IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
May 24, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
STANISLAV ZAVOROTNYY, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F03355)
The opinion of the court was delivered by: Raye, P. J.
P. v. Zavorotnyy
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant of five counts of a lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). Sentenced to 14 years in prison, he appeals. Defendant contends there was insufficient evidence to support counts three and four because the sole evidence of these counts was admitted under the fresh complaint doctrine and could not be used to prove the crimes. He further contends the trial court erred in admitting evidence that defendant told his victim he had done the same to another girl and that defendant physically abused his wife. We find no error and affirm.
The victim's family moved to the United States from Moldova in 1999. The family consisted of a father, mother, and five children. The oldest child is Yana and the youngest is the victim, who was four or five years old when the molestation began. Yana married defendant in 2003 when she was 18. The family is very religious and close to their Russian religious community.
Defendant and Yana lived on the same street as the victim's family, and the victim visited them about every other day. During this time, defendant committed lewd acts on the victim at least five times. On one occasion, defendant brought the victim into his bedroom, told her to take off her pants, and put her on the bed on all fours, "like . . . a dog." He licked her "p."*fn1 She told him to stop and he did (count one). Defendant told her not to tell anyone.
This same conduct occurred on another occasion when the victim had a friend over and they were on the computer. Defendant took her to the bedroom, told her to take her pants off, and again put her on her hands and knees. He started licking her "p" and continued even after she asked him to stop (count two).
Another time, while Yana was in the kitchen, defendant told the victim to lick his "p." She said no, but defendant begged and she licked it once (count five).
In 2005 the victim told her cousins that defendant was molesting her. Her parents and Yana questioned the victim about the molestation. At first, the victim was shy, scared, and reluctant to talk about it. Eventually, however, she gave a full, detailed description of what defendant did to her.
Yana confronted defendant about the molestation. Initially, he denied it, but two days later he admitted it was true and promised not to do it again. He also threatened to kill himself.
Yana told her mother defendant had admitted the molestation. The victim's parents held a family meeting. Defendant apologized to the family and to God. They prayed and read the Bible. Following their religious teachings, the family forgave defendant and did not call the police. Yana did not divorce defendant as divorce was looked down on in her community. She believed her marriage could still work.
In 2006 Yana and defendant moved to Texas. Defendant worked as a truck driver; when he was in Sacramento, he stayed with the victim's family. In September 2007 the family learned defendant was again touching the victim. Defendant showed the victim his "p" while they were in his truck.
Yana asked defendant why he did it. He replied he could not explain, saying "I just wanted it so bad." Defendant told Yana that he got an erection when he saw little girls at the grocery store.
A few months later, the family finally called the police. The police arranged a Special Assault and Forensic Evaluation (SAFE) interview. This interview is conducted by a trained forensic interview specialist and monitored by the police and a deputy district attorney. The police also asked Yana to make a pretext call in an attempt to get defendant to admit his crimes. Yana could not bring herself to do it.
At trial, the tape of the SAFE interview was played to the jury. In addition to the acts of lewd conduct set forth ante, the victim described two occasions where defendant took off his pants and her pants and put his "p" on top of the victim's "p" (counts three and four). During the incident in the truck, defendant told the victim, "I'm sorry that I'm doing this to you. It's just when I was a little younger I did it to another girl."
DISCUSSION I. Sufficient Evidence of Counts Three and Four
Defendant contends there is insufficient evidence of counts three and four, the two counts of genital contact described only in the SAFE interview. He asserts the interview was admitted under the fresh complaint doctrine and evidence so admitted cannot be used as substantive evidence to prove the crime. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522.)
The premise of defendant's contention is incorrect. The tape of the SAFE interview was not admitted under the fresh complaint doctrine. Instead, it was admitted under Evidence Code section 1360. That section provides an exception to the hearsay rule for statements by children under the age of 12 in neglect and abuse cases provided three conditions are met: (1) the court finds that the time, content, and circumstances of the statement provide sufficient indicia of reliability; (2) the child either testifies at the hearing or there is corroborating evidence of the hearsay statements; and (3) the proponent of the statement gives notice to the adverse party that it intends to use the statement at trial.*fn2 Since the evidence establishing counts three and four was admitted as an exception to the hearsay rule, and thus for the truth of the matter asserted (Evid. Code, § 1200, subd. (a)), and defendant does not challenge the sufficiency of that evidence, substantial evidence supports these counts.
In his reply brief, defendant contends the evidence was insufficient because the criteria for admission under Evidence Code section 1360 were not met. These contentions are raised too late. "Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument." (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) "It is well settled that a point raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present such point before. [Citations.]" (Duncanson-Harrelson Co. v. Travelers (1962) 209 Cal.App.2d 62, 70.) Here, defendant offers no justification for his failure to raise this issue in his opening brief; the record clearly shows the SAFE interview was admitted under Evidence Code section 1360.
In any event, and to forestall a claim of ineffective assistance of counsel, we find no merit in defendant's late contentions. Defendant contends the trial court failed to exercise its discretion on the admission of this evidence because it failed to hold a hearing to establish the reliability of this evidence. The parties agreed the evidence was admissible and defense counsel specifically agreed the court need not hold a hearing on it. Defendant has not shown how accepting this concession was an abuse of discretion. Tellingly, he does not argue the evidence was unreliable. Further, even if the admission was erroneous, defendant's lack of an objection to this evidence at trial precludes reversal. (Evid. Code, § 353, subd. (a).)
Second, defendant contends admission of this evidence violated his confrontation rights because he could not cross-examine the tape and the victim had been excused as a witness by the time the tape was played. We recognize that the constitutionality of Evidence Code section 1360 is questionable when it permits the admission of testimonial hearsay without an opportunity for cross-examination of the declarant. (See People v. Sisavath (2004) 118 Cal.App.4th 1396 [non-testifying victims' hearsay statements to police were testimonial and barred from use at trial by the confrontation clause].) That is not a concern here because the victim testified. Although her testimony was complete before the tape of the SAFE interview was played, defense counsel expressly agreed that the tape should be played after the victim's testimony. The defense was aware it would be admitted and could have questioned the victim during her testimony about her statements during the interview.
Defendant has failed to show any error in admitting the SAFE interview which provided sufficient evidence to support counts three and four.
II. Defendant's Statement "I Did It to Another Girl"
During the SAFE interview, the victim stated three times that defendant apologized to her and told her that when he was younger, "I did it to another girl." The defense agreed the apology was admissible, but wanted defendant's statement that he had done it to another girl redacted. Counsel argued there was no indicia of reliability for defendant's statement and its prejudicial effect outweighed its probative value. The court ruled the statement was admissible as an admission under Evidence Code section 1220 and found its probative value outweighed the prejudice under Evidence Code section 352.
Defendant contends the trial court abused its discretion in admitting this evidence. He recognizes that in sex offense cases, evidence of defendant's commission of another sexual offense to show his propensity to commit such offenses is admissible under Evidence Code section 1108, subject to exclusion under Evidence Code section 352. (See People v. Falsetta (1999) 21 Cal.4th 903 [rejecting a due process challenge to Evidence Code section 1108].) He argues, however, that this evidence should have been excluded under Evidence Code section 352 because it "caused severe prejudice" and its admission was "grossly unfair."
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
In People v. Harris (1998) 60 Cal.App.4th 727, this court set forth factors a trial court should consider in deciding whether to admit other sex crime evidence under Evidence Code sections 1108 and 352. These factors are (1) the inflammatory nature of the evidence, (2) the probability of confusing the jury, (3) the remoteness of the evidence, (4) consumption of time, and (5) the probative value of the evidence. (Harris, at pp. 737-741.)
These factors do not require exclusion of defendant's statement. It was no more inflammatory than the crimes charged; it would not confuse the jury and took little time to present. It is unclear when defendant did the prior act he admitted, but he claimed he was "a little younger," suggesting it was recently. Moreover, the very vagueness of the statement -- the absence of any specifics -- lessens its prejudicial effect.
While defendant protests the prejudicial effect of this evidence, he fails to articulate what that prejudice was. "'The prejudice which exclusion of evidence under Evidence Code Section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors.'" (People v. Zapien (1993) 4 Cal.4th 929, 958.) "In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.) Defendant has shown no such prejudice here.
III. Evidence Defendant Physically Abused His Wife
Yana testified her marriage to defendant was both good and bad. The bad was that defendant was abusive and hit her. After defendant's objection under Evidence Code section 352 was overruled, Yana described the abuse. She testified defendant hit her on her face and head. He hit her head into the wall. He hit her in the ribs and back with his knees and threw her to the floor. She claimed that when she questioned defendant about his abuse of the victim, he hit her. Yana never reported this abuse to law enforcement.
In a cursory argument, defendant contends the trial court abused its discretion in admitting this evidence because it was not relevant and, absent its admission, defendant would not have been convicted. Again, defendant fails to explain the precise nature of any prejudice.
Only relevant evidence is admissible. (Evid. Code, § 350.) The People assert the evidence was relevant; it was offered to counter the defense. The defense argued if defendant had truly molested the victim, the family would have acted differently. The mother would have immediately reported it to the police, a pretext call to defendant would have been made, and the family would not have allowed defendant to have any contact with the victim. The prosecution sought to counter this argument by introducing evidence of the family's complete reliance on their immigrant community and church and their unfamiliarity with the American legal system, as well as defendant's complete domination of Yana. Against this showing of relevance, defendant offers nothing to show prejudice.
The judgment is affirmed.
We concur: ROBIE, J. MAURO, J.