California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County, Nos. 06SF0747, 09CF0222 Gary S. Paer, Judge.
Law Offices of Ronald A. Ziff, Ronald A. Ziff and Abby Besser Klein for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
MOORE, ACTING P. J.
Defendant Scott Andrew Christensen was convicted of multiple counts of lewd acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). In his first trial, he was convicted with respect to his acts against one victim, Spencer S., but the jury deadlocked with respect to his acts against another victim, Joshua K. Defendant argues the court made various errors in the retrial on the counts pertaining to Joshua. He says the court erred in admitting both the testimony Joshua gave in the first trial (Evid. Code, § 240, subd. (a)(3)) and the evidence of the prior offense against Spencer (Evid. Code, §§ 352, 1108). He also contends that his convictions should be reversed due to prosecutorial misconduct and that his sentence of 27 years to life is excessive. We disagree as to each point and affirm.
Defendant was a leader at an afterschool daycare program at an elementary school. The daycare program operated out of portable classrooms on the school campus. Sometimes, the leaders would show movies and they often would sit on the floor with the children.
In 2002 or 2003, when Zachary S. was in the second or third grade, defendant sat down next to him during a movie. Defendant allegedly grabbed Zachary’s hand, put it down his own pants underneath his underwear, and placed it on his erect penis. Defendant asked Zachary if he “lik[ed] it.” Zachary got up, washed his hands, and sat somewhere else. He did not tell his parents about the matter at the time.
Joshua also attended the daycare program while he was in kindergarten in 2005 and 2006. During a movie, defendant sat next to him and put his hand on his butt, underneath his underwear. He also tried to touch Joshua’s penis. Joshua also did not report the matter to his parents at the time.
A third child who attended the daycare program was Spencer. When Spencer was six years old, in 2006, defendant came to his house to babysit. While they were sitting on the couch, defendant put Spencer’s penis in his mouth and sucked on it. Defendant also put his penis in Spencer’s mouth. Spencer told his mother the next day.
Spencer’s mother called the police. She also called defendant, who then admitted the conduct to her. Spencer had an interview with a social worker on August 7, 2006. He reiterated the conduct during the interview.
Two days later, Joshua’s parents received a letter from the school district stating that a daycare program counselor had been arrested. Joshua’s father then asked him if any inappropriate touching had occurred. Joshua initially said, “no, ” but later said that someone had put his hand down his pants and touched his butt and his “front.” When asked to identify the person, Joshua named defendant. Joshua’s parents reported the matter to the authorities.
Sometime in 2006, while living out of state, Zachary’s mother heard that defendant had been arrested. She asked Zachary whether defendant had done anything to him, and Zachary said, “no.” About two years later, however, when Zachary was 14, he disclosed the incident with defendant to his sister. She told their parents. Zachary then acknowledged the incident, and his parents reported the matter to the police.
B. PROCEDURAL HISTORY:
Defendant was charged by amended information in People v. Scott Andrew Christensen (Super. Ct. Orange County, 2013, No. 06SF0747) (First Lawsuit) with four counts of lewd acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). Counts 1 and 2, for oral copulation of defendant and oral copulation of victim, respectively, had to do with Spencer. Counts 3 and 4, for first time touching and last time touching, respectively, pertained to Joshua. It was further alleged, as to counts 1 and 2, that defendant had had substantial sexual conduct with Spencer. (Pen. Code, § 1203.066, subd. (a)(8)). It was also alleged, as to all counts, that defendant had committed an offense specified in Penal Code section 667.61 against more than one victim.
Spencer and Joshua each testified at the first trial, in March 2008. Joshua was about seven years old at the time. During the first trial, defendant conceded as to the Spencer counts, 1 and 2, but not as to the Joshua counts, 3 and 4.
In April 2008, the jury found defendant guilty of counts 1 and 2, pertaining to Spencer. It also found true the allegation that defendant had engaged in substantial sexual conduct with Spencer. The jury deadlocked 10 to two in favor of guilt on counts 3 and 4, pertaining to Joshua, and the court declared a mistrial as to those counts. Sentencing on counts 1 and 2 was deferred until after the retrial on counts 3 and 4.
Less than a year later, defendant was charged in People v. Scott Andrew Christensen (Super. Ct. Orange County, 2013, No. 09CF0222) (Second Lawsuit) with one count of lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)), pertaining to Zachary. Thereafter, the First Lawsuit and the Second Lawsuit were consolidated.
In February 2012, a second amended information was filed in the consolidated cases, charging defendant with three counts of lewd acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). Count 1 pertained to Zachary. Counts 2 and 3 pertained to Joshua. It was further alleged, with respect to each count, that defendant had had substantial sexual conduct with a child under age 14, namely masturbation (Pen. Code, § 1203.066, subd. (a)(8)). It was also alleged, with respect to each count in both the First Lawsuit and the Second Lawsuit, that defendant had committed an offense specified in Penal Code section 667.61 against more than one victim.
In their February 23, 2012 trial brief, the People requested that Joshua be found unavailable as a witness, pursuant to Evidence Code sections 1291 and 240. The People represented that Joshua had suffered mentally and emotionally since the time he testified in the first trial, that he had undergone years of therapy, and that he was only then recovering emotionally. They further stated Joshua had been diagnosed with Asperger’s syndrome, and his father feared that if Joshua were required to testify again, he would suffer substantial emotional, mental and physical trauma. The People requested that Joshua’s prior testimony be admitted in lieu of current testimony in the retrial.
The court held an evidentiary hearing on the matter. The People provided the testimony of Dr. Andrew Schneider, Joshua’s treating physician, Beverly Ann Russ, a licensed marriage and family therapist who had treated Joshua in the past, and Joshua’s father. Each of them opined that it would be detrimental to Joshua for him to testify. The court granted the People’s motion and permitted them to use Joshua’s prior trial testimony under Evidence Code section 1291.
The jury found defendant guilty on each of the three counts. It also found the allegations under Penal Code sections 1203.066, subdivision (a)(8) and 667.61, subdivisions (b) and (e) true with respect to each count. Defendant was sentenced to a total of 27 years to life, on the convictions pertaining to acts against Spencer, Zachary, and Joshua. Defendant appeals.
A. UNAVAILABILTY OF WITNESS:
“‘The United States Supreme Court has established that a defendant’s Sixth Amendment right to confrontation is a fundamental right, applicable to the states through the Fourteenth Amendment. [Citation.] The California Constitution now provides a specific guarantee of the right to confrontation: “The defendant in a criminal cause has the right... to be confronted with the witnesses against the defendant.” (Cal. Const., art. I, § 15.) A similar guarantee is codified in section 686, subdivision 3, of the Penal Code, which provides that in a criminal action the defendant is entitled “to produce witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court....”’ [Citation.] [¶] A traditional exception to this confrontation requirement exists where a witness is unavailable and has given testimony at a prior judicial proceeding against the same defendant at which time the witness was subject to cross-examination by that defendant. [Citation.]” (People v. Winslow (2004) 123 Cal.App.4th 464, 469.)
The statutory underpinnings of this exception are found in Evidence Code section 1291, subdivision (a)(2), which provides: “Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶]... [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”
A declarant is “unavailable as a witness” if he or she is “[d]ead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity.” (Evid. Code, § 240, subd. (a)(3).) “Expert testimony that establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term ‘expert’ means a physician and surgeon, including a psychiatrist, or any person described by subdivision (b), (c), or (e) of Section 1010.” (Evid. Code, § 240, subd. (c), italics added.) A licensed marriage and family therapist is a person described in Evidence Code section 1010, subdivision (e).
“The burden of proving that a hearsay declarant is unavailable as a witness is upon the prosecution. [Citation.]” (People v. Williams (1979) 93 Cal.App.3d 40, 51, disapproved on another point in Coito v. Superior Court (2012) 54 Cal.4th 480.) The prosecution must prove unavailability by a preponderance of the evidence. (People v. Williams, supra, 93 Cal.App.3d at p. 51.)
“[T]he determination whether a witness is unavailable to testify at trial due to mental illness or infirmity that would cause substantial trauma, is a mixed question of law and fact, with factual findings subject to a deferential standard of substantial evidence, and findings of law subject to independent review. [Citation.] Where the trial court’s decision of a mixed question of fact and law implicates the constitutional right to confront a witness at trial, we apply de novo review. [Citation].” (People v. Mays (2009) 174 Cal.App.4th 156, 172; see also, People v. Winslow, supra, 123 Cal.App.4th at pp. 470-471.)
(2) Defendant’s Arguments—
Defendant contends the court erred in admitting, in the second trial, the testimony Joshua gave in the first trial. Defendant claims that, because of this error, the finding on the multiple victim enhancement must be reversed.
According to defendant, Joshua was alive and not “unavailable” within the meaning of Evidence Code section 240, subdivision (a)(3), and could have been required to testify. Defendant emphasizes that the statutory exceptions to the hearsay rule are narrowly construed (see, e.g., People v. Cogswell (2010) 48 Cal.4th 467 [Evid. Code, § 240, subd. (a)(5)]), and he says they do not apply here.
As defendant points out, the court in People v. Gomez (1972) 26 Cal.App.3d 225 construed Evidence Code section 240, subdivision (a)(3) as meaning “that the illness or infirmity must be of comparative severity; it must exist to such a degree as to render the witness’s attendance, or his testifying, relatively impossible and not merely inconvenient.” (Id. at p. 230.) Defendant states that in the context before us, it was not impossible for Joshua to testify; it would have been merely inconvenient for him to have suffered the short-lived stress of testifying, so Joshua was not “unavailable” within the meaning of section 240, subdivision (a)(3).
Later cases, however, have refined the concept of relative impossibility as expressed in People v. Gomez, supra, 26 Cal.App.3d 225. As stated in People v. Winslow, supra, 123 Cal.App.4th 464: “In the context of mental illness or infirmity, the phrase ‘relatively impossible’ to testify does not mean it is impossible to elicit the testimony due to insanity or coma or other total inability to communicate. Rather, the phrase includes the relative impossibility of eliciting testimony without risk of inflicting ...