People v. Harlan, E006499

CourtCalifornia Court of Appeals
Citation222 Cal.App.3d 439,271 Cal.Rptr. 653
Decision Date23 July 1990
Docket NumberNo. E006499,E006499
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Robert Dean HARLAN, Defendant and Appellant.

DABNEY, Associate Justice.

A jury found Robert Dean Harlan guilty of committing a lewd act with a child under 14 (Pen.Code, § 288, subd. (a)) 1 and found Harlan contends on appeal that the trial court erred in (1) admitting evidence that Harlan wore women's underwear, (2) excluding evidence about the victim's masturbation and erections, (3) permitting expert testimony on the reactions of child molestation victims, and (4) failing to instruct the jury on the lesser related offense of battery. Appellate Defenders, Inc. and Neil Auwarter (collectively, amici) appearing as amici curiae on behalf of Harlan, assert in addition that giving CALJIC No. 2.20.1 was prejudicial error and that the testimony of the victim, a four year old child, did not constitute substantial evidence.

that he had engaged in substantial sexual conduct (§ 1203.066, subd. (a)(8)). He was sentenced to state prison for the middle term of six years.


The victim, Jonathon T., four years and eleven months old at time of trial, testified that Harlan had sucked his "privacy." The victim pointed to his genitals to indicate what he meant by the term. The victim testified that when it happened, Harlan was wearing pantyhose and a bra, and it occurred on a rainy day before the victim went to preschool.

In mid-August 1988 the victim told his mother about the incident. Harlan had babysat the victim for three years every day before and after the victim went to preschool, but had stopped doing so about two weeks before the disclosure. The victim's mother testified that the victim's behavior had been unusually unruly from March to August 1988. Harlan had told the victim's mother he liked to wear women's underclothing, and that he bet his underwear was prettier than hers. The mother never mentioned this conversation to the victim. At trial, the parties stipulated that on April 6, 1988, Harlan wore women's underclothes. 2

Ms. Dwyer-Elias, a licensed clinical social worker, testified as an expert on the reactions of child molestation victims. She testified that children usually do not disclose the molestations right away; a crisis in the child's life often prompts the disclosure; disclosure frequently occurs after the victim is separated from the offender; the victim's behavior usually changes after the molestation; boys are molested away from their homes more frequently than are girls; boys have more difficulty than girls in talking about the molestation; and children generally change the facts surrounding the incident. Dwyer-Elias had never examined or treated the victim.

Defense Evidence. The director of the victim's preschool testified that the victim had behavior problems the entire time she worked at the preschool. She stated that the victim used the term "pee pee" instead of "privacy" for his genitals, and that the victim lied to get out of trouble.

The victim was impeached with his inconsistent preliminary hearing testimony as to whether Harlan's wife was in the house when the incident occurred, whether the incident occurred before or after preschool, whether Harlan had orally copulated him once or twice, and whether he told his mother immediately or waited before telling her about the molestation.


Section 352. Harlan moved in limine to exclude evidence that he wore women's underwear on the basis that such evidence was more prejudicial than probative. The court denied the motion, stating, "I think in today's society that cross-dressing is not so unusual as to have the devastating effect that you fear. And I do think it being a four-year-old child that corroboration is necessary and that's one of the things that might tend to corroborate his testimony."

Harlan now contends that the trial court should have exercised its discretion under Evidence Code section 352 to exclude such evidence. Harlan contends that such evidence was extremely inflammatory, yet added nothing to the prosecution case because Prejudicial evidence " 'uniquely tends to evoke an emotional bias against ... [one party] as an individual and ... has very little effect on the issues.' [Citation.]" (People v. Wright (1985) 39 Cal.3d 576, 585, 217 Cal.Rptr. 212, 703 P.2d 1106.) Under Evidence Code section 352, the court must strike a balance between the probative value of the evidence and the danger of prejudice. The court must consider " 'the relationship between the evidence and the relevant inferences to be drawn from it, whether the evidence is relevant to the main or only a collateral issue, and the necessity of the evidence to the proponent's case as well as the reasons recited in section 352 for exclusion.' [Citation.]" (Ibid.)

Harlan was well known to the victim and there was no issue of identity.

The central issue in this case was the victim's credibility. His ability to recall and describe the circumstances of the act charged, including the clothing the perpetrator wore at the time, was highly relevant. Although Harlan's behavior was unusual, it was not "devastating." We do not disturb the trial court's exercise of discretion in admitting evidence "unless there is a manifest abuse of that discretion resulting in a miscarriage of justice. [Citations.]" (People v. Milner (1988) 45 Cal.3d 227, 239, 246 Cal.Rptr. 713, 753 P.2d 669.) We find no abuse of discretion.

Exclusion of Defense Evidence. During defense counsel's cross-examination of the victim's mother, the following exchange took place: "Q Did [the victim] run around the house, your house, naked?

"A Yeah.

"Q Did he frequently have an erection?

"A Once in awhile.

"Q Did he play with himself a lot?" The prosecutor objected on the bases of relevancy and failure to comply with Evidence Code section 782 3 (hereafter, section 782), and the trial court sustained the objection. Harlan challenges that ruling.

Harlan argues that section 782 does not apply because the evidence was not offered to attack the credibility of the complaining witness. At trial defense counsel argued that the evidence went to "the state of [the victim's] knowledge about what he felt and thought with regard to his privates." This stated purpose relates directly to the victim's credibility, and falls squarely within section 782.

Harlan next argues that masturbation is not "sexual conduct" within the meaning of section 782. The statute does not explicitly include masturbation as prior sexual conduct, and no reported California case has addressed the issue. Harlan asserts that in determining whether section 782 covers particular sexual acts, we should focus on whether the victim's conduct is "blameworthy." He contends that the proffered evidence would thus be admissible because masturbation by a child is a "normal instinct." However, in our view, any sexual activity of a child as young as the victim here would not be "blameworthy." Thus, Harlan's test for admissibility would essentially eliminate the protections of section 782 for very young victims.

Moreover, Harlan's position finds no support in Legislative history. In 1987, the Legislature amended section 782 to include sexual crimes against children within its coverage. (Stats.1987, c. 177, § 1.) The Legislative Counsel's Digest stated that the amendment was passed to "require the same specific detailed procedure if evidence of the sexual conduct of an alleged victim is offered to attack the credibility of the alleged victim in a prosecution involving lewd or lascivious acts as specified, upon a child under the age of 14 years." (Legis.Counsel's Dig., Assembly Bill No. 939 (1987 Reg.Sess.).) The Legislature obviously intended to protect children from embarrassing personal disclosures, regardless of the blameworthiness of the child's conduct. We conclude that section 782 covers the Moreover, evidence of the victim's sensations and whether the victim experienced an erection during the molestation was irrelevant. In People v. Nemie (1978) 87 Cal.App.3d 926, 151 Cal.Rptr. 32, the trial court rejected the defendant's attempt to introduce evidence of a rape victim's lack of sexual experience to show that the victim had " 'not had sufficient prior sexual experience to be capable of possessing the requisite knowledge whether a sexual penetration did in fact occur, ...' " (Id., at p. 929, 151 Cal.Rptr. 32.) The appellate court found no error in curtailment of this line of questions, noting, "There was no showing that prior sexual experience is necessary for a rape victim to know what type of object penetrated her vagina; lack of sexual experience by the victim would not necessarily be probative. [Citation.]" (Ibid.)

evidence proffered in this case. (Cf. People v. Casas (1986) 181 Cal.App.3d 889, 895, 226 Cal.Rptr. 285 [ruling that the term "sexual conduct" in section 782 should not be construed narrowly].)

Harlan was charged with committing a lewd act on a child with an allegation of substantial sexual conduct, i.e., oral copulation. "The law does not require as an essential element of the crime that the lust, passions or sexual desires of either of such persons be actually aroused, appealed to, or gratified." (CALJIC No. 10.41 (5th ed. 1988 bound vol.) Oral copulation is accomplished by "[a]ny contact, however slight,...

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