People v. Brown

• Decision Date: 01 February 1996
• Docket Number: No. E014125,E014125
• Citation: 42 Cal.App.4th 461,49 Cal.Rptr.2d 652
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 804, 96 Daily Journal D.A.R. 1226 PEOPLE of the State of California, Plaintiff and Respondent, v. Charles David BROWN, Defendant and Appellant.

Page 652

49 Cal.Rptr.2d 652

42 Cal.App.4th 461, 96 Cal. Daily Op. Serv. 804,

96 Daily Journal D.A.R. 1226

PEOPLE of the State of California, Plaintiff and Respondent, v. Charles David BROWN, Defendant and Appellant.

No. E014125.

Court of Appeal, Fourth District, Division 2, California.

Feb. 1, 1996.

Certified for Partial Publication ^*

Review Denied April 25, 1996.

Mark D. Greenberg, Oakland, and Howard C. Cohen, San Diego, under appointments by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Keith I. Motley and Warren P. Robinson, Deputy Attorneys General, for Plaintiff and Respondent.

RICHLI, Associate Justice.

Defendant Charles David Brown was convicted of 20 counts of forcible lewd and lascivious acts (Pen.Code, § 288, subd. (b)) ¹ against his stepdaughter, Michelle. He was sentenced to a consecutive middle term of six years for each count.

On appeal, Brown argues: (1) the trial court erred in ruling a statement taken in violation of his Sixth Amendment right to counsel could be used for impeachment; (2) the trial court violated principles of equal protection by failing to grant an additional peremptory challenge; (3) the trial court erred in allowing a detective to testify about indicators of the credibility of child witnesses; (4) the trial court erred in allowing a pediatrician to state her opinion Michelle had been molested; (5) the trial court erred in limiting discovery of a journal prepared by Brown's wife, Edith; (6) the trial court's evidentiary rulings denied Brown his rights to confront witnesses and present a defense; (7) the instruction on the definition of a lewd and lascivious act misled the jury; (8) the special instruction on child witnesses violated his due process rights; (9) instructing the jury with CALJIC No. 10.60 unconstitutionally skewed the determination of credibility; and (10) the evidence of force and duress was insufficient.

FACTS

Michelle was born in May 1983. Between 1990 and 1992, she lived with her mother, Edith, her stepfather, Brown, and her half-brother. Brown sometimes punished her by slapping her in the face and sending her to her room.

When she was in first grade, Brown called her into his bedroom. She had just taken a bath and was wearing only a towel. Brown was in bed lying naked under the covers. On his direction, she got under the covers with him, and he took off her towel. They cuddled, and he kissed her on the cheek. He did not touch her private parts. This incident is referred to hereafter as the bed incident.

On another occasion when she was about seven, her mother was at school and Brown told her to come upstairs to his bedroom. Brown took off his clothes and told her to remove hers. They got on the bed, and Brown touched her chest, vagina, and rear end. He put his finger in her vagina "a little bit."

Michelle testified she had been in Brown's bed naked "at least over 40 times." Over a two-year period, Brown would touch her three or four times a week when her mother was at night school. The longest he went without touching her was one week. Sometimes he touched her on the couch downstairs and sometimes in her bedroom. At least once, he touched her vagina with his penis.

He sodomized her more than 20 times. In describing one instance, she said it hurt, and she asked him to stop, but he continued doing it. She tried to get away, but he wrapped his arms around her from behind.

Five to ten times, he directed her to rub his penis with her hand.

Four or five times, he had her place her mouth on his penis. When he did so, she sometimes tried to raise her head to avoid gagging. He then told her it was okay, and she would be fine. He also told her he loved her.

He touched her chest with his hand over 10 times, and he kissed her nipples between 5 and 10 times.

A couple months after the bed incident, Michelle told her mother about it. Her mother was not angry. Michelle did not tell anyone about the other incidents because Brown said her mother would be mad at her and would move out of the house with her little brother, leaving Michelle alone with Brown.

Edith testified that in 1990 and 1991, she sometimes attended classes several evenings a week. When Michelle was in first grade, Michelle told Edith she was upset because "daddy" made her lie down with him naked in bed, and his penis went between her legs. Edith confronted Brown, who told her nothing had happened. He explained he slept in the nude, and when Michelle had wet her bed, he let her get in bed with him to warm up. Edith believed his explanation and did not bring up the subject again.

Edith later found, in Brown's sock drawer, a photograph of Michelle lying naked on a water bed. She asked him about the photograph, and he explained he had taken it one day when Michelle was home from daycare because she was sick. He said he thought he would cheer her up by taking her picture.

Edith testified Michelle was a good student and showed no behavioral problems at school, although she sometimes lacked concentration.

Edith testified she did not engage in anal intercourse with Brown during their marriage, although he frequently asked her to do so. Edith later testified Brown had sodomized her about five times during their marriage. She characterized those instances as rapes, but she never reported the matter to the police.

Their marriage started deteriorating in late 1991, and Edith and Brown began to see a counselor. In at least one session, they discussed the bed incident. In March 1992, Edith went alone to see another counselor, Elizabeth Monson. Edith mentioned the bed incident, and Monson stopped the session immediately and had Edith call Child Protective Services and the police.

Deputy Lungren took Edith's statement and returned home with her so she could gather her things and take the children away, giving Brown two days to move out. Lungren talked to Brown after giving Miranda ² advisements. Brown described an incident in spring of 1989 when he was lying in bed naked. Michelle entered the room wearing a towel after her bath. They were laughing and joking, and he tickled Michelle on her sides, waist, neck, and knees for 10 to 15 minutes. However, there was no genital touching, and he was not aroused.

Detective Marc Bender interviewed Michelle on May 6, 1992. She told him the first molestation she could remember happened in April 1990, and the last incident had happened in late February 1992. The molestations took place once or twice a week, and the longest hiatus between molestations was one week.

Michelle told Bender that during the oral copulations, she felt like she was choking and she tried to pull her head away. Brown would then place his hands on the back of her head and force her head back down onto his penis. During the sodomy, she tried to resist and he held her down.

Bender attempted to call Brown numerous times and left messages for him with relatives, but could not reach him for several months. Brown was eventually located in Utah. He waived extradition and was transported to Riverside on November 30, 1992.

In April 1992, Michelle underwent a physical examination. Dr. Sheridan, the pediatrician who performed the examination, noted a bump or tag on Michelle's hymen and a V-shaped defect that looked like a tear on her hymen at the 6 o'clock position. The bump could have been part of normal development, but defects at the bottom of the hymen correlate most often with child abuse. Michelle's rectal area appeared normal; there were no signs of torn tissue or trauma. Dr. Sheridan stated her opinion that Michelle had been molested. She based her opinion on (1) the history obtained from Michelle; (2) a report that Michelle showed behavior of a child who had been molested, specifically, that she could not concentrate in school; and (3) the abnormal findings from the physical examination. Dr. Sheridan stated she would have considered the examination to be abnormal even if she had not taken any history at all, and if Michelle had come in for a general physical examination, she would have reported her observations to the authorities.

An expert witness testified at trial about Child Sexual Abuse Accommodation Syndrome. He described the categories of secrecy, helplessness, accommodation or entrapment, delayed or inconsistent disclosure, and retraction.

Defense. Edith testified Michelle had a problem with wetting her bed.

Brown disappeared with Edith's pickup truck, and the finance company threatened to repossess it. In response, Edith prepared "wanted" posters, depicting Brown standing in front of the truck. She distributed the posters to some of Brown's friends and put one on his mother's car.

Brown's first wife, Carol, testified she had been married to Brown for 13 years, and they had two children, Sandra and Jason. They had an "ugly" divorce in 1986. Carol had never seen Brown act inappropriately with Sandra or her friends. Carol spoke on the telephone twice with Bender, and in one conversation, he told her Michelle sounded very well coached.

Sandra Brown testified Brown had never molested her or her friends. She was close to Michelle, and Michelle and Brown seemed to have a good relationship. The children spent more time with Brown than with Edith. Edith had made Michelle believe Brown was her natural father. Edith once told Sandra that Michelle never saw her natural father because he had molested her. Sandra had also talked to Bender, and he had told her Michelle sounded coached.

DISCUSSION

I Trial Court's Ruling on Brown's Extrajudicial Statement

After Brown returned from Utah, Bender conducted a tape-recorded interview of him. In the interview, Brown admitted a few acts of oral copulation, but denied any acts of intercourse or sodomy with Michelle.

Brown moved in limine to suppress the tape-recorded interview on the ground it...