Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF018081. Harold W. Hopp, Judge.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting, Felicity Senoski, and Meredith Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
Defendant Henrique Castro Gonzalez told his girlfriend’s nine-year-old daughter to get in bed with him; he then had sexual intercourse with her, ignoring her pleas to stop. On an earlier occasion, he had put his hand down her pants and fondled her crotch.
As a result, defendant was convicted of aggravated sexual assault on a child (Pen. Code, § 269, subd. (a)(1)) and a forcible lewd and lascivious act on a child (Pen. Code, § 288, subd. (b)(1)) and sentenced to a total of 21 years to life.
In this appeal, defendant contends:
1. The trial court erred by overruling defendant’s hearsay objection to the victim’s prior statements, especially (although not exclusively) the statements she made to a social worker during a forensic interview.
2. Alternatively, defendant’s trial counsel’s failure to preserve the appropriate objection to the victim’s prior statements constituted ineffective assistance.
3. The trial court erred by allowing the jury to have, during its deliberations, a video of the forensic interview.
We will hold that almost all of the challenged statements were admissible, either as prior inconsistent statements (Evid. Code, § 1235), prior consistent statements (Evid. Code, § 1236), or statements by a victim of child abuse (Evid. Code, § 1360); the few remaining inadmissible statements were harmless. We will further hold that, because the video had been admitted into evidence, the trial court did not err by letting the jury have it during its deliberations. Accordingly, we will affirm.
I
FACTUAL BACKGROUND
At the time of the crimes, Jane Doe, aged 9, lived in Perris with her mother and with defendant, who was her mother’s boyfriend. All three of them occupied the same bedroom — defendant and Jane’s mother slept in the bed, and Jane slept on the floor. Jane went to stay with her father on weekends.
Pursuant to Penal Code section 293.5, the trial court ordered that the victim be referred to by this fictitious name.
Sometime in early July 2006, while Jane and defendant were watching television in the bedroom, he told her to get on the bed. He then put his hand down her jeans and inside her underwear, and he touched her private part. After about a minute, she moved away and then left the room. Afterwards, defendant gave her some money.
About a week later, in mid-July 2006, defendant woke Jane up and told her to get up on the bed. She was wearing a long T-shirt and underwear. She was going to put on her pajama pants, but defendant said, “No, just come up here.”
Defendant was already in the bed. Jane got into the bed next to him. She was lying on her side, facing away from him. He took off her underwear. He then spread her legs apart. He put his private part inside her private part, from behind. It hurt. Jane repeatedly asked him to stop, but he said, “[N]o,... just a little bit more....” She felt him moving back and forth behind her and heard him breathing heavily.
After about 10 minutes, defendant stopped. He gave Jane $15 and told her not to tell anyone what had happened. At that point, she did not tell anyone, because she was afraid of defendant, and she was worried that she would get in trouble.
After that, Jane’s private part hurt whenever she went to the bathroom. She told her mother that her private part hurt. Her mother examined it and noted a rash. She asked Jane “[m]any times” if anyone had touched her inappropriately, but Jane said no.
Sometime in July, Jane also told an adult female cousin that her private part hurt. The cousin examined her private part and found a rash. The cousin asked Jane if anyone had touched her inappropriately; Jane said no.
Or aunt — the exact relationship is unclear.
Around the end of July or the beginning of August, Jane’s father noticed her grabbing or rubbing her crotch area. When she was asleep, she would cry and say, “[N]o more.” He asked her if anyone had touched her inappropriately, but she denied this.
At one point, Jane complained to her father’s fiancée about pain on her private part. The fiancée examined her and found redness and swelling near her vagina. She asked Jane if anyone had touched her inappropriately, but Jane said no.
In August, Jane disclosed to her mother “what [defendant] had done to her.” Jane’s mother immediately confronted defendant. He denied doing anything. However, he also said that, if she called the police, once he was released from jail, he would kill her and Jane. Jane’s mother did not call the police because she was afraid of defendant.
On September 8, 2006, Jane disclosed to the same adult female cousin that defendant had done something bad to her private part. The cousin immediately called the police.
Deputy Christopher Porrazzo responded and interviewed Jane. Her statements to Deputy Porrazzo were largely consistent with her testimony at trial. However, she did not mention the first incident (involving only fondling).
When Jane’s mother was first interviewed, she denied knowing anything about the molestation. In a subsequent interview, however, she admitted that Jane had disclosed it to her.
After the disclosure, Jane went to live with her father.
On September 11, 2006, Vera Diaz interviewed Jane. Diaz was a social worker and a trained forensic interviewer. A video of the interview was played during the trial.
Jane’s statements to Diaz were largely consistent with her testimony at trial, with two exceptions. First, she told Diaz that, when defendant woke her, she was wearing pajamas; thus, defendant pulled down not only her underwear, but also her pajama pants. Second, she suggested that defendant had not penetrated her:
“DIAZ: You know that part of his body that he was pushing on you, do you know if it was just on the outside of your body or no?
“DOE: On the outside cuz [sic] my mom told me the skin was peeling off.
“DIAZ: When this was happening to you, did you just feel something on the outside? Tell me everything you felt. [¶]... [¶]
“DOE: It just felt like the outside, but it hurted.
“DIAZ: Did it hurt your body on the outside of your body or how?
“DOE: On the outside.”
Later in the interview, however, Jane stated that defendant had “opened” her private part:
“DOE: With his thing,... because it kinda pushed in.
“DIAZ: Oh, so that part of his body pushed in to your body on that part of your body?
“DOE: Not inside me, but right here, and then my skin was peeling off cuz [sic] he did that to me, and that’s how it hurted when I went to the bathroom.
“DIAZ: Okay, but that part of his body pushed your skin in, pushed in that part that opened up... ?
“DOE: Yes.
“DIAZ: So, on your body, did that part get opened?
“DOE: Yes, with his thing.”
During the forensic interview, Jane showed Diaz several pictures she had drawn. One showed her mother “on a swing and crying.” At trial, Jane explained that her mother was crying “[b]ecause I’m not with her.” However, she had told Diaz that her mother was crying “because [she] didn’t protect [me].” Another picture showed defendant angry because he was in jail. A third picture showed Jane and her father outside the jail, laughing at defendant, who was inside the jail; defendant was bleeding because three men, standing behind him, had injured his private part. Jane told Diaz, “[T]hat should happen to him because he should feel how it hurted....”
Later that same day, September 11, 2006, Dr. Sandra Murray performed a sexual assault examination of Jane. She did not find any rash, redness, or discharge. She did find that Jane had a V- or Y-shaped hymen. This could be due to blunt-force trauma that had healed, or it could be due to normal variation. Dr. Murray testified that, in one study of pregnant teenagers, 60 percent had had no evidence of penetration at all, while 20 percent had had “finding[s] that could be normal varia[tion] or evidence of trauma”; only 20 percent had had “clear evidence of penetration....”
Dr. Murray also found a labial adhesion. She testified that this is not uncommon in young children; it is caused by irritation, usually due to poor hygiene. Irritation, from any cause, could have resulted in pain during urination. She concluded that the labial adhesion was “not likely associated with... abuse....” In sum, she was “not able to conclude either way if [Jane] was in fact penetrated by an adult penis[.]”
When Jane was asked if she had ever seen a man’s private part, she related that, when she was five or six years old, she had seen a naked man “doing something” to a woman.
On cross-examination, Jane admitted that she did not like it when her mother paid more attention to defendant than to her. She also did not like it when defendant fought with her mother. She admitted that she liked going to her father’s house and that she did “fun stuff” there.
II
THE ADMISSION OF JANE’S OUT-OF-COURT STATEMENTS
Defendant contends that the trial court erred by admitting out-of-court statements by Jane, including but not limited to her statements during the forensic interview, under the prior consistent statement exception to the hearsay rule. To the extent that defense counsel failed to preserve this contention for appeal, defendant contends that that failure constituted ineffective assistance of counsel.
A. Additional Factual and Procedural Background.
1. Jane’s prior statements.
Until September 8, 2006, with one exception, Jane denied that anyone had touched her inappropriately. The exception was that, sometime in August, she had disclosed the molestation to her mother.
On September 8, 2006, Jane disclosed the molestation again, this time to her cousin. As a result, Jane was interviewed that day by Deputy Christopher Porrazzo, and the next day by social worker social worker Andrea Melesko. On September 11, 2006, Social worker Vera Diaz conducted the forensic interview of Jane while Detective Thomas Salisbury monitored the interview from behind a one-way mirror. Later that day, Jane also made statements to Dr. Sandra Murray.
It does not appear that defendant is challenging the admission of these statements to the cousin.
2. The introduction of Jane’s prior statements at trial.
Jane’s prior statements were introduced piecemeal.
First, when Jane testified, defense counsel asked her about the inconsistent statements that she had made in the forensic interview.
Next, Jane’s mother testified about Jane’s disclosure of the molestation to her. Defense counsel did not object.
During a break in testimony, the prosecutor asked to correct one page of the transcript of the video of the forensic interview. Defense counsel responded by asking that a reference on that page to the fact that defendant was in jail be redacted. The trial court denied the request.
After that, Detective Salisbury testified to a couple of Jane’s statements during the forensic interview (that defendant spread her legs, using his hands; that she tried to keep her legs together, but he was too strong; and that the pain she felt during penetration was “like nails were going into her private area”). At that point, defense counsel stated:
“[DEFENSE COUNSEL]: I’m going to object as to hearsay to this line of questioning.
“THE COURT: [Prosecutor], do these relate to, I guess, prior consistent statements?
“[PROSECUTOR]: It does, your Honor.
“THE COURT: [Defense counsel],... you suggested that there was subsequent inconsistent statements[,] why wouldn’t these be admissible?
“[DEFENSE COUNSEL]: I’d submit, your Honor.
“THE COURT: The objection is overruled.”
Detective Salisbury then testified to more of Jane’s statements during the forensic interview, including her statements about her drawings.
Deputy Porrazzo testified to Jane’s statements to him; defense counsel did not object.
The next witness was Diaz. While she was on the stand, part of the video of the forensic interview was played. The trial court then called a lunch break. After the jury left, defense counsel said:
“[DEFENSE COUNSEL]:... I know I had this on my list for our 402s. I might have touched on it in chambers but I don’t think I put it formally on the record that I’d be objecting to the tape being played. So I didn’t want to object in front of the jury, I should have done that prior to the jury coming in.
“THE COURT: What’s the objection to playing the tape[?]
“[DEFENSE COUNSEL]: The objection is just hearsay and it’s cumulative, basically.
“THE COURT: Okay, [Prosecutor], your response.
“[PROSECUTOR]: Well, your Honor, I believe there were some questions posed to the victim yesterday about statements that she made and I believe this tape contains both prior consistent and inconsistent statements by the victim in this case.”
The trial court took the objection under submission. After the lunch break, it ruled:
“THE COURT:... I’m inclined to allow the videotape. It does contain actually both prior and inconsistent statements. And I do believe we did discuss this off the record before the trial started. So is there anything else either of you would like to add... ?
“[DEFENSE COUNSEL]: No, your Honor, just that if the Court would note my ongoing objection.
“THE COURT: It is noted and overruled.”
After the lunch break, more of the video was played. Diaz also testified regarding Jane’s statements during the forensic interview.
Finally, Dr. Murray and social worker Melesko testified to Jane’s statements to them, without any objection.
The video of the forensic interview was admitted into evidence. During its deliberations, the jury requested and received a transcript of the interview.
B. Analysis.
1. Prior consistent statement exception.
To the extent that Jane’s prior statements were inconsistent with her testimony at trial, they were admissible. (Evid. Code, §§ 770, 1235.) Defendant, however, does not really complain about the admission of Jane’s prior inconsistent statements (most of which defense counsel had already elicited from Jane herself). The vast majority of Jane’s prior out-of-court statements were consistent with her trial testimony.
Jane’s statements were not admissible under the prior consistent statement exception unless either:
“(a) Evidence of a statement made by h[er] that is inconsistent with any part of h[er] testimony at the hearing ha[d] been admitted for the purpose of attacking h[er] credibility, and the statement was made before the alleged inconsistent statement; or
“(b) An express or implied charge ha[d] been made that h[er] testimony at the hearing [wa]s recently fabricated or [wa]s influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive [wa]s alleged to have arisen.” (Evid. Code, § 791; see also Evid. Code, § 1236.)
Some — but not all — of Jane’s prior consistent statements qualified for admission under the first prong of this test. As defense counsel brought out, Jane had made some inconsistent statements in the forensic interview. Accordingly, consistent statements made before the forensic interview were admissible. These included her statements to her mother, to Detective Porrazzo, and to social worker Melesko. (Significantly, defense counsel did not object to any of these.) However, consistent statements made during or after the forensic interview were not admissible under the first prong.
Jane’s statements were not inadmissible under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] because Jane testified at trial. (Id. at p. 59, fn. 9.) Defendant does not argue otherwise.
Such statements likewise were not admissible under the second prong of the test. True, defendant did expressly or implicitly charge Jane with fabrication; defense counsel got Jane to admit that she did not like it when her mother paid more attention to defendant than to her and also that she liked going to her father’s house. The supposed fabrication, however, started not later than September 8, 2006, when Jane first disclosed the molestation to her cousin. Thus, her statements during and after the forensic interview were not made before she had a motive to fabricate.
2. Exception under the completeness rule.
Accordingly, in this appeal, the People do not rely on the prior consistent statement exception to the hearsay rule. Rather, they argue that Jane’s prior statements were admissible under the completeness rule, Evidence Code section 356. This rule states that “[w]here part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party....” (Ibid.) “Evidence Code section 356 creates an exception to the hearsay rule without labelling it as such. [Citations.]” (People v. Pic’l (1981) 114 Cal.App.3d 824, 863, fn. 13, disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 498.)
Defense counsel had already brought out Jane’s prior inconsistent statement during the forensic interview suggesting that defendant had not penetrated her. At that point, under the completeness rule, the People were entitled to introduce other statements that Jane made during the forensic interview to the effect that defendant did, in fact, penetrate her vagina. But were they entitled to introduce the entire interview, on the theory that it was “on the same subject” as the inconsistent statements? What was that subject? Whether Jane was credible? Whether Jane was penetrated? Or whether Jane was molested at all?
This issue is unsettled, at least according to Jefferson’s California Evidence Benchbook: “Some portions of a witness’s prior inconsistent statement may not be inconsistent with the witness’s testimony. Does that portion of a witness’s prior statement that is inconsistent with his or her testimony make admissible the remainder of the statement or other statements made at the same time that are not inconsistent with the witness’s testimony, based on Evid[ence] C[ode] § 356? There is little authority on the point.” (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2008) § 10.11, p. 186.) The Benchbook then proceeds to argue that the consistent portions of an otherwise inconsistent statement should not be admissible under Evidence Code section 356. (1 Jefferson, Cal. Evidence Benchbook, at pp. 186-187.) Given this uncertainty, we decline to rest our opinion on this ground.
3. Evidence Code section 1360.
We wondered whether the evidence was admissible under Evidence Code section 1360 instead. We asked the parties to submit additional briefing addressing this question. We have since received and considered such further briefing.
Evidence Code section 1360 provides that:
“(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another... is not made inadmissible by the hearsay rule if all of the following apply:
“(1) The statement is not otherwise admissible by statute or court rule.
“(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.
“(3) The child either:
“(A) Testifies at the proceedings.
“(B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.
“(b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.
“(c) For purposes of this section, ‘child abuse’ means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and ‘child neglect’ means any of the acts described in Section 11165.2 of the Penal Code.” (Evid. Code, § 1360.)
Defendant argues that the trial court was never asked to admit Jane’s statements under Evidence Code section 1360, and therefore it never made a finding as to whether they were accompanied by sufficient indicia of reliability. We are convinced, however, that if it had been asked to do so, it would have found that they were reliable, at least with respect to her statements during the forensic interview.
Factors that a trial court may consider as indicia of reliability include, but are not limited to, “(1) spontaneity and consistent repetition; (2) mental state of the declarant; (3) use of terminology unexpected of a child of similar age; and (4) lack of motive to fabricate. [Citation.]” (People v. Brodit (1998) 61 Cal.App.4th 1312, 1330; accord, People v. Eccleston (2001) 89 Cal.App.4th 436, 445-449.) Here, Jane made her initial disclosure spontaneously, first to her mother and then to her cousin, and she repeated it consistently thereafter. Nothing about her mental state made her unreliable. Although she used terms that one would expect a nine-year-old child to use, her description of defendant’s conduct (such as his heavy breathing) was specific and credible.
But most important of all, Jane was interviewed by a trained forensic interviewer. As Diaz testified, she asked open-ended questions in a nonleading manner: “It’s just to ask the child what has happened. All I want to know is the truth.... [A]nd if nothing has happened, then that’s exactly what I ask them to tell me as well.” The results of such an interview were highly reliable.
Finally, it appears that all of the other criteria for admission under Evidence Code section 1360 were satisfied. Jane had testified in the proceedings; hence, corroborating evidence was unnecessary. The prosecution had given notice of its intention to introduce the forensic interview by including the video and the transcript in its exhibit list. Moreover, we are entitled to presume that these items had been made available to the defense in pretrial discovery. (See Pen. Code, § 1054.1, subd. (f).) And the molestation that Jane described in the interview constituted “child abuse” for purposes of Evidence Code section 1360, regardless of whether penetration occurred. (See Pen. Code, § 11165.1, subd. (a), incorporating by reference Pen. Code, §§ 261 [rape], 261.5, subd. (d) [statutory rape] & 288 [lewd and lascivious acts].)
Jane’s statements to Dr. Murray were likewise admissible under Evidence Code section 1360. Dr. Murray specialized in examining suspected victims of child abuse, and Jane’s statements to her bore similar indicia of reliability.
Defendant argues, however, that some of Jane’s statements went beyond merely describing an act of child abuse or neglect. We can divide the statements to which this argument is directed into three categories:
a. Jane’s statements to her mother and to Deputy Porrazzo.
Jane told her mother that defendant had sexually molested her. Jane also told Deputy Porrazzo that she had been upset and crying during the molestation. These statements did describe an act of child abuse. Hence, they would have been admissible under Evidence Code section 1360, provided the trial court had found that they were reliable. In any event, as we have already held, they were admissible as prior consistent statements.
Defendant refers to “statements [Jane’s cousin] made to Sheriff’s Deputy Christopher P[o]rrazzo that [Jane] was upset and crying.” Actually, it was not Jane’s cousin, but Jane herself, who made this statement.
b. Jane’s statements during the forensic interview describing her drawings.
During the forensic interview, Jane described what was shown in her drawings. Admittedly, these were not statements describing an act of child abuse or neglect. Accordingly, they were not admissible under Evidence Code section 1360.
Moreover, even assuming that some of the statements during the forensic interview would have been admissible under Evidence Code section 356, these were not among them. “The purpose of Evidence Code section 356 is to avoid creating a misleading impression. [Citation.] It applies only to statements that have some bearing upon, or connection with, the portion of the conversation originally introduced. [Citation.] Statements pertaining to other matters may be excluded. [Citation.]” (People v. Samuels (2005) 36 Cal.4th 96, 130.) Jane’s descriptions of the drawings were not necessary or even particularly helpful to understanding the rest of the interview.
One of these descriptions, however, was admissible as a prior inconsistent statement. When Jane was on the stand, with respect to the picture of her mother crying, she testified that her mother was crying “[b]ecause I’m not with her.” This was inconsistent with her statement in the forensic interview that her mother was crying “because [she] didn’t protect [me].” It was procedurally proper for the People to elicit Jane’s prior inconsistent statement, because Jane, although excused, was still subject to recall. (Evid. Code, § 770, subd. (b).)
It appears that the prosecution intended to introduce Jane’s descriptions of two other drawings under the hearsay exception for past recollection recorded. When Jane was on the stand, she admitted that she did not really remember what was shown in the two pictures of defendant in jail. In response to the prosecutor’s questions, she added that her memory on this point had been better at the forensic interview and that she had told the truth in the forensic interview — part of the foundation for the past recollection recorded exception.
Another necessary portion of the foundation, however, was missing. This exception requires that the witness’s previous statement must be “contained in a writing” and can only be “offered after the writing is authenticated as an accurate record of the statement.” (Evid. Code, § 1237, subd. (a)(4).) In the video, Jane’s statements describing these pictures were inaudible or unclear. Thus, no witness ever laid the foundation that the video was an accurate record of Jane’s statements. Instead, the prosecution had Diaz and Detective Salisbury testify to what Jane had said when she described the pictures. This did not qualify as past recollection recorded.
We therefore conclude that the trial court erred by admitting these witnesses’ testimony about Jane’s statements describing these two pictures. Moreover, the error was adequately preserved for appeal. When Detective Salisbury was on the stand, defense counsel objected to “this line of questioning” based on hearsay. The trial court overruled the objection, citing the prior consistent and prior inconsistent statement exceptions. It had similarly overruled defense counsel’s continuing objection to the video. When Diaz was on the stand, it would have been futile to object again.
We further conclude, however, that the error was not prejudicial. No federal constitutional violation has been shown. Accordingly, unless there is a reasonable probability that defendant would have enjoyed a more favorable outcome in the absence of the error, we must affirm. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The case against defendant was very strong, if not overwhelming. As we have already held, Jane’s statements to her mother, to Deputy Porrazzo, to Melesko, and to Dr. Murray were admissible, and so were her statements in the forensic interview, at least to the extent that they described the molestation; all of these statements were remarkably consistent with each other as well as with her trial testimony. The defense did not develop any convincing reason why Jane would make such an elaborate false accusation. Indeed, the notion that she would lie because she wanted her mother to pay more attention to her and the notion that she would lie because she wanted to go and live with her father were in conflict with each other. It is also significant that, when Jane’s mother confronted defendant, while he denied the molestation, he also told her that, if she called the police, he would kill both her and Jane
Jane’s only significant inconsistent statement was that defendant had pushed on her and hurt her “[o]n the outside.” She implied, however, that this was a conclusion that she drew later, when her mother found skin peeling off on the outside. She went on to state that defendant “opened” her private part “with his thing.” And while there was no physical evidence of penetration, there was uncontradicted expert testimony that penetration would not necessarily leave any physical evidence. Thus, in closing argument, while defense counsel did try briefly to cast doubt on whether any molestation had occurred, her main theme was that defendant had merely “rubbed up against” Jane, rather than penetrating her with his penis.
In light of this evidence, we see no reasonable possibility that the erroneous admission of Jane’s description of two of her drawings affected the verdict. The drawings themselves were admitted into evidence, without objection. To the extent that Jane’s description of them was probative at all, it was simply additional evidence that, in fact, defendant had molested her. It did not relate to the much closer question of whether the molestation had involved penetration. We therefore conclude that the error was harmless.
c. Jane’s statement that she felt more comfortable because defendant was in jail.
During the forensic interview, Jane said, “[Defendant]’s in jail now.” Diaz then asked, “How do you feel about that?” In the video, Jane’s response was not entirely audible. According to Diaz, however, Jane said that she “felt more comfortable because he would not have access to her.”
This statement was not admissible as a prior consistent or inconsistent statement. It was also not admissible as describing an act of child abuse or neglect under Evidence Code section 1360. Finally, it was not admissible under Evidence Code section 356 because it was not necessary to understanding the rest of the interview. Thus, it was error to admit it.
Once again, however, the error was harmless. For the reasons already discussed above, in connection with Jane’s description of two of her pictures, we see no reasonable possibility that the admission of this statement affected the verdict. We come to the same conclusion even when we consider the cumulative prejudicial effect of the admission of both Jane’s description of the pictures and this statement.
4. Relevance.
In his supplemental brief, defendant contends: “Even assuming the foundational requisites could be met for some of [Jane]’s statements, [Evidence Code] section 1360 only negates a hearsay objection. Constitutional and other evidentiary objections (such as irrelevance and Evidence Code section 352) must still be overcome.... As set forth above and in the opening brief, much of the objectionable evidence was irrelevant....”
With two exceptions, however, defense counsel never raised either a relevance objection or an objection under Evidence Code section 352 below. First, she did raise a relevance objection to one question about Jane’s description of one of her drawings. Second, she did ask the trial court to redact one of the references in the forensic interview to defendant being in jail. As we have already held in parts III.B.3.b and c, ante, both of those items of evidence were harmless.
Defendant does not contend that the failure to raise such objections constituted ineffective assistance. Moreover, defendant did not argue in his opening brief that any of Jane’s out-of-court statements (other than her references to him being in jail) were irrelevant or unduly prejudicial. Finally, he has not supported this contention with any citation to the record. He simply cites four pages of his own opening brief, which, in turn, cited all of Jane’s out-of-court statements, including the entire forensic interview. Thus, we have no way of knowing which particular statements defendant deems irrelevant or more prejudicial than probative.
For all of these reasons, defendant has forfeited any contention that Jane’s out-of court statements were irrelevant or unduly prejudicial under Evidence Code section 352.
III
ALLOWING THE JURY TO HAVE THE VIDEO IN THE JURY ROOM
Defendant also contends that the trial court should not have allowed the jury to have the video of the forensic interview during its deliberations.
Defense counsel objected to the admission of the video, but only on the grounds that she had previously raised, i.e., hearsay. She did not specifically argue that, even if the video was in evidence, it should not be sent to the jury room. Accordingly, this contention has been forfeited.
Defendant does not contend that the failure to object on this ground constituted ineffective assistance. Accordingly, this contention, too, has been forfeited.
Even if not forfeited, the contention lacks merit. Defendant relies on a number of cases from other jurisdictions holding that it is or may be error to allow the jury to view a video of a witness’s statements in the jury room:
Colorado: People v. Montoya (Colo.App. 1989) 773 P.2d 623, 625-626.
Montoya has been superseded by Frasco v. People (Colo. 2007) 165 P.3d 701. There, the Colorado Supreme Court held that a trial court has discretion to allow a video of a witness interview to go to the jury. (Id. at p. 704.) In the case before it, the trial court did not err by letting the jury have the video, in part because “the trial court cautioned the jury at the time of its admission not to give the videotape any greater significance than other evidence at trial. At the close of the evidence, it did not allow the videotape to be taken to the jury room along with the other exhibits. When the jury made a request to view the exhibit, the court notified both counsel and specifically inquired about defense counsel’s position with regard to the request. Counsel not only failed to register an objection or request a limiting procedure or instruction; he actually offered his understanding that existing law required unimpeded jury access, and he expressly represented to the court that he had no objection to such access.” (Id. at p. 705.)
Florida: Young v. State (Fla. 1994) 645 So.2d 965, 966-968; Tullis v. State (Fla.App. 1998) 716 So.2d 819, 820.
Georgia: Summage v. State (2001) 248 Ga.App. 559, 561 [546 S.E.2d 910].
New Jersey: State v. Michaels (1993) 264 N.J.Super. 579, 641-644 [625 A.2d 489], affirmed on other grounds (1994) 136 N.J. 299.
Michaels actually involved a video of witnesses’ testimony at trial — via closed-circuit television — not their pretrial statements. (State v. Michaels, supra, 625 S.2d at p. 492.)
Oklahoma: Martin v. State (Okla.Crim.App. 1987) 747 P.2d 316, 319-320.
Wyoming: Taylor v. State (Wyo. 1986) 727 P.2d 274, 276; Chambers v. State (Wyo. 1986) 726 P.2d 1269, 1275-1277.
Ninth Circuit: United States v. Binder (9th Cir. 1985) 769 F.2d 595, 600-601, overruled on other grounds in United States v. Morales (9th Cir. 1997) 108 F.3d 1031, 1035; see also United States v. Sacco (9th Cir. 1989) 869 F.2d 499, 501-503 (“[r]eplaying videotaped testimony creates concerns not present when rereading written testimony,” but finding no abuse of discretion in allowing replay under the circumstances).
Generally speaking, these cases reason that replaying the video in the jury room is likely to cause the jury to place undue emphasis on the witness’s statements. For example, in United States v. Binder, supra, 769 F.2d 595, the court explained: “Permitting the replay of the videotaped testimony in the jury room during deliberation was equivalent to allowing a live witness to testify a second time in the jury room.” (Id. at p. 601, fn. 1.) “Videotape testimony is unique. It enables the jury to observe the demeanor and to hear the testimony of the witness. It serves as the functional equivalent of a live witness.... Allowing the jury to see and hear the children’s videotaped testimony a second time in the jury room during deliberations unduly emphasized their testimony.” (Id. at pp. 600-601, fn. omitted.) “The replay allowed the repetition of the government’s case... and may have taken on inappropriate significance in the jury’s deliberations.” (Id. at p. 601.)
Some of these cases also relied, by analogy, on procedural rules against letting the jury have depositions in the jury room. (E.g., Young v. State, supra, 645 So.2d at pp. 966-967 [“[t]he court may permit the jury, upon retiring for deliberation, to take to the jury room: [¶]... [¶]... all things received in evidence other than depositions,” Fla. Rules of Crim. Proc. 3.400(d)]; Chambers v. State, supra, 726 P.2d at p. 1275 [“[t]he traditional common law rule was that the trial court had no discretion to submit depositions and other testimonial materials to the jury room for unsupervised review”].)
Other courts, however, have rejected the analogy to depositions. In State v. Kraushaar (Minn. 1991) 470 N.W.2d 509, the applicable procedural rule provided: “‘The court shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits which have been received in evidence, or copies thereof, except depositions....’” (Id. at p. 514, quoting Minn. R. Crim. Proc., rule 26.03(19(1)).) The court held that a video of an interview with the child victim (see Kraushaar, at p. 511) “was not a ‘deposition’ within the meaning of the rule nor something ‘sufficiently akin’ to a ‘deposition’ to be precluded by the rule. [Citation.]” (Id. at p. 515.)
In any event, all of these decisions were based on local procedural law; they were not based on any federal constitutional considerations. Thus, to the extent that our local procedural law is different, they are not persuasive.
The applicable procedural rule in California is Penal Code section 1137, which provides: “Upon retiring for deliberation, the jury may take with them all papers (except depositions) which have been received as evidence in the cause....” Thus, “[i]t is ordinarily not erroneous to permit jurors to take with them to the juryroom exhibits which have been received in evidence.” (People v. Descant (1942) 51 Cal.App.2d 343, 349; accord, People v. Williams (1960) 187 Cal.App.2d 355, 367.) “The jury is a constitutional part of the court and they are privileged to take all or any of the exhibits with them. [Citation.]” (People v. Horowitz (1945) 70 Cal.App.2d 675, 704.)
Like the court in Kraushaar, we do not consider a video of a witness interview to be a “deposition.” In criminal cases — particularly in 1872, when Penal Code section 1137 was originally enacted — a deposition meant either a witness’s testimony at either a preliminary hearing (see Pen. Code, § 869) or a conditional examination (see Pen. Code, §§ 882, 1335-1345; People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523, 528). If such a deposition came into evidence at all, it had to be read into the record. (Pen. Code, §§ 686, subd. (b), 882, 1345.) If the jury wanted to review the witness’s testimony, it could ask to have the record read back.
By contrast, the court reporter is not required to transcribe a video or audio recording. (California Rules of Court, rule 2.1040(b).) If the jury is given a transcript, it may be instructed that the recording is evidence, the transcript is not, and the transcript is provided solely to help it understand the recording. (People v. Brown (1990) 225 Cal.App.3d 585, 597-599.) Thus, if the jury wants to review a video, unlike a deposition, it must have it in the jury room.
We therefore conclude that, once the trial court admitted the video into evidence, it did not err by allowing the jury to have the video in the jury room. Of course, in part III.B, ante, we held that the trial court did err by admitting some statements in the video. If those statements had been excluded, as they should have been, the jury would not have been able to view them in the jury room (or otherwise). This does not mean, however, that the trial court committed a separate or independent error by allowing the video into the jury room; it is simply an additional fact that can be considered in deciding whether the erroneous admission of the statements was prejudicial. For the reasons already discussed, it was not.
IV
DISPOSITION
The judgment is affirmed.
We concur, GAUT J., KING J.
A more relevant New Jersey case is State v. Burr (2008) 195 N.J. 119 [948 A.2d 627]. There, the New Jersey Supreme Court held that a jury may be allowed to have the video of a witness interview, on request, during deliberations; however, the trial court should ask why the jury needs the video rather than a readback and should balance the jury’s need for the video against any possible prejudice to the defendant. (Id., 948 A.2d at pp. 634-636.)