Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07WF2655, Patrick Donahue, Judge.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
A jury convicted William Randolph Adams of four counts of lewd acts upon a child under 14 years of age in violation of Penal Code section 288, subdivision (a) and one count of sexual penetration of a child 10 years of age or younger in violation of section 288.7(b). The jury found true the allegation under section 1203.066(a)(8) that Adams had substantial sexual conduct with the victims and the allegation under section 667.61(c) that Adams committed the sexual penetration offense against more than one victim. The trial court sentenced Adams to an indeterminate term of 30 years to life in prison.
Further code citations are to the Penal Code. The designation of “subdivision” or “subd.” is omitted from code citations because the use of parentheses surrounding a letter already establishes the reference to a subdivision.
Adams argues his conviction must be reversed because (1) the trial court erred by permitting the prosecutor to repeatedly question him as to why the victims would falsely report the alleged crimes, and (2) instructing the jury with CALCRIM No. 330 violated his constitutional rights. We conclude the prosecutor’s questions were permissible and uphold CALCRIM No. 330 against constitutional challenge. Accordingly, we affirm.
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.)
In November 2007, Rebecca M. lived in an apartment in Huntington Beach with her three daughters, D.M., N.M., and an adult daughter. At the time, D.M. was eight years old and N.M. was 11 years old. Adams lived in the next door apartment with his wife and two sons.
After school, D.M. and N.M. frequently went to the Adamses’ apartment to play with the two Adams boys, watch television, or play on the computer. Adams was unemployed at the time and stayed at home to take care of his children while his wife was at work. D.M. and N.M. played in the children’s room and sometimes in Adams’s bedroom. Sometimes D.M. and N.M. spent the night at the Adamses’ apartment when both Adams and his wife were at home.
Adams played with the children by throwing them on the bed, prompting the children to attack him. He would try to get the children off of him, and they would run around the apartment. At one point, Adams began to press his penis against N.M. and on one occasion touched her vagina. She could not remember whether Adams touched her over or under her clothing.
On one occasion in November 2007, N.M. was at the Adamses’ apartment playing with a kitten while lying on a bed in an upstairs bedroom. The other children were downstairs. Adams entered the bedroom and started playing with N.M., but she did not want to play and asked him to stop. She heard Adams unzip his trousers. As he tried to move closer to her, she moved away and, after he tripped and fell, went downstairs to join the other children. N.M. did not see his private parts.
On another occasion while playing with the children, Adams threw N.M. onto a bed, then got on top of her and pressed his penis near her vagina. She kicked Adams playfully and ran away.
Once, while his wife was at home, Adams put his hand up N.M.’s T shirt and tried to touch her breasts. He managed only to touch her bra before N.M. pushed his hand away and ran outside. She did not tell her mother.
Adams placed his hand down N.M.’s pants and tried to rub her vagina. N.M. was scared and moved away. She could not recall whether he touched her over or under her underwear. His fingers never penetrated her vagina. She told the police that Adams touched her inside her pants but outside her underwear and that this had occurred three or four times.
Once in November 2007, while N.M. and D.M. were lying in bed together, N.M. asked whether Adams had ever touched her. D.M. replied that he had. N.M. was scared and did not tell her mother.
About the same time, Adams touched D.M.’s vagina while they were under the covers on a bed in his bedroom. The other children were playing on the computer at the time. Adams placed his hand underneath D.M.’s underwear and inserted his right index finger in her vagina. Afterwards, he told D.M. not to tell anyone. D.M. was scared and told N.M. what had happened. Although Adams inserted his finger in her vagina only once, he inappropriately touched D.M. several times. On another occasion, Adams grabbed D.M.’s hand and made D.M. rub his exposed penis, which felt hard.
One day, N.M. and D.M. wanted to have a sleep over at the Adamses’ apartment so they could play with the two Adams boys. Adams would not permit them to stay overnight. The next day, N.M. and D.M. told their mother about his conduct. N.M. told her mother that Adams had touched her.
Overwhelmed, Rebecca M. sent the girls off to play so she could figure out what do. She spoke with a neighbor, David W., who offered to speak with N.M. and D.M. David W. first spoke with N.M. alone. She told him about the touching incidents. He then spoke with D.M. alone. She told him that Adams had taken her hand and placed it inside of his pants, had asked her if she wanted to see his privates, and, while underneath a blanket, had her rub his penis.
David W. informed Rebecca M. of what N.M. and D.M. had told him and urged her to call the police. Rebecca M. went in person to the police station and made a report.
Huntington Beach Police Officer Stan Watanabe arrived at the apartment and interviewed N.M. and D.M. separately and privately. The interviews were tape recorded, the recordings were played to the jurors, and transcripts were given to them. In the recorded interview, N.M said that Adams would play with the children by tickling them and throwing them on the bed. Sometimes, after the other children had run into another room, Adams would get on top of her and touch her private parts inside her pants, but not inside her underwear. She would kick him off and run out of the room. Once, he placed his hand up her T shirt, and she pushed his hand away. Another time, Adams joined N.M. underneath some covers as she watched television and, after N.M. started playing with him, he unzipped his trousers. N.M. said she “kind of saw ‘it’” and ran out from under the covers. She reported that Adams had tried to touch her the previous day.
D.M. told Officer Watanabe that Adams had touched the side of her underwear, had taken out his “private part,” and had grabbed her hand. Adams had told D.M. not to tell anyone.
DISCUSSION
I. The Prosecutor’s Questions on Cross examination Were Permissible.
Adams argues the trial court erred by permitting the prosecutor to ask him on cross examination why N.M. and D.M. would make up allegations against him. We conclude the questioning was permissible.
Adams testified on his own behalf. He denied touching N.M. or D.M. in an inappropriate way and denied the allegations against him. During cross examination, the prosecutor asked Adams, “why would they come up with these allegations?” After the trial court overruled an objection, Adams answered, “I don’t know.” Adams testified he did recall telling Officer Watanabe that he had “no idea” why N.M. and D.M. would make up allegations against him.
The prosecutor asked Adams: “[W]hen the officer asked you, Mr. Adams, why would an eight year old tell everyone about you sticking your finger in her vagina, you couldn’t come up with a reason why she would make up those allegations, could you?” The court overruled an objection to the question, and Adams testified, “[y]ou are going to have to say it again because you are not saying it in the order of things.”
The prosecutor then asked: “When D[.M.] tells an officer, tells her mom, tells Dave W[.], tells CAST [Child Abuse Services Team] and comes into court and tells these jurors about you sticking your finger inside her vagina, you can’t sit here today and give us one reason why she would come in with those allegations, can you?” Adams’s counsel objected. The trial court sustained the objection, stating the question was argumentative.
The prosecutor twice rephrased the question, and both times the trial court sustained counsel’s objections. The third time, the prosecutor asked, “[y]ou couldn’t give any explanation to the officers, could you?” This time, the trial court overruled counsel’s objection, and Adams responded, “[a]t that time all this was new; I just found this out that day.”
Later, the prosecutor asked, “[a]s you sit here today, you can’t provide one reason why the girls would make up these allegations?” The trial court sustained an objection on the ground the question asked for speculation. The prosecutor rephrased the question by asking: “Did you provide any excuses or reasons to anyone, any investigators, any witnesses in this case why on earth these two girls would make up all of these horrific allegations against you, did you?” No objection was interposed. Adams answered, “I wouldn’t know why.”
Citing People v. Guerra (2006) 37 Cal.4th 1067 (Guerra), Adams argues it is improper for the prosecutor to ask a defendant why the alleged victim would make up accusations. In Guerra, the defendant argued the prosecutor committed misconduct at trial by asking him why two prosecution witnesses would lie. (Id at p. 1125.) The Supreme Court concluded the questions were proper because they did not ask for the defendant’s opinion as to the witnesses’ veracity and did not call upon the defendant to characterize the witnesses as liars. (Id. at p. 1126.) The questions were proper, the court explained, because they “assumed these witnesses might have been lying and sought possible explanations for their false testimony from defendant,” and were “designed merely to highlight the discrepancies between defendant’s testimony and that of the witnesses.” (Ibid.)
In People v. Tafoya (2007) 42 Cal.4th 147, 178 (Tafoya), the Supreme Court explained the circumstances in which a prosecutor may ask a defendant whether a witness was lying: “‘[C]ourts should carefully scrutinize [a prosecutor’s] “were they lying” questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.’ With respect to asking such questions of a defendant, we stated: ‘A defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken.’”
In this case, the trial court overruled objections, or no objections were interposed, to four questions which Adams contends were impermissible. The first was the question, “why would they come up with these allegations?” That question was permissible under Guerra and Tafoya because it did not ask for Adams’s opinion as to N.M.’s or D.M.’s veracity. Instead, the question asked for a possible explanation for their allegations and testimony.
The second question was, “when the officer asked you, Mr. Adams, why would an eight year old tell everyone about you sticking your finger in her vagina, you couldn’t come up with a reason why she would make up those allegations, could you?” The related third question was, “[y]ou couldn’t give any explanation to the officers, could you?” Those questions too did not ask for an opinion of N.M.’s or D.M.’s veracity. Instead, those questions concerned Adams’s statements to the police, matters within his personal knowledge, and a possible explanation for N.M.’s and D.M.’s accusations.
The fourth question was, “[d]id you provide any excuses or reasons to anyone, any investigators, any witnesses in this case why on earth these two girls would make up all of these horrific allegations against you, did you?” This question was permissible under Guerra and Tafoya because it did not ask for an opinion of the veracity of N.M. and D.M. and did not ask Adams to come up with a possible explanation for their testimony. The question merely asked Adams whether he had ever provided an excuse or reason to anyone as to why N.M. and D.M. had made the accusations against him. The question asked for information entirely within Adams’s personal knowledge.
II. The Trial Court Properly Instructed with CALCRIM No. 330.
Adams contends the trial court erred by instructing the jury with CALCRIM No. 330. He argues that instruction violated his constitutional rights by lessening the prosecution’s burden of proof, invading the jury’s function of assessing witness credibility, and violating his right to confront witnesses. We uphold this instruction against constitutional challenge.
CALCRIM No. 330 provides: “You have heard testimony from a child who is age 10 or younger. As with any other witness, you must decide whether the child gave truthful and accurate testimony. [¶] In evaluating the child’s testimony, you should consider all of the factors surrounding that testimony, including the child’s age and level of cognitive development. [¶] When you evaluate the child’s cognitive development, consider the child’s ability to perceive, understand, remember, and communicate. [¶] While a child and an adult witness may behave differently, that difference does not mean that one is any more or less believable than the other. You should not discount or distrust the testimony of a witness just because he or she is a child.”
CALCRIM No. 330 is taken directly from section 1127f, which mandates giving this instruction whenever a child 10 years of age or younger testifies and a party requests it. Section 1127f adopts “the modern view regarding the credibility of child witnesses” that “a child’s testimony cannot be deemed insubstantial merely because of his or her youth.” (People v. Jones (1990) 51 Cal.3d 294, 315.)
Court of Appeal cases uniformly have upheld CALCRIM No. 330 or its predecessor, CALJIC No. 2.20.1, from constitutional attack. In People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393 (Gilbert), the defendant argued the trial court denied him due process by instructing the jury with CALJIC No. 2.20.1 because it “‘lessened the government’s burden of proof’ because it ‘effectively instructs the jury to unduly inflate the testimony of a child witness.’” The appellate court squarely rejected this argument. “The instruction tells the jury not to make its credibility determinations solely on the basis of the child’s ‘age and level of cognitive development,’ but at the same time invites the jury to take these and all other factors surrounding the child’s testimony into account. The instruction provides sound and rational guidance to the jury in assessing the credibility of a class of witnesses as to whom ‘“traditional assumptions”’ may previously have biased the factfinding process. Obviously a criminal defendant is entitled to fairness, but just as obviously he or she cannot complain of an instruction the necessary effect of which is to increase the likelihood of a fair result. There was no denial of due process.” (Gilbert, supra, 5 Cal.App.4th at p. 1393; see also People v. McCoy (2005) 133 Cal.App.4th 974, 978-980 (McCoy) [“we squarely reject [the defendant]’s constitutional challenges to CALJIC No. 2.20.1”]; People v. Jones (1992) 10 Cal.App.4th 1566, 1572 1574 (Jones) [CALJIC No. 2.20.1 permits jury to independently consider child’s credibility as a witness]; People v. Harlan (1990) 222 Cal.App.3d 439, 455 456 (Harlan) [CALJIC No. 2.20.1 does not usurp jury’s role as arbiter of witness credibility, excessively inflate child’s testimony, or violate accused’s right to confront a child witness].)
In People v. Catley (2007) 148 Cal.App.4th 500, 506 508 (Catley), this court addressed the constitutionality of section 1127f in the context of a challenge to CALCRIM No. 331, which is based on section 1127g. We concluded, “[t]he due process analysis of the instruction required by section 1127f is equally applicable to the instruction required by section 1127g” and rejected the defendant’s challenge to CALCRIM No. 331. (Catley, supra, at p. 508.) We cited Gilbert, McCoy, Jones, and Harlan with approval and held CALCRIM No. 331 was consistent with those cases and section 1127f. (Catley, supra, at pp. 507 508.)
We affirm our approval of the cases upholding section 1127f. Based in particular on the reasoning of Gilbert and McCoy, as well as our decision in Catley, we reject Adams’s constitutional challenge to CALCRIM No. 330.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J.BEDSWORTH, J.