California Court of Appeal Feb 23, 2015 No. E057642Unpublished
Filed 2/23/15 P. v. Zambrano CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057642
v. (Super.Ct.No. FVA1201068)
JUAN PABLO ZAMBRANO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore,
Judge. Affirmed.
Jamie Popper, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Andrew
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
1
In this case, defendant Juan Pablo Zambrano was charged with sexually molesting
Jane Doe on two separate occasions. A jury found defendant guilty of two counts of
having sexual intercourse with a child who was 10 years of age or younger (Pen. Code,1
§ 288.7, subd. (a), counts 1, 3), and two counts of committing a lewd or lascivious act on
a child who was under the age of 14 years (§ 288, subd. (a), counts 2, 4). The trial court
sentenced defendant to 25 years to life on count 1 and 25 years to life on count 3 to run
concurrently with the sentence on count 1. It further sentenced defendant to the upper
term of eight years each for counts 2 and 4, but stayed imposition of those sentences
pursuant to section 654.
On appeal, defendant challenges the sufficiency of the evidence to support the
convictions on counts 1 through 3, contending (1) the testimony did not establish the
element of penetration with a penis, and (2) Jane Doe’s testimony about the first alleged
incident was not reasonable, credible, and of solid value. Defendant also argues the trial
court committed instructional error by instructing the jury that Jane Doe’s testimony was
sufficient to prove the charged counts, which relieved the People of its burden of proving
the elements of the alleged crimes beyond a reasonable doubt. Finally, defendant
contends the trial court erred by admitting into evidence a hearsay interview from Jane
Doe in violation of his right to confront witnesses under the Sixth Amendment to the
United States Constitution. We find no error and, therefore, we affirm the judgment.
1 Unless otherwise indicated, all additional undesignated statutory references are to the Penal Code.
2
I.
FACTS
A. Prosecution Evidence
Jane Doe’s sister testified that on December 9, 2011, she lived in Fontana with her
mother, defendant (her mother’s boyfriend and Jane Doe’s biological father), and three
other siblings. The sister testified that her mother and defendant slept on a bed in the
garage, and that the door connecting the garage to the main house had no lock on it and
was normally left open. The sister went into the garage to wash some laundry but found
that the door to the garage was closed and would not open. After pushing hard on the
door, she was able to open it.
When the sister entered the garage, she turned on the lights and saw Jane Doe
sitting on the bed facing the door with her underwear and tights pulled down to her knees.
She also saw defendant standing next to the bed facing Jane Doe, with his boxer shorts
and pants pulled down to his knees. Defendant immediately sat down on the bed.
Defendant’s back was to the sister when she walked in, and she did not see his genitalia.
Defendant was unable to pull his pants up before the sister entered the garage, so he
covered himself with his hands and his shirt. Jane Doe tried to pull up her tights, and
then she ran to her sister. The sister started screaming for her older brother to come to
the garage, but he was not home at the time. She then called 911. After the police
arrived, the sister spoke to Jane Doe about what had happened. Jane Doe told her sister
that defendant took her to the garage. The sister did not see defendant touching Jane
Doe.
3
Jane Doe, who was seven years old at the time of the trial, was called to the stand
to testify. Jane Doe testified that she understood the difference between the truth and a
lie, that she understood it is bad to lie, and she promised to truthfully answer the
questions posed to her. Jane Doe did not remember the day the police came to her home,
and she did not remember speaking to the police. Jane Doe testified that the defendant no
longer lived with her “[b]ecause he was bad.” When asked how defendant was bad, Jane
Doe testified that defendant hit her in the arm and fought with her mother. She
remembered going to the hospital for an examination and speaking to a nurse, but she
did not remember speaking to someone the next day about what defendant did to her.
Jane Doe testified that she was scared about being in court and was worried about
getting into trouble. Jane Doe did not remember being in the garage with her father or
him pulling down her. Jane Doe testified that she calls her private parts a “cola,” and that
she calls a boy’s private parts “balls” or a “weenie.” She remembered the nurse
examining her “cola” at the hospital, but she did not remember speaking to a man about
it. Jane Doe testified that she was afraid to testify about her “cola” in front of so many
people, and that she was afraid of being in court because defendant would get mad at her.
When asked, “Is that why you don’t remember some of the answers to the questions I’m
asking you?” she replied, “U-huh. Yes.”
4
Officer Hale of the Fontana Police Department responded to a report of possible
child molestation and detained defendant inside the garage. Hale testified that Jane Doe
appeared to be nervous, scared, and confused when he spoke to her. Jane Doe told the
officer that defendant asked her to go into the garage to watch television, but when they
entered the garage defendant closed the door and turned off the lights. She told the
officer that defendant pulled down his pants, got onto the bed and pulled down her
underpants, and then “placed his private into her private.” When Officer Hale asked Jane
Doe where her private was, she pointed to her groin area, and when asked where
defendant’s private was, she again pointed to her groin area. Jane Doe told the officer
that defendant had never before “been nasty to her.” She did not tell Hale that she saw
defendant’s penis.
Mirella DelDegan, a sexual assault nurse examiner, testified that she examined
Jane Doe when she was transported to the hospital. When DelDegan asked what
happened, Jane Doe “said she didn’t want to talk about it.” During the physical
examination, DelDegan noticed a very small tear to the fossa navicularis of Jane Doe’s
genital area. DelDegan could not determine how Jane Doe received the tear, stating it
was “a non-specific finding” and that the tear “could be caused by trauma from a sexual
assault” or “by a number of other things.” DelDegan found no other injuries. She
described the results of the examination to be normal, which occurs in approximately
75 to 80 percent of child sexual abuse examinations. She explained that a child victim of
sexual assault may present no physical injury because often the perpetrator will penetrate
or rub his penis in the labia majora of the child’s genitals without actually penetrating the
5
vagina. In such instances, “[t]he child thinks—feels like it’s going inside because that’s
all they know, so a lot of times they will say—they will describe it as he put something
inside me when they’re actually describing that interlabial penetration.”
Officer Coyle, a detective assigned to the Fontana Police Department’s Sex
Crimes and Crimes Against Children Unit, testified that she observed an interview of
Jane Doe conducted on December 29, 2011, by a forensic interview specialist. The
prosecutor then played a video of the interview, a transcript of which the trial court
admitted into evidence. During the interview, Jane Doe said that defendant told her “let’s
go to the garage,” and that he “pulled down [her] pants.” When asked what defendant did
next, Jane Doe said, “He put his private inside me.” Jane Doe said she was about to
“kick him,” but her sister “stopped him” and saw him pull up his pants. Jane Doe also
said that her sister called the police, and she had to talk to the police and go to the
emergency room to be checked out. When asked if Jane Doe’s father put his private
inside her only one time, Jane Doe said he did it twice.
Jane Doe said the first time her father put his private inside her, “he did it to my
mom and then he did it to me.” Jane Doe said that while she was sleeping with her
mother and father, he got “on top of her [mother], my mom [got] on top of him,” and they
“start[ed] kissing” and “[did] a lot of things.” Her mother then told defendant, “stop it,”
and “then he did it to me” while her mother was asleep. Jane Doe said that defendant
pulled down her pants, “pulled my legs up,” “then he stuck his private inside mine.”
When asked where defendant put his private, Jane Doe said he put it “[i]nside my cola.”
Jane Doe said that her friends use other names for their “cola,” such as “wee-wee,” but
6
her mother calls it “cola.” She said that her father did nothing to her “butt” or to her
“boobs,” and that he did not put his private in any other part of her body. When asked
how her “cola” felt after defendant put his private inside her, Jane Doe said she could not
remember, but it did not hurt. Jane Doe said her mother did not hear or see anything
because she was sleeping.
Jane Doe said the second time defendant put his private inside her was on the bed
in the garage. Defendant asked Jane Doe in a whisper to go with him to the garage, but
she said “no” because she was playing with her new toy. He then carried Jane Doe to the
garage. Jane Doe said defendant closed the door to the garage and she lay down on the
bed to watch television. Defendant then turned off the lights in the garage. When asked
if defendant’s private was hard or soft when he put it inside her “cola,” Jane Doe testified
it was soft and that nothing came out of it. Jane Doe said she did not see defendant’s
private, but she knew defendant put his private inside her because she felt it. When asked
if defendant’s private did anything or moved while it was inside her, Jane Doe answered,
“No.” Defendant told Jane Doe not to tell anyone about what he did or he would get mad
at her. Jane Doe said she felt terrible about what happened to her. When asked if she
told her mother about what happened, Jane Doe said she told her mother that defendant
“was doing nasty stuff to me.” When asked to mark on a diagram where her “cola” was
located, Jane Doe drew an “X” on the groin area where a vagina would be. On another
diagram, Jane Doe drew an “X” on the groin area where a penis would be when asked to
show where defendant’s “private is” located. She said that defendant did not put
anything else inside her “cola” during either incident.
7
Officer Coyle spoke to Jane Doe at the district attorney’s office the day after Jane
Doe testified. Coyle played portions of the video of Jane Doe’s interview, and Jane Doe
remembered being interviewed. Jane Doe told Coyle that she was truthful during the
interview. When Coyle asked why she was unable to relate what happened to her while
on the stand testifying, Jane Doe said she was afraid of getting into trouble, and she was
afraid defendant would hit her.
B. Defense Evidence
Cari Caruso, a registered nurse and sexual assault nurse examiner, testified that
she reviewed the medical reports and photographs taken of Jane Doe and the report
prepared by DelDegan of the results of her examination of Jane Doe. In the photographs
she reviewed, Caruso did not see the small superficial tear to the fossa navicularis
reported by DelDegan, but she noticed some moisture. Caruso made no abnormal
findings regarding Jane Doe’s inner thighs or her genitals. Caruso agreed with
DelDegan’s “non-specific” findings, noting that, in her review of the photographs, she
observed “hygiene issues,” which may cause tissue breakdown, irritation, inflammation,
and sometimes infection to the genitals. Caruso testified that finding a small or
superficial abrasion on a child’s genitals does not automatically result in a diagnosis of
sexual abuse, and that a “non-specific” finding means the injury could have resulted from
sexual abuse or from something else. Finally, Caruso testified that nothing in
DelDegan’s report confirmed with certainty that there was sexual contact or penetration.
8
On cross-examination, Caruso testified that she did not perform a physical
examination of Jane Doe. She testified that even if she had seen a tear in the fossa
navicularis, she would not be able to say whether or not it was the result of a sexual
assault. Finally, Caruso testified that interlabial penetration by a penis might cause an
abrasion as it stretches the tissue, but it might cause no injury at all.
Jane Doe’s mother testified that defendant sometimes stayed overnight at her
home, and that they slept together on a bed in the garage. She testified that Jane Doe
never slept with her and defendant in the same bed, and she never saw defendant touch
Jane Doe in a sexually inappropriate manner. She also testified that she never had sexual
intercourse with defendant in front of Jane Doe.
C. Verdicts and Sentences
A jury found defendant guilty on both counts of having sexual intercourse with a
child who was 10 years of age or younger (§ 288.7, subd. (a), counts 1, 3), and on both
counts of committing a lewd or lascivious act on a child who was under the age of 14
years (§ 288, subd. (a), counts 2, 4). The trial court sentenced defendant to 25 years to
life on count 1 and 25 years to life on count 3 to run concurrently with the sentence on
count 1. It further sentenced defendant to the upper term of eight years each for counts 2
and 4, but stayed imposition of those sentences pursuant to section 654.
Defendant timely appealed.
9
II.
DISCUSSION
A. The Record Contains Substantial Evidence to Support the Jury’s Verdicts
Defendant contends the record contains insufficient evidence to support his
convictions on counts 1 and 3 because the People did not establish beyond a reasonable
doubt that he penetrated Jane Doe’s vagina with his penis, and that the evidence to
support his conviction under counts 1 and 2 is insufficient because Jane Doe’s testimony
about the first alleged incident was vague and contradictory. We disagree.
“‘To determine whether sufficient evidence supports a jury verdict, a reviewing
court reviews 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 jury could find the defendant guilty beyond a reasonable doubt.’ [Citation.]”
(People v. Smith (2014) 60 Cal.4th 603, 617.) “We determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]
In so doing, a reviewing court ‘presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v.
Edwards (2013) 57 Cal.4th 658, 715.)
“‘If the circumstances reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances might also reasonably be
reconciled with a contrary finding. [Citation.]’” (People v. Livingston (2012) 53 Cal.4th
1145, 1170.) “‘Conflicts and even testimony which is subject to justifiable suspicion do
10
not justify the reversal of a judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the facts upon
which a determination depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence.’ [Citation.]” (People v. Lee
(2011) 51 Cal.4th 620, 632.) “[U]nless the testimony is physically impossible or
inherently improbable, testimony of a single witness is sufficient to support a conviction.
[Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) Finally, “a jury is entitled
to reject some portions of a witness’ testimony while accepting others. [Citation.]” 2
(People v. Allen (1985) 165 Cal.App.3d 616, 623.)
Section 288.7, subdivision (a), provides: “Any person 18 years of age or older
who engages in sexual intercourse or sodomy with a child who is 10 years of age or
younger is guilty of a felony and shall be punished by imprisonment in the state prison
for a term of 25 years to life.” As used in rape and other sex crimes statutes, “‘sexual
intercourse’ has a common meaning . . . and that the term can only refer to vaginal
penetration or intercourse. [Citations.]” (People v. Stitely (2005) 35 Cal.4th 514, 554.)
The trial court in this case properly instructed the jury with CALCRIM No. 1127 that
“sexual intercourse” in violation of section 288.7, subdivision (a), requires vaginal
penetration.
2 The trial court instructed the jury with CALCRIM No. 226, which provides in relevant part, “You may believe all, part, or none of any witness’s testimony.” (Italics added.)
11
For purposes of unlawful “sexual intercourse,” the prosecution need not prove that
the defendant fully penetrated the victim’s vagina with his penis. Slight penetration,
including penetration of the labia majora without further penetration into the vagina,
satisfies the element of sexual intercourse for sex crimes. (People v. Dunn (2012) 205
Cal.App.4th 1086, 1097 (Dunn) [“The conviction on count 1 required proof that [the
defendant] had ‘sexual intercourse’ with Minor (§ 288.7, subd. (a)), which required
penetration of her labia majora, not her vagina”]; People v. Quintana (2001) 89
Cal.App.4th 1362, 1366-1371 [evidence that the defendant penetrated the victim’s labia
majora with his finger was sufficient to prove sexual penetration with a foreign object in
violation of § 289, subd. (j)]; People v. Karsai (1982) 131 Cal.App.3d 224, 232-233,
disapproved on another ground in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8
[evidence that the defendant pushed his penis into the victim’s labia majora was
sufficient to prove rape by force or violence in violation of former § 261, subds. (2), (3)].)
Again, the trial court in this case properly instructed the jury with CALCRIM No. 1127
that “[s]exual intercourse means any penetration, no matter how slight, of the vagina or
genitalia by the penis.”
During the forensic interview, Jane Doe told the interviewer that defendant put his
“private” inside her on two different occasions. Jane Doe said that the first time he did it,
she was sleeping with her mother and defendant on the bed in the garage. She described
her mother and father engaging in sexual intercourse on the bed next to her, and then
said, “he did it to my mom and then he did it to me.” While her mother slept, defendant
pulled down her pants, pulled her legs up, and “then he stuck his private inside mine.”
12
Jane Doe described her private as her “cola,” and she accurately identified on anatomical
charts where her genitals are located and where defendant’s penis would be. Jane Doe
could not remember how it felt when defendant stuck his penis inside her “cola,” but she
said it did not hurt. During the second incident, she said defendant carried her to the
garage, closed the door, and turned off the lights. Defendant then pulled down her pants,
and “[h]e put his private inside me.” Jane Doe said defendant’s private was soft when he
put it inside her “cola,” and that nothing came out of it. Although Jane Doe said she did
not see defendant’s private, she knew that defendant put his private inside her because
she “felt his weenie inside.”
As defendant points out in his brief, Jane Doe’s statements during the interview
were somewhat contradictory and inconsistent. For instance, when the interviewer asked
Jane Doe if anything happened to her, she unhesitatingly talked about the second incident
in the garage when her sister walked in. When asked about the first incident, Jane Doe
said, “I always forget that one. I have to remember.” However, she proceeded to tell the
interviewer “it was with my mom and then he did it to me.” Likewise, Jane Doe said she
knew defendant placed his private inside her during the second incident because she “felt
it,” but she could not remember if she felt it the second time. Notwithstanding these and
other conflicts in Jane Doe’s statement, she consistently said that defendant placed his
penis inside her vagina. She may not have seen it, but she expressly said she felt it inside
her the second time, and she said defendant put nothing else inside her on either occasion.
13
Moreover, the medical testimony did not contradict Jane Doe’s statement.
DelDegan testified that she found a small tear on the fossa navicularis of Jane Doe’s
genitals. Although DelDegan could not definitively say the tear was caused by sexual
abuse, she testified that 75 to 80 percent of child sexual abuse victims have normal
findings when examined, and that penetration of a female child’s labia majora by a
perpetrator’s penis will not necessarily cause injury. DelDegan also testified that a
female child may report feeling the perpetrator’s penis inside her when there is interlabial
penetration but no penetration into the vagina. Although Caruso testified that she did not
observe the tear to Jane Doe’s fossa navicularis, she did not physically examine Jane Doe
and only reviewed medical reports and photographs. Caruso’s testimony was consistent
with DelDegan, in that Caruso agreed with DelDegan’s “non-specific” finding that a tear
would not have necessarily been caused by sexual abuse, and that interlabial penetration
would not necessarily cause injury.
Based on the foregoing evidence, a reasonable jury could conclude beyond a
reasonable doubt that defendant put his penis inside Jane Doe during both incidents. The
conflicts in Jane Doe’s statement were resolved by the jury, and we may not reweigh the
evidence or second-guess the jury’s credibility determinations. While the evidence did
not establish full vaginal penetration, the evidence of interlabial penetration was
substantial and sufficient to establish both counts of sexual intercourse with a child
10 years old or younger in violation of section 288.7, subdivision (a). (Dunn, supra, 205
Cal.App.4th at p. 1097.) In addition, the record contains substantial evidence to establish
both counts of lewd and lascivious conduct in violation of section 288, subdivision (a).
14
B. The Trial Court Did Not Err by Instructing the Jury with a Modified
CALCRIM No. 1190
The trial court properly instructed the jury with CALCRIM No. 301 that “[t]he
testimony of only one witness can prove any fact. Before you conclude that the
testimony of one witness proves a fact, you should carefully review all the evidence.”
The trial court also instructed the jury with a modified CALCRIM No. 1190 that
“[c]onviction of any charged or lesser crime in this case may be based on the testimony
of a complaining witness alone.” Defendant argues that, because the trial court inserted
the words “in this case” into CALCRIM No. 1190, a reasonable juror might have
understood the instruction “to inform him or her that Jane Doe’s testimony in fact was
substantial evidence to convict appellant.” Consequently, defendant argues the
instruction relieved the prosecution of its burden of proving every element of the crimes
charged beyond a reasonable doubt, and it violated his federal and state constitutional
rights. We disagree.
“A claim of instructional error is reviewed de novo.” (People v. Ghebretensae
(2013) 222 Cal.App.4th 741, 759, citing People v. Guiuan (1998) 18 Cal.4th 558, 569-
570.) “When an appellate court addresses a claim of jury misinstruction, it must assess
the instructions as a whole, viewing the challenged instruction in context with other
instructions, in order to determine if there was a reasonable likelihood the jury applied
the challenged instruction in an impermissible manner. [Citations.]” (People v. Wilson
(2008) 44 Cal.4th 758, 803-804.)
15
Defendant wisely does not dispute the validity of CALCRIM No. 1190 in general.
Previously, CALJIC No. 10.60 provided that “[i]t is not essential to a finding of guilt on a
charge of [rape] [unlawful sexual intercourse] [(sexual activity)] that the testimony of the
witness with whom sexual relations is alleged to have been committed be corroborated by
other evidence.” The California Supreme Court held that such an instruction “correctly
stat[es] the law.” (People v. Gammage (1992) 2 Cal.4th 693, 700; see also Evid. Code,
§ 411.)
As the People argue, defendant interposed no objection to any of the jury
instructions, so arguably he forfeited his challenge on appeal. But even assuming
defendant did not forfeit his challenge, defendant is wrong. Fairly read, no reasonable
juror would interpret the instruction in the manner suggested by defendant. In its
unmodified state, CALCRIM No. 1190 states in its entirety: “Conviction of a sexual
assault crime may be based on the testimony of a complaining witness alone.” The sole
modification in defendant’s trial was that the trial court substituted the language “a sexual
assault crime” with “any charged or lesser crime in this case.” The words “in this case”
clearly referred to the words which immediately preceded it—“any charged or lesser
crime.” Neither logic nor grammar supports the suggestion that “in this case” referred to
“the testimony of a complaining witness,” such that the emphasis of the instruction was
on the strength or conclusiveness of Jane Doe’s statement. Properly read in conjunction
with CALCRIM No. 301, the instruction meant, at most: Conviction of any charged or
lesser crime alleged in the first amended information may be based on the testimony of a
16
complaining witness alone, if you believe the complaining witness. It did not direct the
jury to conclude that Jane Doe’s statement was, in fact, believable.
Moreover, “[a] single instruction is not viewed in isolation, and the ultimate
decision on whether a specific jury instruction is correct and adequate is determined by
consideration of the entire instructions given to the jury. [Citation.]” (People v. Lucas
(2014) 60 Cal.4th 153, 287.) The trial court correctly instructed the jury with CALCRIM
No. 200 that “[y]ou must decide what the facts are,” and that “[i]t is up to all of you, and
you alone to decide what happened.” That same instruction properly informed the jury to
consider the instructions together as a whole. At the start of the trial and again after the
close of evidence, the trial court correctly instructed the jury with CALCRIM No. 226
that “[y]ou alone, must judge the credibility or believability of the witnesses.” After the
close of evidence, the court accurately instructed the jury on what factors they should
consider when determining credibility and believability. Finally, the court accurately
instructed the jury with CALCRIM No. 330 on how it should decide whether the
testimony of a child who is 10 years old or younger was truthful and accurate, and
correctly instructed the jury with CALCRIM No. 318 that, if it believed Jane Doe’s out-
of-court statements, it could use those statements in evaluating the believability of her in-
court testimony.
Read as a whole, the instructions made it clear to the jury that they, and not the
trial court, were the sole deciders of whether Jane Doe’s statements were believable and
sufficient to sustain a conviction beyond a reasonable doubt. We must presume the jury
understood and properly applied the instructions. (People v. Myles (2012) 53 Cal.4th
17
1181, 1212.) Therefore, we conclude the trial court did not err by instructing the jury
with the modified CALCRIM No. 1190.
C. Admission of Jane Doe’s Hearsay Statements Did Not Violate Defendant’s
Right to Confront Witnesses
Defendant contends the trial court abused its discretion by admitting into evidence
the video and transcript of Jane Doe’s interview. He argues: (1) Jane Doe’s statements
about the alleged sexual abuse constituted testimonial hearsay for purposes of the Sixth
Amendment confrontation clause; (2) Jane Doe’s testimonial hearsay was only
admissible if she was subject to cross-examination; and (3) although Jane Doe was sworn
and testified, she had no recollection of the alleged sexual abuse and was so young and
scared as to render her completely unavailable for cross-examination. The People
concede that Jane Doe’s statement during the interview was “arguably testimonial”
hearsay for purposes of the confrontation clause, but contend admission of Jane Doe’s
hearsay statements did not violate defendant’s Sixth Amendment rights because Jane Doe
actually testified in court and was available for cross-examination. We agree with the
People.
Over defendant’s objection, the trial court admitted the video and transcript of
Jane Doe’s interview into evidence pursuant to Evidence Code section 1360. “Section
1360 creates a limited exception to the hearsay rule in criminal prosecutions for a child’s
statements describing acts of child abuse or neglect, including statements describing
sexual abuse. [Citations.] Section 1360 safeguards the reliability of a child’s hearsay
statements by requiring that: (1) the court find, in a hearing conducted outside the
18
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.]” (People v. Roberto V. (2001)
93 Cal.App.4th 1350, 1367, fn. omitted.) The parties appear to be in agreement that the
federal constitution imposes an additional requirement to Evidence Code section 1360
that the child victim be subject to cross-examination while testifying in court or, if the
child is unavailable to testify, that the defendant had a prior opportunity to cross-examine
the child.
“[T]he Sixth Amendment to the federal Constitution gives a criminal defendant
the right to confront and cross-examine adverse witnesses. In Ohio v. Roberts (1980) 448
U.S. 56, 66 [65 L.Ed.2d 597, 100 S.Ct. 2531], the United States Supreme Court construed
that right as allowing the admission at trial of an out-of-court statement if it fell within a
‘firmly rooted hearsay exception’ or had ‘particularized guarantees of trustworthiness.’
The high court overruled that decision 24 years later, in Crawford v. Washington (2004)
541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354] (Crawford). There, the court created a
general rule that the prosecution may not rely on ‘testimonial’ out-of-court statements
unless the witness is unavailable to testify and the defendant had a prior opportunity for
cross-examination. (Id. at p. 59.)” (People v. Lopez (2012) 55 Cal.4th 569, 576.)
19
Jane Doe did, in fact, testify at trial, which would ordinarily foreclose a
confrontation clause challenge to the admission of testimonial hearsay. “[W]hen the
declarant appears for cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.” (Crawford, supra, 541
U.S. at p. 59, fn. 9, citing California v. Green (1970) 399 U.S. 149, 162 (Green); see also
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 413.) However, defendant
contends Jane Doe testified that she was unable to remember the alleged incidents of
sexual abuse and, because she was unable to testify about the acts which formed the
alleged crimes, defendant did not have a fair opportunity to cross-examine her and test
her credibility.
In Green, the high court held that admission at trial of a witness’s prior
inconsistent statements did not violate the defendant’s confrontation clause rights because
the witness actually testified and was subject to cross-examination about his out-of-court
statements. (Green, supra, 399 U.S. at pp. 164, 168.) The court identified the purposes
of confrontation as: “(1) insur[ing] that the witness will give his statements under oath—
thus impressing him with the seriousness of the matter and guarding against the lie by the
possibility of a penalty for perjury; (2) forc[ing] the witness to submit to cross-
examination, the ‘greatest legal engine ever invented for the discovery of truth’; [and]
(3) permit[ing] the jury that is to decide the defendant’s fate to observe the demeanor of
the witness in making his statement, thus aiding the jury in assessing his credibility.”
(Id. at p. 158, fn. omitted.) The court noted that “a narrow question lurking” in the case
was whether the witness’s “apparent lapse of memory so affected [the defendant’s] right
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to cross-examine as to make a critical difference in the application of the Confrontation
Clause,” but the majority concluded the issue was not yet ripe for decision. (Id. at
pp. 168-169.)
In his concurring opinion in Green, Justice Harlan addressed that lurking question.
“The fact that the witness, though physically available, cannot recall either the underlying
events that are the subject of an extra-judicial statement or previous testimony or
recollect the circumstances under which the statement was given, does not have Sixth
Amendment consequence. The prosecution has no less fulfilled its obligation simply
because a witness has a lapse of memory. The witness is, in my view, available. To the
extent that the witness is, in a practical sense, unavailable for cross-examination on the
relevant facts, . . . I think confrontation is nonetheless satisfied.” (Green, supra, 399 U.S.
at pp. 188-189, fn. omitted (conc. opn. of Harlan, J.).)
In United States v. Owens (1988) 484 U.S. 554 (Owens), the United States
Supreme Court squarely addressed the question left unanswered in Green, “whether . . .
the Confrontation Clause of the Sixth Amendment . . . bars testimony concerning a prior,
out-of-court identification when the identifying witness is unable, because of memory
loss, to explain the basis for the identification.” (Owens, at pp. 555-556.) The court
agreed with Justice Harlan’s concurrence in Green, explaining: “‘[T]he Confrontation
Clause guarantees only “an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent, the defense might
wish.”’ [Citations.]” (Owens, at p. 559.) “It is sufficient,” the court continued, “that the
defendant has the opportunity to bring out such matters as the witness’ bias, his lack of
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care and attentiveness, his poor eyesight, and even (what is often a prime objective of
cross-examination, [citation]) the very fact that he has a bad memory.” (Ibid.) Although
the “weapons available to impugn the witness’ statement when memory loss is asserted
will of course not always achieve success,” the court concluded that “successful cross-
examination is not the constitutional guarantee.” (Id. at p. 560.) “Ordinarily a witness is
regarded as ‘subject to cross-examination’ when he is placed on the stand, under oath,
and responds willingly to questions.” (Id. at p. 561.) Notwithstanding Crawford’s
“dramatic departure from prior confrontation clause case law” (People v. Harris (2013)
57 Cal.4th 804, 840), our Supreme Court has held that “[n]othing in Crawford casts
doubt on the continuing vitality of Owens.” (People v. Cowan (2010) 50 Cal.4th 401,
468.)
Here, Jane Doe testified that she did not remember the alleged incidents of sexual
abuse or talking to the police about them. When asked, “Do you remember a day when
police officers came to your house?” Jane Doe answered, “No.” Jane Doe testified that
defendant no longer lived in her house “because he was bad,” explaining that he hit her.
When asked if defendant had “done anything else bad to you that you can remember?”
Jane Doe replied, “No.” Jane Doe could not remember talking to the police about
defendant, but did remember going to the hospital for an examination. When asked if she
remembered “a day when you were in the garage with your dad?” Jane Doe responded,
“Probably no.” Jane Doe answered the prosecutor’s general questions about whether
there was a bed inside the garage to her home, where defendant slept, whether her sister
would do laundry in the garage, and if she had done anything in the garage other than
22
help her sister do laundry. She could not remember being interviewed “about you and
your dad.”
Jane Doe testified that she was “[a] little” scared about being in court, and that she
was worried about getting into trouble. When asked if she was “telling the truth when I
asked you if you ever spoke to police officers?” Jane Doe answered, “Yes.” The
prosecutor asked her again if she remembered speaking with police officers, and Jane
Doe again answered, “No.” When asked if she remembered “a time when you were in
the garage with your dad and he took your pants down?” she replied, “No.” She also
answered, “no” when asked if she remembered “talking to officers about a time when
something happened to you in your mom and dad’s bed while your mom was asleep?”
Jane Doe remembered talking to a nurse and that the nurse examined her “cola,” but she
did not remember talking to a man about her “cola.” Jane Doe testified she was afraid
defendant would get mad at her for testifying in court, and that was why she did not
“remember some of the answers to the questions” posed to her by the prosecutor.
During cross-examination, defense counsel asked Jane Doe general questions
about whether she watched television in the garage, about her siblings and the people
who live in her house, about what she studied in school, and whether she understood the
difference between the truth and a lie. Defense counsel asked Jane Doe if defendant
yelled at her, and if she felt sad when defendant fought with her mother. Counsel did not
ask Jane Doe any questions about what she said during her interview.
23
Based on Jane Doe’s inability to remember the alleged acts of sexual abuse or to
remember that she spoke to police officers about it, defendant contends Jane Doe was for
all intents and purposes unavailable as a witness and he had no meaningful opportunity to
cross-examine her. The defendant in People v. Perez (2000) 82 Cal.App.4th 760 (Perez)
made a similar argument. There, a witness “repeatedly answered ‘I don’t remember’ or ‘I
don’t recall’ to virtually all the questions asked [of] her about what she saw the night of
[a] murder and what she told the police.” (Id. at p. 763.) A police officer testified that
the witness told him she was afraid she would be shot if she testified, and the witness’s
prior statements to the police were admitted into evidence. (Ibid.) On appeal, the
defendant argued admission of the hearsay statements violated his right to confront
witnesses because her inability to remember what happened meant he “‘had no effective
means of cross-examining the witness.’” (Id. at p. 765.)
The Court of Appeal noted that the defendant’s “argument erroneously equates
confrontation with a cross-examination which is effective from a defense point of view,”
and “is not what the constitutional right to confront witnesses requires.” (Perez, supra,
82 Cal.App.4th at p. 765.) After discussing Green and Owens, the Court of Appeal found
no constitutional violation. “The witness . . . was not absent from the trial. She testified
at length at trial and was subjected to lengthy cross-examination. The jury had the
opportunity to observe her demeanor, and the defense cross-examined her about bias.
Even though she professed total inability to recall the crime or her statements to police,
and this narrowed the practical scope of cross-examination, her presence at trial as a
testifying witness gave the jury the opportunity to assess her demeanor and whether any
24
credibility should be given to her testimony or her prior statements. This was all the
constitutional right to confrontation required. [Citations.]” (Perez, at pp. 766-767,
fn. omitted.)
As in Perez, Jane Doe testified in open court and was subject to direct and cross-
examination. Although her inability to recall the alleged acts of sexual abuse or to recall
speaking to the police about the acts limited the value of cross-examination, defendant
was not limited in what he could ask Jane Doe, and he could have used the opportunity to
sow doubt about her credibility as a witness and about the credibility of her hearsay
statements.
Defendant relies on United States v. Spotted War Bonnet (8th Cir. 1991) 933 F.2d
1471, which stated: “To be sure, simply putting a child on the stand, regardless of her
mental maturity, is not sufficient to eliminate all Confrontation Clause concerns. If, for
example, a child is so young that she cannot be cross-examined at all, or if she is ‘simply
too young and too frightened to be subjected to a thorough direct or cross-examination[,]’
[citation], the fact that she is physically present in the courtroom should not, in and of
itself, satisfy the demands of the Clause.” (Id. at p. 1474.) That quote is dicta (see
Cookson v. Schwartz (7th Cir. 2009) 556 F.3d 647, 651), and we have found no published
California decision that has adopted such a rule. Even if we were to agree with that dicta,
the record does not demonstrate that Jane Doe lacked the mental maturity needed to
testify. She clearly articulated an understanding of the difference between telling the
truth and telling a lie, and she understood the importance of testifying truthfully.
Moreover, although Jane Doe testified to being scared about testifying in front of so
25
many people (especially in front of her father) about her genitals, the record does not
demonstrate that she was so gripped with fear that she could not testify or be cross-
examined.
Nor does defendant’s reliance on State v. Rohrich (Wash. 1997) 939 P.2d 697
support his argument. There, the prosecution “called [the child victim] to the stand as
its first witness and asked her several questions including what school she went to,
what she got for her birthday, and what her cat’s name was. [The victim] was not
asked about and did not testify about any alleged abuse. Defense counsel did not cross-
examine her.” (Id. at p. 699, fn. omitted.) The Washington Supreme Court held that,
for purposes of the confrontation clause and a state law permitting use of hearsay
statements from a child sexual abuse victim, the requirement that the victim “[t]estifies
at the proceedings” is not satisfied if the prosecution does not elicit testimony about the
subject of the hearsay statements, to wit, the alleged sexual abuse and, therefore, the
defense is not afforded an opportunity to cross-examine the victim about the alleged
sexual abuse. (Id. at pp. 699-703.) In contrast, the prosecutor in this case tried to
elicit from Jane Doe testimony about the subject of her hearsay statements. The
prosecutor expressly asked Jane Doe if she remembered the day the police came to
her house, if she remembered being in the garage with her father, if she remembered
talking to the police about what her father had done to her, if she remembered if
something happened while she was in bed with her mother and father, if her father
had done anything else bad to her other than hit her, and if she remembered him
pulling down her pants. Jane Doe answered, “no” to all of those questions but, as
26
already stated, defendant had the opportunity to cross-examine Jane Doe and to call into
doubt her credibility as a witness and hence the credibility of her hearsay statements.
Because Jane Doe testified at trial and was subject to cross-examination, we
conclude that admission of Jane Doe’s hearsay statements did not violate defendant’s