Opinion
F080516
09-14-2022
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ROBERT BONANDER, Defendant and Appellant.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Timothy L. O'Hair, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 4007765. Robert B. Westbrook, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Timothy L. O'Hair, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PENA, J.
INTRODUCTION
Defendant Christopher Robert Bonander was charged with multiple counts related to his alleged inappropriate behavior with the minor daughters of his domestic partner, S.P.: Jane Doe 1 and Jane Doe 2. A jury convicted defendant of oral copulation of a child (Pen. Code, § 288.7, subd. (b); count I), two counts of lewd acts on a child (id., § 288, subd. (a); counts II &III), and two counts of exhibiting harmful matter to a minor (id., § 288.2, subd. (a)(2); counts IV &VII). The trial court imposed a sentence of 15 years to life for count I, plus an aggregate determinate term of 10 years 8 months for counts II, III, IV and VII. The court also imposed various fines and fees.
On appeal, defendant first claims the trial court violated his due process rights by admitting into evidence statements he made during pretext phone calls with S.P. Second, defendant claims the trial court abused its discretion when it admitted Jane Doe 1's out-of-court statements to the investigating detective as prior inconsistent statements. Third, defendant claims the trial court abused its discretion when it denied his request for a continuance to obtain additional records from child protective services (CPS) before trial. Fourth, defendant claims his two-year sentence on count IV is unauthorized and must be vacated. Last, in supplemental briefing, defendant claims the presentence report fee imposed under Penal Code section 1203.1b should be vacated pursuant to newly enacted Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (Assembly Bill 1869). The People agree the two-year sentence reflected in the abstract of judgment on count IV is unauthorized and is a clerical error that should be corrected. The People also concede the presentence report fee should be vacated.
We, too, agree defendant's sentence of two years on count IV as reflected in the abstract of judgment is incorrectly recorded, and the presentence report fee imposed under Penal Code section 1203.1b should be vacated under newly enacted law. In all other respects, we affirm the judgment.
FACTUAL BACKGROUND
In 2013, defendant developed a romantic relationship with S.P. and they moved in together in the spring of 2014. S.P.'s three sons and two daughters, Jane Doe 1 and Jane Doe 2, lived with them on a part-time basis. During this time, Jane Doe 1 was eight years old and Jane Doe 2 was nine. Due to busy schedules and appointments, there were times when defendant was home alone with all the children. Around this time, Jane Doe 1's grades started slipping and S.P. hired Susan G. to tutor Jane Doe 1.
Prosecution's Evidence
S.P.'s Testimony
S.P. testified she had known defendant since elementary school but they became romantically involved around 2013 while S.P. was still married. S.P. and defendant decided to live together in the spring of 2014 and S.P. filed for divorce. Defendant's two sons lived with them fulltime and S.P.'s three sons and two daughters, Jane Doe 1 and Jane Doe 2, lived with them on a part-time basis due to shared custody. About two times a week, S.P. would leave defendant at home with all the children while she ran errands or went to the gym. S.P. stated Jane Doe 2 did not like defendant from the beginning but Jane Doe 2 eventually started to give him a chance. In the summer of 2015, S.P. noticed Jane Doe 1 became a lot more standoffish and angrier towards defendant. Around that time Jane Doe 1's grades started slipping and S.P. hired a tutor to help Jane Doe 1. Around January of 2016, Jane Doe 1 was having irritation in her vagina; it was red and sore and it hurt.
In April of 2016, S.P. went to lie down in her bed and noticed a vibrator tucked under her pillow, which she thought was weird because it was always hidden in a box shoved far under her bed. When S.P. asked defendant about it, he became upset and said he was checking the batteries, which she also thought was weird. The next day while driving in the car, S.P. asked her two daughters about it. Doe 2 said defendant was teaching them how to have sex. Doe 2 did not disclose everything at that time because she was afraid she would get into trouble, so S.P. did not get all the information at that time. S.P. got out of the car to speak to her daughters apart from the other children. Jane Doe 1 told her defendant had been showing them adult videos and S.P.'s adult "toys," and he had put his mouth on her "potty."
When S.P. got home, she confronted defendant with her daughters' allegations. At first, defendant denied everything, but then he admitted showing the girls the toys and stated "he screwed up." In defendant's presence, S.P. asked the girls if defendant put his mouth on their "potty" and showed them the toys, and both girls responded yes. S.P. caught defendant trying to get the girls' attention and shaking his head to tell them no. S.P. said she was done, took the kids out of the house, and told defendant to pack his stuff and leave. S.P. left with the kids and called the police. S.P. testified she was still in love with defendant at that time and it was difficult for her to learn this about him.
Detectives from the police department brought recording equipment to S.P.'s home to record her phone calls with defendant. When they left they took the recording equipment with them. Later that night S.P. called Detective Timothy Redd and said, "[Defendant's] about to tell me everything. What do I do?" S.P. was able to figure out how to record the phone call. S.P. made additional calls to defendant after her daughters disclosed more.
Jane Doe 2's Testimony
Jane Doe 2 testified that, one day, defendant had her go into her mother's bedroom and he showed her a video on his cell phone of a naked man and woman having anal sex. Another day, defendant showed Jane Doe 2 a video of a woman performing oral sex on a man. On other occasions, defendant had Jane Doe 2 go into her mother's bedroom and he showed her S.P.'s vibrators, which he referred to as "toys." He gave Jane Doe 2 a vibrator and she touched her back with it "to stall" his actions. One time, defendant tried to place a vibrator against Jane Doe 2's "private," but she pushed it away. Another time, defendant tried to stick a vibrator down Jane Doe 2's pants; he reached her belly button area, but she then scooted away. Twice, defendant tried to touch Jane Doe 2's vagina with his hand over her clothes, once when she was on the couch and once in the car. Jane Doe 2 testified defendant touched her vagina over her clothes. But, on crossexamination, Jane Doe 2 stated defendant only touched her thigh.
Jane Doe 2 stated defendant asked to lick her vagina and told her he did it to her sister, but Jane Doe 2 refused him. Jane Doe 2 never saw defendant do anything to her sister, but she remembered defendant and Jane Doe 1 being alone in S.P.'s bedroom on several occasions while Jane Doe 2 was downstairs playing video games. Defendant asked Jane Doe 2 if she wanted to see his "wiener" and if she wanted to touch it, but she said no. One time, Jane Doe 2 went home sick and was playing video games with defendant; he asked Jane Doe 2 to put the game controller device on her privates when it vibrated, but she moved it away. After playing the video game, Jane Doe 2 lay on the floor and defendant pulled up her shirt a little and started kissing her rib cage. Defendant told Jane Doe 2 not to tell anyone or she would get in trouble. Jane Doe 2 did not like defendant and thought he was a jerk. She started liking him a little bit when he was getting along with her little brothers, but then "he started doing that stuff" to her.
Jane Doe 1's Testimony
Jane Doe 1 testified defendant grabbed her arm, took her into S.P.'s bedroom, and put his mouth on her private part; this happened more than five times. Defendant also showed Jane Doe 1 videos of "grown-up" people "having sex" more than once. Jane Doe 1 did not know what was happening in the videos, but defendant told her the people were having sex. Defendant had Jane Doe 1 take her clothes off in her mother's bedroom. Jane Doe 1 initially could not remember if he removed her pants and panties. Defendant tried to touch her private area. Defendant also showed her the sex toys in S.P.'s bedroom and put them on her private part.
On cross-examination, Jane Doe 1 responded "I don't remember" to several questions, including whether defendant had touched her with the toys. On redirect examination, Jane Doe 1 said she barely remembered telling her mom defendant had shown her a video of a man licking a woman's private parts. She agreed defendant touched her private parts with a toy. Jane Doe 1 said she did not remember this earlier because the vibrator was not turned on when defendant used it on her, but she remembered he did put it on her. When asked why she kept responding "I don't remember" and whether it meant she did not want to talk about it, Jane Doe 1 responded, "It's I don't remember." She did not remember telling Detective Redd defendant put something inside her vagina. She did not tell anybody what defendant was doing because defendant told Jane Doe 1 she would get into trouble if she did, and she believed him.
Detective Redd's Testimony
Detective Redd with the Turlock Police Department monitored the CPS social worker's interviews with Jane Doe 1 and Jane Doe 2. Detective Redd is a trained forensic interviewer of children and he noticed Jane Doe 1 appeared nervous with the CPS social worker. So, Detective Redd decided to interview Jane Doe 1 in her own home where she was more comfortable. Jane Doe 1's answers during that interview differed from her testimony in court. Specifically, Jane Doe 1 provided more detail to Detective Redd about the video defendant showed her of a man and a woman having intercourse and oral sex. Jane Doe 1 also stated defendant touched her privates (pointing to her vaginal area) with his hands, and he put his mouth on her privates (indicating her vagina). Jane Doe 1 also told Detective Redd defendant touched her vagina with a black vibrator, described as the black rock. The prosecutor asked Detective Redd whether Jane Doe 1 stated defendant placed anything inside her vagina. Defense counsel objected based on hearsay. The trial court sustained the objection but allowed the prosecution to recall Jane Doe 1 to explain the inconsistencies between her testimony at trial and her statements to Detective Redd.
Jane Doe 1's Recalled Testimony
Jane Doe 1 clarified defendant touched her privates with the black rock vibrator and tried to place the vibrator inside her, but she did not remember if she spoke with Detective Redd about it. She could not recall if it hurt. Jane Doe 1 remembered defendant put his mouth on her privates, but she could not remember if he touched her with any other part of his body or whether she told the detective he did. Jane Doe 1 then stated she remembered that defendant touched her privates with his hands. She did not remember telling the detective any details about the videos. She remembered defendant took her pants off, but not whether he took off her panties. She did not remember if defendant touched her privates with his tongue.
Detective Redd's Resumed Testimony
Detective Redd's testimony resumed and he was allowed to testify Jane Doe 1 told him defendant touched her vagina with his hands under her clothing. Jane Doe 1 told the detective defendant had her remove her pants and panties on more than one occasion. Jane Doe 1 reported defendant used a black rock vibrator on her vagina and tried to put it inside her privates, which hurt. Jane Doe 1 explained that when defendant put his mouth on her vagina, he also put his tongue inside her more than once. She also described two videos defendant showed her. This first was of "a boy and girl doing it" and the second was of "a boy putting his mouth on the girl's privates and the girl ... was putting her mouth on the boy's privates."
On May 25, 2016, Detective Redd went to S.P.'s home and provided her with equipment to record her phone calls with defendant. S.P. called defendant twice while the detectives were at her home. When the detectives left S.P.'s home on May 25, 2016, they took the recording equipment with them. Later than night, however, S.P. contacted Detective Redd, telling him she had received a text from defendant saying, "'You're [sic] children are not lying.'" Detective Redd told S.P., if she had the ability to record the call, to go ahead and call defendant and record it. His instruction to S.P. was to use the ruse there was a chance they could get back together, which might cause defendant to make admissions or confessions. He instructed S.P. to advise defendant that she would have the right to drop the charges, that she loved him, that she would want him back in the house, but that she needed to understand what would cause him to do this to her children. Detective Redd also told her to ask whether she was not enough for him and if there was something he wanted her to do sexually, like dress up in pigtails or something if his fascination was with young children.
S.P. used her computer to record her third phone call with defendant on May 25, 2016, during which he admitted to having Jane Doe 1 take her clothes off and licking Doe 1's potty, offering to do the same to Jane Doe 2, and showing them S.P.'s vibrators. S.P. recorded two additional phone calls with defendant on May 31, 2016, during which defendant again admitted to licking Jane Doe 1's potty, showing the girls the vibrators, and showing them pornography.
Susan G.'s Testimony
Susan G. tutored Jane Doe 1 after school, starting when Jane Doe 1 turned six years old. Susan G. continued to tutor Jane Doe 1 when Jane Doe 1 moved into defendant's house. They sat at the dining table for their sessions. In 2015, Jane Doe 1's behavior started to change from calm and still to uncomfortable, fidgety, and nervous. Susan G. noticed Jane Doe 1 would be staring at defendant. Defendant was sitting on the couch during the tutoring sessions, and Susan noticed defendant staring at Jane Doe 1. Susan moved Jane Doe 1 to the other side of the table where Jane Doe 1 could not see defendant so they could work. During another session, Susan noticed Jane Doe 1 could not sit still. Susan asked Jane Doe 1 to sit still and Jane Doe 1 pointed to her vagina. Susan decided to call S.P. and get her involved.
Defense Evidence
The defense called a number of character witnesses, including S.P.'s ex-husband, and defendant's son.
During cross-examination, S.P.'s ex-husband, the father of Jane Doe 1 and Jane Doe 2, testified the girls told him defendant was "creeping [them] out in the shower."
Defendant's son testified he saw defendant looking at the girls and shaking his head "no" when S.P. asked them if "daddy did it." The girls then lowered their heads and said "no."
Defendant testified on his own behalf that he was in love with S.P. and wanted to marry her. Defendant explained the incident during which he made the girls feel uncomfortable in the shower. He testified he was banging on the doors telling them to get out of the shower. He said Jane Doe 2 did not like him and did not listen to him. And he had caught Jane Doe 1 lying before. He had to treat S.P.'s kids differently because he was not allowed to discipline them.
Defendant admitted he liked watching pornography but S.P. did not like watching it. He said he was searching on-line sites for some friends who had made pornographic videos, which was why there were between 60 to 70 videos seen during the period of September 2015 and April 2016. Although he admitted to entering searches for young teens, the videos did not involve minor children. Defendant stated he did not have an interest in girls under the age of 14 or 18 and he never watched child pornography. S.P. got upset about the amount of pornography he was watching, so he told her he was not watching it anymore, but then she saw in his search history that he was still watching it.
S.P. had sex toys she kept under her bed. On April 6, 2016, defendant was watching a pornographic video when Jane Doe 2 came up behind him and saw the video and asked him what the people in it were doing. Defendant was afraid he would get into trouble so he grabbed Jane Doe 2 and took her into his bedroom. He asked her what she saw and explained to her that it was an adult video and not for children. Then, Jane Doe 2 picked up a pink vibrator that was out and held it to her neck. Defendant told her she should not be touching it. He had Jane Doe 2 leave the room, and he put the vibrator away. He admitted he pretended to touch Jane Doe 2 with it as a joke. Defendant denied showing Jane Doe 2 any other videos. Defendant denied offering to lick Jane Doe 2's vagina or saying he had done that to her sister. He said he also never offered to let her see his "wiener" or asked her to touch it. He stated he never asked Jane Doe 2 to put the Xbox game controller between her legs when it vibrated or touched her vagina over or under her clothes, and he never put his hand on her thigh.
Defendant remembered a time in January when Jane Doe 1 was complaining of redness or irritation of her private parts after spending the weekend at her dad's. Defendant explained he only told S.P. he was concerned he might have caused Jane Doe 1's redness in their pretext phone call in order to convince S.P. of the other lies he was telling her. Defendant said he never showed Jane Doe 1 pornography, had never taken her by the arm or been alone with Jane Doe 1 in his bedroom, and never showed Jane Doe 1 any sex toys or let her use them. He never touched Jane Doe 1 inappropriately in any way, did not put his mouth on her vagina, and did not use a vibrator on her.
On April 6, when S.P. got home from the doctor, S.P. asked him about a black vibrator that was plugged in and another one on the bed. The next day she came home and accused him of watching pornography and "of stuff with her kids." Defendant followed S.P. to where she was talking with her two daughters and, when he saw them, he panicked and shook his head to indicate "like, you can't say this. I could go to jail if you guys say this." He moved out of the house but he thought there was a chance he would move back in since he and S.P. continued to see each other, have sex, and communicate every day.
Defendant stated, on May 25th, there were about three or four phone calls during which S.P. was trying to get him to say he was doing these things and he did not understand why; he questioned whether she was trying to record it for the police. When S.P. told him she might be able to drop the charges, he became emotional because he wanted her to let him and his sons move back in. Defendant testified he falsely told S.P. he did stuff with her girls because he "didn't see any option to say that-to keep saying I didn't. Because she wasn't listening, and she was about to cease all contact and relation with me." Defendant said he lied because he was afraid of losing S.P. and because "[s]he said she would let [him] move back in, and [they could] be a family again."
Verdict and Sentence
On February 4, 2019, the jury convicted defendant of oral copulation of a child, Jane Doe 1 (Pen. Code, § 288.7, subd. (b); count I), two counts of lewd acts on a child, Jane Doe 1 (id., § 288, subd. (a); counts II &III), and two counts of exhibiting harmful matter to a minor related to Jane Doe 1 and Jane Doe 2 (id., § 288.2, subd. (a)(2); counts IV &VII). The jury found the multiple victim enhancements attached to counts II and III not true, and was deadlocked on counts V and VI, which alleged defendant committed lewd and lascivious acts upon Jane Doe 2 (id., § 288, subd. (a)). Therefore, the trial court declared a mistrial on counts V and VI.
On November 4, 2019, the trial court sentenced defendant to 15 years to life for count I, plus an aggregate determinate term of 10 years 8 months for counts II, III, IV and VII. The aggregate determinate term consisted of the middle term of six years for count II, plus one-third the midterms for the remaining counts-two years for count III, two years for count IV, and eight months for count VII. The court also imposed various fines and fees, including a $900 presentence probation report fee under Penal Code section 1203.1b.
DISCUSSION
I. Defendant's Pretext Statements to S.P.
Defendant claims the trial court's admission of his statements to S.P. during the pretext calls violated his Fourteenth Amendment right to due process. He asserts the statements should have been excluded because they were coerced, involuntary, and the product of implied leniency made while S.P. was acting at the behest of Detective Redd, and, thus, as a state actor. The People disagree, contending S.P. was a private citizen, so defendant's statements to her did not implicate his constitutional rights and his confession was voluntary.
A. Relevant Factual and Procedural History
During motions in limine, defendant sought to exclude the statements he made during the pretext calls with S.P., asserting they were "coerced by law enforcement." He claimed S.P. was acting on law enforcement's behalf, and the statements violated his Fifth Amendment right to remain silent. The issue was submitted on the transcripts of the recorded phone calls. During argument, both parties agreed that the pretext phone calls were "enacted by request of" law enforcement. Defendant argued his statements were involuntary because S.P. pressed him when he did not confess or admit to anything, "using his vulnerability to their relationship and his emotions for her, as well as implying promises that she would be able to drop charges in the event that he told her the truth."
The trial court reviewed the transcripts of the pretext phone calls and asked, "Did law enforcement, aside from instructing that the phone calls be recorded, provide any instructions as far as what concessions should be made or what promises should be made ...." Defense counsel replied, "[S.P.] called Detective Redd and told him, 'He's about to tell me everything. What do I do?' And his instructions back to her was something along the lines of find a way to record it." The People agreed "the direction was find a way to record it" and all parties agreed "[t]hat was the only direction provided by law enforcement."
In the first recorded phone conversation with defendant on May 25, 2016, S.P. told defendant the girls told the counselor "a lot of stuff" and she needed to know what happened. S.P. told defendant, "I really want us to, like, be together and I'm really- really trying to-I don't know. Just wrap my head around it. I-I love you and, um, pretty much everything that was said, um, I-I-you know-I need you to be honest with me." Defendant said, "I told you everything. I don't know what else there is to tell." S.P. said, "I'm calling you to-because I trust you. And I know you're gonna tell me the truth and we can-we can move past it. And we can get through this whole thing together. But I-I just-I know something was said and I need you to tell me." Defendant eventually admitted that the girls may have seen a video so he pulled Jane Doe 2 into the bedroom to talk with her about what she saw. Defendant said there was a pink vibrator left on the bed and Jane Doe 2 put it on her neck. When defendant denied putting the black rock vibrator on Jane Doe 1, S.P. accused him of lying. S.P. told defendant, "If you seriously-seriously want us to ever-ever-ever in our lifetime be together and make this work I need the fucking truth right now or I'm-I'm not even-I can't do this. Right." S.P. said, "And you're not even big enough to freaking tell me it. And like I said. I told you we could move past this. I know you didn't have sex with them . . .. I know you didn't. And I will be by your side and I will stand by your side and I will stand, uh, anything I have to do to support you on this. But I have to know because it is going to come out. I told you the truth always comes out and it's-I need to hear it from you because I cannot handle any more strangers or counselors or freaking whatever calling me up or pulling aside to tell me that they're concerned about my eight year old daughter . . .." "[I]f you tell me the truth and you tell me exactly what happened then I know who [sic] to handle her." S.P. challenged defendant saying, "[Y]ou're not being honest with me. I don't feel like you're being honest." Defendant maintained he was being honest, he never touched her daughters, and he never intentionally showed them pornography.
In the second phone conversation between S.P. and defendant on May 25, 2016, S.P. began by asking defendant what he did to the girls and what he showed them. Defendant again suggested one of the girls may have accidentally seen a pornographic video. S.P. told defendant, "I just found out today that, um, that I'm able to drop the case if I want to." She said, "But I can't. I don't know. I just-I-I just need to believe what you're telling me is true . . .. I told you getting the trust back is gonna take a really long time . . .." S.P. told defendant she was having a hard time believing him and begged him to be honest and tell her the truth.
Again S.P. told defendant she wanted to "drop everything," but she could not; she did not know how to help her daughter. She told him she felt like he was not being completely honest and "we can't be together anymore, I just-I don't know. And that's not what I want but ...." S.P. told defendant she did not want to live without him in her life, and she could forgive the mistakes he made but she could not forgive the lying. "I want to just drop everything and tell [my ex-husband] it was a mistake but I need to know everything so I can keep my mouth shut and tell the girls to keep their mouth shut and I want you guys to move back in, I want you to be here, I frickin' hate this." S.P. said she missed the boys and their times together and she needed to know why he licked her daughter's potty. Defendant maintained he did not lick Jane Doe 1's "potty," but he confessed Jane Doe 1 had seen several pornographic videos. He also admitted he saw Jane Doe 1 putting his vibrating razor "down there," and he told her "there's toys that do the same thing" and "they're stronger."
S.P. told defendant she appreciated him being honest with her, she loved him and wanted to give him a hug, and she wished he had just told her this from the beginning. Defendant said Jane Doe 1 "asked [at least 10] times for me to lick her and do what she saw on the video and I told her no." Defendant was adamant he never licked the girls or touched them, but there were times Jane Doe 1 grabbed his hand and pulled it between her legs. Defendant said, "[D]o you know how hard it is to tell you this?" S.P. told defendant she felt like there was still more he had not told her. Defendant admitted he was holding back by not admitting Jane Doe 1 had seen the videos or confessing he told Jane Doe 1 how to use the toys and where to put them. S.P. said "I want you-you and the boys to move back in pretty soon. I just need you to promise that-that that will never happen again." When S.P. ended the call thanking him for telling her the truth, defendant asked, "Am I gonna be arrested now?" S.P. responded, "Be arrested for what? I don't know."
In the third phone call on May 25, defendant told S.P. "[t]hey're not lying" "[a]bout anything." He admitted there were a few times Jane Doe 1 had played with the sex toys. He said Jane Doe 1 slid her pants off and pulled up her shirt and he licked her vagina, but he claimed Jane Doe 1 initiated the incident. He thought he was "showing her something cool and amazing" but told her, "[T]his is very wrong. We shouldn't even be doing this." S.P. asked defendant if he was telling the truth about it only happening one time, and he said he did not think there was another time because Jane Doe 1 did not like his "whiskers" on her. S.P. reminded defendant he shaved his whiskers off. Defendant maintained he did not use toys on Jane Doe 1; he gave them to her to use on her own. Defendant admitted he offered to lick Jane Doe 2's potty. Defendant denied trying to put the toy or his hand down Jane Doe 2's pants. Defendant admitted that he told Jane Doe 1 that she could not tell anyone about this. Defendant said the girls never touched his privates.
S.P. thanked defendant for telling her everything. S.P. asked, "Were you ever going to tell me?" and defendant answered, "In my head I was thinking if this all goes away I could tell you everything." He said he did not want to tell her, "I just really, I couldn't bring myself to tell you. I was afraid you would just go away and never see me again." Again, S.P. thanked defendant for finally telling her and defendant responded, "Yeah. It's weird 'cause this is like me admitting it to myself too. I was just denying ... that I even did that." He admitted it was wrong and said, "Sorry, I'm so fucked up in the head." Near the end of the call, defendant again apologized and said, "I'm sorry and whatever decision you make, I respect that." S.P. responded, "I'll probably need some time to think about this."
In the first call on May 31, S.P. asked about the "toys." Defendant claimed Jane Doe 2 turned on one of the sex toys and put it on her neck; he then joked about putting the toy on her. Defendant admitted he licked Jane Doe 1's vagina. Defendant asked S.P., "Are you recording me, is this going to the cops and I'm going to jail or something?" S.P. responded, "Dude, I'm not smart enough to record you. I was just sitting there jogging and jogging and jogging and everything you said didn't make any sense." Defendant said, "Yes, I am an idiot. I fucking screwed up and I don't know what to tell you. I fucking-I'm fucking stupid." Again, defendant maintained he did not use the sex toys on the girls, but he had explained to Jane Doe 1 what the toys did and told her where to put them. Defendant showed Jane Doe 1 videos about how to use the sex toys. Although S.P. continued to challenge defendant, he was adamant he did not show or offer to show the girls his penis, and he was never naked in front of them. S.P. told defendant she thought he was lying. Defendant was adamant he was not lying and stated he had told her the truth about everything.
In the second call on May 31, defendant called S.P. to tell her, "[Y]ou are more important to me than sleep, so I am talking to you. I need to tell you the truth." Defendant said, "[W]hat you said that day was true." Defendant asked S.P. if she was going to involve the police or drop the case. S.P. responded, "[I]f I can prove to them that you didn't do anything. But if I know everything I know what-I don't want to look like a liar so I need to know everything. But if my girls are saying one thing, like they're saying-they're saying a whole bunch of stuff and I can't sit there and make it sound like they're making things up if I don't know the truth. I can't-I can't build on that, ya know?" S.P. explained the girls were telling her new things. Defendant denied the new allegation he had masturbated in front of Jane Doe 1 and Jane Doe 2. S.P. said, "I'm not going to go in and tell them I want to drop the case and all this stuff. When new stuff keeps coming up. Like, I'm not gonna ...." Regarding putting his mouth on Jane Doe 1, defendant said, "I fucked up. I've told you this. I don't know what I was thinking. I should have never have done that. I should never-never done that. I should have never ever showed her a single video. Like, I seriously regret everything I did. I feel stupid. I don't know what to tell you. I feel stupid. I feel really-really stupid and ashamed." Defendant apologized multiple times throughout the conversation. After S.P. confronted defendant saying, "You would not have stopped, and you would have kept going." Defendant responded, "This is why I am going to counseling to figure out what the fuck is wrong with me. Why I would do this in the first place, okay? 'Cause I don't even know." Defendant said, "I've told you the truth, I've told you everything. You're going to do what you want with it. I don't know what you're going to do. I don't know what to tell you anymore. I have a problem and I'm going to go see someone about [it]. And listen, if you want to work things out, I want to work things out. I love you. I've told you the truth, I've told you everything. I don't know what else to tell you. I don't know what else to say. You are asking impossible questions for answers that I don't have answers to."
Upon review of the transcripts of the phone calls and the arguments made by the parties, the trial court found "[defendant's] statements are admissible and are not the product of coercion, at least not by the state of California." First, the trial court stated it "had a hard time determining state action in this case," noting S.P. acted with assistance from the police, but defendant was not in custody and the charges did not appear to have been filed at the time. The trial court stated, however, "even if [S.P.] was acting at the direction of law enforcement, the totality of circumstances is still such that this was not a custodial interrogation, but inherently coercive aspects of that process were not present here. [¶] [Defendant] was not aware that [S.P.] was acting on behalf of the state of California, certainly could have hung up the phone at any time and terminated the conversation. [¶] So I cannot conclude that his statements were made involuntarily, although it certainly seems that it would be an issue at trial, the motivation for the statements, but I can't say that they were not the product of his free will. [¶] So his statements will be admitted. I find there is no Fifth Amendment violation with these witness statements."
B. Standard of Review
The People carry the burden to establish voluntariness of a confession by a preponderance of the evidence. (People v. Wall (2017) 3 Cal.5th 1048, 1066; People v. Winbush (2017) 2 Cal.5th 402, 452; People v. Maury (2003) 30 Cal.4th 342, 404.) Voluntariness is a legal question subject to independent review. (Winbush, supra, at p. 452; People v. Carrington (2009) 47 Cal.4th 145, 169; People v. Holloway (2004) 33 Cal.4th 96, 114; People v. Massie (1998) 19 Cal.4th 550, 576.) In rendering its independent review, an appellate court applies the trial court's resolution of disputed facts, if supported by substantial evidence, as well as the facts that were not in dispute.(People v. Gamache (2010) 48 Cal.4th 347, 385.)
Because the parties' statements made during the pretext calls are recorded, the facts are undisputed. (See People v. McWhorter (2009) 47 Cal.4th 318, 346; People v. Vasila (1995) 38 Cal.App.4th 865, 873.) As such, we conduct an independent review of the trial court's determination regarding voluntariness of the confession. (Ibid.)
C. Applicable Law
Under the due process clause of the Fourteenth Amendment, any involuntary statement that is obtained as a result of police coercion is inadmissible. (People v. Massie, supra, 19 Cal.4th at p. 576.) A statement is involuntary when it is not the product of a rational intellect and free will. (Mincey v. Arizona (1978) 437 U.S. 385, 398; People v. McWhorter, supra, 47 Cal.4th at p. 346; accord, People v. Williams (2010) 49 Cal.4th 405, 436 [defendant's statement is admissible in court only if it was the product of the speaker's free will].)
In order for a defendant to suffer a violation of his Fourteenth Amendment due process rights, the coercive activity "must have resulted from coercive police conduct rather than outside influences." (People v. Winbush, supra, 2 Cal.5th at p. 452; see Colorado v. Connelly (1986) 479 U.S. 157, 164-167.) "A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions." (People v. Maury, supra, 30 Cal.4th at p. 404; see People v. Benson (1990) 52 Cal.3d 754, 778, citing Colorado v. Connelly, supra, at p. 167.)
"A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence." (People v. Maury, supra, 30 Cal.4th at p. 404; see People v. Benson, supra, 52 Cal.3d at p. 778.) "'The test for determining whether a confession is voluntary is whether the defendant's "will was overborne at the time he confessed."'" (People v. McWhorter, supra, 47 Cal.4th at pp. 346-347, quoting Lynumn v. Illinois (1963) 372 U.S. 528, 534.) "'The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were "such as to overbear petitioner's will to resist and bring about confessions not freely selfdetermined." [Citation.]' [Citation.] In determining whether or not an accused's will was overborne, 'an examination must be made of "all the surrounding circumstances- both the characteristics of the accused and the details of the interrogation." [Citation.]' [Citation.]"'" (McWhorter, supra, at p. 347, quoting Maury, supra, at p. 404; see Benson, supra, at p. 779; People v. Thompson (1990) 50 Cal.3d 134, 166; People v. Guerra (2006) 37 Cal.4th 1067, 1093, overruled on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151; see also People v. Neal (2003) 31 Cal.4th 63, 79.) Relevant factors include "'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.'" (People v. Williams (1997) 16 Cal.4th 635, 660, quoting Withrow v. Williams (1993) 507 U.S. 680, 693-694.)
Even where coercive police activity is found, there must be a causal connection between the police conduct and the defendant's statement. (People v. Maury, supra, 30 Cal.4th at p. 405; People v. Benson, supra, 52 Cal.3d at pp. 778-779.) A statement is involuntary only if the coercive conduct actually induces the defendant to make the statement. (Benson, supra, at p. 778; People v. Lucas (1995) 12 Cal.4th 415, 442.)
D. Analysis
Defendant contends S.P. was acting as a de facto agent of the state at the time she made the pretext phone calls to him. He asserts the admission of his statements violated his constitutional rights because they were coerced and involuntary in light of S.P.'s promises of leniency. The People counter that S.P. was a private citizen and not a state actor when she recorded her pretext phone calls with defendant. Therefore, nothing she said to elicit confessions from defendant had any constitutional relevance. Upon independent review, we conclude defendant's constitutional rights were not violated.
Defendant concedes his Fifth Amendment right against self-incrimination and right to warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) are not implicated here.
Initially we note defendant does not offer any cases specifically addressing the determination of whether a citizen acts as a de facto state agent in the context of involuntary confessions. However, the test for de facto agency can be seen in the Fourth, Fifth and Sixth Amendment contexts.
In People v. Wilkinson (2008) 163 Cal.App.4th 1554, the Third Appellate District stated, "'... [T]wo primary factors ... should be considered in determining whether a search conducted by a private person constitutes a Government search triggering Fourth Amendment protections. These are: (1) whether the Government knew of and acquiesced in the private search; and (2) whether the private individual intended to assist law enforcement or had some other independent motivation. [Citations.]'" (Id. at p. 1566.) In Wilkinson, the court found insufficient government participation to implicate the Fourth Amendment where the police did not initiate the search and the citizen's dual motive for the search was to help the police and to recover her items from the defendant. (Wilkinson, supra, at p. 1569.)
Similarly, here, while the police instructed S.P. to record her phone calls with defendant on May 25th, the record also reflects S.P. recorded the third call on May 25th on her own, after the police left. S.P. recorded that call without the police being present. Additionally, consistently throughout the recorded pretext calls, S.P. expressed her desire for defendant to tell her the truth. While S.P. may have been motived in part to help police get a confession, the evidence reflects this motive was coupled with S.P.'s personal desire to know the truth and whether she and defendant could continue to have a relationship. Therefore, the evidence supports a conclusion S.P. was not acting as a de facto state agent.
S.P.'s actions are also analogous to those at issue in People v. Martin (2002) 98 Cal.App.4th 408, which addressed agency in the context of the Sixth Amendment right to counsel under Massiah v. United States (1964) 377 U.S. 201, 206. In Martin, the defendant's girlfriend secretly recorded her conversations with the defendant using equipment provided by the police. The Martin court concluded the defendant failed to establish his girlfriend was acting as an agent of the state where "the police only facilitated the tape recording of the telephone conversations by providing a tape recorder." (Martin, supra, at p. 420.) It reasoned there was no evidence the government sought to obtain incriminating evidence against the defendant by knowingly circumventing his right to counsel. (Ibid.)
Defendant claims the facts here differ from Martin because in Martin, the primary purpose for recording the conversation was not to obtain incriminating statements about the murder, but to document his threats against her. (People v. Martin, supra, 98 Cal.App.4th at p. 419.) Here, there was no evidence before the trial court at the suppression hearing regarding the purpose of the recorded phone calls. Rather, all parties agreed the only instruction the detectives gave S.P. was to record her phone calls with defendant. Again, the evidence appears insufficient to conclude S.P. acted as an instrument or agent of the state. (See Coolidge v. New Hampshire (1971) 403 U.S. 443, 487.)
Defendant's reliance on People v. Walker (1972) 29 Cal.App.3d 448 and People v. Sanchez (1983) 148 Cal.App.3d 62 is misguided. Both cases address agency in the context of Miranda. In Walker, a psychiatrist who was summoned by the district attorney for the purpose of interrogating the defendant while in jail, and who was compensated by the district attorney, was considered a state actor. (Id. at pp. 453-454.) Similarly, in Sanchez, a doctor who was under contract with the state, and whose job it was to obtain incriminating evidence from the defendant while in custody, was considered to be an agent of the state. (Id. at pp. 68-69.) Unlike in Walker and Sanchez, here, defendant was not in custody at the time the pretext calls were made, and therefore, his confession did not implicate Miranda concerns. Further, S.P. was not hired by the prosecution or under contract with law enforcement. Thus, there was no preexisting relationship between S.P. and law enforcement like there was in both Walker and Sanchez, which made the doctors instruments of the state. (See Coolidge v. New Hampshire, supra, 403 U.S. at p. 487 [concerning a Miranda violation, the court stated a private citizen acts as an agent of the police for purposes of a criminal investigation when the person "in light of all the circumstances of the case, must be regarded as having acted as an 'instrument' or agent of the state"].)
Upon review of all the circumstances, we cannot conclude the evidence established S.P. acted as an instrument or agent of the state. (See Coolidge v. New Hampshire, supra, 403 U.S. at p. 487.) Since the Fifth and Fourteenth Amendments only constrain governmental conduct, or conduct fairly attributable to the government, and not private citizens, there is no due process violation here. (See Colorado v. Connelly, supra, 479 U.S. at pp. 164-167 ["The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause"].)
Regardless, even assuming arguendo that S.P. was a de facto government agent, there is no evidence S.P.'s statements and questions to defendant were "'so coercive that they tend[ed] to produce a statement that is both involuntary and unreliable.'" (People v. Maury, supra, 30 Cal.4th at p. 411; see Colorado v. Connelly, supra, 479 U.S. at p. 164, fn. 2; People v. Williams, supra, 49 Cal.4th at p. 436 [question is whether the statement is product of an "'"essentially free and unconstrained choice"'"]; Lynumn v. Illinois, supra, 372 U.S. at p. 534 [whether defendant's "'will was overborne at the time he confessed'"]; accord, People v. Jenkins (2004) 122 Cal.App.4th 1160, 1173-1174 [no coercion rendering admissions involuntary where defendant thought he was talking to a friend and was unaware fellow suspect was secretly recording at behest of police].) First, there was no evidence defendant's confession was obtained by any threats or violence, or by exertion of improper influence. (See Maury, supra, at p. 404.) There was also no evidence any physical pressure was involved in obtaining his confession; defendant was not under arrest or in custody or any physical restraint. And, while defendant claims he was under psychological pressure, there was no evidence he was of less than average intelligence or had mental health issues. (See People v. McWhorter, supra, 47 Cal.4th at p. 347; Williams, supra, at p. 436.) Rather, the evidence shows defendant willingly participated in the phone calls. Indeed, defendant even initiated some of the calls and was free to end the conversation anytime. Therefore, there was no evidence defendant's will was overborne at the time he confessed. (See McWhorter, supra, at pp. 346-347; Lynumn, supra, at p. 534.)
Defendant also claims his statements to S.P. during the pretext calls were involuntary because they were the product of improper leniency, promises, and plays on defendant's emotions. Defendant contends he only made his statements because he believed S.P. would drop the charges. However, the record does not support defendant's claim that S.P. promised defendant she would drop the charges. Rather, S.P. expressed her desire to drop the charges, but she was clear she needed defendant to be honest with her.
S.P. made three references to dropping the charges in the second recorded conversation on May 25th, before defendant confessed to licking Jane Doe 1's "potty" and showing the girls sex videos. First, S.P. told defendant she found out she could drop the charges but said "I can't" and "I just need to believe what you're telling me is true." Here, S.P. is saying she "can't" drop the charges, even though she found out she could. The second time, S.P. told defendant she wanted to drop everything but she couldn't without knowing how to help her daughters. The third time, S.P. told defendant she could forgive his mistakes but not the lying and that she wanted to drop everything but she needed to know everything. Nowhere is S.P.'s want or desire to drop the charges connected to a promise, only her desire for defendant to tell her the truth.
The second recorded phone call on May 25th ended with defendant asking if he would be arrested; S.P. responded, "[A]rrested for what? I don't know. I just know what the counselor told me and ... I don't know what stuff she's gonna take or anything." Again, S.P. did not promise to drop the charges and even indicated she did not have the ability to control whether he would be arrested. This conversation occurred before defendant chose to text S.P. that the girls were not lying and before he confessed to performing oral sex on Jane Doe 1 and showing the girls sex videos. Defendant's statement to S.P. saying "I'm sorry and whatever decision you make, I respect that" after making his confessions further demonstrates he was not lured to make a false confession by any promise to drop the charges.
Moreover, the record does not support defendant's claim he made false confessions because of S.P.'s promises to reunite with him if he confessed. While S.P. told defendant that she loved him and wanted them to be together again, she never made any promises. Rather, S.P. told defendant that "getting the trust back is gonna take a really long time." S.P. maintained that she knew the truth, did not believe defendant was telling her the truth, and that he needed to admit the truth if there was a chance to save their relationship. Further, defendant revealed he had no expectation about their relationship after he told S.P. the truth, saying: "I've told you the truth, I've told you everything. You're going to do what you want with it. I don't know what you're going to do. I don't know what to tell you anymore. I have a problem and I'm going to go see someone about [it]. And listen, if you want to work things out, I want to work things out. I love you. I've told you the truth, I've told you everything. I don't know what else to tell you. I don't know what else to say."
Upon review of the evidence, we cannot conclude there were promises made to defendant by S.P. that render his confessions coerced or involuntary. (Colorado v. Connelly, supra, 479 U.S. at p. 164, fn. 2.) Although S.P. made statements regarding her desire to drop charges or to get back together, the evidence does not substantiate defendant's claim S.P. made promises to defendant in order to get him to make false confessions. (See People v. Thompson, supra, 50 Cal.3d at p. 169 [there is a difference between a promise and a statement of fact or intention].) Therefore, we conclude the trial court did not err when it found the pretext statements admissible. (See People v. Williams, supra, 49 Cal.4th at p. 436 [statements are admissible when the product of the speaker's free will].)
II. The Trial Court Did Not Abuse Its Discretion When It Admitted Jane Doe 1's Out-of-Court Statement to Detective Redd
Defendant argues the trial court improperly allowed Detective Redd to testify about hearsay statements Jane Doe 1 made to him when he interviewed her at her home. The People disagree, contending the trial court properly admitted the hearsay statements as inconsistent and consistent statements under Evidence Code sections 1235 and 1236. We cannot conclude the court erred.
A. Relevant Procedural History
On direct examination, Jane Doe 1 testified defendant placed his mouth on her private area more than twice and "probably" more than five times. She also testified defendant showed her videos of "[p]eople doing sex" more than once. Jane Doe 1 further testified on direct examination that defendant showed her the sex toys. On crossexamination, defense counsel asked Jane Doe 1 if she remembered circling defendant's mouth on a sheet of paper during her "CAIRE" interview at the Stanislaus Family Justice Center. She responded that she did not. Defense counsel presented Jane Doe 1 with the diagram that she marked during her CAIRE interview to refresh her recollection, but Jane Doe 1 still asserted she did not remember circling defendant's mouth. Defense counsel proceeded to ask Jane Doe 1 specific questions about the incidents, such as whether defendant was touching himself while he had his mouth on her private area or if he touched her with anything other than his mouth; Jane Doe 1 replied she could not remember. She also did not remember if defendant took her underwear off or if he took his clothes off during the incidents. Defense counsel asked Jane Doe 1 about details of the sex video defendant showed her, but she responded she did not remember. Jane Doe 1 also did not remember whether defendant touched her with a sex toy.
On redirect examination, Jane Doe 1 said she did not remember telling her mother that defendant had put his mouth on her privates, but she did remember telling her mother about the video. Jane Doe 1 did not remember mentioning in the CAIRE interview defendant touched her genitals with a sex toy. When asked, Jane Doe 1 explained that her "I don't remember" responses were not just because she did not want to answer the question, although she admitted that it was "pretty difficult to talk about stuff in a room full of adult strangers[.]" Doe 1 then testified that she did not remember telling Detective Redd about the various forms of abuse defendant engaged in with her.
After Jane Doe 1's testimony, Detective Redd testified he observed the CAIRE interviews of Jane Doe 1 and Jane Doe 2. Six days after Jane Doe 1's CAIRE interview, Detective Redd interviewed her at her home. The prosecutor asked Detective Redd to describe what Jane Doe 1 said to him regarding the pornographic video defendant had shown her. Defense counsel objected based on foundation, which the court overruled. Detective Redd explained Jane Doe 1 described a pornographic video depicting intercourse and oral sex between a male and a female. Detective Redd further testified Jane Doe 1 told him defendant had touched her vagina with his hands. Defense counsel raised a hearsay objection, asserting that "[s]he testified that he put his mouth on her, and this would be an inconsistent statement." The objection was sustained.
A few questions later, the prosecutor asked Detective Redd if Jane Doe 1 told him "whether or not anything had gone inside of her vagina." Defense counsel objected and the court sustained the objection. The People contended the statement Jane Doe 1 made to Detective Redd was inconsistent with her testimony in court. A sidebar conference was held off the record. The court determined that the People needed to recall Jane Doe 1 for additional testimony in order for the court to rule. The trial court noted that it did not recall specific denials from Jane Doe 1's testimony, but rather, a lot of "I don't remembers." The prosecutor argued inconsistency is implied when the claim of lack of memory amounts to a deliberate evasion to a question. The prosecutor argued there was sufficient detail in many of her answers to show she does remember and her "'I don't remember[s]'" are actually "'I don't want to answer your question'" and qualify as "fained [sic], lack of recollection." The People did not believe Jane Doe 1 was "willfully trying to be obstreperous, but she's a little girl who's been traumatized sitting in front of a courtroom in front of a whole lot of adult strangers."
The court suggested the prosecutor bring Jane Doe 1 back into the courtroom to explain her inconsistencies in order to comply with Evidence Code section 770. Jane Doe 1 was recalled and testified defendant tried to put a sex toy into her private; she could not recall if she reported this to Detective Redd. She also did not remember if she previously testified defendant had done that, but after thinking about it, she now remembered he had. Jane Doe 1 testified she did not remember if it hurt or whether she told Detective Redd it hurt. She remembered defendant used his mouth on her private but did not remember if she told Detective Redd defendant touched her with any other part of his body. She thinks defendant touched her privates with his hands. Regarding the videos, she did not remember telling Detective Redd one of the videos was a boy putting his private in a woman's private. She also did not remember telling Detective Redd that another video was a boy's mouth on a girl's private and a girl's mouth on a boy's private. She kind of remembered defendant taking her pants off but could not remember if defendant took off her panties. She could not remember if defendant touched her private with his tongue or any other part of his body. When asked on cross-examination about being touched with the black rock vibrator, Jane Doe 1 replied she did not remember whether it happened more than one time. She did not remember whether it hurt when defendant touched her private with the black rock. She remembered talking with Detective Redd at the police station and at her house but did not remember any of the things they talked about except that it was about what defendant did to her.
After Jane Doe 1's testimony, a sidebar conference was held off the record. The settled statement states "[d]uring Jane Doe #1's recalled testimony, she made both inconsistent statements, as well as prior consistent statements of her prior testimony." "It was clear to both parties as well as [the court] what had just transpired and the indicated ruling was confirmed by [the court] that based on her recalled testimony, all of Jane Doe #1's prior statements to Detective Redd would be admitted as they now qualified under both California Evidence Code sections 1235 and 1236."
Detective Redd took the witness stand again. Detective Redd testified Jane Doe 1 told him that defendant had touched her vagina with his hands under her clothing. Jane Doe 1 also told Detective Redd defendant had instructed her to remove her pants and panties on more than one occasion. She told Detective Redd that defendant had used the black rock toy that vibrated on her vagina and that it was hurting when he tried to put it inside her vagina. Detective Redd said Jane Doe 1 told him defendant put his mouth on her vagina and put his tongue inside her vagina more than once. She told Detective Redd that defendant had shown her two videos on separate occasions. She described the first video was of "a boy and girl doing it," and the second "was a boy ... putting his mouth on the girl's privates, and the girl ... putting her mouth on the boy's privates.
During a conference outside the presence of the jury, the trial court noted that when Jane Doe 1 was recalled as a witness, she contradicted her earlier testimony that she did not recall, saying that she did have some recollection of it. And now they had both prior consistent and inconsistent statements from Jane Doe 1. The trial court told the defense attorney, "I wanted you to have an opportunity to state your objections, for the record." The defense attorney responded, "I think a lot of my objections were cleaned up when [Jane Doe 1] was recalled as a witness and opened the door to a little more further hearsay to what had come in initially." He explained his earlier position had been that Jane Doe 1's statements had not risen to the level of inconsistency that would allow her prior statements in. However, he conceded "the teeth were taken out" of his objection once she was recalled. Defense counsel submitted the matter to the court. The People agreed that when Jane Doe 1 was recalled the court got a lot more "I believe so" or "yes" answers, creating inconsistent statements, making all her hearsay statements to Detective Redd admissible at that point.
B. Relevant Law and Standard of Review
Under Evidence Code section 1200, "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" is inadmissible as hearsay, except as otherwise provided by law. (Evid. Code, § 1200, subds. (a), (b); see People v. McCurdy (2014) 59 Cal.4th 1063, 1108.)
Evidence Code section 1235 authorizes the admission of a witness's prior inconsistent statement into evidence. It states, "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is in compliance with [Penal Code] Section 770." (See People v. Zapien (1993) 4 Cal.4th 929, 951.) "'"The 'fundamental requirement' of section 1235 is that the statement in fact be inconsistent with the witness's trial testimony." [Citation.] "'Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness'[s] prior statement ....'" [Citation.]'" (People v. Homick (2012) 55 Cal.4th 816, 859, quoting People v. Cowan (2010) 50 Cal.4th 401, 462.)
"'Ordinarily, a witness's inability to remember an event is not inconsistent with that witness's prior statement describing the event. [Citation.] When, however, "a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied."'" (People v. Anderson (2018) 5 Cal.5th 372, 403; see People v. Rodriguez (2014) 58 Cal.4th 587, 633; People v. Gunder (2007) 151 Cal.App.4th 412, 419-420 [only when inability to remember is feigned does it open the door to the admission of a prior statement under this hearsay exception].) "'As long as there is a reasonable basis in the record for concluding that the witness's "I don't remember" statements are evasive and untruthful, admission of his or her prior statements is proper.'" (Rodriguez, supra, at p. 633; accord, People v. Homick, supra, 55 Cal.4th at p. 859; People v. Ledesma (2006) 39 Cal.4th 641, 711.)
"Prior statements consistent with testimony are, as an exception to the hearsay rule, admitted for the purpose of rehabilitation following an attempt to impeach the testimony." (People v. Gentry (1969) 270 Cal.App.2d 462, 473.) "Evidence Code section 1236 permits the admission of a prior statement, as hearsay evidence, if it is consistent with the witness's testimony at 'the hearing.'" (People v. Kopatz (2015) 61 Cal.4th 62, 84.) Evidence Code section 1236 provides, "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791." Evidence Code section 791 states, "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
We review the trial court's rulings on the admission of evidence for abuse of discretion. (People v. Cowan, supra, 50 Cal.4th at p. 462; People v. Homick, supra, 55 Cal.4th at p. 859.)
C. Analysis
We begin by addressing the People's position that defendant's claim is forfeited. Defendant initially objected to the admission of Jane Doe 1's hearsay statements to Detective Redd. However, the People argue defense counsel appeared to later withdraw his objection. After Jane Doe 1 was recalled as a witness, defense counsel stated, "[A] lot of my objections were cleaned up when [Jane Doe 1] was recalled as a witness and opened the door to a little more further hearsay to what had come in initially." He conceded after Jane Doe 1 was recalled, "the teeth were taken out" of his objection. However, nowhere in the record does defense counsel expressly withdraw his earlier objection to the admission of Doe 1's statements. (People v. Jones (2003) 29 Cal.4th 1229, 1255 [a claim on appeal is forfeited if a party expressly withdraws an objection that was previously raised]; People v. Robertson (1989) 48 Cal.3d 18, 44.) "Once an objection has been fully considered and overruled, it is not necessary to repetitiously renew the objection in the same trial to preserve the issue on appeal." (People v. Hall (2010) 187 Cal.App.4th 282, 292.) Therefore, defendant did not forfeit this claim.
Upon review of the record, we cannot conclude the trial court abused its discretion when it found Jane Doe 1 had given both prior consistent and inconsistent statements and admitted her hearsay statements to Detective Redd at trial. (See People v. Cowan, supra, 50 Cal.4th at p. 462; People v. Homick, supra, 55 Cal.4th at p. 859.) The record demonstrates that Jane Doe 1 made inconsistent statements during the trial. (See People v. Zapien, supra, 4 Cal.4th at p. 951.) Initially, Jane Doe 1 testified defendant put his mouth on her vaginal area two to five times and had shown her sex videos and sex toys. On cross-examination, Jane Doe 1 did not remember if defendant took her clothes off, did not remember details of the videos, did not remember if defendant touched her with the toy, and did not remember if defendant touched her with his hands. After Jane Doe 1 was recalled as a witness, her testimony became more specific and she provided more "yes" and "I believe so" answers rather than "I don't remember" answers. Although she testified previously she did not remember, this time, Jane Doe 1 remembered that defendant did use a toy on her and tried to put the toy in her privates, she thought defendant touched her privates with his hands, and kind of remembered him taking her pants off. Jane Doe 1 explained that it was "pretty difficult to talk about stuff in a room full of adult strangers[.]" The trial court noted that Jane Doe 1's recollection of events when she was recalled as a witness contradicted her earlier statements that she did not recall. Further, the parties agreed in their settled statement that the "I don't remember" statements were evasive so inconsistency was implied. Therefore, there is a "'reasonable basis in the record for concluding that the witness's "I don't remember" statements are evasive and untruthful.'" (People v. Rodriguez, supra, 58 Cal.4th at p. 633; accord, People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220; Homick, supra, at p. 859 ["'"Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a ... prior statement"'"]; People v. Green (1971) 3 Cal.3d 981, 988-989 ["justice will not be promoted by a ritualistic invocation" of the rule that "I forgot" is not inconsistent with prior detailed statements], rejected on other grounds by People v. Chavez (1980) 26 Cal.3d 334, 357; People v. Ledesma, supra, 39 Cal.4th at p. 711.)
Additionally, hearsay evidence was admissible as consistent statements under Evidence Code section 1236 and in compliance with section 791. "Prior statements consistent with testimony are, as an exception to the hearsay rule, admitted for the purpose of rehabilitation following an attempt to impeach the testimony." (People v. Gentry, supra, 270 Cal.App.2d at p. 473.) "Evidence Code section 1236 permits the admission of a prior statement, as hearsay evidence, if it is consistent with the witness's testimony at 'the hearing.'" (People v. Kopatz, supra, 61 Cal.4th at p. 84.) Here, there were inconsistencies in Jane Doe 1's testimony: Jane Doe 1 testified defendant showed her sex toys but did not remember if he used a sex toy on her or if he touched her with anything other than his mouth. After being recalled, Jane Doe 1 testified that defendant tried to put a sex toy in her private and she thought defendant touched her privates with his hands. Detective Redd testified that Jane Doe 1 told him defendant performed oral sex on her, touched her with his hands, and used sex toys on her.
Jane Doe 1's statements to Detective Redd were admissible under Evidence Code section 1236 because they rehabilitated her evasive "I don't remember" testimony and supported her later testimony that defendant performed oral sex on her, touched her with his hands, and used the sex toys on her. Jane Doe 1 was a young girl who was not comfortable speaking about her abuse in front of a room full of strangers in an unfamiliar setting, such as a courtroom. Detective Redd noticed the same thing after watching her in the CAIRE interview where she did not respond to questions and then interviewing her at home where she was more comfortable and provided answers to his questions. Thus, the evidence demonstrates that Jane Doe 1's motivation to evade the truth arose when she was in court, which is another unfamiliar place with unfamiliar people.
We do not agree with defendant's claim that Jane Doe 1's motive for fabrication came after she made her prior consistent statements to Detective Redd. Jane Doe 1's statements to Detective Redd predates her motivation to evade answers to questions in the courtroom. Therefore, since the statements Jane Doe 1 made to Detective Redd were taken before the trial and predate the inconsistent statements admitted at trial, the evidence was admissible under Evidence Code section 1236. (See People v. Riccardi (2012) 54 Cal.4th 758, 802, abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Smith (2003) 30 Cal.4th 581, 630.)
Accordingly, since Jane Doe 1's responses were both consistent and inconsistent with other portions of her testimony, we conclude the trial court did not abuse its discretion when it admitted her out-of-court statements to Detective Redd. (See People v. Cowan, supra, 50 Cal.4th at p. 462; People v. Homick, supra, 55 Cal.4th at p. 859.)
III. Trial Court Did Not Abuse Its Discretion When It Denied Defendant's Request for a Continuance
Defendant contends that the trial court abused its discretion when it denied defense counsel's request for a continuance under Penal Code section 1050, seeking to obtain additional records from CPS. In response, the People contend that defendant failed to show good cause for the requested continuance. We conclude the trial court did not abuse its discretion in denying the request.
A. Relevant Factual Background
In June 2018, defense counsel filed a petition with the juvenile court pursuant to Welfare and Institutions Code section 827 and received the requested CPS incident reports in August of 2018. In reviewing these records, counsel discovered "the possibility of other sets of allegations unrelated to those in this case" that may contain allegations of sexual abuse made by Jane Doe 1 or Jane Doe 2. At the direction of the trial court, defendant filed another section 827 petition in juvenile court, but on January 2, 2019, the juvenile court informed defendant it would not rule on the new petition, stating it had previously been granted.
On January 8, 2019, with trial set to begin January 22, 2019, defendant filed a written motion to continue the trial pursuant to Penal Code section 1050. Defense counsel explained he had been attempting to subpoena additional documents from CPS based on separate incident numbers discovered in previously subpoenaed records. The People filed an opposition to the motion for continuance, noting there had been time to obtain any records, the grand jury indictment was filed March 9, 2018, and the victims in the case had a right to a speedy trial.
On January 11, 2019, the trial court held a hearing on the motion for continuance. In asking for a continuance, defense counsel conceded that "it was unknown what was contained in these additional records that counsel was seeking and that it was unknown how long counsel would need to secure them." Defense counsel admitted that it was unknown whether the records he was trying to obtain referenced defendant or not and admitted they could turn out to be completely irrelevant. He further explained that he was not actually waiting on records, but still needed to subpoena them after the juvenile court denied his petition.
The People argued there had been time to obtain these records. Further, the People noted the victims and their mother had been in court for every hearing and wished for the trial to go forward as this has been emotionally damaging to her to have to continue to prepare for testimony only to have it continued again. The People argued the case should have priority under Penal Code section 1048 because the victims are minors.
The trial court noted the records issue had "been present since day one, and this case has gone on way too long to figure that out." The court also stated that it sounded like the juvenile court had provided all the records they felt were necessary. Therefore, the trial court explained that in balancing the length of time counsel had to obtain the records, and the victims' speedy trial rights, there was no good cause to continue the case.
B. Applicable Law and Standard of Review
A continuance in a criminal case may be granted only for good cause. (Pen. Code, § 1050, subd. (e).) The trial court has broad discretion in deciding whether good cause warranting a continuance has been shown. (People v. Alexander (2010) 49 Cal.4th 846, 934; People v. Jenkins (2000) 22 Cal.4th 900, 1037 [whether good cause exists is a question for the trial court's discretion].) We review a trial court's denial of a motion for continuance for abuse of discretion. (People v. Rhoades (2019) 8 Cal.5th 393, 451; People v. Mungia (2008) 44 Cal.4th 1101, 1118.) Absent a showing of an abuse of discretion and prejudice, the trial court's denial does not warrant reversal. (People v. Doolin (2009) 45 Cal.4th 390, 450; People v. Barnett (1998) 17 Cal.4th 1044, 1126.)
"'There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.'" (People v. Mungia, supra, 44 Cal.4th at p. 1118.) "'In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request.'" (People v. Johnson (2019) 32 Cal.App.5th 26, 66, quoting People v. Frye (1998) 18 Cal.4th 894, 1013, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) The court must consider "'"'not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.'"'" (Doolin, supra, at p. 450; see People v. Hatt (2018) 20 Cal.App.5th 321, 325.) While a showing of good cause requires that both counsel and the defendant demonstrate they have prepared for trial with due diligence, the trial court may not exercise its discretion "'so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.'" (Doolin, at p. 450; accord, People v. Sakarias (2000) 22 Cal.4th 596, 646.)
C. Analysis
Although defendant contends his counsel was diligent in trying to obtain the additional records, his request rested, in large part, on CPS records that may or may not provide exculpatory evidence. Defendant contends evidence of prior allegations of sexual misconduct would be relevant either as prior false accusations (see People v. Miranda (2011) 199 Cal.App.4th 1403, 1424; People v. Franklin (1994) 25 Cal.App.4th 328, 335; People v. Adams (1988) 198 Cal.App.3d 10, 18; People v. Hamlin (2009) 170 Cal.App.4th 1412, 1460) or to offer another explanation regarding Jane Doe 1's and Jane Doe 2's knowledge of sexual acts (see People v. Daggett (1990) 225 Cal.App.3d 751, 757). However, defense counsel admitted he had no information about the CPS records or whether they would have any relevance to the case. Further, the juvenile court ruled that defense counsel already had all the records. Therefore, there is no evidence demonstrating the existence of any likelihood of benefit from the additional CPS records. (See People v. Doolin, supra, 45 Cal.4th at p. 450; People v. Hatt, supra, 20 Cal.App.5th at p. 325.) There is also no evidence that the records would be material and not cumulative, or that the records could be obtained within a reasonable time. (See, e.g., People v. Wilson (1965) 235 Cal.App.2d 266, 273 [criteria for continuance in order to obtain witness]; see also People v. Rhoades, supra, 8 Cal.5th at p. 451; People v. Mungia, supra, 44 Cal.4th at p. 1118.)
Furthermore, the Legislature has determined in sexual assault cases involving Penal Code section 288 that charges should be disposed of expeditiously (§ 1048, subd. (b)), motions to continue are disfavored (Cal. Rules of Court, rule 4.113), and the trial court's discretion to deny a motion to continue is seldom disturbed (People v. Hatt, supra, 20 Cal.App.5th at p. 325). And, here, the People were ready for trial and the case was over two years old. Additionally, the People also explained there was a substantial burden on the minor victims in this case who continued to suffer with each trial continuance. (See People v. Johnson, supra, 32 Cal.App.5th at p. 66.) Considering all of these circumstances, we cannot conclude the trial court's denial of the motion for continuance was an abuse of discretion or so arbitrary as to violate due process. (See People v. Mungia, supra, 44 Cal.4th at p. 1118; People v. Grant (1988) 45 Cal.3d 829, 844; Johnson, supra, at p. 66.)
IV. Defendant's Two-year Sentence on Count IV Must Be Corrected to Reflect an Eight-month Term
Defendant was convicted of two counts of exhibiting harmful material to a minor under Penal Code section 288.2, subdivision (a) in counts IV and VII. On November 4, 2019, the trial court imposed a sentence of 15 years to life for count I, plus an aggregate determinate term of 10 years 8 months for counts II, III, IV and VII. The aggregate term consisted of the middle term of six years for count II, "and then one-third the mid term on the remaining counts." Specifically, the trial court explained to defendant, "Count III, you are sentenced to one-third the middle term, which is two years; Count IV is also one-third the middle term of two years; and for Count VII, one-third the middle term is eight months."
Penal Code section 288.2 criminalizes the act of sending or exhibiting harmful material to a minor. Since it is undisputed that the material in the pornographic videos depicted adults and not minors, the conviction for both counts IV and VII carry the triad of 16 months, two years, or three years state prison. (See § 288.2, subd. (a)(2).) Here, the trial court sentenced defendant to "one-third the middle term of two years" for count IV, which is eight months. The parties do not dispute that the sentencing error in count IV was clerical error. Clerical error occurs when the error was made in recording the judgment rendered. (In re Candelario (1970) 3 Cal.3d 702, 705.) We agree and conclude it was clerical error in recording the abstract of judgment that made the punishment for count IV two years instead of eight months. (See ibid.; People v. Schultz (1965) 238 Cal.App.2d 804, 808.) The abstract of judgment must be amended to reflect an eight-month term instead of a two-year term on count IV. Consequently, the aggregate determinate term must be amended to reflect a term of nine years four months.
V. Assembly Bill 1869
At sentencing, the trial court imposed various fines and fees, including a $900 presentence probation report fee under Penal Code section 1203.1b. Defendant contends he should not be required to pay the $900 probation report fee (§ 1203.1b) under newly enacted Assembly Bill 1869. The People agree.
Effective July 1, 2021, Assembly Bill 1869 eliminated a court's authority to impose fees under Penal Code section 1203.1b and requires any portion of judgment imposing those costs to be vacated. Assembly Bill 1869 added Penal Code section 1465.9, which provides that the unpaid balance of any court-imposed cost under section 1203.1b "shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (§ 1465.9, subd. (a).) Therefore, the probation report fee imposed under section 1203.1b must be vacated. (See People v. Clark (2021) 67 Cal.App.5th 248, 260.)
DISPOSITION
The trial court is ordered to prepare an amended abstract of judgment (determinate) reflecting the eight-month term imposed for count IV and vacating the probation report fee imposed under Penal Code section 1203.1b. The trial court is further ordered to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: LEVY, Acting P. J., FRANSON, J.