Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, No. INF053884 John J. Ryan, Judge. (Retired judge of the Orange County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Erika Isabel Serrano of five counts of committing lewd acts upon a child under the age of 16 and more than 10 years younger than defendant, 15 counts of committing lewd acts upon a child under 14 years old, and one count of distributing sexually harmful material to minors with the intent of seducing them. (Pen. Code, §§ 288, subds. (a) & (c)(1); 288.2, subd. (a).) The jury found to be true an enhancement that defendant committed several of the lewd acts against multiple victims. (Pen. Code, § 667.61, subd. (e)(5).) Defendant contends the trial court improperly admitted one child witness’s preliminary hearing testimony, admitted two overly detailed descriptions of the children’s reports of the abuse to authorities, and erred in denying her a second continuance midtrial. She also asserts the prosecutor committed misconduct by cross-examining her with argumentative and other improper questions. As we explain, each of these contentions is meritless or, to the extent a police officer offered additional details of one witness’s account, any error was harmless. We therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant does not challenge the sufficiency of the evidence or raise other contentions arising from the factual circumstances of the offenses, we limit our background discussion accordingly. Defendant, age 25 or 26 at the time of the offenses, sold candy to local children from the bedroom window of her home in a trailer park in Thermal, Riverside County. Fourteen-year-old Noemi Z. testified that after returning a movie to defendant’s trailer, defendant complained of back pain, requested a massage, placed Noemi’s hands on defendant’s breasts, and then, in turn, massaged Noemi’s breasts and stomach. Noemi felt “confused” and unable to say anything. Defendant began moving her hands under Noemi’s pants towards her vagina, but the telephone rang. Noemi departed when defendant answered it. Twelve-year-old Josephina B. similarly described a different incident in which defendant massaged Josephina’s back, but then moved her hands to the girl’s breasts and stomach.
On another occasion, defendant played a pornographic film for Noemi and two girls under age 14, including Janet B., who testified defendant massaged Janet’s vaginal area. Noemi massaged defendant’s breasts as part of a game in which defendant wrote descriptive acts on scraps of paper, the players selected a piece of paper and performed the act. After the game, defendant showed the girls some lubricant and told them, “[Y]ou put it on a guy’s penis and you, a woman licked [sic] the guy’s penis.”
Janet, age 12, testified that while she and four other girls visited defendant in her trailer, defendant showed them her breasts and told them they would have similar breasts when they grew up. Janet reported two of the girls touched defendant’s breasts at her request and another girl, Jasmine B., age 11, reported Janet also touched defendant’s breasts. Eight-year-old Rocio Z. and 11-year-old Nancy B. confirmed Janet’s account and added that defendant had the girls dance and remove their clothes, offering the older girls more money than the younger girls to do so.
Twelve-year-old Joel D. and 13-year-old Andres Z. visited defendant’s trailer to download songs to Andres’s iPod from defendant’s laptop computer. Defendant showed them pornography on the computer and in a book. Rubbing lubricant on her exposed breasts, defendant told the boys it tasted like chocolate and had both boys, according to Joel, lick her breasts. Joel touched defendant’s vagina under her black panties. Andres denied he licked defendant’s breasts, but testified she took his hand, placed it on her vagina, and then placed her hand on his penis underneath his underwear and began masturbating him. The boys left when defendant went to the bathroom.
Joel returned a couple days later to retrieve the iPod. Asking Joel if he wanted to view pornography, defendant produced a condom, removed his pants and underwear, and placed the condom on his penis. He put his mouth on her vagina because she had done so to his penis, and defendant had him insert a green, glass bottle into her vagina. Defendant told Joel he could visit whenever he wanted to “practice.”
The trial court admitted 12-year-old Hernan B.’s preliminary hearing testimony because he was unavailable for trial. Hernan visited defendant’s trailer when he learned from a friend she had a pornographic movie collection. To peruse the collection, he leaned into the window into her bedroom from which she sold candy. He crawled through the window onto defendant’s bed. Defendant showed him pornographic pictures on the laptop, placed his hand on her exposed breast and asked if he wanted to stop being a virgin. She reached down his pants and touched his penis; he reached down her pants and touched her vagina. She told him they could not have sex because some of her family members were home, but that they could get a hotel room sometime and he should come back.
Defendant admitted the children frequented her trailer, but claimed the children fabricated the charges because she had reported some of the children to their parents for stealing candy and others to the truant officer for skipping school and because some of the children were in league with a girl who was jealous of defendant for dating her ex-boyfriend. After the jury hung on four counts and convicted defendant on the remainder of the charges, the trial court sentenced defendant to 25 years to life in state prison. She now appeals.
II
DISCUSSION
A. The Trial Court Properly Admitted Hernan B.’s Preliminary Hearing Testimony
Defendant challenges the trial court’s ruling admitting Hernan B.’s preliminary hearing testimony under Evidence Code section 1291. Section 1291 is an exception to the hearsay rule that provides the former testimony of an unavailable witness may be admissible if, at the earlier proceeding, the adverse party “had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” (§ 1291, subd. (a)(2).) Reviewing the trial court’s ruling for abuse of discretion (People v. King (1969) 269 Cal.App.2d 40, 48), we find no error.
All further statutory references are to the Evidence Code, unless otherwise specified.
Characterizing a preliminary hearing as a “truncated proceeding,” defendant asserts she lacked the requisite similar interest and motive to cross-examine Hernan B. as she would at trial, noting the different standards of proof and purposes of the two proceedings. Defendant’s attack is without merit. As the Supreme Court has explained, the defendant’s motive to cross-examine a witness at the preliminary hearing and at trial “need not be identical, only ‘similar.’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 975 (Zapien).) Consequently, reviewing courts “have routinely allowed admission of the preliminary hearing testimony of an unavailable witness.” (People v. Smith (2003) 30 Cal.4th 581, 611; accord, Zapien, at p. 975; see, e.g., People v. Harris (2005) 37 Cal.4th 310, 332-333 [noting similar interest and motive at preliminary hearing and trial, i.e., to challenge and discredit prosecution witness’s factual account and credibility]; People v. Ogden (1985) 168 Cal.App.3d 611, 617 [“markedly different standards of proof” is no bar to admission].)
So it is here. The gravity of a probable cause determination — being bound over for trial on the numerous and serious charges defendant faced here — furnished her a strong motive to cross-examine any adverse witness. She demonstrated that interest by cross-examining Hernan B. on whether he spoke with other witnesses or to the prosecution — potentially tainting his credibility, by eliciting that he did not see defendant provide a pornographic DVD to his friend, and by pointing to contradictions in his testimony. Defendant complains she had no reason to know Hernan B. would become unavailable to testify but, in light of the foregoing authority that preliminary hearing testimony is routinely admitted at trial, she was on notice of the importance of cross-examining the witness at her earliest, and perhaps only, opportunity. (See Zapien, supra, 4 Cal.4th at p. 975 [admissibility of preliminary hearing “did not depend on whether defendant availed himself fully of that opportunity”].)
Defendant complains she did not have the opportunity to cross-examine Hernan B. about juvenile adjudications he apparently suffered after the preliminary hearing but before trial. Defendant and the prosecution, however, stipulated at trial to disclose all the facts about the witness’s juvenile priors that defendant would have been entitled to introduce had the witness been present in court. Consequently, the court informed the jury that Hernan sustained adjudications for robbery and receiving stolen property and that he “fled a group home and is believed to be in Mexico.” The trial court expressly told the jury that “[a] juvenile adjudication is the same as a guilty plea or conviction....” Because the trial court informed the jury of these adjudications, defendant suffered no restriction on her right to impeach Hernan’s credibility with the adjudications. (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.) And because the fact and nature of the adjudications, but not the underlying details of the crimes, are all that defendant would have been able to elicit on cross-examination (§ 788; People v. Shea (1995) 39 Cal.App.4th 1257), defendant suffered no violation of her right to cross-examine him on his felonious activities. Consequently, there is no merit to defendant’s plea for reversal of the lone count involving Hernan based on admission of his preliminary hearing testimony.
B. Any Error Admitting Details of a Victim’s Fresh Complaint Was Harmless
Defendant asserts the trial court erroneously admitted hearsay statements by Hernan B. and Andres Z. that exceeded the permissible scope of the fresh complaint doctrine. The doctrine provides for admission of evidence an alleged victim complained of a rape or other sexual offense because the fact he or she has made a complaint to a third party tends to prove the offense occurred and to undercut the claim the victim has fabricated the charge. (People v. Brown (1994) 8 Cal.4th 746, 755-756 (Brown).) The evidence is admissible, however, “only for a nonhearsay purpose, i.e., not to prove the truth of the content of the victim’s statement but, rather, simply to show that a prompt complaint was made.” (Id. at p. 755.) Consequently, testimony concerning the complaint must be limited to establishing the fact and circumstances of the alleged victim’s disclosure of the offense, but not the details of the alleged offense. (Id. at pp. 760, 764; see People v. Burton (1961) 55 Cal.2d 328, 351 [“the alleged victim’s statement of the nature of the offense and the identity of the asserted offender, without details, is proper”].)
Defendant’s attack on the admission of statements Hernan B. made to Deputies Cynthia Cervello and Juan Zamora is wholly misplaced because the prosecutor offered them not as evidence of Hernan’s initial complaint, but as statements inconsistent with Hernan’s preliminary hearing testimony. Hernan’s statements to the deputies contradicted his later assertions at the preliminary hearing that defendant never played a pornographic movie for him, offered to sell him condoms, or touched his penis. As we recently explained, the Evidence Code provides for the introduction of prior inconsistent statements to impeach a hearsay declarant. (People v. Osorio (2008) 165 Cal.App.4th 603, 616-617; § 1202.) The prosecution may use such statements to partially impeach its own witness. (Osorio, at pp. 616-617; § 785.) Consequently, the trial court did not err in overruling defendant’s objection to admission of Hernan’s statements to the deputies.
Defendant asserts the admission of Andres Z.’s statements to Sergeant Anthony Baur fell outside the fresh complaint doctrine. Specifically, defendant attacks Baur’s testimony that Andres reported defendant played a pornographic movie and that he and Joel complied with her request they touch her breasts. Defendant forfeited her claim by failing to raise it below. (People v. Williams (1988) 44 Cal.3d 883, 915; § 353.) Defendant’s claim an objection would have been futile is meritless since the trial court sustained a hearsay objection just before the prosecutor asked Baur about Andres’s complaint. In any event, we conclude any conceivable error in the level of detail in Baur’s testimony was marginal and therefore harmless.
Defendant also asserts Baur testified Andres told him defendant put her hand down his pants and touched his penis, but defendant’s record cite reveals no such testimony. The absence of an accurate record citation forfeits defendant’s claim Baur strayed into error with any testimony about defendant touching Andres’s penis. (Cal. Rules of Court, rule 8.204(a)(1)(C).) We located no such testimony in the record.
First, we observe the prosecutor was entitled to elicit Andres’s statements that defendant played a pornographic movie and had him and Joel touch her breasts because those acts formed the gravamen of charges that included distributing sexually harmful material to minors and committing lewd acts with them. (Pen. Code, §§ 288, 288.2.) Defendant’s general attack on Baur’s testimony is therefore without merit.
Second, we note defendant does not specify how, if at all, Baur strayed into too much detail. His testimony, consisting in relevant part of just two or three transcript pages, is not particularly detailed. He testified Andres reported defendant claimed the touching “felt good” and that she instructed the boys not to tell anyone. As to the movie, Andres reported “[h]e observed a woman and man kissing, in his words doing nasty stuff. He said that the woman was bare breasted and the man was wearing boxers.” Even assuming arguendo such de minimus detail falls outside the contours of the fresh complaint doctrine, de minimus error is, by definition, harmless. Defense counsel’s decision not to request an optional jury instruction noting the limits of fresh complaint testimony (Brown, supra, 8 Cal.4th at p. 757) suggests he discerned no prejudice in Baur’s testimony. Nor do we. Defendant’s argument for reversal therefore fails.
C. The Trial Court Did Not Err in Denying Defendant a Second Continuance
Defendant contends the trial court erred by denying her midtrial request for an additional continuance after the court continued the trial for nine days so defendant could interview potential witnesses. Defendant did not interview the witnesses, but nevertheless claims the trial court should have continued the trial beyond the nine days so she could subpoena those witnesses. We disagree.
We review the trial court’s ruling for abuse of discretion. (People v. Sakarias (2000) 22 Cal.4th 596, 646; see also Pen. Code, § 1050, subd. (e) [criminal trial may be continued only upon showing of good cause].) A particularized showing is required when a continuance is requested to secure the attendance of witnesses. (Owens v. Superior Court (1980) 28 Cal.3d 238, 250.) Specifically, “defendant had the burden of showing [she] had exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.” (People v. Howard (1992) 1 Cal.4th 1132, 1171 (Howard).) Of these criteria, defendant failed to meet her burden on — at a minimum — the first two: the record is devoid of any evidence she attempted to secure the witnesses’ presence, nor did she establish their testimony was material.
Here, the trial court granted an initial nine-day continuance at the close of the prosecution’s case because the prosecution’s final witness, Robert Nagles, testified he interviewed the students who first disclosed defendant’s alleged abuse to the school counselor, yet the prosecution had failed to provide copies of all those recorded interviews to the defense. For example, Nagles identified one of the initial reporting students as a girl named “Claudia,” who disclosed to the counselor, according to Nagles, that “her two brothers... ditched school to be with Ms. Serrano.” Neither Claudia nor her brothers were named as victims in the counts against defendant, and none of the three testified. Continuing the trial for nine days, the court explained to the jury that defense counsel was entitled to the interviews with the initial reporting students, “So we are going to break....” The court added: “I’m assuming he is going to look at them and see if he needs to do an investigation. It could be nothing or could be a lot.”
On the eighth day of the nine-day hiatus, the prosecutor’s investigator reinterviewed two of the initial reporting students, Claudia and Guadalupe, for rebuttal purposes, in case defendant called the students as witnesses. The prosecutor provided a summary and compact disk recording of the interviews to defense counsel the morning that trial resumed. Based on this material, defense counsel moved for a continuance, explaining, “I would like to call those two girls as... witnesses.” When the trial court observed, “We just had a long break,” defense counsel answered, “I just received this material this morning.” The prosecutor explained, “These girls are girls that were part of the reason why we broke early last Monday.... [I]t actually was my assumption that during... the break [defense counsel] would have his investigator contact these witnesses. That is why Investigator Nagles did... some follow-up to make sure that they were around if need be for rebuttal purposes.... We just made contact with them yesterday.” Theorizing the girls might have cell phones on which they could be reached, the trial court recessed for “five or ten minutes to see if [you] can round these kids up today with your investigator,” but explained to defense counsel, “[Y]our request for a continuance is denied. It is untimely and unnecessary.”
The trial court did not abuse its discretion. As noted, defendant failed to make the requisite showing she exercised due diligence to secure the witnesses’ attendance. (Howard, supra, 1 Cal.4th at p. 1171.) Simply put, defendant made no effort to demonstrate she contacted or attempted to contact the witnesses. Consequently, she failed to show good cause to obtain a continuance. (Ibid.)
Defendant’s claim fails for an independent reason: she failed to show any of the expected testimony was material. (Howard, supra, 1 Cal.4th at p. 1171.) Because defendant failed to interview the witnesses despite the opportunity afforded by the nine-day continuance, the trial court could reasonably conclude she failed to establish the nature of the expected testimony. Defense counsel suggested, apparently based on what he believed the prosecution’s interviews would show, that “the bottom line is Guadalupe said that the reason they went to the counselor to begin with to turn in Ms. Serrano was because Ms. Serrano called the truant officer on the kids for skipping. And this was a way of getting back at Ms. Serrano.” The prosecutor, however, retorted, “That is not correct.” Given that defense counsel had conducted no interviews of his own, the trial court was not required to accept his characterization of the prosecution’s interviews. The record does not establish defense counsel had even listened to the interviews. Absent any interviews of her own, defendant failed to show what testimony was expected of the witnesses. Having failed to establish the expected content of any potential testimony, defendant necessarily failed to show the potential testimony was material. Consequently, the trial court did not err in denying the continuance.
D. The Trial Court Cured Any Prosecutorial Misconduct
Defendant argues the prosecutor committed misconduct in cross-examining her by repeatedly posing argumentative and other improper questions. The trial court, however, sustained defendant’s objection to every question she now challenges as improper. If defendant believed more was required to dispel the possibility of a lingering taint from any of the prosecutor’s questions, she should have raised the issue of potential misconduct below and requested an admonition or curative instruction. Her failure to do so forfeits the issue for appellate review. (People v. Samayoa (1997) 15 Cal.4th 795, 841; People v. Price (1991) 1 Cal.4th 324, 447 (Price).)
Defendant asserts her claim should not be forfeited because an admonition would not have cured any harm. (Price, supra, 1 Cal.4th at p. 447.) We disagree. As we explain, the prosecutor’s questioning, while aggressive, was not so egregious as to constitute incurable misconduct or a due process violation. The steps the trial court took, including sustaining defendant’s objections, prevented any prejudice despite defendant’s failure to request a specific admonition.
As a matter of state law, prosecutorial misconduct involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” (People v. Espinoza (1992) 3 Cal.4th 806, 820.) State law misconduct necessitates reversal where it is reasonably probable the prosecutor’s behavior affected the verdict. (Id. at p. 821.) “‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.]...’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) Such pervasive misconduct requires reversal unless it is harmless beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 819, 844.)
“An argumentative question is a speech to the jury masquerading as a question.” (People v. Chatman (2006) 38 Cal.4th 344, 384.) As defendant correctly notes, “a proper attack on a witness’s credibility does not consist solely of berating the witness; it requires presenting or eliciting additional evidence which bears on the witness’s credibility.” (People v. Zambrano (2004) 124 Cal.App.4th 228, 240.) Here, in a lengthy, largely proper cross-examination of defendant that fills more than 80 transcript pages, the trial court sustained approximately 20 defense objections, of which about half or less were on argumentative grounds.
For example, upon confirming defendant heard Joel’s testimony defendant asked him to insert a bottle into her vagina, the prosecutor asked, “There is no other reason for these empty bottles to be lying around your room unless that is exactly what you had him do, right?” The trial court sustained defendant’s objection to this question and her subsequent objections to similar questions by the prosecutor, including that defendant “took advantage of the fact [the children] considered you a friend,” that defendant was lying by “just making it up here today,” that “hearing their preliminary hearing testimony has helped you with your testimony,” and that, when defendant claimed she had kept a pornographic magazine hidden in her closet, “the kids just magically kn[e]w about it?”
Harsh attacks on the credibility of opposing witnesses are permissible. (People v. Arias (1996) 13 Cal.4th 92, 162.) To the extent the prosecutor crossed the line with argumentative questions on a handful of occasions, the trial court prevented any prejudice by sustaining defendant’s objections. Additionally, the trial court cured any potential harm, despite the absence of a defense request for a specific admonition, by instructing the jury before their deliberations that attorney arguments are not evidence and to ignore questions where an objection had been sustained. (Judicial Council of Cal. Crim. Jury Instns. CALCRIM No. 104.) We presume the jury heeded the court’s instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Relying on People v. Teixiera (1955) 136 Cal.App.2d 136 (Teixiera), defendant contends the prosecutor committed misconduct by asking irrelevant questions. In Teixiera, the prosecutor repeatedly pressed the defendant to admit he did not call the police to report a claimed theft because it occurred outside a house of prostitution. The court held the prosecutor’s questions injected irrelevant and “clearly improper” innuendo into the case, observing “it is hard to believe... this experienced prosecutor asked them in good faith and for any purpose other than to degrade defendants.” (Id. at p. 147; accord, People v. Douglas (1947) 83 Cal.App.2d 80, 82 [similarly irrelevant references to prostitution designed “to degrade the appellant before the jury”].)
Defendant contends the prosecutor committed similar misconduct by attempting to have her read aloud to the jury some of the scraps of paper describing sexually suggestive acts in the game she played with some of the children, and by posing her questions about condoms, lubricants, and crotchless underwear. The trial court, however, sustained defendant’s objection the scraps of paper were themselves the best evidence of their content. Consequently, defendant did not read any of the scraps of paper aloud and, by sustaining defendant’s objection, the trial court prevented any potential degradation or prejudice from the prosecutor’s theatrical gambit.
The trial court also sustained defendant’s objections to the prosecutor’s questions whether “you [i.e., defendant] think it is appropriate” to expose children to condoms, lubricants, and crotchless underwear. Defendant’s thoughts on the morality of displaying these items to children were irrelevant, so the trial court properly sustained defendant’s objection. The trial court, however, properly allowed further questions about these items. Unlike the issue of prostitution in Teixiera, the manner in which defendant revealed and used the condoms, lubricant, and crotchless panties around the children was relevant to the charges against her. Defendant’s claim of misconduct is therefore without merit.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.