(Super. Ct. No. 09F01603)
The opinion of the court was delivered by: Robie , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant Dan Leross Foxx Moss guilty of two counts of sexual penetration of a child 10 years of age or younger (Pen. Code,*fn1 § 288.7, subd. (b)). The trial court sentenced him to prison for a term of 15 years to life on each count (which is the only sentence available for the crime) and elected to run the two terms consecutively.
On appeal, defendant contends the trial court erred by: (1) admitting into evidence a videotaped interview with the victim; (2) imposing two "fully consecutive" sentences; (3) admitting evidence of an uncharged offense to show propensity to commit the present offense; and (4) permitting the prosecution to engage in repeated instances of misconduct. Finding no merit in defendant's contentions, we affirm.
In June 2008, defendant was living in an apartment with his fiancee, S.S., and S.S.'s sister, P.W. During the afternoon of June 4, T.L., another sister of P.W., dropped off three of her children, including her three-year-old daughter, J. J., at the apartment for baby-sitting by P.W. T.L. was to pick the children up by 8:30 p.m. because P.W. had a date with her boyfriend, Gineo, at 10:30 p.m.
When T.L. did not show up, P.W. put the children to bed in her bedroom about 9:30 p.m. Defendant was not at home at the time. When Gineo failed to show by midnight, P.W. took a shower. After showering, P.W. went into the living room and saw defendant sitting on a large couch and J. J. sitting on a smaller couch, eating ice cream. About that time Gineo and two of his cousins arrived, stayed until 3:00 a.m., and then left. J. J. never said anything to P.W. about defendant improperly touching her.
The children were picked up on June 5 and taken back to T.L.'s apartment. There, J. J. told T.L. that "[P.W.'s] friend" had licked his finger and touched her "coo-coo" and "boo-boo," words she used to describe her vagina and butt. J. J. said that after the touching, defendant gave her ice cream and told her, "'You're the best.'"
T.L. returned to P.W.'s apartment with J. J. and the child repeated to P.W. what defendant had done to her. Defendant denied having improperly touched J. J. The confrontation turned physical with T.L. and P.W. punching defendant. During the altercation, defendant said, "Yeah, I did it. What are you going to do about it," but then immediately took the statement back saying that he would never touch the kids.
T.L. and P.W. left the apartment and took J. J. to the hospital where she was examined by a nurse practitioner. J. J. told the nurse, "My butt hurts," and that "Pam's friend" put his finger in her "butt" and "coo-coo" when she was asleep, that she told him "no," and then he gave her ice cream. Aside from a small abrasion near J. J.'s hymen, which could have been caused by a finger, including that of J. J., or other object being inserted into the area, there were no physical signs of sexual abuse.
J. J. testified that defendant touched her "coo-coo" and "boo-boo" with his finger while they were sitting in P.W.'s apartment, but she denied that defendant gave her ice cream afterward. At one point, she denied ever having seen defendant before.
On July 24, 2008, J. J. was interviewed at the Special Assault and Forensic Evaluation (SAFE center), and the interview was videotaped and played for the jury. Although J. J. initially denied that anything had been done to her, she eventually told the interviewer that defendant had touched her butt and "coo-coo" with his finger while they were on the couch in P.W.'s apartment.
At trial, evidence was introduced that on March 5, 2005, N. G. left her eight-year-old daughter, T. N., for baby-sitting with defendant and S.S. T. N., who was 13 years old at the time of the trial in this matter, testified that while she was sitting on the couch watching television with defendant, he put his hand inside her shorts and into her vagina and kept it there for about 10 seconds. T. N. moved to a different location to watch TV, but defendant followed and began rubbing her leg. T. N. went into the kitchen and defendant went to bed, ending the molestation.
Defendant testified and denied molesting J. J. According to defendant, he went to bed around 9:00 p.m., but the sound of the children awakened him about 11:30 p.m. and he went back into the living room and lay on the sofa. P.W. put the children to bed and returned to watch television with defendant. Defendant fell asleep but heard P.W. leave the apartment. Shortly thereafter, J. J. and her brother went into the living room, which awakened defendant. Defendant got a popsicle from the freezer and gave it to the children to keep them quiet.
P.W. came back in the apartment with her boyfriend, became upset when she saw the children eating the popsicle, and began yelling at defendant. P.W. put the children to bed, and defendant spent the night in the living room. Defendant admitted being with J. J. and her brother for about 35 to 45 minutes, but denied ever being alone with J. J.
T.L. returned to P.W.'s apartment with J. J. the evening of June 5, 2008, and accused defendant of molestation. Defendant denied doing so and suggested she call the police. T.L. and P.W. started hitting him. Defendant denied saying, "I did it. What are you going to do about it," but instead had said, "I did it, huh? Well then I'll call the police."
Defendant denied molesting T. N., but admitted pleading guilty to child endangerment with her. He did so, he claimed, because he was spending so much time in court that his employer threatened to fire him.
Introduction Of The Videotaped Interview
Defendant contends the trial court's failure to comply with the hearing and notice requirements of Evidence Code section 1360 in admitting the videotape was prejudicial error. We disagree.
Evidence Code "[s]section 1360 creates a limited exception to the hearsay rule in criminal prosecutions for a child's statement describing acts of child abuse or neglect, including statements describing sexual abuse. [Citations.] Section 1360 safeguards the reliability of a child's hearsay statements by requiring that: (1) the court find, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances surrounding the statement(s) provide sufficient indicia of reliability; (2) the child either testifies at the proceedings, or, if the child is unavailable to testify, other evidence corroborates the out-of-court statements; and (3) the proponent of the statement gives notice to the adverse party sufficiently in advance of the proceeding to provide him or her with a fair opportunity to defend against the statement."*fn2 (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367.)
An appellate court reviews a trial court's admission of evidence pursuant to Evidence Code section 1360 for abuse of discretion.*fn3 (People v. Roberto V., supra, 93 Cal.App.4th at p. 1367.) Under that standard "'reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that ...