IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 4, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DAN LEROSS FOXX MOSS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F01603)
The opinion of the court was delivered by: Robie , J.
P. v. Moss
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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 resulted in a manifest miscarriage of justice.'" (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
On December 10, 2009, defendant filed several in limine motions, one of which was to exclude from evidence the videotape of the SAFE center interview with J. J. (the videotape) because it was: (1) hearsay; (2) more prejudicial than probative under Evidence Code section 352; and (3) unreliable and incompetent because of the age of the victim.
That same day the court conducted a hearing on the motion. Counsel argued the videotape should not be shown to the jury because it was irrelevant and cumulative since J. J. would be testifying. Counsel acknowledged the videotape could become admissible if J. J. testified inconsistently with the videotape.
The prosecutor acknowledged the possibility that inconsistency in J. J.'s testimony would be a basis for admitting the videotape, and then added that the videotape was also admissible "under [Evidence Code section] 1360." The prosecutor argued: "[O]bviously, the entire case rests on whether or not the jury is going to believe [J. J.], and this is a four-year-old girl who is reporting being sexually assaulted by a grown man. That interview where she disclosed to the forensic interviewer that she had in fact been assaulted by the defendant was done in a very safe environment. [¶] Whether or not [J. J.] can testify to the same thing here in this courtroom in front of a group of strangers, and in fact, in front of [the defendant], remains to be seen. [¶] It is also an opportunity for the jury to see [J. J.] and to hear her statement as it was recorded and preserved and given to the defense in discovery, and I think that it is an important tool for the jury to have that prior interview done of [J. J.] closer in time to the incident."
Defendant offered nothing further on the issue and the trial court ruled it was going to admit the videotape.
Sufficiency Of The Hearing
Defendant argues the hearing on the videotape's admissibility was deficient because the record contains no indication the trial court had viewed any portion of the videotape, there was no testimony regarding the circumstances of the videotape's preparation or its reliability, there was "nothing specific to show" the videotape interview "was done in a neutral manner," and record fails to demonstrate the trial court weighed probative versus prejudicial value in admitting the videotape. We are not persuaded.
While "the record must 'affirmatively show that the trial court weighed prejudice against probative value' [citations], the necessary showing can be inferred from the record despite the absence of an express statement by the trial court." (People v. Prince (2007) 40 Cal.4th 1179, 1237.)
Here, at the commencement of the hearing, the court stated: "I have received the motions in limine and have had an opportunity to review the motions in limine . . . ." The prosecutor pointed out the interview was conducted by "a trained professional." And, of no little consequence, the interview was videotaped thereby establishing the interview's accuracy and reliability. Counsel having seen the videotape had ample opportunity both at the hearing and on this appeal to argue any deficiencies in the accuracy, reliability, or manner in which the hearing was conducted. That he has not made any such argument strongly suggests that no such deficiencies exist. Defendant received an adequate hearing on the videotape's admissibility.
Subdivision (b) of Evidence Code section 1360 provides: "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."
However, "questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal." (People v. Seijas (2005) 36 Cal.4th 291, 301.) "The objection requirement is necessary in criminal cases because a 'contrary rule would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal."'" (People v. Partida (2005) 37 Cal.4th 428, 434.)
Here, neither in defendant's written motion to exclude the videotape nor at the hearing on that motion did defendant ever object to admission of the videotape for lack of notice. Therefore, the issue is forfeited for review.
Ineffective Assistance Of Counsel
Defendant alternately argues ineffective assistance of counsel. This argument is of no avail. The record amply supports a finding that defendant had the notice required by Evidence Code section 1360, subdivision (b). At the preliminary examination, which was conducted on June 3, 2009, Detective Carol Mims testified that as part of her investigation of the case she observed the videotaped interview with J. J. and described the content of the tape.
On December 10, 2009, defendant filed a motion to exclude, among other things, the showing of the videotaped interview to the jury. The basis for exclusion was that the statement constituted "inadmissible hearsay," its probative value was outweighed by its prejudicial effect (Evid. Code, § 352), and that the statement was "unreliable and incompetent" due to J. J.'s age. That same day, the court conducted a hearing on the motion. After hearing argument, the court stated it was going to admit the videotape and queried defendant's counsel on counsel's concern that the videotape may need to be redacted. Counsel responded, "It's been a while since I have seen the [videotape]. I'll look at it again. If I have a specific concern, I'll let [the prosecutor] know." The court then denied the motion to exclude the videotape. On December 17 the videotape was played for the jury.
Defendant does not dispute that he had advance notice of the existence of the videotape long before trial, but, he argues, knowing of the prosecutor's possession of the videotape is not notice of the prosecutor's intent to use the videotape. Defendant claims he was prejudiced by this lack of notice because it precluded his counsel from being prepared to meet the issue of the videotape's admissibility.
Defendant's argument is, at best, a stretch. At no time did defendant's counsel ever claim he was unprepared to contest admissibility of the videotape. Indeed, he filed a motion to exclude the videotape days ahead of the commencement of trial.*fn4 These circumstances adequately establish that defendant was on notice of the prosecution's intent to seek admission into evidence of the videotape. There was no ineffective assistance of counsel.
"Fully Consecutive" Sentences
For defendant's two convictions of violating section 288.7, subdivision (b), the trial court sentenced him to consecutive 15-years-to-life terms pursuant to section 667.6, subdivision (c), which permits "full, separate, and consecutive term[s]" "[i]n lieu of the term provided in Section 1170.1" for offenses specified in subdivision (e) of section 667.6.
Defendant contends the court erred in sentencing him under section 667.6, subdivision (c) because the offense defined in section 288.7, subdivision (b) is not an offense specified in section 667.6, subdivision (e), and that the error requires remand for resentencing. The People acknowledge that sentencing under section 667.6, subdivision (c) was error, but argue remand is unnecessary because the trial court could have sentenced defendant to the same sentence under section 669, thereby rendering the error harmless. For reasons stated below, we agree with the People that the court erred but the error was harmless.
Section 288.7, subdivision (b) provides that "[a]ny person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." Because the statute does not provide for a fixed triad of possible sentences (lower, middle, and upper terms) (i.e., a determinate sentence) but instead provides only for a term of 15 years to life (an indeterminate sentence), a sentence imposed under that statute is not subject to "section 1170.1's one-third limit for consecutive subordinate terms." (People v. Felix (2000) 22 Cal.4th 651, 656 [§ 1170.1 does not apply to indeterminate sentences].)
Section 667.6, subdivision (c) states in relevant part as follows: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion."
At sentencing, the court and parties agreed that even though section 288.7, subdivision (b) is not a numerically specified offense in section 667.6, subdivision (e), it came within the description provided by subdivision (e)(8), to wit, "sexual penetration, in violation of subdivision (a) or (g) of Section 289." However, it does not.
In 2008, when defendant committed his offenses, section 289, subdivision (a)*fn5 was applicable to persons who accomplished sexual penetration by force or threat of force and subdivision (g) was applicable to persons who accomplished sexual penetration by threatening to have the victim arrested or deported by a public official. Since there are no facts in the record which would support a finding under either subdivisions (a) or (g), it was error for the trial court to sentence defendant pursuant to section 667.6, subdivision (c).
Section 667.6, subdivision (c) was also inapplicable here because that statute provides a basis for sentencing a defendant to "a full, separate, and consecutive term . . . for each violation of [a specified] offense" "[i]n lieu of the term provided in Section 1170.1." As we have explained, however, section 1170.1 does not apply in the first place to section 288.7, subdivision (b) because the latter statute provides only for an indeterminate sentence of 15 years to life, and section 1170.1 applies only to determinate sentences. Thus, if consecutive terms are imposed on two or more convictions of violating section 288.7, subdivision (b), those consecutive sentences will always be "fully consecutive."
As noted above, the People argue remand for resentencing is not required because the "the trial court properly could have sentenced [defendant] to the same full consecutive terms under section 669," and the court stated its reasons for making consecutive terms its choice. We agree. As we have explained, since consecutive sentences for violating section 288.7, subdivision (b) will always be "fully consecutive," because the term provided by that statute is an indeterminate one, the only decision for the trial court here was whether to run the terms consecutively or concurrently. That the trial court may have relied on the wrong statute in exercising its discretion to impose the terms consecutively does not effect the exercise of its discretion. Whether the court acted under section 667, subdivision (c) or section 669, the decision to be made was the same -- whether the terms should run consecutively or concurrently. It is not reasonably probable the court would have exercised its discretion differently if it had known that its authority to sentence consecutively arose from section 669 rather than section 667, subdivision (c). Accordingly, the trial court's error was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836 [standard for prejudicial error under state law].)
In his reply, defendant asserts that "[w]here a government official does not exercise discretion under a particular statute, then it would be an abuse of discretion if the reviewing court even presumed that he exercised that discretion." The case defendant cites, however, stands only for the unobjectionable (and inapplicable) proposition that "refusal to exercise discretion is itself an abuse of discretion." (Morris v. Harper (2001) 94 Cal.App.4th 52, 62-63.) Here, the only discretion the trial court has was to determine whether to run the two terms consecutively or concurrently. As we have explained, that discretion was the same no matter which authorizing section of the Penal Code the trial court relied on (section 669 or section 667, subdivision (c)). Accordingly, there was no abuse of discretion just because the trial court purported to act under the wrong authorizing statute.
Defendant contends the trial court did not state sufficient reasons on the record for its sentencing choices -- particularly, the choice to sentence under section 667.6, subdivision (c) rather than section 1170.1. As we have explained, however, the trial court could not have sentenced defendant under section 1170.1 because that statute applies only to determinate terms, and the terms imposed on defendant were indeterminate. The only sentencing choice the court had to make was whether to run the two indeterminate terms consecutively or concurrently, and defendant has failed to show that the trial court did not articulate adequate reasons for the choice of consecutive terms. The record demonstrates that, in support of its sentencing choice, the trial court cited that the victim was particularly vulnerable, being three years old; that the manner in which the "offense" occurred "demonstrated sophistication" or "planning in terms of having this little girl coming out and what happened after that"; that "the offense involves great violence, high degree of cruelty, viciousness and callousness"; and that defendant was on formal probation at time of the offenses. Insofar as defendant does not challenge the evidence underlying any of these reasons, but only whether the trial court adequately articulated its reasons, we have no occasion to address the trial court's decision any further. Defendant has shown no error or abuse of discretion in the trial court's determination of his aggregate sentence.
Admission Into Evidence Of Uncharged Offense
Defendant contends he was denied state and federal rights to due process when the court permitted the jury to consider his molestation of T. N. as evidence that he had a propensity to commit the charged offenses. Defendant acknowledges that the California Supreme Court has rejected his arguments in People v. Falsetta (1999) 21 Cal.4th 903, but he states he is raising the claim for possible review in the California Supreme Court and in federal court. The contention is rejected and the issue preserved for review.
Defendant contends the prosecutor engaged in repeated acts of prejudicial misconduct when he: (1) sought to have one witness comment on the veracity of another witness; (2) asked argumentative questions of defendant; and (3) asked a witness to speculate on another witness's state of mind. We reject the claim.
Eliciting Witness's Belief That Victim Is Lying
During the prosecutor's cross-examination of defendant, the prosecutor established that defendant generally believed J. J. was truthful, but believed she was not truthful in her testimony regarding the charged incident. The prosecutor then asked defendant, "You just didn't think she could do it, did you?," referring to J. J.'s being able to come into court and recount the details of the incident. Counsel objected on grounds the question was "argumentative," and the court overruled the objection. Defendant responded, "Again, I would not know."
"'"[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety."'" (People v. Dykes (2009) 46 Cal.4th 731, 760.) Defendant's sole objection was that the question was argumentative, not that it was asking for defendant to comment on the truthfulness of J. J. Hence, the issue is forfeited for purpose of appellate review.*fn6
Additionally, even if preserved, we would reject the contention. The prosecutor's question cannot reasonably be understood as requesting defendant to comment on J. J.'s veracity. The question went to defendant's, not J. J.'s, state of mind. Specifically, whether it was part of defendant's plan that he could molest J. J. because she would be unable or unwilling to come into court to testify to the molestation.
Leading And Argumentative Questions
Defendant contends the prosecutor asked several leading and argumentative questions when cross-examining defendant. In the first cited instance, the prosecutor asked defendant if "35 to 45 minutes alone in the apartment with [J. J.] would give you plenty of time to put your finger in her vagina?" Defendant's objection that the question was "argumentative" was overruled, and he responded, "Yes, ma'am." Defendant contends the question was argumentative because it was a "speech meant to try to persuade the jury." (See People v. Redd (2010) 48 Cal.4th 691, 747 ["'An argumentative question is a speech to the jury masquerading as a question'"].)
In the remaining instances, the prosecutor asked the following questions of defendant:
(1) After what had occurred with T. N., "[Y]ou were a little more concerned about being around children . . . as verbal and as seemingly intelligent as [T. N.]?" Defendant objected to the question as argumentative and lacking relevance, but the court overruled the objection .
(2) "You didn't figure that [J. J.] would be able to come in here and testify, did you?" The court overruled defendant's objection that the question called for speculation and was argumentative.
(3) "And the situation with [T. N.] didn't work out so well for you, did it?" The court overruled defendant's objection on grounds of "argumentative, [ir]relevance, and [Evidence Code section] 352."
(4) "And when you were living on Sicard [in Marysville] . . . you sort of looked for children who have -- are not being watched after; isn't that correct[?]" Argumentative objection overruled.
(5) You gave J. J. a popsicle to keep "your little secret," and "[Y]ou had this all planned out, didn't you, Mr. Moss?" Objection as argumentative overruled.
(6) "And that plan had to be just -- it had to be perfect timing, didn't it? You had to have just the right moment of opportunity to do what you did; isn't that correct?"
Defendant argues: "These multiple instances of argumentative questions, mostly unrestrained by the trial court, allowed the prosecutor to make her argument to the jury during the evidentiary portion of the trial, and then later to the jury during closing argument. Such misconduct prejudiced the defense."
Even if we were to agree with defendant that all of the questions were argumentative (a point we do not reach), defendant has failed to demonstrate prejudice. People v. Price (1991) 1 Cal.4th 324, is instructive in these circumstances. There, the defendant complained of five occasions where the prosecutor committed misconduct by asking argumentative questions. (Id. at p. 484.) None of the questions stated or implied facts not otherwise before the jury, and would not have been improper if made to the jury at the appropriate time. Because the arguments could have been made during argument to the jury, the defendant suffered no prejudice. (Ibid.)
Here, none of the questions the prosecutor asked stated or implied facts not before the jury or that would have been improper if made in argument. Moreover, defendant has failed to persuade us that there is a reasonable probability he would have obtained a better result if the trial court had sustained his objections to these questions. Thus, even if the questions were argumentative, like the defendant in Price defendant has failed to establish that he was harmed.
Asking Witness To Speculate On
Another Witness's State Of Mind
Defendant contends the prosecutor committed misconduct when he asked defendant to speculate on "another's state of mind." Referring to the incident with T. N. at the apartment where defendant lived in Marysville, the prosecutor asked defendant, "Were you popular with the children of the apartment complex, Mr. Moss?" The trial court overruled defendant's objection that the question was speculative and vague. Defendant answered, "I wouldn't say I was popular, but they did like me." When asked what was the difference, defendant explained, "Popular is like just exclusive like, oh, that's the first place they want to go, whereas, just somebody liking you, occasionally they come up and spend time with you."
Defendant argues, "the question called for [him] to divine what feelings other individuals harbored toward him. This was speculation of the rankest kind." Not so. Reasonably understood, the question called for defendant to testify as to his state of mind, and not the children's. Specifically, defendant was being asked whether he believed he was popular with the children. Consequently, the contention is rejected.
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. DUARTE , J.