APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. (Super. Ct. No. SCD220378)
The opinion of the court was delivered by: Huffman, Acting P. J.
CERTIFIED FOR PUBLICATION
A jury convicted James Spence of two counts of sexual offenses against a child 10 years old or younger (his housemate's daughter D.), occurring on April 20, 2009 (Pen. Code, § 288.7, subd. (b), count 1, sexual penetration; and § 288.7, subd. (a), count 2, sodomy; all further statutory references are to the Penal Code unless noted). The jury also convicted him of two counts of sexual activity with D. occurring in March 2009 (§ 288, subd. (a), count 4, committing a lewd act; and § 288.7, subd. (b), count 5, oral copulation.) He was acquitted of two other charges and an additional count was dismissed on the People's motion.
Spence was sentenced to a total term of 55 years to life. He appeals, first contending the trial court erred in permitting the prosecutor to rebut the opinions of the defense expert witness, a psychologist who testified about Spence's educational level and writing ability, by presenting the jury with statements Spence previously made in his testimony at a pretrial hearing on his motion to suppress evidence, concerning whether he had the ability to express himself in writing (such as in letters found in his pocket when he turned himself in for arrest). (James v. Illinois (1990) 493 U.S. 307 (James) [precluding use of illegally obtained custodial statements to impeach "all" defense witnesses]; § 1538.5.) This is a question of first impression about the allowable scope of impeachment of a defense expert witness's opinion that is based in part upon statements by the defendant, through the use of the defendant's suppression hearing testimony. We conclude the rules and policies expressed in James are not implicated by the procedures used here, and there was no error.
Spence also challenges the ruling of the trial court allowing a different expert witness, the interviewing pediatrician who specialized in child abuse treatment, to be questioned about her opinion about the truth of the charges, albeit in a somewhat hypothetical manner. Although this is a close question, any evidentiary or other error that occurred was harmless.
In another question of first impression, Spence argues he was deprived of due process of law at trial when the trial court misapplied statutory provisions concerning certain sex offense prosecutions that allow one support person to accompany the child witness to the stand. (§§ 868.5, 868.8; Evid. Code, § 765.) Spence argues the court erred by additionally allowing a therapy dog or support canine to be present at the child's feet while she testified, and contends this was "overkill" that unduly focused the jury upon the child's alleged status as a victim, before any conviction was achieved. He complains the necessary statutory findings were not made, and the necessary admonitions were not given to properly educate this victim advocate and the jury about the appropriate demeanor restrictions in testimony. (§§ 868.5, 868.8.) We find no prejudicial error or abuse of discretion in these respects.
In a further statutory argument, Spence contends the terms of section 288.7, supporting his three convictions for molesting a child "10 years or younger," are ambiguous and were misconstrued by the trial court, because this child victim had passed her 10th birthday at the time of the charged offenses, although she was not yet 11 years old. The California Supreme Court recently resolved this issue in People v. Cornett (2012) 53 Cal.4th 1261 (Cornett), finding the statute was not ambiguous, and this identical claim consequently fails.
Having reviewed all of Spence's arguments as they are applied to this record, we find no reversible error and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Spence's challenges to his convictions do not include any claims of insufficiency of the evidence. The basic underlying facts follow and will later be expanded upon, as we evaluate his constitutional and statutory arguments.
When these incidents occurred in 2009, Spence was about 25 years old and had been living for about 10 years as a housemate to D.'s mother, D. Smith (Ms. Smith), who was older and had four children, two with Spence. Spence acted as the stepfather to D., who was born in 1998 and whose father did not live with the family. Due to various problems with one of the other children in the home, the family had a child protective services (CPS) caseworker, Melinda Pellegrino. Ms. Smith wanted to break up with Spence and have him move out and leave the family, but he did not want to do so. The night of April 20, Spence and his male friend Dale Williams were at Ms. Smith's house overnight, and she was out with friends.
On the morning of April 21, 2009, D. told Ms. Smith that while Ms. Smith had been absent the night before, her dad (which is what she called Spence) "raped her," by telling her to come into the bathroom and pull down her pants, and putting his finger in her vagina. Ms. Smith drove her son to school, discussed the matter further with D., and then woke Spence to have him go to a Kaiser clinic with them. Spence said it was not true. At Kaiser, D. was seen by a male nurse, Matthew Sager, and she was crying and upset while telling him her "dad" had pulled her pants down and touched her private parts. She said something similar had happened a month ago.
Nurse Sager told Ms. Smith that Kaiser's policy was to send such patients to Children's Hospital. Ms. Smith became angry and left with D., so the nurse called 911 and police followed their car. When Ms. Smith got home, she called her CPS caseworker, Pellegrino, and they talked to D. about what had happened. Pellegrino told Ms. Smith and D. they should cooperate with police officers, who had arrived at the Smith home. Spence called home and Pellegrino told him he needed to come home, but he did not do so.
D. was taken to Children's Hospital, where she did not want to speak to a caseworker, but agreed to speak with Dr. Lorena Vivanco, a board certified pediatrician specializing in child abuse treatment. While crying and upset, D. told Dr. Vivanco that the night before, her dad Spence took her into the bathroom and pulled down her pants, and then started touching her "privacy" and put his fingers inside her privacy. Then he put his privacy inside her "butt" after turning her over and putting something slippery on his own privacy. The month before, while D. was asleep, Spence came to her bed and tried to put his "privacy" into her mouth, after putting his finger in it first. D. told Dr. Vivanco that she had not told anyone about the first incident because she did not think it would happen again and Spence told her not to tell.
While D. was being examined by Dr. Vivanco, Detective Dana Hoover was at the hospital talking to Ms. Smith. Spence called Ms. Smith and said that he wanted to talk to the detective to clear things up. Detective Hoover asked him to call her the next day, which he did, and she made arrangements for him to come to the police station for an interview on the following day.
B. Interview, Arrest and Charges
Spence came to the police station on April 22, was escorted upstairs and interviewed by plainclothes Detective Hoover and Detective Cindy Brady. Although he originally said he had not sexually touched D. and offered to take a polygraph examination to clear himself, the detectives learned that the equipment was out of order and nothing happened.*fn1
Eventually, Spence admitted to the detectives he had molested D. in April, but not in March. The detectives asked him if he wanted to apologize to D., and he said he could not write and did not know how to begin, so Detective Hoover offered to take down his dictation, wrote down what he said, and kept the original (the dictated letter). Hoover and the other detective then told him to go take care of his affairs and to turn himself in for arrest in a few days, because that would look better for him and for the family.
On April 28, 2009, Spence came to the police station to turn himself in for arrest. Two handwritten, signed letters about his remorse and sadness regarding the incidents, dated April 27, 2009 and addressed to D. and Ms. Smith, were found in his pocket.*fn2 Detective Hoover made copies of these (here, designated the two copied letters) and returned the originals to him. Charges were filed April 30, 2009.
On July 7, 2010, the San Diego County District Attorney filed an amended information alleging three counts against Spence arising out of the April 20, 2009 incident with D. (sexual penetration by putting his finger in her vagina, sodomy and sexual intercourse, all with a child 10 years old or younger; § 288.7, subds. (a), (b)). As to the March 2009 incident, two counts were charged (committing a lewd act upon a child by putting his finger in the child's mouth before inserting his penis, and oral copulation with a child 10 years old or younger; § 288, subd. (a); § 288.7, subd. (b)).*fn3
In preparation for his defense at trial, Spence was interviewed by an expert psychologist, Dr. Carroll Waymon, to evaluate his educational level and his ability to make decisions when confronted with female authority figures, such as the detectives. Dr. Waymon reviewed Spence's continuation school records and talked to him for about two and one-half hours, and evaluated him as having a grade level of about third through fifth grade. He determined that Spence has dyslexia, which affects his general functioning abilities and makes him dependent on others, rather than being able to make his own independent judgments.
C. Suppression Hearing and Trial Cases-in-Chief
At the outset of trial, Spence brought a motion to suppress his statements at the April 22 interview with the detectives, contending it was a custodial interrogation and his unwarned statements were not voluntary. (§ 1538.5.) At the suppression hearing, Detective Hoover testified about writing the dictated letter at Spence's request, when he told her he could not write or read well.
Spence testified that he only agreed to let Detective Hoover write the dictated letter for him because he thought that was what she wanted to hear him say. When the prosecutor presented him with the two copied letters (as found in his pocket when he was taken into custody) and asked him if he wrote them, Spence said the signature and handwriting looked like his own and he guessed he must have written them.
The court denied Spence's motion to suppress his statements to detectives, ruling that he was not in custody at the time and the statements were voluntary. No ruling on admissibility on any letters was made at that time.
At trial, D. testified in the prosecution's case-in-chief and was accompanied to the witness stand by a victim advocate from the District Attorney's office, as well as a therapy dog that sat at her feet and behind the stand. Defense objections, that this level of support was unnecessary and excessive under the statutory scheme, were overruled. (See pt. IV, post.)
Other percipient and expert witnesses testified at trial, including Ms. Smith and Pellegrino. Detective Hoover testified and played for the jury a tape of the April 22 interview, and displayed an enlargement of the dictated letter.
Laboratory tests on D.'s clothing and her person (mouth, genital and anal areas) showed there were traces of sperm cells on the mouth and clothing but no seminal fluid. Not enough material was collected for a complete DNA analysis, but neither Spence nor his friend Williams, who were at the house that night, could be excluded as an African-American sperm cell donor of the cells on the clothing.
Dr. Vivanco testified about her forensic examination of D., which showed physical evidence of bruising and spotting in the vaginal area and hymen. Dr. Vivanco concluded there was definite evidence of some sexual abuse or contact. Although there was no visible indication of anal penetration, the doctor stated she could not rule out that it happened, since a child's anus may stretch under such duress.
The prosecutor asked Dr. Vivanco about possible explanations for D.'s story. Specifically, she asked, "if someone by the name of [D.] says that she is sexually assaulted by someone by the name of James Spence, is there any evidence that you tested in this case that contradicts that story?" The expert replied that there were no test results excluding Spence, i.e., "All of the DNA that I have ends up having some consistency with the DNA test from Mr. Spence." (See pt. III, post.)
Spence did not testify at trial. His defense theories were that Ms. Smith had D. falsely accuse him of sexual assault to get rid of him, or that his mental deficiencies had led him to make a false confession. He also contended that the perpetrator might have been his friend Dale Williams, who was at the house that night and who could have left the sperm cells found in the lab tests. Spence presented numerous character witnesses and several expert witnesses, to be described in the discussion portion of this opinion.
Briefly, with regard to the issue about Spence's ability to write letters, his expert psychologist, Dr. Waymon, testified about his evaluation of the apparent mental deficiencies and low level of functioning that Spence had, based in part upon a two and one-half hour interview and his review of school records. Dr. Waymon stated he did not believe Spence had the ability to read or write at a normal adult level, based upon two unusual writing samples he had obtained from Spence during his interview (a sentence or two in tiny writing with eccentric spacing; they are not in the appellate record).
During cross-examination about his opinions, Dr. Waymon was shown the two copied letters obtained by detectives when Spence was arrested, and he opined that it was unlikely that Spence had written them, since the handwriting and printing in them were consistent with that of a high school graduate or adult, rather than with a low functioning individual such as Spence.
D. Rebuttal Phase of Prosecution; Instructions and Verdict; Motion and Judgment
In rebuttal testimony, Detective Hoover identified the copied letters and stated that at the time of his arrest, Spence told her he had written them. However, she never put that in a written report.
In response to Dr. Waymon's testimony, the prosecutor sought to rebut or impeach his expert opinion by bringing in other evidence that Spence had the ability to write and had done so, based on the copied letters found in his pocket when he was arrested. She proposed to read into the record Spence's testimony at the suppression hearing, in which he admitted that those signatures looked like his and he guessed he must have written them. Defense counsel unsuccessfully objected that Spence had had a right to testify at his suppression hearing, and his testimony about the letters at that hearing should not be used against him either in the case-in-chief or in rebuttal.
As will be discussed in further detail, the trial court explained that even statements taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) can be used to impeach a testifying defendant's false statements. (See pt. II, post; Harris v. New York (1971) 401 U.S. 222.) The court reasoned that if a defense expert had presented a false or unreliable opinion, it was appropriate to allow the prosecution to attempt impeachment of it, as part of the truth-finding process of the court. The defense objections were overruled and the prosecutor was allowed to read to the jury portions of Spence's testimony about the copied letters, as given at the suppression hearing. The dictated and copied letters were admitted into evidence at the close of the defense case and during rebuttal.
The jury received instructions about the limited purposes for which they could consider the evidence of the two copied letters, to determine Spence's writing level and ability. His oral statements before trial were to be considered along with all other evidence. Regarding his statements to the expert, they were to be used for evaluating the expert's opinion, not for the truth of their content. More generally, the jury was told, inter alia, that the fact a crime was charged is not evidence the charge is true (CALCRIM No. 220), and they must decide the case based on the evidence, not on any extrinsic factors such as sympathy, passion, or prejudice (CALCRIM No. 200).
The jury deliberated and found Spence guilty of counts 1, 2, 4 and 5, but acquitted him of two other counts stemming from the March incident. On the People's motion, the court dismissed count 3.
Spence brought a motion for new trial. His major argument was that Dr. Waymon's expert testimony had been unfairly impeached with suppression hearing testimony from Spence, contrary to the rules of James, supra, 493 U.S. 307, 317-319, which holds that illegally seized evidence can be used to impeach a defendant's own testimony, but not the testimony of other defense witnesses. The People responded that such impeachment was proper in this case, because Dr. Waymon was essentially offering an opinion based upon what the defendant said, but what the defendant said could be false and could be interpreted another way. (Wilkes v. U.S. (D.C. 1993) 631 A.2d 880, 889-891 (Wilkes).)
At the new trial hearing, the parties disputed at which point the copied or dictated letters had been admitted into evidence, and the People took the position that they had not needed to seek admission of the copied letters in their case-in-chief, because they were "self-serving." In its ruling, the court noted that had the People sought admission, it would have found the letters self-authenticated and ruled them admissible. (In any case, the letters were apparently admitted during the rebuttal phase of the proceedings.) The new trial motion was denied.
Spence was sentenced to a total term of 55 years, composed of a 25-year-to-life term for count 2 and consecutive 15 years for each of counts 1 and 5 (and an eight-year stayed sentence on count 4). He timely appealed.
INTRODUCTION TO ISSUES; "10 YEARS OF AGE OR YOUNGER"
Spence challenges his convictions by attacking the court's evidentiary and legal rulings at trial that (1) allowed the defense expert's opinion to be rebutted through a reading of Spence's own testimony, given at the pretrial suppression hearing, in which he admitted that he must have written and signed the two letters of apology (the copied letters) that were found in his pocket at his arrest; and (2) allowed the prosecution's medical expert to give her opinion, on a given set of facts using Spence's name, about any other possible explanations of the results of the laboratory tests on D.'s clothing and person. As we will show, those rulings ...