Opinion
C089682
08-30-2021
THE PEOPLE, Plaintiff and Respondent, v. NANA DAVID AMOAH, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 18FE007165
Duarte, J.
Defendant Nana David Amoah appeals from his conviction after court trial for three counts of committing lewd and lascivious acts upon A.D., who was the only daughter of his estranged wife. Defendant contends the trial court failed to satisfy procedural requirements before admitting A.D.'s out-of-court statements and admitted a video recording of A.D.'s Special Assault Forensic Evaluation (SAFE) interview without proper authentication. He also argues he did not receive sufficient notice of two counts, violating his due process rights, and the evidence was insufficient to support his conviction regarding the remaining count. Disagreeing, we affirm.
FACTS AND PROCEEDINGS
Factual Background
Rachael and defendant were married and had one son in common. They separated in 2007, shortly after their son's birth. Defendant saw his son several times per week, eventually taking him for overnight visits. Rachael subsequently had two children not fathered by defendant: another boy, born in 2008, and A.D., born in November 2010. Rachael and the children lived with Rachael's parents, to whom we refer as Vicky and Jeff. Defendant began caring for all three children during his custody time, including taking the three siblings on overnight visits.
We refer to Rachael by her first name to protect A.D.'s anonymity. (Cal. Rules of Court, rule 8.90(b)(4), (11).)
In April 2017, A.D. told Rachael that defendant had “peed” on her while in bed when she was staying with him. Rachael did not want to believe this, and she did not report A.D.'s accusations, but she stopped allowing the children to stay overnight with defendant.
In December 2017, Rachael's male friend complimented and touched A.D.'s hair, which upset A.D. Shortly thereafter, A.D. told Vicky that one time defendant had “poked her with something hard” and with “that thing that boys have and girls don't have” and that he had “peed” on her and she had gotten all wet. She told Vicky that it was not unusual for the boys to sleep on the floor, and she was allowed to sleep in the bed with defendant. Vicky told Rachael she should investigate A.D.'s allegations, and A.D. repeated to Rachael what she had said to Vicky. A.D. then told Rachael that defendant touched her hair, kissed her on the lips, put her legs in between his legs, and had her sleep in bed with him. Rachael contacted child protective services (CPS).
Later in December, A.D. was interviewed by Esmeralda Medina, a CPS social worker. A.D. told Medina that defendant had digitally penetrated her vagina over and under her clothes, that defendant gave her showers without her mother's knowledge, that she slept in defendant's bed while her brothers slept in another bedroom, and her mother had not believed her when she told her.
In January 2018, defendant was interviewed by Detective Henry McClusky. He denied ever molesting A.D., and he asserted that A.D. would not have made such claims against him and that Rachael had fabricated the allegations.
A.D. was interviewed by Sacramento Police Department Officer Andrew Davis; the interview was recorded on Davis' bodycam and was later played at trial. A.D. said that defendant was doing “gross stuff” to her, like touching her on her “privates” more than once over her clothes. Defendant made her sleep with him and touched her on her privates through her clothing. Defendant “peed on [her]” while they were lying in bed. Defendant gave her showers when she was five-and-a-half years old, and he touched her approximately six times in the shower. In three of those instances, he inserted his finger inside of her privates. Defendant told A.D. not to tell her mother.
A.D. then underwent a SAFE interview with “Darla.” A.D. stated that defendant touched her more than one time in inappropriate ways. Defendant made her sleep close to him one time and peed on her while her brothers slept in another room. Defendant lifted her nightgown, inserted the tip of his penis into her vagina, and kissed her. A.D. initially denied that defendant had touched her inappropriately in the shower, but she later stated that defendant inserted his finger into her vagina while he helped her take a shower. She said that defendant touched her vagina more than 15 times when she was in his bedroom.
Procedural Background
Defendant was charged with three counts of committing a lewd and lascivious act upon a child. (Pen. Code, § 288, subd. (a)(1).) Count one charged defendant with touching his penis to A.D.'s genitalia on the bed, count two charged defendant with touching A.D.'s genitalia with his finger in the shower, and count three charged defendant with touching A.D.'s genitalia with his hand. The three counts alleged that defendant had inappropriate sexual contact with A.D. on three occasions “[o]n or about and between November 15, 2014, and January 1, 2016, ” when she was four to five years old, by means of vaginal contact with intent of arousal. Defendant pleaded not guilty, and he waived his right to a preliminary hearing and trial by jury.
The prosecution moved in limine to admit A.D.'s SAFE interview and her interview with Davis pursuant to the requirements of Evidence Code section 1360. Defendant moved in limine to “[e]xclude the playing of any tape recorded interview or other oral communication between any persons without the prosecution declaring which recordings will be played within a reasonable amount of time to allow [defendant] the reasonable opportunity to object to the entire recording or offer redactions for admissibility.”
Further undesignated statutory references are to the Evidence Code.
At a pretrial hearing on the in limine motions, the trial court asked defense counsel whether he had any comments as to the prosecution's intent to introduce the interview with Davis and the SAFE interview. Defense counsel responded, “submitted.” The court stated: “Okay. She will testify. So I think it would qualify under [§] 1360. [¶] I can allow it in subject to further discussion because I am supposed to make some reliability findings upon reviewing that. So I thought I would wait to hear her testimony and then review the video and then make a decision if that works for the parties?” Defense counsel responded that this deferral was acceptable, but he reserved his objection to the evidence in the absence of a finding by the court as to A.D.'s competency to testify under section 701. The court ruled that it would allow the prosecution to ask A.D. preliminary questions regarding her competency, the court would supplement as necessary, and the court would make a “finding as to her capacity after the questioning of both parties.”
At that same hearing, defense counsel acknowledged that after submitting his motions in limine he learned which interviews the prosecution intended to play, and the parties agreed to ensure that defendant received transcripts of the interviews before trial.
The trial court also ruled preliminarily that the fact of A.D.'s report to her mother of defendant's conduct was admissible under the “fresh complaint” doctrine for the purpose of showing that she reported one of the alleged incidents close in time, but the details of that report would only be admissible under section 1360. (See People v. Brown (1994) 8 Cal.4th 746, 763 [out-of-court disclosure to others by child accuser admissible as non-hearsay, but details of the alleged events that were “testimonial” in nature must be excluded unless admissible under a hearsay exception].)
Trial Testimony
At trial, prior to A.D.'s testimony, the trial court stated the parties had “discussed this in chambers, ” and the prosecution then played the video of the SAFE interview without any objection by defense. A.D. testified after the SAFE interview was played. She testified that she told the truth to Darla, Davis, and Medina. She said she had told Rachael and Vicky that defendant had been “peeing” on her and that she told Vicky the truth. She slept in defendant's bed at his house, and he did some things that were inappropriate. She did not remember defendant trying to have sex with her. She remembered defendant putting his fingers inside her “private part” two times, but all inappropriate touching occurred in the bed. She agreed it was hard to testify with defendant in the room, as he made her nervous.
The prosecutor asked Rachael about the details of A.D.'s comments about “some sort of peeing going on, ” defendant “putting his legs between her legs and having to sleep in bed with him, ” and about “kissing him on the lips.” Defense counsel objected to the prosecutor's question to Rachael about A.D.'s statement regarding kissing on the lips on the basis that kissing a child on the lips is not a qualifying event under section 1360. The trial court recognized that kissing on the lips might not be admissible as child abuse under section 1360, but it tentatively ruled that it would allow the questioning “subject to a motion to strike.” Although defense counsel “still h[e]ld [his] objection, ” the court allowed Rachael to testify that A.D. told her defendant “kissed me on the lips, touches my hair, and makes me put my legs in between his legs.”
Defendant did not object to other instances of witnesses testifying as to the details of A.D.'s statements. For example, Vicky testified that A.D. told her in December 2017 defendant “peed on her... when she had spent the night with him” and “poked her with something hard... that boys have and girls don't have” when she stayed with him. Medina testified that A.D. told her defendant “touched her inappropriately under and over her clothes, ” “digitally penetrated her vagina, ” and “would have her sleep with him while her brothers slept in a different bedroom, ” and that A.D. told her mother but that her mother did not believe her. Rachael testified that Vicky said A.D. had told Vicky that defendant had “peed on her.” McClusky testified that Vicky had told him A.D. told her that defendant “peed on me one time.”
In lieu of expert testimony from Dr. Anna Washington, the parties stipulated that she would testify about Child Sexual Abuse Accommodation Syndrome. She would testify that child victims of sexual abuse are “most often fearful, tentative and confused about the nature of the sexual abuse and the outcome of disclosure.” False accusations of sexual abuse by children are “exceedingly rare.” Children subject to sexual abuse do not often report the abuse due to the fear of negative consequences from the abuser, such as A.D.'s assertion that defendant threatened to spank her if she reported what he had done, and many victims who sought help reported negative consequences, including parents who became hysterical, punished the child, or pretended that nothing happened. Children are three times more likely to be molested by a recognized, trusted adult than by a stranger, and most child victims are unable to forcibly resist, cry for help, or attempt to escape the intrusion. Most ongoing sexual abuse is never disclosed, and children typically “face[ ] an unbelieving audience when she complains of ongoing sexual abuse.”
Defendant testified on his own behalf. He confirmed that he had slept with A.D. only one time alone in his bedroom in April 2017 because she would not go to sleep in the guest room with her brothers. He asserted that he had never touched A.D. inappropriately and that A.D. was lying because she was either being coached or influenced by Vicky and Rachael.
Defendant's Motion to Dismiss and Trial Court Findings
The trial court denied defendant's motion to dismiss under Penal Code section 1118 at the conclusion of the prosecution's case.
After hearing the case, the trial court ruled that A.D.'s recorded SAFE interview was admissible under section 1360. The court stated: “In terms of some housekeeping matters, I know that it was asked of me at the beginning of the trial regarding the SAFE interview if I would at some point make a finding required under [§] 1360.” The court noted that it had watched the recorded interview played in court and reviewed it that morning, and it found “that the time, content, and circumstances of the statement did provide and does provide sufficient indicia of reliability. [¶] So I will allow that to be considered by the Court.” The court also ruled that A.D. and her brother were “competent witnesses” under section 701 after listening to their testimony during trial. The court did not make any express findings or rule as to the admissibility of the recorded interview by Davis, or the introduction of the out-of-court statements made by A.D. as testified to by Rachael, Vicky, and Medina. Defense counsel did not object or press for any additional rulings.
In rendering its verdict, the trial court recognized the importance of credibility to this case; it quoted extensively from the SAFE interview and found A.D. “eminently credible.” The court explained: “The testimony she gave in court, the interview with the SAFE demonstrated the language that an eight-year old unfortunately who has experienced sexual activity would use. [¶] As I said, she uses the word inappropriate, uncomfortable in the correct context. Those are her words she has learned. [¶] She also demonstrated knowledge of an act that only could have shown knowledge if she had experienced that act. [¶] During the interview I saw what I would call the progression in the interview; a very shy, very reserved, little girl reluctant, not wanting to disclose especially the subject matter involved here. It's very difficult for her. It's an embarrassing subject. [¶] She appeared to be testing the waters by looking for some reaction from the examiner making sure it is safe to disclose. Even so she was quite embarrassed, at times covering her face, covering her mouth, and at one point she did say he asked me not to tell you. That language and the threat that she indicated came with that, settled on her, as they do most children. It's going to be very difficult to have them reveal private acts that they have no business knowing about at seven or eight years old. It does take time. [¶] She did have difficulty explaining not because she forgot her lines, but she's a child attempting to explain in an understandable way what happened to her, and she says, again, I didn't want to tell you ‘cause I thought you would say, ‘you're too little for that stuff'. Do you know what a ding-a-ling is? He was trying to -- starts with an S. [¶] Kids do not manufacture that kind of language. It seems very far-fetched to say it was rehearsed especially the way that it came out. It came out in dribbles and drabs. It came out a little different, and it was very consistent throughout. [¶] When Darla asked: You can say anything in here as long as it's true, she responded: It is true. [¶] I found her to be credible, believable, and reliable.”
The trial court next found defendant's testimony not credible, not believable, not truthful, and not reliable. The court noted that defendant's testimony was inconsistent, and he appeared to “like to control the situations.” The court also found defendant did not answer the questions directly; it found that defendant's message “was more of a diversionary tactic especially during cross-examination.” The court found the defense that Vicky manufactured the claims to be unreasonable, finding that it “makes no sense at all.”
The trial court found defendant guilty on all three counts. It imposed a midterm sentence of six years in prison on count one, and consecutive sentences of two years on counts two and three, for an aggregate sentence of 10 years. The court suspended execution of the sentence and placed defendant on five years of formal probation. Defendant timely appealed.
DISCUSSION
I
Admitting A.D.'s Out-of-Court Statements
Defendant contends the trial court improperly admitted multiple out-of-court statements by A.D., including two recorded interviews with investigators, without conducting a hearing or making required findings. He adds that if his claims are forfeited, his counsel was ineffective for failing to object. We disagree.
A. Section 1360
Under section 1360, a child's hearsay statement describing an act of sexual abuse perpetrated upon the child is admissible if the following conditions are met: (1) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; (2) the child testifies at the proceedings; and (3) the proponent of the statement gives notice to the adverse party of its intention to use the statement at trial.
Because A.D. testified at trial and was subject to cross examination, defendant's confrontation rights were not implicated by application of the statute. (See Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9; People v. Morrison (2004) 34 Cal.4th 698, 720.)
In Idaho v. Wright (1990) 497 U.S. 805, at pages 821 to 822, abrogated in part by Crawford v. Washington, supra, 541 U.S. at pages 60 to 62, the high court identified the following nonexhaustive list of factors as relevant to the reliability of hearsay statements made by a child witness in a sexual abuse case: (1) spontaneity and consistent repetition; (2) the declarant's mental state; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate. The court declined to adopt a mechanical test, recognizing instead the “unifying principle” relating to whether “the child declarant was particularly likely to be telling the truth when the statement was made.” (Id. at p. 822.) The California Supreme Court later adopted the factors identified by Idaho, adding to the list “the child's ability to understand the duty to tell the truth and to distinguish between truth and falsity” (In re Cindy L. (1997) 17 Cal.4th 15, 30; id. at p. 29) and recognizing that “any factor bearing on reliability may be considered” (In re Lucero L. (2000) 22 Cal.4th 1227, 1250). Courts have considerable leeway in their consideration of appropriate factors. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1374.) “We review a trial court's admission of evidence under section 1360 for abuse of discretion.” (Id. at p. 1367.)
Defendant contends a trial court's findings concerning the indicia of reliability are subject to independent review. However, independent review is only applied in the context of a confrontation clause challenge (People v. Roberto V., supra, 93 Cal.App.4th at 1374; People v. Eccleston (2001) 89 Cal.App.4th 436, 445-446; Lilly v. Virginia (1999) 527 U.S. 116, 136), which is not at issue here.
B. Forfeiture and Ineffective Assistance of Counsel
The Attorney General contends defendant forfeited this claim by failing to object to the evidence at trial. (People v. Seijas (2005) 36 Cal.4th 291, 302.) We agree.
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion....” (§ 353.) “ ‘[T]he objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.' [Citation.] What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.” (People v. Partida (2005) 37 Cal.4th 428, 435.)
Before trial, defense counsel objected to the introduction of A.D.'s out-of-court statements on the basis that the prosecution must give notice as to what recorded interviews would be played. Additionally, when the court reserved its ruling on the admissibility of the SAFE interview under section 1360 until the end of trial, defense counsel reserved his objection only as related to A.D.'s competency. Neither of these objections was based on the absence or insufficiency of a hearing or of the court's reliability findings.
Defense counsel failed to object to the introduction of A.D.'s interview with Davis. Regarding the testimony of Rachael, Vicky, Medina, and McClusky regarding A.D.'s out-of-court statements, defense counsel only objected once on the basis that kissing on the lips may not be a qualifying event under section 1360. Counsel did not object on the basis of a lack of a hearing or a lack of sufficient findings by the court. Accordingly, defendant has forfeited these arguments. (See, e.g., People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 371; People v. Solomon (2010) 49 Cal.4th 792, 821.)
Anticipating this conclusion, defendant contends his counsel was constitutionally ineffective for failing to object. A criminal defendant is entitled to the effective assistance of counsel, whether appointed or retained. (See Cuyler v. Sullivan (1980) 446 U.S. 335, 344-345; People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) An ineffective assistance of counsel claim has two prongs. (Strickland v. Washington (1984) 466 U.S. 668, 687.) First, defendant must show that his counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms. (People v. Ledesma (1987) 43 Cal.3d 171, 216.) Second, defendant must show there is a reasonable probability that, but for counsel's errors, the result would have been different. (Id. at pp. 217-218.) “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.' ” (Id. at p. 218.) If defendant makes an insufficient showing on either one of these components, his ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703.)
On direct appeal, a conviction will be reversed for ineffective assistance “only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. (People v. Harris (1993) 19 Cal.App.4th 709, 714.)
C. Analysis
Section 1360 requires the trial court to “find, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.” At the hearing on the parties' motions in limine, the prosecutor explained that he intended to introduce A.D.'s SAFE interview, the interview with Davis, and the details of A.D.'s statements to Rachael under section 1360. The court recognized it had to make findings as to the reliability of the evidence, and, with the agreement of the parties, decided that it would hear A.D.'s testimony and review the video before making any findings. After hearing the entire case and re-watching the video, the court found with respect to the SAFE interview “that the time, content, and circumstances of the statement did provide and does provide sufficient indicia of reliability. [¶] So I will allow that to be considered by the Court.”
Defendant points to no authority requiring the trial court, when conducting a bench trial, to hold a separate evidentiary hearing regarding the reliability of an out-of-court statement. Here the court held a hearing on in limine motions, which included discussion of the admissibility under section 1360 of the SAFE interview, the Davis interview, and A.D.'s statements to her mother. Defense counsel was given the opportunity to argue against the admissibility of the evidence.
Nor does the statute require the court to make a statement of reasons to support its findings on the record. (See People v. Williams (1997) 16 Cal.4th 153, 196-197 [“A trial court's ruling on admissibility implies whatever finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, unnecessary”]; People v. Stowell (2003) 31 Cal.4th 1107, 1114 [where statute does not require statement of reasons and record is silent, reviewing court presumes that the trial court had a proper basis for a particular finding or order]; § 402, subd. (c) [“A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute”].) The trial court held a hearing and made the express findings required by the statute to admit the SAFE interview.
We recognize that the trial court did not make express reliability findings as to the Davis interview or the statements made to Rachael, Vicky, and Medina. However, the lack of findings with respect to those statements did not prejudice defendant. The court stated that it “reviewed all of the evidence, ” and it found A.D. to be “eminently credible.” There is nothing to suggest that the court, after making its findings related to the SAFE interview and in making findings in rendering the verdict, would have found A.D.'s statements to Davis, Rachael, Vicky, Medina, and McClusky unreliable had defense counsel made a timely objection to the lack of such findings.
In addition to his procedural argument, defendant asserts that A.D.'s out-of-court statements are lacking in reliability under the applicable criteria. He contends there were major inconsistencies in her trial testimony, her recorded interviews, and her statements to Rachael, Vicky, and Medina, as to what occurred and with what frequency. He argues that A.D.'s mental state cannot be discerned from the record, her use of terminology is inconsistent, including her trial testimony that she did not know what “inappropriate” meant after using it frequently in her out-of-court statements, and there was no hearing or finding on whether she had any “motive to fabricate” in order to please Rachael and Vicky, as defendant contended in his defense.
However, the issue before us is not whether A.D.'s statements lacked indicia of reliability, but rather whether defendant suffered prejudice by his counsel's failure to object. As we have concluded, the trial court followed proper procedures with respect to admitting the SAFE interview, and the court's extensive reliability findings clearly demonstrate defendant did not suffer prejudice by his counsel's failure to object to the remaining evidence admitted under section 1360. Accordingly, counsel was not constitutionally ineffective.
II
Authentication of the SAFE Interview Video
Defendant contends the trial court abused its discretion by admitting the SAFE interview video without proper authentication. He adds that counsel was ineffective if his objection was not preserved. We conclude admitting the video did not prejudice defendant.
A. Legal Background
A videotape must be authenticated to be received in evidence. (§§ 250, 1401; People v. Rich (1988) 45 Cal.3d 1036, 1086, fn. 12 [videotape is a “writing” within the meaning of section 250].) A writing is admissible if a finding of authentication is supported by a preponderance of the evidence. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321.) Authentication requires “sufficient evidence for a trier of fact to find” that the video recording “is what it purports to be, i.e., that it is genuine for the purpose offered.” (People v. Goldsmith (2014) 59 Cal.4th 258, 267; see also § 1400.) “A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted. [Citations.] This foundation may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded. [Citations.] It may be supplied by other witness testimony, circumstantial evidence, content and location. [Citations.] Authentication also may be established ‘by any other means provided by law' (§ 1400), including a statutory presumption.” (Goldsmith, at pp. 267-268.) “ ‘As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' ” (Id. at p. 267.)
We review the trial court's admission of evidence over an authentication challenge for abuse of discretion. (People v. Goldsmith, supra, 59 Cal.4th at p. 266.) Defense counsel failed to object to the admission of the video on the basis of a lack of authentication, thus forfeiting the argument. (See People v. Sims (1993) 5 Cal.4th 405, 448 [defendant forfeited authentication argument by failing to object at trial].)
Anticipating this conclusion, defendant asserts his counsel was constitutionally ineffective, the standard for which we described ante. We note that “[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540; People v. Avena (1996) 13 Cal.4th 394, 421.)
B. Analysis
Defendant contends the prosecution made no attempt to authenticate the video, and there was no conceivable tactical purpose for counsel's failure to object to the lack of authentication. Defendant also asserts the date, time, and location of the interview were not disclosed, and McClusky testified that he watched the video prior to trial at the SAFE location but was not present during its recording.
Defendant contends he was prejudiced by his counsel's failure to object because the trial court relied on the SAFE interview in rendering its verdict, and there is a reasonable probability that, had the video of the interview been excluded, the court would have had a reasonable doubt as to defendant's guilt. (People v. Ledesma, supra, 43 Cal.3d at 217-218.) But the issue before us is whether there is a reasonable probability, had defense counsel objected to the lack of authentication of the video, the result of the trial would have been different. We conclude there is no such reasonable probability here.
Had defense counsel objected to the lack of authentication of the video, the prosecutor would have been easily able to have a witness authenticate it. Indeed, the video was played just before A.D.'s testimony at the outset of the trial. If counsel objected, the prosecutor could have simply played the video during A.D.'s testimony and asked her to authenticate the video. Further, there is no indication whatsoever that the video is anything other than what the prosecution claimed it to be. Defendant offers no such indication. Moreover, it is undisputed that A.D. did undergo a SAFE interview. Rachael drove A.D. to a SAFE interview, A.D. confirmed that she went to an interview with Darla, A.D.'s youngest brother also participated in an interview with Darla, and defendant acknowledged that A.D. participated in a SAFE interview. At trial McClusky discussed the SAFE interview. He testified as follows:
“Q. Did you also have an occasion to do what is commonly referred to as a SAFE interview, or I should say observe a SAFE interview of [A.D.]?
“A. Yes.
“Q. You had a chance to watch the video recording of that?
“A. Yes.
“Q. Was the video recording a fair and accurate recording of the video that you directly observed at the Sacramento SAFE Center?
“A. Yes.”
McClusky later testified that he showed A.D. a photo of defendant, and she identified him as the person she talked about in the interview. McClusky also stated that, after he watched “the SAFE, ” he showed A.D. photographs of defendant's addresses and asked her about the location of the inappropriate incidents. While it appears that McClusky watched the video of A.D.'s SAFE interview at the SAFE Center after it had occurred, it further supports the assertion that the interview was a SAFE interview that occurred at the SAFE Center.
Furthermore, we cannot say that counsel had no tactical purpose for not requiring A.D. to authenticate the video. The parties met in chambers before trial began and discussed playing the SAFE interview before A.D.'s testimony. It is reasonable to believe that defense counsel knew the video was authentic and had a tactical basis for not requiring A.D. to authenticate it. Had A.D. been required to watch the video in order to authenticate it, her statements during the interview would have been fresh in her mind during her testimony, and it is more likely that her testimony at trial would have more closely conformed to her statements during that interview.
For all of these reasons, we conclude it is not reasonably likely that defendant would have obtained a more favorable outcome had counsel objected to the lack of authentication of the SAFE interview video.
III
Notice as to Counts One and Three
Count one charged defendant with touching his penis to A.D.'s genitalia “[o]n or about and between November 15, 2014, and January 1, 2016.” Defendant contends the undisputed evidence demonstrated that the date of the alleged incident--a date on which defendant maintains nothing untoward occurred--was in April 2017. Defendant argues: (1) by failing to provide him with minimum notice of approximately when the charged conduct occurred, he was deprived of the ability to prepare a defense; and (2) there is insufficient evidence to support the verdict because the evidence shows the charged offense did not “ ‘happen[ ] reasonably close' ” to the time period specified in the information.
Defendant also asserts that, had the trial court excluded A.D.'s out-of-court statements, the remaining evidence is insufficient to support his conviction in count one. We do not address this argument because we have concluded that the court did not err by admitting A.D.'s out-of-court statements.
Count three charged in relevant part: “For a further and separate cause of action, being a different offense of the same class of crimes and offenses as the charges set forth in Counts One and Two hereof: On or about and between November 15, 2014, and January 1, 2016... [defendant]... did willfully, unlawfully, and lewdly commit a lewd and lascivious act, to wit, hand to genitalia, upon and with the body and certain parts and members thereof of [A.D.], a child under the age of fourteen years, to wit, age 4-5 years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant and the said child.” Defendant contends that this count did not provide sufficient notice to him because “it is hard to fathom what the charge against him actually is.”
We conclude defendant has forfeited these claims by failing to object to a lack of notice in the trial court and that his claim of ineffective assistance of counsel, raised for the first time in his reply brief, comes too late.
A. Count One -- Background
A.D. was born in November 2010 and turned five years old in November 2015. During her SAFE interview, A.D. said that the charged conduct occurred when she was five and a half years old, which, if credited, would mean that the conduct occurred in approximately May 2016. A.D. also said that she told Rachael about what had happened when she was five and a half years old.
Rachael initially testified that A.D. first told her that appellant had urinated on her in 2016, but she agreed on cross-examination that A.D. reported in April 2017 that defendant “peed” on her. Rachael contacted CPS in December 2017.
Defendant testified he only slept alone with A.D. on one occasion, in April 2017, although he maintained that nothing untoward occurred during that sleepover. Rather, defendant asserted that A.D. was lying and that she had been coached by Rachael and Vicky to tell an invented story. Defendant did not present an alibi defense at trial.
B. Count Three -- Background
In arguing against defendant's motion to dismiss, the prosecutor argued that A.D. discussed “upwards of 15” instances of inappropriate touching. He observed that A.D. in the SAFE interview stated defendant “tried to penetrate her vagina. He got the tip of his penis in her vagina. He put his fingers inside her vagina, and kissed her on the lips.” The trial court asked the prosecutor whether count three referenced a specific act. The prosecutor replied: “It would be a time other than the penetration.... [M]y theory will be tomorrow, penis in the vagina, finger in the vagina, and then a time different than finger in the vagina, covered in the SAFE.” The prosecutor then argued there was sufficient circumstantial evidence of intent to arouse to defeat the motion to dismiss by “attempting to put your penis inside the vagina of a five-year old, ” “sticking your finger deep enough inside a five-year old so she says it was deep, ” and “kissing a five-year old on the lips in the circumstances under which A.D. said she was kissed on the lips.”
In closing argument, the prosecutor discussed Medina's testimony that A.D. had told her “specific details about vaginal sexual penetration that was digital.” He recounted A.D.'s interview with Davis, in which she stated defendant digitally penetrated her more than once. Finally, the prosecutor discussed the SAFE interview, in which A.D. stated that defendant touched her inappropriately, that it was sexual in nature, and that it occurred more than once--up to 15 or 17 times. The prosecutor then argued that he had proven beyond a reasonable doubt “at least the number of offenses that are charged in the Information. That's three: penis to vagina, finger to vagina, and finger to genitals a different time.”
At the conclusion of his closing argument, however, the prosecutor summarized: “He touched her on the vagina with his penis. [¶] He touched her on the vagina with his hand when he penetrated her. [¶] And he kissed her on the lips in the bed. [¶] [Defendant] committed these three crimes, and it's time for [defendant] to be held responsible for those crimes.”
C. Right to Notice
“ ‘ “Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them.”' [Citation.] Notice is supplied in the first instance by the accusatory pleading. [Citation.] But a variance between the pleading and proof at trial will be disregarded if it is not material. [Citation.] ‘The test of the materiality of a variance is whether the indictment or information so fully and correctly informs the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of being twice put in jeopardy for the same offense.' ” (People v. Hoyt (2020) 8 Cal.5th 892, 923.) The defendant must show that he was prejudiced by the variance. (People v. Thomas (1987) 43 Cal.3d 818, 828, 830.)
“ ‘An information which charges a criminal defendant with multiple counts of the same offense does not violate due process so long as (1) the information informs defendant of the nature of the conduct with which he is accused and (2) the evidence presented at the preliminary hearing informs him of the particulars of the offenses which the prosecution may prove at trial. [Citations.] The information plays a limited but important role - it tells a defendant what kinds of offenses he is charged with and states the number of offenses that can result in prosecution. However, the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript. This is the touchstone of due process notice to a defendant.' ” “[A]n information need not notify a defendant of all the particulars of the crime charged. That role is left to the preliminary hearing transcript. Where... the particulars are not shown by the preliminary hearing transcript, the defendant is not on notice in such a way that he has the opportunity to prepare a meaningful defense.” (People v. Pitts (1990) 223 Cal.App.3d 606, 904-905.)
“When, as here, the defendant waives his right to the preliminary hearing, with the acquiescence of the district attorney and court, and there is therefore no preliminary hearing transcript upon which new or amended charges may be based, the pleading on file at the time of the defendant's waiver must serve as the touchstone of due process notice to the defendant of the time, place, and circumstances of the charged offenses. [Citation.] Thus, it is the amended complaint that must be looked to for purposes of determining whether defendant received due process notice.” (People v. Peyton (2009) 176 Cal.App.4th 642, 658-659 (Peyton).)
D. Forfeiture
The Attorney General contends defendant forfeited any lack of notice by failing to object at trial. Generally, “[i]t is well established that a lack of notice can be forfeited by failure to object, even when it is claimed that it violated due process.” (People v. Nguyen (2017) 18 Cal.App.5th 260, 271; see also People v. Cole (2004) 33 Cal.4th 1158, 1205 [defendant forfeited claim of inadequate notice where he failed to object to prosecution attempting to prove lying in wait theory].) The Attorney General relies on People v. Butte (2004) 117 Cal.App.4th 956, at pages 958 to 959, in which the defendant demurred to the consolidated information in part on the basis that the information, which charged offenses over a period of years, was impermissibly vague and denied him a fair opportunity to defend. Citing People v. Jones (1990) 51 Cal.3d 294, at pages 317 to 318 (Jones), the Butte court observed that criminal defendants have multiple means of obtaining notice of the charges against him, including the information and the preliminary examination, which, when properly used, “are sufficient to preserve the defendant's due process right to notice.” (Butte, at p. 959.) We concluded that “a defendant who waives preliminary hearing is poorly situated to complain about vagueness in the pleading, ” and therefore the defendant had forfeited his right to complain on appeal of insufficient notice. (Ibid.)
Defendant contends Butte is inapposite because his argument is not predicated on vagueness in the information that could have been clarified by the preliminary hearing, but rather on a material variance between the date range provided by the information and the proof at trial. We agree with defendant this case is not on all fours with Butte; here, defendant would not have understood that the evidence at trial materially differed from the date range in the information until the end of the prosecution's case. However, the principle stated in Butte applies here. Had defendant not waived his preliminary hearing, he would have had the opportunity to cross-examine the prosecution's witnesses and clarify the date of the incident charged in count one.
Defendant relies on Peyton, supra, 176 Cal.App.4th 642, but that case does not assist him. In Peyton, the defendant waived his right to a preliminary hearing. After the defendant's waiver, the prosecution amended the complaint to conform to the proof at trial; he added an additional charge and changed two counts from charging oral copulation to instead charge sexual penetration. (Id. at pp. 650-651, 656-657.) Counsel did not object to the amendments at trial (id. at p. 652), yet the court considered his due process arguments. However, while the Peyton court did not conclude that defendant had forfeited his claims--it did not consider the issue--the defendant raised his notice claims as claims of ineffective assistance of counsel. (Id. at pp. 652, 655, 657.) Accordingly, Peyton does not support defendant's assertion that he may raise claims of a lack of notice on appeal without objecting in the trial court where those claims are not raised as claims of ineffective assistance of counsel. Although defendant belatedly argued that his counsel was constitutionally ineffective in his reply brief; we do not consider arguments first raised in reply. (People v. Newton (2007) 155 Cal.App.4th 1000, 1005.)
Accordingly, we conclude defendant has forfeited his claim of a lack of notice by failing to object in the trial court.
E. Applying the “Reasonably Near” Standard
Defendant argues that insufficient evidence supports the verdict as to count one because the undisputed evidence showed the offense did not occur “reasonably near” the date range specified by the complaint. The prosecution was required to show that the charged crime took place “reasonably close to [the date on which the crime was alleged to have occurred].” (CALCRIM No. 207 [Proof Need Not Show Actual Date].) “The precise date on which an offense was committed need not be stated in an accusatory pleading unless the date is material to the offense ([Pen. Code, ] § 955), and the evidence is not insufficient merely because it shows the offense was committed on another date.” (Peyton, supra, 176 Cal.App.4th at p. 660.) As was the case in Peyton, the date range alleged in count one was not material to the charged offense, and defendant failed to show prejudice by the variance between the date range in the information and the evidence at trial.
In support of his argument that the “reasonably near” standard has not been met, defendant relies on United States v. Male N.A. Juvenile (9th Cir. 2001) 7 Fed.Appx. 663, at page 665, which in turn cited United States v. Tsinhnahijinnie (9th Cir. 1997) 112 F.3d 988, at page 991, and United States v. Casterline (9th Cir. 1996) 103 F.3d 76, at pages 78 to 79. Those cases do not require reversal here.
In United States v. Tsinhnahijinnie, supra, 112 F.3d at page 991, the court concluded that evidence of crimes committed in 1994 were not sufficient to prove that the defendant committed similar crimes in 1992. The court recognized that the inquiry in an instance of variance between a charging document and proof at trial is whether “ ‘there has been such a variance as to “affect the substantial rights” of the accused.' ” (Ibid.) The court recognized that variance is immaterial where it is “ ‘not of a character which could have misled the defendant at the trial,' [citation] and there is no danger of double jeopardy.” (Ibid.) In that case, the variance prejudiced the defendant because he had presented alibi evidence for the dates identified in the indictment. (Ibid.)
In United States v. Casterline, supra, 103 F.3d at page 78, the court concluded that the date specified in the indictment charging the defendant with unlawfully possessing a firearm did not satisfy the “reasonably near” standard because, on the date specified in the indictment, the defendant was in prison and had been for seven months. The defendant argued that he could not tell whether he had to defend his conduct only for the period reasonably near the specified date--for which he would have had an alibi--or whether he had to defend against the time period seven months prior, when he may have had access to guns. (Ibid.)
In both Tsinhnahijinnie and Casterline, the variance between the date identified in the indictment and the proof at trial materially affected the defendant's ability to defend against the crime. In both instances, the defendant had an alibi defense available to him for the time period specified in the indictment that he did not have available to him for the time period that was subject to proof at trial. Conversely, here, the variance was irrelevant. As we have discussed, defendant fully acknowledged that he had spent a night alone with A.D., and he insisted that nothing had happened that night. There was no indication or argument that the one night defendant spent alone with A.D. was not the one night on which the conduct at issue either occurred, per A.D.'s version, or did not occur, per defendant's version. There were simply no other nights at issue. Accordingly, the specific variance in date did not affect defendant's substantial rights.
IV
Sufficiency of the Evidence as to Count Two
Defendant contends there is insufficient evidence to support count two, which charged defendant with touching A.D.'s vagina in the shower with his finger for purposes of sexual arousal, because A.D. testified at trial that he never touched her in the shower. We disagree.
A. Standard of Review
“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] 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.' ” (People v. Edwards (2013) 57 Cal.4th 658, 715.)
The factfinder is entitled to draw reasonable inferences based on the evidence (People v. Livingston (2012) 53 Cal.4th 1145, 1166), and we must accept all logical inferences the jury might have drawn from the evidence, even if we would have concluded otherwise (People v. Salazar (2016) 63 Cal.4th 214, 242). “ ‘Although it is the [factfinder's] duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the [factfinder], not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt.' ” (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”' the [factfinder's] verdict.” (Id. at p. 357.)
B. Analysis
To present sufficient evidence, the victim of child sexual abuse must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation, or sodomy). (Jones, supra, 51 Cal.3d at p. 316.) The victim must also describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., “twice a month” or “every time we went camping”). (Ibid.) Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., “the summer before my fourth grade, ” or “during each Sunday morning after he came to live with us”), to assure the acts were committed within the applicable limitation period. (Ibid.) Additional details regarding the time, place, or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim's testimony, but are not essential to sustain a conviction. (Ibid.)
Substantial evidence supports the trial court's verdict as to count two. A.D. told Davis that defendant touched her privates in the shower even though she knew how to shower on her own. She estimated that defendant touched her six times in the shower and that he put his finger in her vagina three times. A.D. said that defendant instructed her not to tell her mom and threatened to spank her if she did. Medina testified A.D. told her that defendant “would give her showers as well without her mother's knowledge.”
During her SAFE interview, A.D. stated that defendant soaped and rinsed her in the shower even though she knew how to, but he did not wash her “private areas” or touch her there. She then stated defendant never touched her crotch, but he sometimes used “little balls... that scrub” when washing her. She asserted that “[e]very time he touched me inappropriately, it, um, in his bedroom.” However, A.D. then told Darla that when showering her, defendant inserted his finger inside her vagina. She said, “it hurted a little bit ‘cause it was, like, kinda like deep.”
At trial, A.D. testified that defendant put his finger inside her vagina, but only in the bed, not the shower. But she agreed that she was truthful in her pretrial interviews, and her memory was better when she made the statements than it was at trial. She also agreed she was nervous and embarrassed about testifying.
Despite her trial testimony, we disagree with defendant that A.D. “maintained her position that no improper touching by [defendant] ever took place in the shower.” As defendant recognizes, A.D. told both Darla and Davis that defendant digitally penetrated her vagina in the shower and these statements were admitted for their truth. The trial court was required to judge the credibility of witnesses, determine the truthfulness and accuracy of child witnesses, and resolve any conflicts in the evidence. While the court was entitled to weigh the evidence and discount any evidence it did not find credible, substantial evidence supports guilt as to count two.
DISPOSITION
The judgment is affirmed.
We concur: Robie, Acting P. J., Murray, J.