People v. Eccleston, A090567.
| Decision Date | 24 May 2001 |
| Docket Number | No. A090567.,A090567. |
| Citation | 89 Cal.App.4th 436,107 Cal.Rptr.2d 440 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. David John ECCLESTON, Defendant and Appellant. |
Evidence Code Section 1360 establishes a procedure whereby evidence of a statement made by a victim under the age of 12 that would otherwise be treated as hearsay may be admitted in criminal prosecutions for specified sex offenses if (among other requirements) the trial court determines that "the time, content, and circumstances of the statement provide sufficient indicia of reliability." The issue presented here is whether evidence admitted in accordance with this statutory procedure violates the accused's rights to confront and cross-examine the witnesses against him. We hold that there is no constitutional violation.
A jury found defendant David John Eccleston guilty of the felonies of oral copulation with a child under the age of 14 (Pen.Code, § 288a, subd. (c)(1)), lewd conduct with a child (Pen.Code, § 288, subd. (a)), and the misdemeanor of annoying a child (Pen.Code, § 647.6). The trial court found true an allegation that defendant had a Nevada conviction that would constitute lewd conduct with a child (Pen.Code, § 288, subd. (a)) if committed in this state and that qualified as a serious felony for purposes of the three strikes law and other recidivist statutes (Pen.Code, §§ 667.51, 667.61, 1170.12). The court sentenced defendant to an aggravated doubled term of 16 years for the oral copulation charge, a consecutive term of 25 years to life for the lewd conduct charge, and a 6-month concurrent term for the misdemeanor. Defendant filed a timely notice of appeal.
The only issue addressed here is the constitutionality of Evidence Code section 1360 (hereafter section 1360). Everything pertinent thereto is contained in the record of the pretrial proceedings concerning admission of the victim's statements as recounted by others.
Those proceedings were initiated by noticed motions from the prosecution "to admit prior statements of child victim" pursuant to section 1360 and to have child victim declared "unavailable as a witness" as defined by Evidence Code section 240. Defendant filed a brief in opposition to both motions, arguing that admission of "hearsay statements of a child declarant describing alleged acts of child abuse" would violate his constitutional right of confrontation. He argued that section 1360, "on its face, is at odds with the Confrontation Clause, as interpreted by our High Court" in Idaho v. Wright (1990) 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638, and that the victim's statements "are not reliable, based upon analysis of relevant factors identified by the Supreme Court" in that decision.1 The motions were the subject of an extensive evidentiary hearing.
The victim in this case came into defendant's life as an infant foster child being cared for by defendant's mother. The victim was three years old when she was adopted by defendant's mother. It appears that the events in question occurred and became known when the victim was eight years of age and defendant was 29.
Dr. Andrew Renouf, a psychologist with the Children, Youth and Family Services Division of the Humboldt County Department of Mental Health, examined the victim shortly after the improper sexual activities first came to light. Dr. Renouf reviewed the victim's medical and psychological history, personally interviewed the victim as well as defendant's mother, and then conducted various psychological tests. At the hearing, he testified at length concerning those tests and his reading of how they illuminated aspects of the victim's psyche and personality. Dr. Renouf concluded that it would be "extremely stressful" for the victim to testify at trial, "potentially very damaging" and might cause "a significant deterioration in her ... ability to carry on the daily activities of normal life."
Psychologist Caroline Isaacs, who had been treating the victim for more than three years, was equally emphatic. She agreed with Dr. Renouf that the victim was "fragile." Ms. Isaacs believed that forcing the victim to testify at trial would "rip her apart." Both Isaacs and Renouf agreed that compelling the victim to attend the trial might trigger self-destructive impulses.
The trial court also heard testimony from Laura Todd, a member of the Child Abuse Services Team (CAST) that interviewed the victim less than three weeks after the first report of abuse was made. Ms. Todd described how the interview was conducted and that it commenced only after she was convinced the victim knew the difference between truth and falsehood. The interview was videotaped, and the tape was reviewed by the trial court prior to ruling on the prosecution's motion to admit evidence of statements made by the victim pursuant to section 1360.2
The interview occurred in a room with brightly colored furniture and decor obviously intended to put a child at ease. Inside the room were stuffed toys and other materials intended for the same purpose. The video is in color, its visual and audio qualities are excellent. The door to the outside, where the victim's mother waited, was closed. The victim knew the session was being recorded and that Ms. Todd was able to communicate to others outside the room.
The interview lasts approximately 43 minutes. The victim is immediately occupied with a large box of crayons and drawing paper. For the entire duration of the interview the victim was either drawing or playing with a Rubik's cube. More than 15 minutes go by before Ms. Todd starts moving the questioning in the direction of what defendant did. Ms. Todd's questioning is always low key, never insistent or inquisitorial. There are constant breaks where she and the victim discuss other things before Todd gently resumes her questions.
The victim told Todd that defendant would pull down her clothes, following which he "licked my feet and played with them." Defendant also "licked my private area," which felt "dumb." Although she initially denied that defendant had "done anything else that was bad," she admitted that at his direction she "touched his private." When Ms. Todd asked "can you show me with your hand how you touched his privates?" the victim made the unmistakable gesture of rubbing her cupped hand along the shaft of an erect penis; this was something else that defendant "had me do." Asked "did anything come out of it?" the victim replied "not pee, but ... water stuff" that was white in color. Defendant also put his "private" in the victim's mouth several times; it made her gag and she did not like it, but "[h]e had me do that." The victim had been reluctant to tell of these things because defendant told her "he might go to jail ... or ... that we might go to jail." Defendant told the victim that he kisses his girl-friends' bottoms. He showed her magazine pictures of "girls putting ... their boyfriends penis in the mouth," which was what he told the victim "that's what I'm supposed to do." Defendant displayed his "balls" and put his finger in the victim's "private part."
Another CAST member, Christopher Andrews, testified that he spoke with defendant after the taped interview of the victim. Defendant made a number of admissions that tended to corroborate the victim's account. He acknowledged himself to be a "sex addict." He admitted that in 1992 he had digitally penetrated a seven-year-old girl in Humboldt County. Defendant also talked about his Nevada prior. When Andrews and a deputy sheriff found and seized a "magazine that related to women's feet," defendant told them he had a foot fetish.
The trial court granted the prosecution's motions to have the victim declared unavailable and to permit evidence of her statements pursuant to section 1360. Based upon the testimony of Dr. Renouf and Ms. Isaacs, the court found that the victim would suffer "substantial trauma" if made to testify and was therefore unavailable. With respect to the other motion, the court ruled as follows:
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