Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB702326. Bryan Foster, Judge.
Laurel M. Nelson, 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 Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Richli, J.
I
INTRODUCTION
A jury convicted defendant Victor Alfonso Alcantara of one count of committing a lewd act on a child. (Pen. Code, § 288, subd. (a).) The court imposed a suspended sentence of six years and granted probation on the condition defendant serve 365 days in local custody.
Statutory references are to the Penal Code unless stated otherwise.
On appeal, defendant asserts the trial court erred in allowing expert evidence about Child Sexual Abuse Accommodation Syndrome (CSAAS) and allowing testimony about the minor’s out-of-court statements. Additionally, defendant challenges the jury instruction given about defense discovery violations, as well as the trial court’s denial of defendant’s mistrial motion. Finally, defendant attacks various conditions of his probation. We affirm the judgment but order some probation conditions to be modified slightly.
Ordinarily this court does not comment on counsel’s writing style, but-as in another case (People v. Averna (Apr. 28, 2010, E048072 [nonpub. opn.])-appellant’s counsel has submitted an overwritten brief of 134 pages. For example, the statement of facts is 16 pages and does not afford this court a useful summary. More overly detailed factual recitations occur throughout the opening brief. Appellant’s treatment of case law is too often accomplished by large chunks of electronic cut-and-paste without meaningful analysis. We offer this critique in the hope it will encourage appellant’s counsel to adopt more improved and succinct methods of exposition.
II
FACTS
The minor victim was born in July 2000. Defendant was born in July 1985. The trial occurred in July 2009 when the victim was almost nine years old.
A. Prosecution Evidence
Between July 2005 and March 2006, when the victim was five years old and defendant was 20 years old, defendant’s mother babysat the victim in her home where defendant also resided. Defendant’s bedroom was the converted dining room with a curtain for a door.
One day the victim intended to watch “Toy Story” and saw a few minutes of an adult movie instead. On another occasion, defendant showed the victim a pornographic movie instead of SpongeBob. Defendant pulled down the victim’s pants and underwear and licked the victim’s penis. The victim refused to reciprocate.
The victim’s mother testified there were two occasions when her son watched a pornographic movie at defendant’s house. At home, the victim talked about being naked and kissing a pretty girl. In March 2006, he had to change schools. At the same time, the victim told his mother about defendant forcing him to watch pornographic movies. In October 2006, the victim’s mother contacted the police. She told the police that defendant had shown her son a pornographic movie and displayed his penis. She also said her son had been expelled from school for inappropriate behavior.
A forensic examiner interviewed the victim in December 2006. The victim told her that, when he was five years old, defendant had shown him a “sex movie” instead of SpongeBob and then defendant undressed him and carried him around, licking his penis. Defendant pushed the victim’s head down near his crotch but the victim refused to lick defendant’s penis. The forensic examiner explained it is common for child victims of molestation not to disclose a molestation immediately.
When the police interviewed defendant, defendant admitted he kept pornographic movies in his room. He remembered when the victim started to watch one by mistake. He claimed that the victim had followed him from the shower and asked questions about defendant’s genitalia. There were times when defendant’s penis may have been exposed. On one occasion, defendant put his mouth on the victim’s abdomen, just above the penis, and made a “farting sound.”
B. Defense Evidence
Defendant testified about the incident in which the victim started to watch an adult movie by mistake. Defendant also claimed he had been falsely accused of touching the victim in 2004 before the victim stopped coming for babysitting in 2006. After the first accusation, the victim continued to come into defendant’s room. Defendant denied having any sexual contact with the victim. He admitted giving the victim “a raspberry” to make him laugh.
Defendant’s mother and sister also testified about the mistake with the adult movie. They testified further that the victim’s mother had accused defendant of touching the victim and the victim had called his mother a liar. Defendant’s mother had continued to babysit for the victim until 2006.
III
ANALYSIS
A. CSAAS
In the present case, the minor victim did not immediately tell his mother that defendant had licked his penis. He did not report that detail until the forensic interview was conducted in December 2006.
In a pretrial limine motion, defense counsel sought to preclude testimony by the forensic examiner, Dayle Lopez (Lopez). The court ruled that the expert testimony would be admissible subject to instruction and would be limited to explaining why a molest victim might delay reporting the crime fully.
Before Lopez testified, the court instructed the jury based on Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1193 that CSAAS “must not be considered by you as proof that the... alleged molestation is true.... [¶] The syndrome research begins with the assumption that a molestation occurred and seeks to describe and explain the common reactions of children in that experience.... [¶] You may consider the evidence concerning this syndrome and its effect only for the limited purpose to show, if it does, that the alleged victim’s reaction as demonstrated by the evidence is not inconsistent with him being molested.”
Lopez then testified it was common for children not to disclose a molestation immediately because their guilt and shame makes them reluctant or because they may have been threatened.
On appeal, defendant contends the CSAAS evidence was inadmissible under the Kelly-Frye test for scientific evidence. But Kelly-Frye does not apply to this type of evidence. (People v. Harlan (1990) 222 Cal.App.3d 439, 448-449, citing People v. Stoll (1989) 49 Cal.3d 1136, 1161.) Furthermore, defendant’s arguments on this issue have been rejected by many courts, which recognize that “‘CSAAS testimony has been held admissible for the limited purpose of disabusing a jury of misconceptions it might hold about how a child reacts to a molestation. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301; People v. Bowker [(1988) 203 Cal.App.3d 236] at p. 391.)’ (People v. Patino [(1991)26 Cal.App.4th 1737] at p. 1744.) The evidence must be tailored to address the specific myth or misconception suggested by the evidence. (Bowker, supra, at pp. 393-394)” (People v. Wells (2004) 118 Cal.App.4th 179, 188; In re S.C. (2006) 138 Cal.App.4th 396, 418.)
People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (1923) 293 F. 1013.
Defendant also complains that Lopez’s testimony was improper because she was the first witness and testified before any other witness testified about the circumstances of the molestation and the victim’s delayed disclosure. We reject this argument because the record indicates that the parties agreed Lopez would be the first witness, coming out of order, and her testimony would be subject to a motion to strike depending on the victim’s testimony.
Finally, even assuming error, there is no prejudice because a more favorable verdict was not reasonably probable. (Evid. Code, § 353, subd. (b); People v. Bledsoe (1984) 36 Cal.3d 236, 251-252.) The CSAAS evidence was limited to four brief questions about the reason for the victim’s delayed or incomplete disclosure. The court instructed the jury about the limited nature of the evidence. We discern no error and no prejudice.
B. The Victim’s Out-of-Court Statements
Defendant also objects to the testimony by Lopez and the victim’s mother about what the victim told them concerning the sexual abuse.
As already discussed, according to the record Lopez testified as the first witness due to scheduling issues. Defense counsel acceded to this procedure while asserting “I have an objection as to hearsay and other things subject to a motion to strike....” Defense counsel did not object to Lopez’s testimony or subsequently interpose a motion to strike. Defendant did not object to the mother’s statements about what the victim told her in March 2006.
We agree with the People that the victim’s out-of-court statements were admissible. As the California Supreme Court discussed comprehensively in People v. Brown (1994) 8 Cal.4th 746, 749-750, “nonhearsay evidence that in the past has been admitted under the fresh-complaint doctrine nonetheless is, in most instances, properly admissible at trial under generally applicable evidentiary standards. [¶] Accordingly, we conclude that the formulation and parameters of the fresh-complaint doctrine, as applied in this state, should be revised to reflect a more accurate understanding of the proper basis for the admission of such evidence. As we shall explain, we 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.”
In the instant case, the victim’s statements were properly admissible at trial under generally applicable evidentiary standards as prior consistent or inconsistent statements. (Evid. Code, §§ 1235, 1236.) Furthermore, the victim’s out-of-court statements did not cause prejudice to the extent they were consistent with his trial testimony. To the degree the victim’s statements were inconsistent, it offered an advantage to the defendant, which defense counsel tried to exploit by introducing the entire videotaped forensic interview with Lopez.
Hence, the trial court did not err in admitting the evidence of the victim’s out-of-court statements to his mother and Lopez about the circumstances of the sexual molestation.
C. Discovery Violations
Trial began on July 6, 2009. On July 9, defense counsel disclosed two witness statements from defendant’s mother and sister that had been obtained in November 2007. The statements concerned the victim denying defendant had touched him and accusing his mother of lying. The People made a motion to exclude the witnesses based on untimely disclosure.
The trial court found that defense counsel should reasonably have anticipated it would present the evidence of the victim’s denial and that defense counsel had violated the 30-day discovery rule (§§ 1054.3, subd. (a), 1054.7) to obtain a tactical advantage. But the trial court denied the prosecution’s motion and granted the People a one-day continuance to prepare, as well as giving an instruction to the jury about late discovery. (§ 1054.5, subds. (b) & (c).)
The instruction stated: “An attorney for the defense failed to disclose the anticipated testimony of [the defense witnesses] within the legal time period. In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure. However, the fact that defendant’s attorney failed to disclose [the] evidence within the legal time period is not evidence that the defendant committed a crime. [¶] An attorney for the People failed to disclose the anticipated testimony regarding the [CSAAS] within the legal time period. In evaluating the weight and significance of that evidence you may consider the effect, if any, of that late disclosure.”
“We generally review a trial court’s ruling on matters regarding discovery under an abuse of discretion standard. [Citation.] In particular, ‘a trial court may, in the exercise of its discretion, “consider a wide range of sanctions” in response to the prosecution’s violation of a discovery order.’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 299.)
Defendant contends that the trial court erred by finding that he had violated the disclosure requirement. We conclude that substantial evidence supports the trial court’s decision. The trial court could reasonably find that defendant should have anticipated that it was likely he would call as witnesses defendant’s family members who purportedly knew about the victim’s denial of the offense, a primary issue in the case. (People v. Tillis (1998) 18 Cal.4th 284, 287, citing Izazaga v. Superior Court (1991) 54 Cal.3d 356, 376, fn. 11.) The trial court could reasonably find that defendant should have disclosed the witness statements at least 30 days before the trial began.
Finally, defendant did not make any showing of “good cause” as defined by the statute for deferring disclosure, e.g., that disclosure of the witnesses’ names raised concern about the witnesses’ safety or the loss of evidence. Instead, defense counsel’s explanation was that he did not believe the testimony of the witnesses would be required and that the possibility of using their testimony did not occur to him until he was practicing his opening statement. Accordingly, the trial court did not err in finding that defendant had violated the discovery statutes. (People v. Riggs (2008) 44 Cal.4th 248, 306.)
Finally, we do not perceive any prejudice to defendant. The curative instructions to the jury applied to both the defense and the prosecution. The testimony of defendant’s mother and sister about defendant’s relationship with the victim contradicted defendant’s admissions to the police.
D. Polygraph Examination
During cross-examination, the police sergeant made a gratuitous comment about “your client’s polygraph examination, ” in violation of the court’s order. The court instructed the jury: “Let me explain something to you is that the officer made a comment regarding a polygraph or something along that line. [sic] There was no polygraph given in this case, and you’re not to consider that in any fashion. Polygraph evidence, whether it was given or not, is not admissible because it’s not been found to the Court to be [of] sufficient reliability in order to prove someone either guilty or not guilty of an offense. The-as far as the polygraph in the matter is concerned counsel have both agreed there was no polygraph given in this case, but in any event you’re not to consider that for any purpose whether one was given or not. It’s not to enter into your discussions in any fashion.” Although the court concluded the police sergeant acted deliberately, the court repeatedly denied the defense motions for a mistrial.
The court did not abuse its discretion in the present case: “A motion for mistrial is directed to the sound discretion of the trial court. We have explained that ‘[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ (People v. Haskett (1982) 30 Cal.3d 841, 854.)” (People v. Jenkins (2000) 22 Cal.4th 900, 985-986; People v. Davis (2005) 36 Cal.4th 510, 553-554.)
The polygraph comment was brief, isolated, and vague. The court admonished the jury that the comment was improper, that polygraph evidence is unreliable and inadmissible, and that no polygraph test was administered to defendant. Therefore, the jury was to disregard the polygraph comment entirely. As such, the trial court properly determined the polygraph reference was not incurably prejudicial. Under similar facts, the California Supreme Court has agreed a court’s admonition “was sufficient to prevent any prejudice to defendant.” (People v. Price (1991) 1 Cal.4th 324, 428.)
Defendant relies on People v. Navarrete (2010) 181 Cal.App.4th 828, 834-837, a case with distinctly different facts and far more egregious misconduct by the prosecution’s witness, involving a detective’s suggestion to the jury that defendant had confessed. Even the intentional mention of a polygraph in this instance did not denote that defendant had failed a test, confessed, or made any other admissions. The court instructed the jury there was no test and to disregard the improper reference. The court’s forceful instruction on the issue sufficed to cure any prejudice. (Id. at p. 834.)
E. Probation Conditions
Defendant objects to 11 of the 34 probation conditions as unconstitutionally vague and overbroad. As explained in In re Sheena K. (2007) 40 Cal.4th 875, 890, “ the underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ (People v. Castenada (2000) 23 Cal.4th 743, 751.) The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ (ibid.), protections that are ‘embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends V, XIV; Cal. Const., art. I, § 7.)’ (Ibid.) The vagueness doctrine bars enforcement of ‘“a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” [Citations.]’ (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115 (Acuna).) A vague law ‘not only fails to provide adequate notice to those who must observe its strictures, but also “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” [Citation.]’ (Id. at p. 1116.) In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that ‘abstract legal commands must be applied in a specific context, ’ and that, although not admitting of ‘mathematical certainty, ’ the language used must have ‘“reasonable specificity.”’ (Id. at pp. 1116-1117, original italics.)”
Probation condition No. 17 requires defendant not to have any contact with the victim. Probation condition No. 17 is not vague because it does not apply to inadvertent contact. (People v. Galvan (2007) 155 Cal.App.4th 978, 982.)
Probation condition Nos. 18 and 22 should be modified, however, to add the element that defendant not knowingly be within 100 yards of the victim and not knowingly associate with minors or go places where minors congregate. (People v. Freitas (2009) 179 Cal.App.4th 747, 752 (Freitas).)
Similarly, probation condition No. 23 should incorporate a knowledge requirement, i.e., defendant shall not knowingly go where the victim is known to reside, work, or attend school. (Freitas, supra, 179 Cal.App.4th at p. 752.)
Probation condition No. 24 requires defendant to obtain permission to perform volunteer work. This condition is meant to be broader than prohibiting volunteer work with children and is intended to insure that defendant’s volunteer work “reasonably relates to his reformation and rehabilitation.” (In re Mannino (1971) 14 Cal.App.3d 953, 968, overruled on other grounds in People v. Welch (1993) 5 Cal.4th 228, 237.)
Probation condition No. 25 prohibits defendant from being involved with or earning money or other consideration “from any modeling, escort, massage, or sauna operation or business, or any outcall operation or business, or an acupressure or acupuncture operation or business.” Said condition reasonably limits defendant’s participation in businesses that offer personal services and might challenge defendant’s self-control, particularly of his sexual impulses, thus hampering his rehabilitation. (In re Mannino, supra, 14 Cal.App.3d at p. 968.)
Probation condition No. 29 is overly broad in its prohibition against sadomasochistic equipment. Instead, probation condition No. 29 should be modified to apply to items known to be used for sadomasochistic purposes and that defendant not knowingly possess or have access to them. (Freitas, supra, 179 Cal.App.4th at p. 752 .)
Probation condition No. 30 bars defendant from placing or responding to personals ads without permission from his probation officer. This is another condition intended to further defendant’s rehabilitation. (In re Mannino, supra, 14 Cal.App.3d at p. 968.)
Probation condition No. 31 requires defendant not to possess costumes, masks, or their ilk without the probation officer’s approval. Again, defendant should not knowingly possess such items (Freitas, supra, 179 Cal.App.4th at p. 752) but the condition is meant to encourage his rehabilitation. (In re Mannino, supra, 14 Cal.App.3d at p. 968.)
Probation condition No. 32 requires defendant to obtain permission to have a post office box. The condition serves the purposes of rehabilitation. (In re Mannino, supra, 14 Cal.App.3d at p. 968.)
Finally, probation condition No. 33 should be modified to prohibit defendant from knowingly possessing illustrations of unclothed children. (Freitas, supra, 179 Cal.App.4th at p. 752.) Because defendant is the father of a small child, the restriction against possessing children’s clothing is not reasonable and should be stricken.
IV
DISPOSITION
The probation order is modified to add the element of knowledge to probation condition Nos. 18, 22, 23, 29, 31 and 33. Probation condition No. 33 should also be modified to eliminate the prohibition against possessing children’s clothes.
The trial court is directed to forward a certified copy of the probation order to the probation authorities. As so modified, the judgment is affirmed.
We concur: Ramirez, P. J., Miller, J.