times he "did not force anyone" and did not "grab anyone." He claimed that S.R. once had accidentally touched his groin while they were playing with other children. Caballero repeated the claim that she had evidence that Defendant's penis touched S.R.'s vagina and told Defendant that S.R. had said "it happened about 20 times." Caballero asked Defendant whether it happened once, four times, or twenty times. Defendant asked where the evidence came from. Caballero said the investigators collected DNA from his toothbrush and other personal items.

Caballero asked Defendant: "[I]t's two different stories, . . . Did it happen once, . . . or [did] it happen 20 times? Did it happen because she did want it, it was her idea, . . . or [did] you force her? That's the reason I'm here talking. Tell me." A few moments later, Defendant answered, "[i]t was twice" and "she was the one, . . . the idea." He had told S.R. that what they were doing was wrong, but she asked, "[a]re you scared?" Defendant said they did not have sex, S.R. grabbed him, and "it touched on top of the clothes." Defendant said he pushed S.R. away.

Defendant described an incident in which S.R. and S.C. played a game by pushing him down on the bed and, while he was lying on his back, S.C. got on top of him. He pushed S.C. off and S.R. got on top of him. Defendant was clothed but was not wearing pants. He said that all touching was over clothing and that on one occasion S.R. put her mouth on his penis. He denied that S.C. had ever put her mouth on his penis.

Defendant explained that he had gone to the hospital the day before to seek help from a therapist. He did not want to live any longer. He spoke with a social worker but did not talk about S.R. or S.C. Near the end of the interview, he said: "I feel finished. My life is nothing."

3. Motion to Exclude

On the first day scheduled for trial, Defendant's counsel made an oral motion to exclude from evidence the entirety of the postarrest interview. The court heard argument from counsel, watched the video recording of the interview, and read the transcript. The court then denied the motion.

When denying the motion, the court found: "In reviewing the two exhibits, the court neither saw nor heard any indication that the free will of Mr. Hernandez was overborne by either the officer or the surrounding circumstances, including his personal and physical condition. The interrogating officer was soft-spoken, polite and respectful throughout the interview. Further Mr. Hernandez manifested no concerns that would reasonably cause an interrogating officer to conclude the interview should be either suspended temporarily or terminated immediately. [¶] Based on the totality of circumstances, the court finds the people have proven by a preponderance of the evidence that Mr. Hernandez'[s] statements were voluntary, and a knowing and intelligent product of a properly admonished and conducted police interrogation." B. Law and Standard of Review

Both the United States Constitution and the California Constitution make inadmissible a criminal suspect's involuntary statement that was obtained by a law enforcement officer through coercion or compulsion. (People v. Peoples (2016) 62 Cal.4th 718, 740 (Peoples); People v. McCurdy (2014) 59 Cal.4th 1063, 1086.) The prosecution bears the burden of proving by preponderance of evidence that a suspect's statements were freely and voluntarily made before the statements may be received in evidence. (Peoples, supra, 62 Cal.4th at p. 740.) Whether a statement was voluntary depends on the totality of circumstances, which can include such factors as "any element of police coercion, the length of interrogation and its location and continuity, and the defendant's maturity, education, and physical and mental health." (Ibid.) The determinative question is whether the defendant's choice to make the statements or confess was not essentially free because the defendant's will was overborne. (Ibid.)

In this case, the facts surrounding the interview are not disputed because the interview of Defendant was video recorded without lapse or deletion, the recording was transcribed, and the transcription was translated from Spanish into English. We therefore independently review the trial court's determination of voluntariness. (Peoples, supra, 62 Cal.4th at p. 740.) C. Defendant's Statements in the Police Interview Were Made Voluntarily and Freely.

The video recording of the interview shows that it was conducted in an interview room with carpeted floors and furnished with upholstered chairs and a coffee table. Investigator Caballero, who wore civilian clothing, conducted the interview alone. She sat in a relaxed manner in a chair next to Defendant and spoke in a calm and even voice, which she never raised in anger or to intimidate. At the outset, Caballero read Defendant his Miranda rights, and he acknowledged that he understood each one. Caballero neither threatened Defendant nor promised him leniency. He was not handcuffed, appeared comfortable, and was given water. No physical coercion was used. Although Defendant wept several times during the interview, he was for the most part composed, did not appear to be confused, and spoke clearly and coherently. When Defendant did break down and cry, Caballero remained calm, did not take advantage of his condition, and was never overbearing. The interview lasted about 50 minutes, during which time Defendant never asked for the questioning to stop.

Defendant argues the interview was coercive for two reasons. First, Defendant contends Caballero knew he had been arrested while being treated at a hospital for depression and suicidal thoughts, and took advantage of his fragile mental condition. Second, he contends Caballero repeatedly told lies about the state of the evidence, including the existence of DNA evidence showing that he had touched S.R. According to Defendant, the combined force of Caballero's manipulation of his mental state and repeated lies overcame his freewill and coerced him into making inculpatory statements.

In People v. Smith (2007) 40 Cal.4th 483, the defendant contended his statements made during police interviews were involuntary because he had a family history of physical, psychological, and sexual abuse, he had been previously committed to a mental hospital, and he had significant brain damage. The California Supreme Court explained that while a defendant's mental state is relevant to the issue of susceptibility to police coercion, the focus of inquiry is on the coercive nature of police interrogation methods. (Id. at p. 502.) The court concluded, "[t]he record does not convince us that the interrogating officers were aware of, or exploited, defendant's claimed psychological vulnerabilities in order to obtain statements from him. (Ibid.)

Although Caballero knew that Defendant had been arrested while in a hospital mental health ward, our review of the video recording record does not convince us that she exploited his claimed psychological vulnerabilities. The record does not reveal the nature and extent, if any, of Defendant's mental health issues, except that he checked himself into the hospital. Our review of the video recording does not convince us that Defendant was particularly vulnerable when his interview was conducted.

We also conclude that Caballero did not engage in prohibitively coercive ploys and ruses. "Police deception 'does not necessarily invalidate an incriminating statement.'" (People v. Smith, supra, 40 Cal.4th at p. 505.) Rather, "[i]n assessing allegedly coercive police tactics, '[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.'" (Id. at p. 501.)

In People v. Smith, supra, 40 Cal.4th at p. 505, police officers conducted a sham test, which they told the defendant was called the "'Neutron Proton Negligence Intelligence Test'" and would show whether the defendant had recently fired a gun. The officers told the defendant the test results were positive for gunshot residue. (Ibid.) In response, the defendant recanted a portion of his story and told the officers that he and another man were involved in a fatal shooting. (Ibid.) The California Supreme Court rejected the defendant's contention that the officers' use of a sham test was prohibitively coercive and rendered his statements involuntary. (Ibid.) The court cited a list of cases in which, the court noted, interrogation techniques "far more intimidating and deceptive than those employed in this case" were found to be proper. (Ibid.) The techniques noted by the court included an officer falsely telling the suspect his accomplice had been captured and had confessed (Frazier v. Cupp 394 U.S. 731, 739), officers repeatedly lying to the suspect by telling him they had evidence linking him to a homicide (People v. Thompson (1990) 50 Cal.3d 134, 167), officers falsely telling the suspect his fingerprints had been found on the getaway car (People v. Watkins (1970) 6 Cal.App.3d 119, 124-145), and an officer falsely telling the suspect he had been identified by an eyewitness (Amaya-Ruiz v. Stewart (9th Cir. 1997) 121 F.3d 486, 495, overruled on a another ground in United States v. Preston (9th Cir. 2014) 751 F.3d 1008, 1019-1020).

Caballero's ruse of falsely telling Defendant the police had DNA evidence showing that his penis had touched S.R.'s vagina was similar to ruses found not to be coercive. Defendant argues that Caballero's ruse was more coercive than the examples cited in People v. Smith because DNA has the unique ability to "narrow the possible population to one person out of millions or even billions" and "is commonly regarded as infallible." But during the interview, Defendant said he did not know what DNA is. Caballero explained "there's an exam that we can check my hand, and . . . if we have . . . [¶] . . . [¶] . . . our skin in the computer, . . . they can say, '[Defendant] and [Name] [¶] . . . [¶] . . . touched hands.'" Caballero did not tell Defendant that DNA was infallible. Defendant, or another suspect, just as likely would believe that an accomplice's confession, fingerprint evidence, or eyewitness identification is no less reliably inculpatory than DNA.

Moreover, Caballero's ruse was not particularly successful. In People v. Smith, supra, 40 Cal.4th 483, the California Supreme Court noted the fake test was unsuccessful in its goal of eliciting a confession. Although the defendant changed his story, he steadfastly denied firing the gun. (Ibid.) Here, Defendant, when told about the supposed DNA evidence and told "it's the truth," said, "I can't believe it" and continued to deny any wrongdoing. Defendant never confessed to the accusations but claimed that on two occasions S.R. grabbed him over his clothing and once put her mouth on his penis. Although Defendant made inculpatory and damaging statements, they were a far cry from the hoped-for confession of multiple acts of sexual abuse.

When considering the combined effect of Defendant's mental state and Caballero's ploy of confronting Defendant with fake evidence, People v. Thomas (2012) 211 Cal.App.4th 987 (Thomas), is useful and analogous. In that case, the 17-year-old defendant was arrested for murder in the late evening and interrogated by two police detectives starting at 4:24 a.m. the following morning. (Id. at pp. 1009.) The interrogation lasted a little more than four hours. (Ibid.) The detectives knew the defendant's age. (Ibid.) The defendant was read and waived his Miranda rights; he was not handcuffed and was offered food and water during the interrogation. (Id. at pp. 1009, 1011.) Neither detective threatened the defendant or made promises of leniency, and they spoke in a mellow, nonthreatening, and noncoercive tone of voice. (Id. at p. 1009.) The detectives did, however, lie by telling the defendant they already knew what had happened, they knew the answers to their questions, they did not believe him, and cameras along a highway would show the defendant drove the vehicle involved in the crime. (Id. at pp. 1009, 1011.)

The Court of Appeal concluded, after independently reviewing the transcript of the interrogation, that under the totality of those circumstances the defendant's will had not been overborne and his statements were voluntary. (Thomas, supra, 211 Cal.App.3d. at p. 1011.) The detectives' interrogation techniques, though deceptive, were not the proximate cause of the defendant's admissions. (Id. at pp. 1011-1012.)

Caballero likewise read Defendant his Miranda rights, spoke in a mellow, nonthreatening tone, made no physical threats, and never offered leniency. Just as the officer in Thomas knew the defendant was a minor, Caballero knew that Defendant had been arrested at the hospital. Defendant was not handcuffed or restrained, sat in an upholstered chair, and was offered water. Like her counterparts in Thomas, Caballero employed the ruse of referring to evidence that supposedly implicated Defendant and disproved his story. The interview of Defendant was in at least two respects less coercive than that in Thomas, for Defendant's interview started at about 2:30 in the afternoon, not at 4:24 in the morning, and lasted about 50 minutes, not four hours. We also have the video recording of Defendant's interview, and we are convinced by watching it that Defendant made his statement freely and voluntarily and his will was not overborne.

II.

The Trial Court Did Not Err by Admitting Evidence of

Complaints Made by S.C. to Her Mother.

A. Introduction and Background

Defendant argues we should reverse the convictions on counts six through ten (victim S.C.) because the trial court erred by admitting evidence of statements made by S.C. reporting allegations of sexual abuse to her mother. Defendant contends the evidence was inadmissible because the statements were too remote in time from the abuse and, under Evidence Code section 352, the probative value of the evidence was substantially outweighed by the risk its admission would result in prejudice.

At a pretrial hearing, the prosecutor moved under Evidence Code section 402 to admit evidence of statements made by S.R. and S.C. reporting acts of sexual abuse by Defendant. The prosecutor asserted the evidence of the statements, made sometime in 2008, was admissible under the "fresh complaint" doctrine. The prosecutor made the representation that the abuse of S.C. occurred between August 2007 and the end of 2008 or early 2009, and the statements by S.C. were made in 2008. Defendant's counsel objected to admission of evidence of statements made by S.C. The trial court made a tentative ruling allowing evidence of the fact a complaint was made and the circumstance surrounding the complaint, conditioned on the prosecutor laying the appropriate foundation by way of offer of proof.

On direct examination, the prosecutor asked S.C.'s mother, Sh.C., "in 2008 did you have a conversation with S[.C.] regarding any inappropriate behavior happening to her?" Sh.C. answered "yes." The prosecutor asked, "was it something you asked her, or did she tell you?" and Sh.C. answered, "she told me." The prosecutor next asked if Sh.C. recalled what S.C. had told her. Once Sh.C. answered yes, defense counsel interposed a hearsay objection.

The court thereupon conducted a hearing outside of the jury's presence and requested an offer of proof from the prosecutor. In response, the prosecutor stated the alleged sexual abuse of S.C. occurred between August 1, 2007 and 2010 and the disclosure to Sh.C. was made in around July 2008. Outside of the jury's presence, the court took additional testimony from Sh.C. She testified that on two occasions in 2008 she had picked up S.C. from Defendant's home, and sometime thereafter in 2008 S.C. complained to her and said the abuse had been happening for "a few years." Within a day, Sh.C. contacted Riverside County Child Protective Services. Sh.C. testified too that for about a year she had been unaware of the abuse.

The trial court overruled defense counsel's objections. The court found "[t]he offer of proof shows that [Defendant] had access to [S.C.] within a reasonable time prior to [S.C.] making the report to [Sh.C.]" and "there is a sufficient nexus when considering the totality of the circumstances to allow the witness to testify as to . . . the fact [of] that complaint alone within the meaning of the fresh complaint doctrine." The court stated it had considered the testimony under Evidence Code section 352 "as to whether the probative value is substantially outweighed by the prejudicial value."

The jury returned and the prosecutor continued direct examination of Sh.C., who confirmed her testimony about a conversation with S.C. in 2008. The prosecutor asked, "just the gist of that conversation, would it be fair to say that [S.C.] told you regarding some inappropriate touching by [Defendant], . . . that she had been touched inappropriately by him?" Sh.C. answered "yes." At this point, the court gave the jury this instruction: "You are to receive it only for the purpose -- to the extent that you wish to consider it to show that a complaint was made. [¶] You are not to consider it for the truth of anything. [S.C.] may or may not have said it to her mother. [S.C.] is not on the witness stand testifying on this particularly. So I'm only allowing it for the very limited purpose for you to consider as you deem appropriate whether or not such a complaint was actually made."

Sh.C. then testified that after S.C. made the complaint Sh.C contacted social services and spoke with her ex-husband (S.C.'s father). Sh.C. testified that her ex-husband said "he didn't want to discuss it and that he had already handled it." B. The Fresh-Complaint Doctrine

"Historically, under the common law fresh-complaint doctrine, evidence that the alleged victim of a sexual offense disclosed or reported the incident to another person shortly after its occurrence has been held admissible, as part of the prosecution's case-in-chief, in a subsequent criminal prosecution for that offense. In California, the governing decisions have explained that the victim's extrajudicial 'complaint' is admissible for a limited, nonhearsay purpose—namely, simply to establish that such a complaint was made—in order to forestall the trier of fact from inferring erroneously that no complaint was made, and from further concluding, as a result of that mistaken inference, that the victim in fact had not been sexually assaulted. [Citation.]" (People v. Brown (1994) 8 Cal.4th 746, 748-749 (Brown).)

In Brown, supra, 8 Cal.4th at p. 749, the California Supreme Court concluded the fresh-complaint doctrine, as historically defined, was no longer sound, and 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. The court revised the fresh-complaint doctrine to state as follows: "[W]e conclude that, under principles generally applicable to the determination of evidentiary relevance and admissibility, 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.)

Sh.C.'s testimony about S.C. complaints of sexual abuse fall squarely within the Brown court's reformulation of the fresh-complaint doctrine. Sh.C.'s testimony was limited to the fact the complaint was made, no details about the abuse (other than it was inappropriate touching) were given, and the trial court gave an instruction limiting the jury's use of Sh.C.'s testimony to the purposes permitted by Brown.

Defendant acknowledges the trial court observed "certain of those restrictions" imposed by Brown but contends the court erred because the delay between the time of the molestation and the complaint was unreasonable. In arguing unreasonable delay, Defendant relies on People v. Clark (1987) 193 Cal.App.3d 178, which predated Brown by seven years. In Brown, the Supreme Court rejected the proposition that the complaint must be fresh, and reformulated the fresh-complaint doctrine to make the timing of the complaint "not necessarily determinative" of the admissibility of the evidence. (Brown, supra, 8 Cal.4th at p. 750.) "Thus, the admissibility of such evidence does not turn invariably upon whether the victim's complaint was made immediately following the alleged assault or was preceded by some delay, nor upon whether the complaint was volunteered spontaneously by the victim or instead was prompted by some inquiry or questioning from another person." (Id. at p. 763.)

Moreover, there was no unreasonable delay between the time S.C. suffered abuse and the time she reported the abuse to Sh.C. The evidence showed that Defendant abused S.C. and S.R. sometime in 2008, and S.C. complained to Sh.C. in July 2008. C. Evidence Code Section 352

Defendant contends that Sh.C.'s testimony about S.C.'s complaints of inappropriate touching was inadmissible under Evidence Code section 352 because the probative value of the evidence was outweighed by the probability that its admission would "create substantial danger of undue prejudice." (Evid. Code, § 352.) A trial court's decision under section 352 is discretionary, and we find no abuse of discretion.

Evidence of S.C.'s complaints about inappropriate touching were highly probative of whether the abuse did or did not occur. In Brown, supra, 8 Cal.4th 946, the California Supreme Court explained: "In sexual as well as nonsexual offense cases, evidence of the fact and circumstances of a victim's complaint may be relevant for a variety of nonhearsay purposes, regardless whether the complaint is prompt or delayed. To begin with, if such a victim did, in fact, make a complaint promptly after the alleged incident, the circumstances under which the complaint was made may aid the jury in determining whether the alleged offense occurred. Furthermore, admission of evidence that such a prompt complaint was made also will eliminate the risk that the jury, if not apprised of that fact, erroneously will infer that no such prompt complaint was made. Although, as we have seen, recent studies demonstrate that the absence of such a prompt complaint is not a reliable indicator that a sexual offense has not occurred, misconceptions relating to a victim's reactions to sexual assault still remain quite prevalent, as recognized by the recent out-of-state cases . . . , and thus it would be unreasonable to assume that all jurors are aware of, or fully accept, such findings. [Citations.] Consequently, in the event the jury is permitted to infer erroneously that a prompt complaint was not made, when in fact one had been made, the jury might be inclined, in reliance upon that misconception, to draw the unwarranted conclusion that the alleged offense did not occur. Thus, if a complaint promptly was made, admission of evidence of the complaint is appropriate in order to avoid the risk that the jury will reach an improper conclusion on the basis of a factually erroneous inference to the contrary." (Id. at p. 761.)

Defendant argues the evidence was not probative and was unduly prejudicial because no action was taken until nearly two years after the complaint was made, indicating that nobody in authority took S.C.'s complaints seriously. Evidence of S.C.'s complaint is relevant to show that S.C. reported the abuse so that the trier of fact would not infer a complaint was not made and, based on that inference, draw the conclusion the alleged abuse did not occur. (Brown, supra, 8 Cal.4th at p. 761.) Here, the listener (Sh.C.) took the complaint seriously and acted on it by contacting Riverside County Child Protective Services and telling her ex-husband. The record does not disclose what happened after Sh.C. made her report or why a CAST interview of S.C. was not conducted until nearly two years later.

Defendant also contends the evidence was unduly prejudicial because this case was "a classic 'he said, she said' situation" and the jury might find it difficult not to view the complaint evidence as proving the truth of the charges of sexual abuse. Sh.C.'s testimony was as barebones as possible, sparse on detail, and revealed only that S.C. had complained to Sh.C. that Defendant inappropriately touched her. The trial court gave a limiting instruction, the scope and correctness of which Defendant does not challenge, and which we assume the jury understood and followed. (People v. Gonzales (2011) 51 Cal.4th 894, 940.) Given these circumstances, we have no hesitation in concluding the probative value of the evidence of complaints made by S.C. would not and did not "create substantial danger of undue prejudice." (Evid. Code, § 352.)

DISPOSITION

The judgment is affirmed.

FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.


Summaries of

People v. Guzman

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jul 24, 2017
No. G052989 (Cal. Ct. App. Jul. 24, 2017)
Case details for

People v. Guzman

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MANUEL GUSTAVO HERNANDEZ GUZMAN…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jul 24, 2017

Citations

No. G052989 (Cal. Ct. App. Jul. 24, 2017)