(Super. Ct. No. CM029224)
The opinion of the court was delivered by: Nicholson , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Cory Kent Adams appeals from his conviction of one count of felony continuous sexual abuse of a child. (Pen. Code, § 288.5, subd. (a).) He claims the trial court committed prejudicial error when it (1) allowed the prosecution's expert witness, the nurse practitioner who examined the victim, to give opinion testimony regarding her findings; (2) determined defendant's proposed expert witness, a psychiatrist, was not qualified to testify as an expert regarding sexual abuse physical examinations; and (3) denied defendant's motion for a new trial that was based in large part on a claim of ineffective assistance of counsel. Defendant also claims the trial court abused its discretion when it (4) denied him probation; and (5) sentenced him to the middle term of 12 years in state prison.
We disagree with defendant's contentions and affirm the judgment.
The victim, M., was 13 years old at the time of trial. She testified her father, defendant, began molesting her when she was six years old. The abuse first occurred at a family friend's house in San Jose, and then in the family's home in Butte County. The abuse continued approximately weekly until 2008 when she was 12 years old. M. testified to numerous incidents where defendant performed or attempted to perform various sexual acts with her and made her perform sexual acts with him.
After the last incident, M. went to Carson City, Nevada, with her grandmother to visit relatives. On her way home from that trip, she sent a text message to her older half sister stating defendant rapes her. Her sister told her to go to a hospital to be examined and to file a report. M. then told her grandmother about the abuse and the need for an examination. The grandmother took M. to Mercy General Hospital in Sacramento, where M. spoke with a doctor and a police officer.
Eight days later, nurse practitioner Sally Vertolli examined M. She had administered over 200 sexual abuse examinations. The court deemed her an expert in the field of sexual abuse examinations for children. Vertolli stated that as part of her examination of M., she used a colposcope to view and photograph M.'s hymen.*fn1 When M. was in the "knee-chest" position, Vertolli noticed a large "tag" of hymen was protruding from the vaginal opening. Vertolli determined the tag was abnormal, explaining that the hymen should be intact without a "pointy remnant sticking out." Vertolli stated this abnormality was more consistent with, and more likely than not to have been caused by, attempted vaginal penetration because M.'s hymen appeared to have been altered. A tear in the hymen would appear like a "tag sticking down." Vertolli testified she had never "seen one protrude like that in the 205 exams" she had administered.
Defendant sought to qualify Dr. Lee Stewart Coleman, a psychiatrist, to testify as an expert witness regarding sexual abuse physical examinations and to counter Vertolli's testimony. The trial court ruled Dr. Coleman did not qualify as an expert on the proposed subject.
Defendant testified on his own behalf. He denied ever molesting M.
We provide additional facts in context as necessary. We turn to address defendant's contentions.
Admission of Vertolli's Expert Opinion
Defendant claims the trial court committed prejudicial error when it admitted Vertolli's testimony. He claims her testimony that the hymenal tag was more likely than not caused by attempted penetration was a surprise, and it contradicted the report Vertolli had prepared documenting her examination of M. He asserts he was prejudiced by the introduction of Vertolli's opinion, and by the trial court's refusal to grant him a continuance to obtain expert evidence to challenge Vertolli's opinion. We conclude there was no error and no prejudice.
A. Additional background information
Prior to trial, defense counsel made an oral motion to exclude all of Vertolli's testimony on the basis of relevance. During trial, he clarified his objection, saying Vertolli had expanded her opinion beyond what she had set forth in her examination report. In that report, completed by checking boxes, Vertolli stated the examination was normal, and that she could neither confirm nor negate sexual abuse. Counsel sought to exclude anything beyond what was stated in her report as speculative and nonscientific, and he requested an Evidence Code section 402 hearing.
The prosecutor informed the court that in addition to completing the section of the report that required checking boxes, Vertolli had included a narrative description of her examination of M. in which she summarized her findings. In this narrative section, which had been provided to the defense, Vertolli noted she had found an abnormality. The abnormality (the hymenal tag) was not specific to sexual abuse, but it was consistent with the history of sexual abuse M. had provided. The prosecutor had asked Vertolli to explain this comment. She stated the comment meant she could not state absolutely that the abnormality was a result of sexual abuse. However, the abnormality was consistent with the way the tissue would appear if over a six-year period M. had been subject to repeated attempted penetrations or continual rubbing of the area.
Based on these arguments, the trial court ruled the testimony was relevant, and it would allow Vertolli to testify. Nevertheless, on the following day, the court conducted an Evidence Code section 402 hearing regarding Vertolli's expected testimony. Vertolli explained she examined M. in two different positions. First, M. reclined on her back with her knees bent and spread apart, and Vertolli examined and photographed the genitalia with the colposcope. From this position, M.'s hymen appeared to be "a fairly normal anatomical-looking hymen" "within normal limits."
Second, M. reclined on her abdomen with her knees pulled up to her chest, and Vertolli examined and photographed the genitalia again. Photographs from this position showed a "large hymenal remnant or tag that's flopped forward out of a child's body" that was not visible in the first position. Vertolli stated hymenal tags are evidence that the hymen had been altered. They are most commonly associated with penetration. They are usually not as protuberant as M's.
Vertolli agreed a child could be born with this condition, but it would be an anomaly. It was not a normal hymen. She had seen the condition before in children who had suffered penetration or attempted penetration.
On cross-examination, Vertolli agreed she had checked the boxes on the report form that stated the examination was normal and that she could not confirm or negate sexual abuse. She also agreed she had not checked the box for "nonspecific, may be caused by sexual abuse or other mechanism." However, she stated that box should have been checked. Vertolli discussed the hymenal tag in her narrative report and that it was not absolutely specific for sexual abuse.
Under questioning from the court, Vertolli stated she had performed 205 sexual abuse examinations, and that she had never seen a hymenal tag as big as M.'s. She also stated, in response to a question from the bench, that it was more likely than not that M.'s hymenal tag was caused by sexual activity.
Following the witness testimony, defense counsel renewed his objection on the basis of surprise. He claimed Vertolli's testimony was not consistent with her report, went far beyond the findings in her report, and was a "complete surprise to the defense." Allegedly nowhere in the report did Vertolli say the abnormality was likely caused by repeated attempted penetrations. Because the report had contained minor findings, counsel had not arranged to have a child sexual examination expert testify. He asked at least for a continuance to prepare for Vertolli's testimony.
The prosecution reminded the court Vertolli's report had included a narrative summary stating the abnormality was consistent with, but not absolutely specific of, ongoing molestation for six years. If counsel had wanted more specific information from Vertolli, he could have contacted her as the prosecution did.
Defense counsel admitted he had not spoken with Vertolli. He also had not made a demand for an independent medical examination of M. He claimed Vertolli's report was so understated he had no reason to do so.
The trial court denied the objection and ruled Vertolli's testimony would be admitted. It found there was enough information in the report to put counsel on notice that Vertolli would state the hymenal abnormality was more likely than not caused by sexual abuse. The court refused to exclude Vertolli, and it also denied counsel's request for a continuance.
Before the jury, Vertolli was designated by the court as an expert in the field of examination of children for sexual abuse. She repeated her testimony from the earlier evidentiary hearing. Under cross-examination, Vertolli explained the apparent discrepancy between the boxes she checked on the form report and her narrative summary. She filled out the form and checked the boxes without the aid of the photo review. She prepared her narrative after viewing her magnified photos, and that was when she noticed the abnormal hymen. She agreed that after she checked the boxes on the form report, she changed her opinion about her findings, and she relayed her revised opinion in her narrative.
On redirect, Vertolli stated in her opinion M.'s hymen "was most likely altered or has its appearance by penetration."
Defendant argues the trial court abused its discretion by admitting Vertolli's testimony. He claims he was surprised by her testimony that the abnormality was more likely than not caused by attempted penetration. He asserts he at least should have been granted a continuance to prepare for Vertolli's testimony.
The court did not abuse its discretion by admitting Vertolli's testimony. The testimony was certainly relevant. Relevant evidence is evidence that tends "'"logically, naturally, and by reasonable inference" to establish material facts.'" (People v. Carter (2005) 36 Cal.4th 1114, 1166; see Evid. Code, § 210.) Vertolli's testimony satisfied that standard, as it tended to establish a material fact -- whether M. had been sexually abused.
Vertolli's testimony also was not a surprise. Defense counsel had in his possession prior to trial a copy of Vertolli's narrative summary, in which she stated she had found an abnormality in M.'s hymen that was consistent with repeated sexual abuse. This report put defendant on notice that Vertolli would testify as to physical evidence of sexual abuse and, as an expert, would opine on the significance of that evidence. Defendant thus could not have been completely surprised by Vertolli's testimony, and the trial court did not err in admitting it or in denying defendant's request for a continuance.
Exclusion of Dr. Coleman's Testimony
Defendant claims the trial court erred when it determined Dr. Coleman could not testify as an expert on the issue of sexual abuse physical examinations. He claims it was an abuse of discretion to exclude Dr. Coleman's testimony, as Dr. Coleman allegedly qualified as an expert on sexual abuse examinations and his opinion was not ...