(Alameda County Super. Ct. No. H50155) Superior Court of Alameda County, No. CH50155, Michael J. Gaffey, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Demeaka Ellis was convicted of sexual activity with a 13-year-old girl, of making the girl available to another adult for lewd and lascivious acts, and of encouraging and attempting to force the girl to work for him as a prostitute. He argues that photographs taken during the victim's sexual assault examination were admitted in evidence in violation of his Sixth Amendment confrontation clause rights; that his right to present a defense was violated by exclusion of a journal written by the victim; and that he received multiple punishments for a single course of conduct in violation of Penal Code section 654.*fn2
We conclude that the disputed photographs are not testimonial hearsay and were properly admitted. In the unpublished portion of this opinion, we also find that the court did not abuse its discretion in exclusion of evidence, and reject Ellis's challenge to his sentence.
The victim, Jane Doe, was a 13-year-old middle school student in March 2010, when the underlying events took place. Her mother, G.B., worked full time, and Doe regularly called her mother when she got home from school. Doe usually told her mother she was going to the library, which was across the street from their apartment, and usually was coming home from the library when G.B. arrived home at about 4:45 p.m. On March 10, 2010, Doe did not call G.B. after school and was not home when G.B. got home from work. G.B. looked for Doe at the library and was told they had not seen her. After searching the neighborhood without success, G.B. called the police.
On March 12, 2010, at about 9:30 p.m., G.B. received a phone call from Doe, who was crying and asked to be picked up. A woman then got on the phone and told G.B. to come get Doe " 'because he's choking her.' " The woman asked G.B. to meet her at a 7-Eleven convenience store. At the 7-Eleven, the woman told G.B. that "they" (apparently, Doe and another person) were driving. G.B. reported the situation to the police and returned home. G.B. received another call from Doe. G.B. then saw Doe running toward their home. Doe was quiet and crying and was wearing clothes that did not belong to her. G.B. called the police again and an officer came to their home.
Fremont Police Officer Michael Gilfoy interviewed Doe shortly after she returned home. Doe told him that she had been kidnapped by 10 men, who grabbed her and threw her in a car. Three of the men got into the car with her and the others ran off. Doe said she was choked, that the three men smoked marijuana, and that they took her to a house at the end of Chapel Street, which was a description of Ellis's home. The driver took off all of her clothes, touched her everywhere, made her touch his penis, put his penis in her mouth, and put his penis in her vagina. She protested but he punched her in the arm. He then gave her $20. The driver's name was "Shoog" (also spelled "Suge" in the record; hereafter Suge). Gilfoy examined Doe's neck and arms and saw no choke marks or bruises and he told her that the story did not make sense. Doe then revised her story and said that when she left the library the men offered her a ride home, grabbed her and threw her in the car. Gilfoy questioned this story as well and Doe gave him a third version. At some point, Doe's sister told Gilfoy that Doe lies a lot and Doe's brother told him she had previously run away. Later that night, when Doe went with Gilfoy to a hospital, she told him a different version of what had happened to her. According to Gilfoy, Doe said she had been with a man she knew as Suge, whom she later identified as Ellis. Doe acknowledged she had had sex with him and said she did not want him to get in trouble. Doe was later interviewed at the Child Abuse Listening and Interview Center (CALICO) and provided an account of the events. Still later, she was taken out of class at school to identify Ellis from a photographic array, and she provided a new account in writing.
At trial, Doe provided the following account of what she experienced from March 10, 2010, to March 12, 2010. On March 10, she went to the library after school. While she was using a computer in the library, she noticed that a man she did not know was standing close to her. She identified this man as Ellis. Ellis started talking to Doe in a friendly manner and Doe was friendly back. Doe willingly left the library with him, and they drove to the house of a man she came to know as Slim. Slim, Slim's wife, and another man were in the home, and Doe watched television while the three men smoked marijuana.
Doe then willingly went with Ellis to an apartment she believed was his home. A man and woman in their 40's were in the apartment watching television downstairs. Ellis led Doe upstairs to his bedroom and closed the door behind them. He played rap music on his laptop computer and sat facing Doe, who was sitting on the bed. Doe touched Ellis's genitals through his clothing and he touched her breasts with her consent. They each took off all of their own clothes and they lay down next to each other. Ellis then knelt between Doe's legs. At first, Doe testified that Ellis did not touch her from that position and that he eventually lay down next to her, where they remained for the rest of the night without touching each other. After she was confronted with her preliminary hearing testimony that Ellis had touched her vagina from the kneeling position, she changed her testimony. She testified that Ellis touched her vagina and moved his fingers in and out of her vagina while he knelt between her legs. She did not remember what happened next, but at some point he was lying next to her. She got on her knees and willingly performed fellatio on Ellis without prompting. They then lay next to each other without touching and fell asleep. Doe was again impeached with her preliminary hearing testimony that Ellis had inserted his penis in her vagina while he was kneeling between her legs. She acknowledged the prior testimony was true. In still later testimony, Doe said that after she removed her clothes Ellis rubbed lotion over her whole body.
Doe spent the next day (Mar. 11, 2010) with Ellis in the apartment. She did not try to call her mother because she was happy to be with Ellis. At about 10:00 p.m., she left the apartment with Ellis, thinking they were going to buy food. Instead, Ellis drove her to a Motel 6 and led her into a motel room. After Doe watched television for a while, an older white man arrived, talked to Ellis outside the room for a few minutes, and then entered the room. He sat next to Doe and squeezed her breasts with his hands. She tried to ignore him and after a few minutes went to the bathroom. She returned and watched television. The white man remained in the room for a couple of hours but did not touch her again. Doe initially testified that she saw the man wad up money and put it in his pocket when he was leaving. She was impeached with her preliminary hearing testimony that she saw him take a few bills out of his pocket before he left the room and that Ellis entered the room right after he left. She then testified at trial that she saw the older man take twenty dollar bills out of his pocket when he left the room and also saw him put the bills back in his pocket, and that Ellis entered the room hours after the older man left. At about midnight, Slim came into the motel room, asked if she was okay, and left. Ellis was just outside the door at the time. Doe did not try to contact her mother that night because she was still happy to be with Ellis. She spent the night with Ellis in the motel room, but they slept on separate beds and no sexual activity occurred between them.
On the following day (Mar. 12, 2010) in the nighttime, Ellis and Doe left the motel and drove to an apartment building. While they were sitting together in Ellis's car outside the building, Ellis said to her in an angry tone, " 'I want you to make me some money.' " She understood his comment to mean that he wanted her to "be a ho," that is, "[s]leep around with people" for money. This was the first time Ellis had brought up this subject, which made her feel uncomfortable. When she said, "No," Ellis reached over and choked her, cutting off her breath for more than a minute. Doe struggled, got Ellis's hands off her throat, and left the car.
Doe testified that she then walked up to an older woman who was standing by a stairway near a downstairs apartment and asked if she could use her phone. The woman agreed. Doe called her mother and asked to be picked up, but could not describe where she was. When Doe walked out of the woman's apartment, Ellis was standing by the door, looking angry and staring at her. Ellis then drove her home. Doe later testified that after she entered the older woman's apartment, Ellis banged on the door, Doe started crying, and the older woman tossed Doe her phone so she could call her mother. Ellis then pulled Doe out of the house, saying, " '[B]itch, she my ho.' " The older woman called Doe's mother, and Ellis drove Doe home. Doe was impeached with her preliminary hearing testimony that, after she got away from Ellis in the car, she hid behind the door to the apartment building and did not enter any of the apartments. Ellis found her, asked if she wanted to go home, and took her home.
Doe testified that in each of her statements, including her preliminary hearing testimony and her trial testimony, she was only partially truthful.
Gilfoy testified that during his initial interview with Doe on the day she returned home, Doe agreed to lead him to the apartment where the driver or Suge had taken her. She led Gilfoy to an apartment on Grimmer Boulevard, and she later led the detective assigned to the case, Officer Michael Gebhardt, to the same location. When Doe arrived at the apartment with Gebhardt, she immediately started sobbing and was unable to talk for five to six minutes. Gebhardt later determined that Betty Moore La Blanc (Moore) lived in the apartment and that Ellis often stayed there. Based on information he received from Moore, Gebhardt created a photographic lineup that included Ellis's image. Both Moore and Doe identified Ellis in the array as Suge. Moore also identified Doe by photograph.
Doe was medically examined at Children's Hospital in Oakland. Dr. James Crawford-Jakubiak, medical director of the Center for Child Protection (Center) at Children's Hospital, testified that photographs taken of Doe late on March 12 or early on March 13, 2010, during a sexual assault and rape trauma (SART) examination showed an abrasion on her hymen. He opined that the abrasion could only have been caused by penetration of the vagina and that the abrasion was one to four days old.
Daniel Espindola, assistant general manager of the Motel 6 at 5601 Mowry Avenue in Newark, testified that Ellis rented room 242 at the motel from March 11 to March 12, 2010, paying cash. Per motel policy, the lodger must produce picture identification, which is reviewed by the front desk clerk before the transaction is completed.
Moore testified that Ellis, whom she knew as Suge, was like an
adopted son to her. Ellis kept his things in her apartment and was
often in the apartment. She thought Ellis was about 19 years old.*fn3
In about March 2010, Ellis brought Doe over to the apartment
and Moore let them go upstairs. About a half hour later, she checked
to make sure their door was not closed and saw them sitting at the
foot of the bed, hugging and holding hands. About a half hour later,
they left the apartment. A couple of weeks later, Ellis brought Doe
back and they again went upstairs. About a half hour later, she went
upstairs and they were listening to music on the laptop.
Tony Cotton, who used the nickname Slim, testified that Ellis came to his house with Doe in March 2010. She appeared to be about 15 years old. Cotton's girlfriend and another male were also present and everyone probably was smoking marijuana. After about 20 minutes, Ellis and the girl left. A few days later, Cotton saw the girl in a motel room with Ellis and a white man about 30 years old. He had seen the white man at Ellis's house on a prior occasion. Cotton had gone to the motel to get some marijuana from Ellis and when he knocked on the door, Ellis opened it. Cotton wanted to use the bathroom, but he saw that the girl was in there. The white man was also in the bathroom. Cotton noticed in the room marijuana, a marijuana pipe, and a towel that looked like it had blood and dirt on it. After he got his marijuana from Ellis, he left. At the time Cotton testified, he was on probation for a misdemeanor theft, he had at least six prior felony convictions for theft and burglary, and he had spent time in prison.
Michelle Taylor testified that she lived in a downstairs apartment at an apartment complex frequented by Ellis, whom she knew as Suge. On March 11 or 12, 2010, she saw Ellis and a young girl sitting in a car outside the apartment building. On March 12, the girl, looking scared, shocked and teary-eyed, came up to her and asked to use the bathroom in her apartment. Taylor noticed that Ellis was outside. After the girl used the bathroom, Taylor asked her what was wrong. The girl said she wanted to call her mother and Taylor handed her a phone. The girl asked her mother to come get her, then handed the phone to Taylor and the mother asked Taylor to describe Doe's location. Taylor told the mother that Doe had been choked and she arranged to meet the mother at a nearby 7-Eleven. In the meantime, Ellis walked up to Taylor's front door and said, " 'Come out, bitch' " in a loud, very rough, angry voice. The girl left the apartment, either walking out or being pulled out by Ellis.
The jury convicted Ellis of committing lewd acts upon a child under the age of 14 (§ 288, subd. (a); counts one, three); oral copulation of a child under the age of 14 and more than 10 years younger than himself (§ 288a, subd. (c)(1); count two); sexual penetration by foreign object of a child under 14 (§ 289, subd. (j); count four); pandering by encouragement (§ 266i, subd. (a)(2); count six); procuring a child under age 16 to engage in a lewd act (§ 266j; count seven); and first degree residential burglary (§ 459, count eight). The jury found true an allegation that the burglary was committed when a person, not an accomplice, was present in the residence. The court sentenced appellant to a total term of 17 years and four months in state prison.
Ellis challenges his convictions on two grounds. First, he contends that the trial court erred in admitting the SART photographs of Doe, upon which Dr. Crawford-Jakubiak relied in rendering his opinion. Ellis argues the photographs were not properly authenticated and that he had no opportunity to cross-examine the photographer in violation of his confrontation clause rights. Second, Ellis argues the court erred in excluding a journal written by Doe, which he sought to use to impeach her credibility. Ellis also argues his sentence on the pandering charge should have been stayed under section 654.
Ellis argues the photographs were not properly authenticated.*fn4
Photographs are considered "writings." (Evid. Code, § 250; see Jones v. City of Los Angeles (1993) 20 Cal.App.4th 436, 440 [videotape].) To be admissible in evidence, they must be authenticated. (Evid. Code, § 1401, subd. (a).) That is, there must be evidence that they are accurate depictions of what they purport to show. (Evid. Code, § 1400; see People v. Mayfield (1997) 14 Cal.4th 668, 747 [videotape].) The proponent of the evidence has the burden of producing evidence to establish authenticity. (Evid. Code, § 403, subd. (a)(3); People v. Marshall (1996) 13 Cal.4th 799, 832.) This burden "is not to establish validity or negate falsity in a categorical fashion, but rather to make a showing on which the trier of fact reasonably could [find by a preponderance of the evidence] the proffered writing is authentic." ...