People v. Housley
| Decision Date | 20 May 1992 |
| Docket Number | No. A050447,A050447 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Thomas HOUSLEY, Defendant and Appellant. |
Daniel E. Lungren, Atty. Gen., George H. Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Mark S. Howell, Supervising Deputy Atty. Gen., Joan Killeen Haller, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
Appellant Thomas Housley appeals following his conviction of two counts of rape (Pen.Code, § 261, subd. (a)(2)) and five counts of rape by a foreign object (Pen.Code, § 289, subd. (a).) He contends his convictions must be reversed or, at a minimum, his case remanded for resentencing, for the following reasons: (1) the court improperly allowed a psychologist to offer expert testimony regarding the typical conduct of molestation victims and then failed to properly limit the use of the evidence; (2) the court erred in permitting the use of
hearsay evidence and evidence of past bad acts; (3) he received inadequate notice of the basis of the foreign object rape charges; (4) his right to a unanimous verdict was violated; (5) there was insufficient evidence of penetration to support the two rape charges; (6) his 18-year sentence constitutes cruel and unusual punishment; and (7) the court erred in imposing consecutive sentences, and failed to provide adequate reasons for its sentencing choices. We affirm, but remand for resentencing.
On June 16, 1989 appellant was charged by complaint with two counts of rape (Pen.Code, § 261(2)) and two counts of rape with a foreign object. (Pen.Code, § 289, subd. (a).)
Following a preliminary hearing an information was filed on August 29, 1989 charging appellant with two counts of rape and six counts of foreign object rape. Appellant moved to set aside the information, arguing there was insufficient evidence to support the additional charges of foreign object rape. The motion was denied.
Trial commenced on May 2, 1990. On May 8 the jury convicted appellant of two counts of rape and five counts of foreign object rape, and acquitted appellant of one count of foreign object rape. On June 25, 1990 appellant moved for a new trial, which was denied.
On July 18 appellant was sentenced to 18 years in prison, calculated as follows: a six-year mid-term for count 1, rape; a full consecutive six-year term pursuant to Penal Code section 667.6, subdivision (c) for count 2, rape; a full, consecutive six-year term pursuant to Penal Code section 667.6, subdivision (d) on count 3, foreign object rape; and concurrent six-year terms on the four remaining counts of foreign object rape.
This timely appeal followed.
Appellant's granddaughter Maryella was 18 at the time of the trial. Due to a hearing disability she testified through a sign language interpreter 1 and recanted her previously-asserted claim that her grandfather, appellant, had sexually molested her.
Maryella testified she reported appellant had molested her in April 1989 while she was living in her grandparents' home in Richmond. In June 1989 she went to live at her cousin Dolores' house and complained she did not want to live with appellant anymore because he was harassing her about "opening [her] up." Maryella told her cousin she was afraid of her grandfather.
Maryella admitted she spoke with Detective Anderson and told him appellant made her watch pornographic movies to "educate her." She told him her grandfather had read to her from the Bible and encouraged her to have sex with him based on passages in the Bible. Appellant also told Maryella she had to have sex with him to prepare herself to have sex with boys.
Maryella acknowledged she previously testified her grandfather exposed his penis and asked her to touch it. She also admitted she testified that one night in April appellant asked her to pull down her shorts and inserted his finger in her vagina. This incident lasted 15 to 20 minutes. Appellant then took her into the garage, had her lean over onto his car, fondled her breasts and inserted his finger, a "rubber dick," and his penis. When he was done appellant told Maryella to pull up her pants and not to tell anyone about what had happened. At the preliminary hearing Maryella testified appellant warned that if she didn't let him "open her up" he would whip her.
Maryella repeated these claims to police officers, social workers and the prosecutor during the 11 months preceding the trial; however, at trial she testified that none of these events occurred, and that she had made up the whole story so she could leave Maryella's cousin Dolores Thomas testified that Maryella arrived at her house on June 3, 1989. Maryella was upset and crying, and told Dolores appellant was pressuring her to have sex with him. Maryella told Dolores that on the night of her uncle's birthday appellant had sat next to her on the couch and inserted his finger into her vagina. Appellant then took Maryella into the garage and told her to pull her shorts down and bend over the car. He inserted a rubber penis, then inserted his own penis and "moved it around." He then inserted the rubber penis again, and then re-inserted his own penis. Maryella reported she felt disgusted when she felt the "white stuff" running down her legs. Maryella told her cousin she had tried unsuccessfully to wake her grandmother, who had been drinking.
her grandfather's home and have more freedom.
Dolores testified that since the time Maryella first told her of this incident she has repeated it many times and has always been consistent about what happened. Maryella expressed concern about her younger sister (who had been removed from appellant's home after Maryella's molestation report) and stated, " " According to Dolores, the family was pressuring Maryella to retract her story. Dolores stated that on one occasion Maryella's mother told Maryella she was the cause of her grandfather going to jail and that he would only be released if Maryella said she had made up the molestation story.
Dr. Theresa Schuman was accepted as an expert in psychology and testified regarding the problems facing young adults who have been sexually abused. She stated she was not Maryella's therapist, and had never met her. She testified, over defense objection, that it is uncommon for victims of sexual abuse to immediately report the abuse. Dr. Schuman explained that victims delay reporting the abuse because it forces them to relive the trauma of the abuse and cements in their mind the fact that the abuse actually happened. She further stated that it is very common for victims of abuse to recant the story after first making a report because they may not be believed, or may be removed from their home, or may fear the offender will suffer negative consequences from the reported abuse. In addition, according to Dr. Schuman, victims of intrafamily abuse are more likely to recant than those who suffer abuse at the hands of a stranger, since they suffer more pressure and guilt in making the report.
Dr. Edward Connolly testified as an expert in the area of physical findings in sexual abuse cases. He stated that he examined Maryella for signs of abuse and found the vaginal opening to be larger than would be expected. He opined that the size of the opening suggested she had been penetrated by a "fairly substantial size object over a prolonged period of time."
Lydia Cass, a social worker for Child Protective Services, went to Dolores Thomas' home on June 5, 1989 to speak with Maryella. She testified that Maryella appeared "very nervous," "agitated," and "weepy at times." At the time they spoke Maryella was very concerned that after she reported the abuse her family would not love her. Maryella also told her she did not want her grandfather to go to jail. Maryella told Ms. Cass appellant wanted to "open her up" so she could be with her boyfriend, and that appellant had shown her pornographic movies in their home. Maryella also reported her mother told her to keep a box of Kotex near her bed, so it would look as though she was menstruating, and her grandfather would not bother her.
Penny James was a social worker who worked for child welfare services and was assigned to Maryella in June 1989. Maryella described to her the molestations that occurred during April 1989 and told Ms. James her mother advised her to keep Kotex near her bed to dissuade appellant's sexual advances. After a juvenile court hearing was held to determine where Maryella and her sister would live Maryella became hysterical about the fact that she had lost her relationship with her mother. Ms. James testified that Maryella was hurt Officer Joseph Anderson of the Richmond Police Department also interviewed Maryella regarding her claim of molestation. Maryella told him appellant had recited passages from the Bible and had shown her pornographic movies to induce her to allow him to have intercourse with her. Maryella specifically told Officer Anderson that on her uncle's birthday appellant had inserted his finger and a "rubber penis" into her vagina. He also attempted intercourse with his own penis, but Maryella was uncertain if he actually penetrated her vagina.
by the loss of her family's support and stated, "they don't believe me, why don't they believe me, I'll just give up."
Officer Anderson testified he executed a search warrant at appellant's residence. When appellant was informed of the search he spontaneously said, " 'I was only trying to teach her about the bible.' " During the search the officers discovered two Bibles and four pornographic movies in the house and found rubber dildos in appellant's...
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