People v. Johnson CA1/4

Filed 3/28/24 P. v. Johnson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent, A166152 v. (Lake County Super. Ct. No. DAVID ANTHONY CALVIN CR953016) JOHNSON, Defendant and Appellant.

MEMORANDUM OPINION1 David Johnson was sentenced to eight years in prison after a jury convicted him of three counts of committing a lewd and lascivious act on a child under 14 years of age (Pen. Code, § 288, subd. (a)) and other crimes. In this appeal, he contends that admitting two items into evidence at trial violated the Confrontation Clauses of the state and federal Constitutions: evidence of the child’s pretrial Multi-Disciplinary Interview Center (MDIC) interview with law enforcement and the victim’s statements to a nurse during a sexual assault response team (SART) examination. (U.S. Const.,

1 We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.) We provide a limited factual summary because our opinion is unpublished, and the parties know or should know “the facts of the case and its procedural history.” (People v. Garcia (2002) 97 Cal.App.4th 847, 851.)

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6th Amend.; Cal. Const., art. I, § 15.) Reviewing these claims de novo, we reject Johnson’s arguments and affirm the judgment accordingly. (People v. Garcia (2020) 46 Cal.App.5th 123, 168 [de novo review applies to claims that rights were violated under the Confrontation Clause].) In relevant part, Evidence Code section 1360 provides for the admission of a prior “statement made by [a] victim when under the age of 12 describing any act of child abuse . . . performed with or on the child by another,” as long as: (1) the “statement is not otherwise admissible by statute or court rule”; (2) “the time, content, and circumstances of the statement provide sufficient indicia of reliability”; and (3) the child “[t]estifies at the proceedings.” (Evid. Code, § 1360, subd. (a)(1)–(a)(3)(A).) However, a statement admitted under section 1360 is still subject to the rule of Crawford v. Washington (2004) 541 U.S. 36: “[R]egardless of whether or not the statement falls within a state-law hearsay exception or bears indicia of reliability,” if the “hearsay statement is ‘testimonial,’ the [C]onfrontation [C]lause bars the prosecution from using it against a criminal defendant unless the declarant is available to testify at trial, or the defendant had a previous opportunity to cross-examine the declarant.” (People v. Sisavath (2004) 118 Cal.App.4th 1396, 1401 [applying Crawford rule].) This is because the Confrontation Clause requires a statement’s reliability to “be assessed in a particular manner: by testing in the crucible of cross-examination.” (Crawford v. Washington, supra, at p. 61.) In the instant case, the parties agree that the six-year-old victim’s MDIC interview was testimonial. Their disagreement concerns whether she was available to testify at trial in the relevant sense — that is, whether the child’s trial testimony satisfied the Confrontation Clause by offering Johnson