IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 6, 2013
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RANDY OVERSTREET, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F09989)
The opinion of the court was delivered by: Mauro , J.
P. v. Overstreet CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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 and started rubbing on her vagina with his finger when her mother called on the phone.
The victim also told the S.A.F.E. interviewer that defendant showed her a book containing pictures of naked people with tattoos.
A search of the house revealed a book of tattoos as described by the victim. A plastic bag under the bed contained a magazine called "Family Stuff," which had several graphic stories of sexual acts between family members.
However, the victim's aunt had told a child protective services (CPS) investigator that the victim had a problem with lying. And the mother's cousin saw defendant around children many times and said defendant always behaved well around them. The cousin said the victim had a problem telling many small lies.
A jury convicted defendant of attempted sexual intercourse with a minor (Pen. Code, §§ 664/288.7, subd. (a))*fn1 and found true allegations that he had four prior prison terms (§ 667.5, subd. (b)). The trial court sentenced him to 13 years in state prison.
Defendant contends the trial court committed prejudicial error in admitting the recorded S.A.F.E. interview of the victim pursuant to Evidence Code section 1360.*fn2
The People submitted an in limine motion to admit the tape of the victim's interview with a specialist at the S.A.F.E. center. A transcript of the interview was not attached to the People's motion. Defendant opposed the motion, asserting that many of the victim's responses were narrative and non-responsive to the questions, and many were in response to leading questions.
During the interview, when asked if anyone told her what to say, the victim replied "Um, no." The interviewer then asked: "Oh, okay. Anyone tell you not to say something?" The victim replied: "My mom did." Asked what her mom told her not to say, the victim replied: "Me and my dad were, um -- me and my brother were sitting on the couch and then me and my dad had a little -- an accident."
The interviewer asked what she meant by an accident. The victim replied: "Ah, like I'm on top of him and like he went -- he went inside of me about like this much." After the interviewer said, "Okay," the victim continued: "But then I stopped 'cause I knew it was wrong." The interviewer said, "Oh," and the victim went on: "And then I went upstairs to my mom and told her."
The interviewer asked: "And then what happened?" The victim replied: "And then my legs went like shaking." After the interviewer said "Uh-huh," the victim continued: "--and then mom started to shake. She was all shaking like this." After the victim said this was because her mom was scared and did not know what to do, the interviewer said: "Okay. And I want to hear more about that. Um, let me ask you -- 'cause you said mom told you not to say something." When the victim made no response, the interviewer asked: "What did she tell you not to say?" The victim replied: "She told me not to say what I just said."
The interviewer asked what it means to tell the truth. The victim responded: "That means if you tell the truth, um, if you don't tell the truth you'll have like a dot on your head -- like a mama dot or a daddy dot and that -- that means if you're lying or not." In response to further questions, the victim said it would be a lie to call a pen a pencil, but it would be true to call a pen a pen. When the interviewer asked, "[W]hat could happen to kids if they tell a lie," the victim answered: "Um, they'll like get in trouble."
The interviewer told the victim she wanted her to talk about "true things" and to tell the interviewer if she did not understand a question. If the victim did not know the answer to a question, it was okay for her to say so. The interviewer asked, "tell me again what -- what you were saying at first." The victim said "we had an accident" when she got on top of her dad and he put his "thing" inside her body "this much." The interviewer drew out more details of the incident, asked her "what happened" or interjecting "uh-huh" as the victim provided additional details. The interviewer then asked if "anything like that happened before" and the victim provided details of an earlier incident. The victim then provided more details of the 2008 incident.
The trial court admitted the tape, finding "that the time, content and circumstances of the statement provide sufficient indicia of reliability."
Evidence Code section 1360 "creates a limited exception to the hearsay rule in criminal prosecutions for a child's statements describing acts of child abuse or neglect, including statements describing sexual abuse. [Citations.] [Evidence Code] 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. [Citations.]" (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367, fn. omitted.)
An appellate court reviews a trial court's admission of evidence pursuant to Evidence Code section 1360 for abuse of discretion. (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.' [Citations.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
Defendant asserts the trial court committed an abuse of discretion because "there is no indication that the court ever read the transcript or viewed the DVD of the interview." Defendant makes this assertion because "[a] transcript of the interview was apparently not made an exhibit" to the prosecutor's motion. But it appears defendant is speculating, because he then adds that "if the court did have access to the transcript of the interview," its ruling would still be an abuse of discretion in any event.
Here, the content of the interview was known to the parties before the trial and defendant specifically mentioned the content in arguing to the trial court that the interviewer asked leading questions and that the victim's answers were often non-responsive or narrative. In making its ruling, the trial court expressly stated that its ruling was based in part on the content of the interview. We must presume the trial court was aware of the content of the interview absent evidence to the contrary.
Defendant further asserts that the trial court abused its discretion because the content of the interview did not show it was reliable. But the interview occurred one week after the incident and the victim described the incident almost spontaneously after being asked if anyone told her what not to say. She then described the incident again in response to open ended, non-leading questions, and her description was for the most part consistent with her prior statements on the subject. In addition, the victim indicated an understanding of the difference between the truth and a lie, and she expressed an understanding that children should not lie. The S.A.F.E. interviewer was not a police officer and the interview took place at a neutral location rather than at a police station. The evidence shows indicia of reliability.
Under these circumstances, the trial court did not abuse its discretion in admitting the recording of the S.A.F.E. interview.
Defendant also contends his trial counsel provided ineffective assistance in failing to object to the mother's trial testimony regarding statements the victim made to her about the incident.
A criminal defendant has a right to the assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692].) This right "entitles the defendant not to some bare assistance but rather to effective assistance." (People v. Ledesma (1987) 43 Cal.3d 171, 215, italics omitted.) "To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings. [Citations.]" (People v. Lewis (1990) 50 Cal.3d 262, 288.)
Here, the trial court granted the People's in limine motion to admit "prior disclosure of fresh complaints" pursuant to People v. Brown (1994) 8 Cal.4th 746, which permits admission of fresh complaint evidence for the non-hearsay purpose of establishing the circumstances under which the victim reported the offense to others. The trial court specified that admission was limited to establishing the fact of, and the circumstances surrounding, the victim's disclosure of the alleged offense. (Brown, supra, 8 Cal.4th at pp. 762-763.) This limitation in excluding the details of the alleged sexual incident was appropriate because "a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge." (Brown, supra, 8 Cal.4th at p. 763.) Nonetheless, during trial, the victim's mother testified that the victim woke her up and told her she got on top of defendant, he had been inside her a little bit, her legs were feeling weird, and she was scared she might be pregnant. Defendant's trial counsel did not object to the testimony.
Defendant contends his trial counsel was ineffective in failing to object. He argues the victim's statements to her mother describing the details of the incident "were both inadmissible hearsay in general and violated the court's in limine holding on the issue." He adds that his defense focused on attacking the victim's credibility, but the mother's testimony undermined that strategy and thus prejudiced the defense.
We conclude, however, that defendant has not established prejudice because the victim's statements to her mother were admissible as spontaneous declarations.
Evidence Code section 1240 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
" 'To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.' [Citations.]" (People v. Poggi (1988) 45 Cal.3d 306, 318.)
Here, the victim made the statements in response to a startling event -- defendant's sexual contact with her -- and the victim made the statements almost immediately after the offense. Her statements described the incident to her mother, and according to her mother's testimony, the victim was in a highly agitated state when she made the statements.
Accordingly, even if defense counsel had objected to the testimony on the ground that it exceeded the scope of the fresh complaint doctrine, the statements would still have been admissible as spontaneous declarations. Trial counsel need not raise futile objections to forestall ineffective assistance claims. (People v. Frye (1998) 18 Cal.4th 894, 985, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Defendant's claim of ineffective assistance lacks merit.
The judgment is affirmed.
We concur: BLEASE , Acting P. J. HOCH , J.