(Super. Ct. No. 08F09989)
The opinion of the court was delivered by: Mauro , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 convicted defendant Randy Overstreet of attempted sexual intercourse with a minor and found true allegations that he had four prior prison terms. The trial court sentenced him to 13 years in state prison.
Defendant now contends (1) the trial court erred in admitting a recorded out-of-court interview with the victim pursuant to Evidence Code section 1360, and (2) defendant's trial counsel was ineffective in failing to object to other out-of-court statements made by the victim.
We conclude (1) the trial court did not abuse its discretion in admitting the victim's interview statements because the evidence provided sufficient indicia of reliability; and (2) regarding defendant's claim of ineffective assistance, he does not establish prejudice because the challenged statements were admissible as spontaneous declarations.
We will affirm the judgment.
The eight-year-old victim lived with her mother, her three siblings, and defendant (her stepfather). One night in July 2008, the victim was on a couch watching television after her mother went to bed. Defendant, dressed only in boxer shorts, was watching television from another couch in the same room. He asked the victim to rub his feet, as she had done before. She went onto defendant's couch and began rubbing his feet. Next, she straddled defendant's legs and started rubbing his legs while facing him. Defendant pulled down his shorts to expose his "privates" as the victim rubbed his legs. The victim pulled down her pajama bottoms and underwear and moved up closer to his "privates." She got onto his penis as she had seen her mother do. Defendant's penis rubbed her "private" and she sat there for awhile. The victim moved around side to side and defendant's penis got "slimy." She eventually got off defendant and put on her clothes. Her "private" felt tingly.
The victim went upstairs and woke her mother. The mother described the victim as "freaked out," "really anxious" and "scared." The victim told her mother that she got on top of defendant and he had been inside her a little bit. The victim's legs were feeling weird and she was scared she might be pregnant. The mother called the police later that morning.
Sacramento Police Officer Jonthomas Deardorf interviewed the victim. She told Officer Deardorf she was in the living room with her brother and defendant when defendant asked her to rub his feet. She took off some of her clothes and defendant stuck his thing about two inches inside her. It was dark and she did not see his private; "grease" came out of his thing; and she was sore afterward. The victim also related an incident about a year earlier, when defendant put his tongue on her private part.
Cathy Boyle, a pediatric nurse practitioner at U.C. Davis Medical Center, examined the victim. The victim said defendant's penis went into her private after he asked her to rub his feet. She got on top of defendant and his penis then went "[b]etween my legs a little." Defendant's penis "felt like a water balloon, like greasy stuff was coming out." The victim woke her mother and said her legs were shaking and she might be pregnant. Boyle identified some irregularities in the victim's hymen but no obvious injury, and Boyle believed it was likely within normal limits.
The victim was also interviewed at a special assault forensic evaluation (S.A.F.E.) center on August 8, 2008. In the interview, the victim said she had been sleeping on a living room couch when defendant, who was on another couch, asked her to rub his feet. She climbed on him and straddled his legs. Defendant slid his boxers down, and she decided to slide down her pajama bottoms and underwear. Defendant's thing went a little bit inside her; it felt tingly and she felt it should stop. Defendant had an "accident" and went inside her "about like this much." She felt greasy stuff come out of his thing.
During the S.A.F.E. interview, the victim also related an earlier incident. Her mother was at a doctor's office and the victim was at home with one of her brothers and defendant. Defendant told her to go upstairs to the bedroom. Defendant took off his outer clothing and the victim did the same. He pulled her underwear down ...