California Court of Appeal Jun 11, 2013 No. E055202Unpublished
Filed 6/11/13 P. v. Hutter 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E055202
v. (Super.Ct.No. SWF028047)
JONATHAN GREGORY HUTTER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark E. Petersen, Judge.
Affirmed as modified.
Gregory L. Cannon, 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, Bradley Weinreb and William M.
Wood, Deputy Attorneys General, for Plaintiff and Respondent.
1
This is an appeal by defendant and appellant Jonathan Gregory Hutter (defendant)
from the judgment entered after a jury found him guilty as charged of forcible rape (Pen.
Code, § 261, subd. (a)(2)), count 1),1 three counts of forcible oral copulation with a child
under the age of 14 years, who was seven or more years younger than defendant (§ 269,
subd. (a)(4), counts 2-4), two counts of rape of a child under the age of 14 years (§ 269,
subd. (a)(1), counts 5 & 6), forcible sodomy of a child under the age of 14 years, who
was seven or more years younger than defendant (§ 269, subd. (a)(3), count 7), and lewd
conduct with a child under the age of 14 years (§ 288, subd. (a), count 8). The jury also
found true a multiple victim special allegation. (§ 667.61, subd. (e)(5).)
The trial court sentenced defendant to serve eight consecutive terms of 15 years to
life in state prison. The trial court also imposed various fines, including a $3,800 fine
under section 290.3, and restrictions, one of which prohibited defendant from knowingly
owning, possessing, or having under his control any firearm, deadly weapon,
ammunition, or related paraphernalia for the remainder of his life.
Defendant contends in this appeal that the trial court committed prejudicial error
by excluding evidence that Jane Doe 1 had previously accused her grandfather of
sexually molesting her and then recanted the accusation. Next, defendant contends the
trial court‟s instruction on child sexual abuse accommodation syndrome (CSAAS) was
incorrect and, as a result, improperly allowed the jury to consider that evidence as
corroboration of Jane Doe 1‟s testimony about defendant. Defendant also challenges the
1 All statutory references are to the Penal Code, unless indicated otherwise.
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$3,800 fine the trial court imposed under section 290.3, which he contends should be
$2,400. Defendant also contends the trial court‟s lifetime ban on defendant owning or
possessing firearms and/or dangerous weapons is unlawful and must be stricken.
The Attorney General concedes both claims of sentencing error, but contests the
amount of the section 290.3 fine the trial court should impose on remand. We conclude,
as we explain below, both concessions are appropriate, and the section 290.3 fine should
be $2,500, as the Attorney General contends. Defendant‟s remaining claims are
meritless. Therefore, we will modify defendant‟s sentence and, as modified, affirm the
judgment.
FACTS
The details of the various crimes are not pertinent to our resolution of the issues
defendant raises in this appeal and are set out in the parties‟ respective briefs. Moreover,
although defendant denies that he committed any of the alleged offenses, he does not
dispute the evidence presented at trial. For our purpose, it is sufficient to note the charges
in this case involved two victims, identified as Jane Doe 1 and Jane Doe 2. Jane Doe 1 is
defendant‟s older daughter and the victim alleged in counts 1 through 7, who, in the
summer of 2008 when she was 15 years old, told her boyfriend that defendant had been
sexually molesting her since she was a very young child. The boyfriend told his parents,
and they, in turn, reported the claims to Jane Doe 1‟s mother. A month earlier, Jane
Doe 1‟s older brother, J.J., told his aunt that defendant had been sexually molesting
Jane Doe 1. The aunt reported the claim to Jane Doe 1‟s mother, who is the aunt‟s sister.
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After talking with the parents of Jane Doe 1‟s boyfriend, Jane Doe 1‟s mother spoke with
the aunt, and the aunt called the police.
When interviewed by a police officer, Jane Doe 1 initially was uncooperative and
unwilling to talk. Eventually, she agreed to respond yes or no to the officer‟s questions
and in doing so provided sufficient information to establish that she had been sexually
molested by defendant.
Additional facts will be recounted below as pertinent to the issues defendant raises
on appeal.
DISCUSSION
1.
ADMISSIBILITY OF EVIDENCE THAT JANE DOE 1 HAD MADE A PRIOR
SEXUAL MOLESTATION CLAIM
Defendant and the district attorney each filed pretrial motions asking the trial court
to determine the admissibility of evidence that Jane Doe 1 had previously accused her
grandfather of sexually molesting her and then had purportedly recanted the accusation.
More particularly, in his trial brief, the prosecutor set out an investigation conducted by
the Los Angeles County Sheriff‟s Department after Jane Doe 1‟s older brother, J.J.,
reported to school counselors in April 2008 that he had been sexually molested and
believed his sister also was a victim. A local police officer contacted J.J. and, although
J.J. refused to identify the offenders, the officer concluded the offenders were the
children‟s paternal grandparents. When the officer contacted Jane Doe 1, she refused to
talk with him. Two weeks later, a different officer contacted Jane Doe 1. At that time,
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Jane Doe 1 talked with the officer and said that her brother had made up the molestation
story because he “wanted to get into foster care.”
In his opposition to the prosecutor‟s motion, defendant added that both J.J.
(identified as John Doe) and Jane Doe 1 told the second police officer that the accusation
was untrue, and the entire story had been fabricated. When later interviewed by a Los
Angeles County deputy sheriff, Jane Doe 1 said she had been molested by her
grandfather at her grandparents‟ home in Los Angeles County when she was about nine
or 10 years old.2
Following a hearing on the issue, the trial court granted the prosecutor‟s motion to
exclude all evidence regarding the so-called Los Angeles investigation on the grounds,
first, that it was not relevant because J.J., not Jane Doe 1, was the accuser, and, next,
because even if relevant, the probative value of the evidence was substantially
outweighed by its potential for prejudice, confusion, and undue consumption of time
under Evidence Code section 352. Defendant raised the issue again at trial during his
cross-examination of Jane Doe 1 and also before resting his case. Both times, the trial
court reaffirmed its earlier ruling and excluded the evidence.
Defendant contends the trial court‟s ruling was erroneous and had the effect of
depriving him of his right to present a defense. We disagree.
2 The declaration of defendant‟s trial attorney states that Jane Doe 1 was molested by her paternal grandfather when she was home alone with her paternal grandmother. Because it would have been impossible for Jane Doe 1‟s grandfather to molest her if she had been home alone with her grandmother, we assume the reference to the grandmother is a mistake.
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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, including one that turns on the
relative probativeness and prejudice of the evidence in question [citations]. Evidence is
substantially more prejudicial than probative (see Evid. Code, § 352) if, broadly stated, it
poses an intolerable „risk to the fairness of the proceedings or the reliability of the
outcome‟ [citation].” (People v. Waidla (2000) 22 Cal.4th 690, 724.) On appeal, we will
not disturb the trial court‟s discretionary ruling “„except on a showing that the court
exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice.‟” (People v. Rodrigues (1994) 8 Cal.4th 1060,
1124.) In this context, a manifest abuse of discretion occurs if we are able to say it is
reasonably probable the jury would have reached a result more favorable to defendant if
the excluded evidence had been introduced at trial. (People v. Watson (1956) 46 Cal.2d
818, 836.)
B.
Analysis
“Just as a prior false accusation of rape is relevant on the issue of a rape victim‟s
credibility [citation], a prior false accusation of sexual molestation is equally relevant on
the issue of the molest victim‟s credibility.” (People v. Franklin (1994) 25 Cal.App.4th
328, 335.) In this case, J.J., not Jane Doe 1, made the sexual molestation accusation
against the paternal grandparents. Jane Doe 1 denied that accusation by saying it was
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untrue, that J.J. had made it up. Later, Jane Doe 1 recanted that denial and told a third
police officer that she had in fact been molested by her grandfather. Defendant did not
present any evidence to show that Jane Doe 1‟s accusation of her grandfather was untrue
or later recanted. In short, and contrary to defendant‟s characterization, this is not a
situation in which Jane Doe 1 recanted a prior accusation of abuse; she recanted a
previous denial that abuse had occurred.
Unlike evidence that a victim recanted an accusation of sexual molestation,
evidence that a victim initially denied being sexually abused does not necessarily impugn
the victim‟s credibility. Jody Ward, Ph.D., the prosecutor‟s expert witness on CSAAS,
explained that a child who has been sexually molested would not respond in the same
way an adult might respond in the same situation. For various reasons, other than
dishonesty, a child who has been sexually molested might initially deny having been
molested. Because evidence that Jane Doe 1 initially denied she had been sexually
abused by her grandfather did not necessarily impugn Jane Doe 1‟s credibility, we cannot
say the trial court abused its discretion by excluding the evidence from trial.
For this same reason, even if we were to conclude otherwise, exclusion of the
evidence did not deprive defendant of his right to present a defense. His defense in this
case was that he did not molest either alleged victim, and that they both were lying. To
support that defense, defendant attacked Jane Doe 1‟s credibility with evidence that in
2007 and 2008, when she was a young teenager, Jane Doe 1 had many opportunities to
disclose that defendant had molested her and yet she not only did not report the
molestation, on several occasions, she also denied that she had been molested by anyone.
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She said she had a good relationship with defendant and felt safe and protected when
with him.
Moreover, application of the rules of evidence, “[a]s a general matter,” does “not
impermissibly infringe on the accused‟s right to present a defense.” (People v. Hall
(1986) 41 Cal.3d 826, 834.) Therefore, even if we were to conclude error occurred, it
would be error only under state law. Consequently, reversal of defendant‟s conviction
would be required if a miscarriage of justice occurred, i.e., only if we were to conclude
the error was prejudicial in that it is reasonably probable the jury would have reached a
result more favorable to defendant on any of the charges in this case if the jurors had
heard that Jane Doe 1 initially denied she had been sexually abused by her grandfather.
(People v. Watson (1956) 46 Cal.2d 818, 836.)
To the extent defendant contends the trial court erred when it again ruled the
evidence inadmissible after Jane Doe 1 testified at trial about an incident in which she
confronted defendant and he cried, we must again disagree. Defense counsel represented
in the trial court that according to her statement to the defense investigator, Jane Doe 1
said defendant cried when she disclosed to him that she had been sexually molested by
her grandfather. According to defense counsel, that was the only time in the interview
that Jane Doe 1 mentioned defendant had cried. Because her testimony on direct
examination was that defendant cried when Jane Doe 1 confronted him about sexually
molesting her, it created the impression that defendant had admitted the accusation. In
order to refute that negative inference, defendant renewed his request to question Jane
Doe 1 about whether she had accused her grandfather of sexually molesting her and, in
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doing so, clarify that defendant had only cried when Jane Doe 1 disclosed that
information to him. In short, defendant wanted to impeach Jane Doe 1 with her
statement to the defense investigator.
The trial court did not abuse its discretion by excluding the evidence in question.
As the trial court noted, defendant might have cried more than once, even though Jane
Doe 1 apparently had not mentioned that when the defense investigator questioned her. In
short, and simply put, the probative value of the evidence is substantially outweighed by
its potential for prejudice. (Evid. Code, § 352.) Even if we were to conclude otherwise,
the purported error necessarily was harmless, for the reasons previously discussed.
2.
ADEQUACY OF THE TRIAL COURT’S JURY INSTRUCTION ON CSAAS
Dr. Ward, the prosecution‟s expert witness, testified at trial regarding CSAAS.3
Defendant submitted a proposed jury instruction directed at limiting the purpose for
which the jury could consider the expert‟s testimony. The trial court refused that
instruction, a ruling defendant does not challenge in this appeal. The trial court instructed
the jury according to CALCRIM No. 1193 as follows: “You have heard testimony from
purchases, receives, or has in possession or under custody or control any firearm is guilty
of a felony.” Section 29810 requires the trial court to give written notice of the
restriction at the time of sentencing.
Section 29800 refers only to firearms. The trial court‟s order in this case extends
beyond firearms and includes “any . . . deadly weapon, ammunition or related
paraphernalia.” The quoted language is not authorized by law and, therefore, we will
direct that it be stricken.
DISPOSITION
The judgment is modified by reducing the total fine under section 290.3 from
$3,800 to $2,500 and by striking the order that states defendant is not to “own, possess or
have under your control any firearm, deadly weapon, ammunition or related
paraphernalia for life.” As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J.
We concur:
HOLLENHORST Acting P. J.
RICHLI J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions for sexual offenses, holding that the trial court did not abuse its discretion in excluding evidence of a prior recanted accusation and that the jury instruction on Child Sexual Abuse Accommodation Syndrome (CSAAS) was proper. The court also modified the judgment to correct sentencing errors regarding the amount of a statutory fine and the scope of a lifetime weapons possession ban.
Issues
Did the trial court abuse its discretion by excluding evidence that the victim previously accused her grandfather of molestation and then recanted?
Did the trial court's jury instruction on CSAAS improperly allow the jury to use the evidence as corroboration of the victim's testimony?
Was the trial court's imposition of a $3,800 fine under Penal Code section 290.3 and a lifetime ban on possessing any deadly weapon or ammunition legally authorized?
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“The trial court did not abuse its discretion by excluding the evidence in question.”