People v. Dunn

• Decision Date: 07 May 2012
• Docket Number: No. D058407.,D058407.
• Citation: 12 Cal. Daily Op. Serv. 5011,205 Cal.App.4th 1086,141 Cal.Rptr.3d 193,2012 Daily Journal D.A.R. 5971
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robin Andrew DUNN, Defendant and Appellant.

205 Cal.App.4th 1086

141 Cal.Rptr.3d 193

12 Cal. Daily Op. Serv. 5011

2012 Daily Journal D.A.R. 5971

The PEOPLE, Plaintiff and Respondent,

v.Robin Andrew DUNN, Defendant and Appellant.

No. D058407.

Court of Appeal, Fourth District, Division 1, California.

May 7, 2012.

Athena Shudde, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

IRION, J.

Robin Andrew Dunn appeals the judgment sentencing him to prison after a jury found him guilty of committing sex crimes against an eight-year-old relative and infecting her with syphilis. Dunn contends the judgment must be reversed because (1) the trial court abused its discretion in denying his motion for mistrial, which was based upon the failure of his retained expert witness to appear at trial; and (2) trial counsel provided ineffective assistance by failing to subpoena the expert witness to appear at trial. We reject these contentions and affirm the judgment.

IFACTUAL BACKGROUND

A. Dunn's Molestation of Minor

In the summer of 2007, Dunn and a relative who was eight years old at the time (hereafter Minor) lived in an apartment with Dunn's girlfriend, Ava Loftis. Several relatives of Loftis also lived in the apartment.

One night, while Loftis was at work, Minor watched a movie with Dunn in the master bedroom and then went to sleep on the floor. Dunn picked Minor up from the floor, laid her supine on the bed, removed her pajama bottoms and underwear, and lowered his own underwear. Then, in the words of Minor, Dunn got “on top of [her],” “humped” her, and touched his “private part” to her “private part” in a way that hurt her.¹ As Minor tried to push Dunn away, she told him “to get off [her] and [she] wasn't his girlfriend,” but Dunn told her to be quiet.

Dunn eventually got off Minor, who went back to the floor and lay down. Approximately five minutes later, Dunn lifted Minor back onto the bed, and again touched his “private part” to her “private part.”

B. Minor's Reports of the Molestation

The following morning, Loftis's son told Minor he heard her say, “Stop. You're nasty. I'm not Ava,” and asked her why she said that.² Minor told him what Dunn had done to her in the bedroom.

When Loftis returned home from work, Minor also told her that Dunn “was feeling on her and humping on her.” A few days later, Loftis and Minor telephoned and reported the molestation to Minor's mother (hereafter Mother), who immediately went to Loftis's apartment to pick up Minor.

Mother took Minor to a hospital. While there, Minor met with a social worker and informed her that she (Minor) was in the hospital because Dunn had “humped” her and touched her with his penis “inside [her] pants.”

Minor also spoke to a police officer at the hospital. She told the officer she was at the hospital because “she had humped [Dunn],” and explained that “ ‘humped’ meant that two people lie down, one on top of the other, and they don't wear any clothes and then they go up and down.” Minor also told the officer that Dunn had taught her what “humped” means.

Minor later repeated this account of the molestation to a forensic interviewer. During the videotaped interview, which was played for the jury, Minor used anatomically correct dolls to illustrate how Dunn had “ humped” her. Minor pointed to the “private” on the male doll and stated Dunn put that “[i]nside” her “private.”

C. Minor's Sexual Assault Examination

After Mother and Minor left the hospital, Mother immediately took Minor to be examined by Marilyn Kaufhold, a pediatrician specializing in child abuse. Kaufhold examined Minor's genitalia and anus, but found nothing of significance that was abnormal.

Kaufhold testified that a normal physical examination was consistent with Minor's report that Dunn had “humped” her and it hurt, provided Dunn had rubbed his penis against Minor's vulva (or external genitalia) but had not inserted it into her vagina. Kaufhold explained that young children generally do not know the anatomy of their genitals or understand how the various parts “fit together.” Thus, a girl might say something went “inside” her if it went “inside the labia and in the vestibule without going into the anatomic vagina.” If Dunn's penis had actually penetrated Minor's vagina, however, Kaufhold would expect to have found “serious tears” requiring surgical repair.

D. Minor's Diagnosis with Syphilis

Approximately six weeks after Mother took Minor to Kaufhold, Mother took Minor to her regular pediatrician, Genevieve Minka, for a scheduled appointment. Mother informed Minka that Minor had a discharge in her underwear, and Minor's vulva “had a sore spot” and “looked swollen like somebody was messing with her.” Minka observed a circular ulcer with a raised edge on Minor's right labium majus. The lesion extended from the outer to the inner aspect of the right labium majus; to visualize it fully, Minka had to separate Minor's labia majora. Minka also detected redness and enlarged lymph nodes in Minor's groin. Based on these physical findings and the history of sexual abuse, Minka suspected Minor might have a sexually transmitted disease and ordered her blood tested. The test came back positive for syphilis.

Before this diagnosis of Minor with syphilis, neither Minor nor Mother had been diagnosed with or treated for that disease. Subsequently, Mother's blood tested negative for syphilis, but Dunn's tested positive.

Kenneth Katz, a public health practitioner who specializes in sexually transmitted diseases, testified at trial about the transmission of syphilis. Katz explained that syphilis is a sexually transmitted disease caused by a bacterium that infects the body at the site of exposure and then spreads throughout the whole body. According to Katz, the disease spreads from one person to another when the skin or mucous membrane of an infected person comes into contact with the skin or mucous membrane of another person.

Katz further explained that the initial stage of syphilis produces a characteristic ulcer called a “chancre,” which appears between 10 and 90 days after initial exposure and expands concentrically outward from the point of exposure. According to Katz, a chancre is highly infectious; and in the vast majority of cases, a person contracts syphilis when the person's skin or mucous membrane comes into contact with a chancre of an infected person.

The prosecutor presented Katz with a hypothetical based on the facts of this case and asked whether he had an opinion as to how Minor contracted syphilis. Katz testified it was “likely” she got it from Dunn.

IIPROCEDURAL BACKGROUND

The People charged Dunn with having sexual intercourse with Minor, a child 10 years old or younger (count 1; Pen.Code,³ § 288.7, subd. (a)); and committing a lewd act on Minor, a child younger than 14 years (count 2; § 288, subd. (a)). With respect to count 2, the People alleged Dunn had engaged in substantial sexual conduct with Minor (§ 1203.066, subd. (a)(8)) and personally inflicted great bodily injury on her (§ 12022.8). The People also alleged Dunn had four probation-denial prior felony convictions (§ 1203, subd. (e)(4)) and had served three prior prison terms (§ 667.5, subd. (b)).

The case proceeded to trial before a jury. As explained in more detail later (see pt. III.A.1., post ), at the end of the People's case Dunn moved for a mistrial on the ground his retained expert witness unexpectedly became unavailable to testify. The trial court denied the motion.

The jury found Dunn guilty on both counts. With respect to the conviction on count 2 (lewd act on minor), the jury found true the allegations that Dunn had engaged in substantial sexual conduct with Minor and had caused her great bodily injury.

In a bifurcated proceeding, the trial court found true the allegations concerning Dunn's prior felony convictions and prison terms.

The court sentenced Dunn to prison for 25 years to life for the conviction on count 1. (§ 288.7, subd. (a).) It imposed but stayed execution of prison sentences for the conviction on count 2 and the attached great bodily injury enhancement. (§ 654.) The court also imposed a consecutive prison term of three years for Dunn's service of three prior prison terms. (§ 667.5, subd. (b).)

IIIDISCUSSION

Dunn raises two challenges to the judgment, both related to the unanticipated unavailability of his expert witness to testify at trial: (1) the trial court prejudicially erred in denying his motion for mistrial; and (2) trial counsel's failure to subpoena the expert witness constituted ineffective assistance of counsel. As we shall explain, neither challenge has merit.

A. The Trial Court Did Not Abuse Its Discretion in Denying the Motion for Mistrial

Dunn argues the trial court abused its discretion in denying his motion for mistrial, which, as noted, was based on the unexpected unavailability of his expert witness to testify at trial. According to Dunn, this deprived him of the opportunity to present evidence on a “critical element in the case, in violation of [his] fair trial and due process rights under the United States and California Constitutions.” After setting forth additional pertinent facts and the applicable standard of review, we shall explain why we reject Dunn's argument.

1. Additional Facts

Near the end of the People's case, Dunn's counsel informed the court he could not reach his retained expert witness, Lynne Ticson, and expressed concern she might not be able to testify because her boss was demanding three days' notice and a subpoena. Counsel suggested he might request a mistrial based on Ticson's unexpected unavailability to testify.

The trial court inquired into Ticson's specialty and the general nature of her expected testimony. Dunn's trial counsel stated that Ticson is a...