Opinion
E052602 Super.Ct.No. FBA1000588
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY FRATUS, Defendant and Appellant.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. John B. Gibson, Judge. Affirmed.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Mark Anthony Fratus is serving 15 years to life in prison after a jury convicted him of engaging in oral copulation or sexual penetration with a child under age 10 (Pen. Code, § 288.7, subd. (b)). Defendant argues the trial court abused its discretion when it permitted the eight-year-old victim to testify by closed-circuit television pursuant to section 1347, because the record lacks substantial evidence that the child would have suffered serious emotional distress if called to testify in defendant's presence. As discussed below, we reject this contention and affirm the judgment of conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURE
Incidents of Abuse and Arrest
In 2009 and 2010, the child and her parents lived with her paternal grandmother and defendant, who had been married to the grandmother for three years. The interaction between the child and defendant was "always negative" and her parents tried not to leave her alone with defendant. On August 25, 2010, the child and her father had a conversation that caused the father to call the San Bernardino County Sheriff's Department. A deputy arrived at the home that day. The deputy asked defendant if he knew why the deputy was there, and defendant stated that he had "groped" his granddaughter. The deputy arrested and handcuffed defendant and placed him in the deputy's car while he interviewed the child. The deputy transported defendant to the sheriff's station. At the station, defendant admitted to having touched the child sexually and having her touch him sexually on several occasions.
On August 27, 2010, the People charged defendant in a felony complaint with oral copulation or sexual penetration with a child under age 10.
Section 1347 Hearing
On November 4, 2010, the People filed a motion to allow the child to testify outside the physical presence of defendant by means of closed-circuit television. The hearing on that motion was held on November 9, 2010. The trial court heard testimony from the child's therapist. The therapist testified that she is a "marriage and family therapist intern," and has a bachelor's degree in psychology and a master's degree in psychology with an emphasis in marriage and family therapy. She had completed 2,000 of the 3,000 hours of internship necessary to become a licensed marriage and family therapist. She had been an intern for two years and two months. The therapist works primarily with children, and had worked with about 75 children, of which three had been alleged victims of sexual assault.
The therapist began to see the child nearly a year prior to find out why she was being physically aggressive and acting out. The child had trouble sleeping and was angry because she couldn't sleep. The child's father told the therapist that she had previously been sexually abused while living in Utah, but the child would not discuss it with the therapist and became agitated when the subject was raised. During the summer of 2010, the child began to act out sexually. Around August 2010, the child began to tell the therapist about the current abuse. The therapist testified that the child said, "He's not my Papa anymore. He's [defendant]. I am afraid of [defendant]. I don't want to pass by his room." The child also told the therapist that she had a dream where defendant "told me we were married, so this is what married people do." At first the child began to improve in therapy and in her behavior after disclosing the abuse to the therapist. However, after the abuse was reported to authorities, the child experienced increased anxiety, agitation and physical aggression.
The therapist spoke with the child before she was to meet with the judge and district attorney to explain that they were there to help her, much as the police had been, and to help ease her anxiety over the court proceedings. This did not help, as the child clearly verbalized, "I don't want to." The child experienced an increase in trouble sleeping and in recurring nightmares. The therapist described the recurring nightmares as "she was afraid to see [defendant]. I don't want it to happen again. Things like that." After the child met with the judge and district attorney, she told the therapist consistently "I don't like going to court," even though she said the judge and district attorney were nice. The therapist and the child spoke again about the child testifying, and the child said specifically, "I'm afraid to see [defendant]."
The prosecutor asked the therapist whether the child could overcome seeing defendant in court enough to testify as to the abuse; the therapist answered, "I think it would be very difficult for her. In her displayed symptoms as they are now in the nightmares that she's having, being fearful of seeing him again, I think that if she was in court in the same room with [defendant], I think that it would cause some more trauma to her that she's already experienced." The therapist reiterated, under questioning by the prosecutor, that she did not believe the child would be able to overcome her fear of defendant if she was made to testify with him physically present in the same room, " . . . I believe her fear would overcome her, and I don't believe that she would be able to - to speak really. I think that she was told . . . that [defendant] told her not to tell, so I believe if she saw him, she would not want to say what had happened." However, the therapist believed that the child would possibly be able to relate the details of the abuse if defendant were not in the room, based on her ability to tell the sheriff investigators what had happened. Finally, the therapist answered "yes" when asked by the prosecutor whether it was her opinion that the child "would suffer . . . serious emotional harm if she came and testified and saw [defendant]." When asked to explain the form of the serious emotional harm, the therapist explained, "I believe it would be exposure to more trauma that she - of what already has happened to her. Heightened anxiety and agitation that she's experiencing now, and even with the - all that has been going on with Court, meeting the Judge, and you, I believe that it would be a detriment to her emotional stability."
On cross-examination by defense counsel as to whether the child would suffer from the court proceedings generally, or specifically from testifying in the same room as defendant, the therapist testified, "I believe that it's going to have an effect on her either way. But I believe if [defendant] is in the room, I think it would be more so detrimental to her." She later testified, "I don't believe that she would be able to respond with him in the same, you know, proximity."
At the end of the hearing, the trial court decided to allow the child to testify by closed-circuit television. The court concluded that, under section 1347, subdivision (b)(2)(A), testifying in the presence of defendant would cause the child serious emotional distress such that she would shut down and be unavailable as a witness. The trial court based this conclusion on the testimony of the therapist.
Trial and Appeal
Trial testimony began and concluded during the morning session of November 23, 2010. On November 24, the jury came back with a guilty verdict. On December 27, 2010, the trial court sentenced defendant to 15 years to life. This appeal followed.
DISCUSSION
Defendant argues the trial court abused its discretion when it permitted the child to testify by closed-circuit television pursuant to section 1347, because the record lacks substantial evidence that the child would have suffered serious emotional distress and become unavailable as a witness if called to testify in defendant's presence. Specifically, defendant contends: 1) the therapist, who testified that the child would suffer serious emotional distress if made to testify in defendant's presence, was not qualified to render an opinion on that issue; 2) the testimony of the therapist alone was not sufficient to support the trial court's ruling; and 3) the therapist's testimony, even if credited, does not establish that any "serious emotional distress" the child was having was caused by the prospect of testifying in defendant's presence in particular, but rather by the general prospect of having to testify in court about sexual abuse.
Section 1347 authorizes the trial court to allow a child witness to testify by way of closed-circuit television under certain circumstances. The trial court exercises its discretion in determining whether to allow closed circuit television testimony by a child witness, as set forth in subdivision (a) of section 1347: " . . . In exercising its discretion, the court necessarily will be required to balance the rights of the defendant or defendants against the need to protect a child witness and to preserve the integrity of the court's truthfinding function. This discretion is intended to be used selectively when the facts and circumstances in the individual case present compelling evidence of the need to use these alternative procedures." (§ 1347, subd. (a).) Thus, the standard of review for the trial court's order allowing a child witness to testify by way of closed-circuit television is abuse of discretion, which can be established by a showing that "the court had ruled in the absence of substantial evidence." (People v. Powell (2011) 194 Cal.App.4th 1268, 1283-1284 (Powell).)
Subdivision (b) of section 1347 provides that closed-circuit testimony by a child witness may be allowed where the trial court finds that certain facts and circumstances exist. In pertinent part, subdivision (b) of section 1347 provides, "Notwithstanding any other law, the court in any criminal proceeding . . . may order that the testimony of a minor 13 years of age or younger at the time of the motion be taken by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys, and communicated to the courtroom by means of closed-circuit television, if the court [determines] . . . [¶] . . . [¶] (2) The impact on the minor of one or more of the factors enumerated in subparagraphs (A) to (E), inclusive, is shown by clear and convincing evidence to be so substantial as to make the minor unavailable as a witness unless closed-circuit testimony is used. [¶] (A) Testimony by the minor in the presence of the defendant would result in the child suffering serious emotional distress so that the child would be unavailable as a witness."
Defendant contends the testimony of the therapist, standing alone, is not sufficient to support the trial court's ruling, both because she is not a fully licensed therapist and because her testimony is not supported by the testimony of others. Defendant bases this entire line of argument on a comparison of the testimony provided at this section 1347 hearing with that obtained at the same type of hearing in Powell. In Powell, the trial court heard testimony (on the potential effects on the child victim from testifying in front of the defendant) from a social worker/therapist, a police detective, and the victim's mother. However, nowhere in the Powell opinion are this number or types of witnesses set as a floor to establish clear and convincing evidence of serious emotional distress. In addition, the social worker/therapist in Powell had counseled the victim on only five occasions after the abuse had taken place. Here, the therapist, while not yet fully licensed, had counseled the victim over the entire previous year, had gotten to know her both before and after this abuse took place, and during the lead up to the current proceedings. Although she lacked 1,000 of the 3,000 hours required for the therapist license, she holds both bachelor's and master's degrees in psychology. Thus, though technically less qualified than the social worker/therapist in Powell, the therapist in this matter was far more familiar with the behavior and mental state of the particular child about whom she rendered her professional opinion.
Further, the police detective in Powell merely testified that "the victim told him she had not wanted to tell the school principal about the abuse because, it may be inferred from [the detective's] testimony, she had been afraid that defendant would be angry." (Powell, supra, 194 Cal.App.4th at p. 1280.) In reaching its conclusion that the prosecution had presented substantial evidence to warrant the closed-circuit television testimony, the appellate court in Powell did not even mention the police detective's testimony. The appellate court pointed only to the "considered opinion" of the social worker/therapist, "buttressed" by the mother's testimony, "even if based on instinct." We see no reason to discount the therapist's opinion in this case because not buttressed by the victim's mother and because she had yet to complete the last third of her internship hours. We find this especially so in view of the therapist's advanced education in the field of psychology and her extensive, year-long experience with the particular victim about whom she rendered her professional opinion.
Finally, defendant argues that the prosecution has not met its burden to establish that the victim would be traumatized specifically by testifying in his presence, rather than by the courtroom proceedings in general. "'The trial court must . . . find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant.' [Citation.]" (Powell, supra, 194 Cal.App.4th at p. 1283, citing Maryland v. Craig (1990) 497 U.S. 836, 856.) Here, the therapist testified that the child had told her, specifically in reference to testifying at trial, "I'm afraid to see [defendant]." The therapist also testified regarding the trial, "I think it would be very difficult for her. In her displayed symptoms as they are now in the nightmares that she's having, being fearful of seeing him again, I think that if she was in court in the same room with [defendant], I think that it would cause some more trauma to her that she's already experienced." On cross-examination by defense counsel as to whether the child would suffer from the court proceedings generally, or specifically from testifying in the same room as defendant, the therapist testified, " . . . I believe that it's going to have an effect on her either way. But I believe if [defendant] is in the room, I think it would be more so detrimental to her." She later testified "I don't believe that she would be able to respond with him in the same, you know, proximity." The trial court found this testimony by the therapist, who had known and treated the child for the previous year, sufficient to support the order for closed-circuit television testimony, and so do we.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
McKINSTER
J.
CODRINGTON
J.