People v. Luna

• Decision Date: 23 August 1988
• Docket Number: No. F009135,F009135
• Citation: 250 Cal.Rptr. 878,204 Cal.App.3d 726
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Samuel Muniz LUNA, Defendant and Appellant.

Page 878

250 Cal.Rptr. 878

204 Cal.App.3d 726

The PEOPLE, Plaintiff and Respondent, v. Samuel Muniz LUNA, Defendant and Appellant.

No. F009135.

Court of Appeal, Fifth District, California.

Aug. 23, 1988.

As Modified Sept. 2, 1988.

Certified for Partial Publication ^*

[204 Cal.App.3d 729] Philip F. Stanger, under appointment by the Court of Appeal, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Michael J. Weinberger and Thomas Y. Shigemoto, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

PETTITT, Associate Justice. ^**

Defendant, Samuel Luna, was charged with 18 sexual offenses committed against his stepdaughter, A.

Prior to trial defendant made a motion to have a doctor of his choice perform a colposcopic examination of the victim. ¹ The motion was granted. The victim's mother, R., refused to have the child submit to the examination. She consulted a psychologist and determined that it would not be in A.'s best interest. A. had already been examined twice. Defendant made a request for sanctions, and the court denied the request with the exception that the jury could be told that the minor child refused the examination.

Doctor Diamond had examined the victim utilizing a colposcope. Defendant objected to his testimony based on Kelly-Frye. ² The court overruled the objection. The doctor testified to his findings. He also testified about the child abuse accommodation syndrome.

The jury found defendant guilty of six of the eighteen counts, counts VI, VIII, X, XII, XIII and XV. It also found that defendant engaged in substantial sexual conduct with a victim under the age of 11 years, occupied a position of special trust and committed an act of substantial sexual conduct within the meaning of Penal Code section 1203.066, subdivisions (a)(8) and (a)(9), respectively. ³ The jury could not reach a verdict on the remaining counts, which were subsequently dismissed. Defendant appeals.

STATEMENT OF THE FACTS

The victim, A., was born March 13, 1977, to her mother, R. R. married defendant in 1982 when A. was five years old. In 1982 the three lived in an apartment on Michele Court. In February of 1983 they moved to a house on California Avenue. In November of 1984 they moved to an apartment on Miller Street. They lived there two months and moved to an apartment near White Lane and Teal. They lived at this address until August of 1985 when A. told her mother that defendant had molested her. R. chased defendant out of the house with a knife, and they no longer lived together.

All counts alleged that the acts occurred between August 1, 1982, and October 10, 1985. Count VI alleged that while the family lived on California Avenue defendant touched his mouth to the genitals of A. in violation of section 288, subdivision (a). A. testified that when they lived on Michele Court defendant repeatedly touched her "privates" and had her rub his penis. When they moved to California Avenue defendant began putting his mouth on her "privates." This occurred in her room, his room and the living room.

Count VIII alleged that while the family was residing on Miller Street defendant touched his fingers to A.'s genitals in violation of section 288, subdivision (a). A. testified to a particular instance on Miller Street when defendant was playing the drums and she was watching TV. Defendant came down and stuck his finger in her "privates." A. was wearing shorts. Defendant tried to pull them off and was initially unsuccessful because A. was sitting down. He eventually pulled them off.

Count X alleged that while living on Miller Street defendant touched his mouth to the genitals of A. in violation of section 288, subdivision (a). A. testified that she remembered a day on Miller Street when defendant put his mouth on her "privates." She could not remember the room and was pretty sure it was during the day. A's mom was gone. Defendant was lying down and he put his tongue on her privates.

Counts XII and XIII alleged that while living in the apartment on White Lane and Teal defendant touched his fingers to A.'s genitals in violation of section 288, subdivision (a). Count XV related to the same location but involved defendant touching his mouth to A.'s genitals. A. testified that defendant put his finger in her privates in his room and her room when no one else was home. A. testified that defendant put his mouth on her privates on Teal Street. A. testified that defendant would show her magazines of girls doing what he did to her. He also had her watch a pornographic movie. He told A. to do what they did in the magazines. Defendant offered her money while living on Teal Street if she did what he said. He offered her differing amounts--$2, $3 or $5. However, he never actually paid anything to A. In August of 1985 A. told her mother that defendant had been touching her privates. She testified that the day she told her mother was one of the days "that he did it to me."

A. testified to numerous other acts of the same nature as well as acts of anal and vaginal intercourse. She further testified that on occasions defendant would put his sock over the tip of his penis while A. would rub his penis. She also testified she rubbed his penis until he ejaculated.

Dr. Diamond examined A. and used a colposcope during his examination. In describing injuries to the vagina and hymen, Dr. Diamond identified the position of the injuries by referring to hours on a clock, 12 o'clock being the top of the vaginal opening when the victim is examined in the supine position. He testified that trauma caused by athletic injuries and masturbation usually occur between the nine to three o'clock position, while injuries from the insertion of another person's finger or penis usually occur between the three to nine o'clock position. A. had trauma in the three to five o'clock and seven to eight o'clock positions, which was consistent with what A. said happened to her.

Dr. Diamond also testified regarding the child abuse accommodation syndrome.

A.'s mother testified that A. was left alone with defendant on numerous occasions. She talked to A. on several occasions about good and bad touchings. In the presence of the defendant, A.'s mother asked A. if she had been touched in a bad way. A. said no. R. testified to one occasion when she came home and found defendant masturbating with a sock over his penis. Two teachers and the principal from A.'s school testified that A. was an honest child.

Defense

Defendant denied any sexual conduct with A. He denied ever using a sock to cover his penis.

Defendant's sister and her husband testified that once when they were visiting defendant and his family, A.'s mother and A. came out of the bathroom. They were both upset because A. had stuck something up inside herself. Two of defendant's sisters and defendant's brother-in-law also testified that when defendant and R. would talk about having a baby, A. would make a face. Defendant's sister testified that R. often talked about sex in front of A., as well as child molestation, which was discussed by this sister and R. in the presence of A.

On appeal defendant contends the trial court failed to impose any meaningful sanction for the victim's refusal to be examined by defendant's doctor; the colposcope is a new, scientific technique which comes within the ambit of the Kelly-Frye rule; it was error to allow evidence regarding the child abuse accommodation syndrome; and, finally, the court erred in denying cross-examination of R. regarding molestation of her.

DISCUSSION

I. ^***

II. Is the use of a colposcope a new scientific technique which must meet the requirements of the Kelly-Frye rule?

Dr. Diamond examined A. and used a colposcope to aid in this examination. He testified that the colposcope does nothing more than magnify the object. His testimony was that it increased his magnification to 10. The colposcope merely makes injuries more easily identifiable. It does not produce results. The results are based on the doctor's medical knowledge. Defendant objected to Dr. Diamond's testimony because the use of the colposcope is a new scientific method not generally accepted in the medical community. The trial court found that a colposcopic examination is not a radical departure from general medical techniques and allowed Dr. Diamond to testify.

Defendant asserts that a colposcopic examination must meet the Kelly-Frye rule. ⁴ Defendant contends that there was no showing of compliance with the Kelly-Frye rule and the court should not have allowed the testimony of Dr. Diamond which arose from the use of the colposcope. We disagree.

This precise issue was decided in People v. Mendibles (1988) 199 Cal.App.3d 1277, 245 Cal.Rptr. 553. We agree with their analysis and decision on this issue. In Mendibles, a Dr. Heger examined the alleged victims of child molestation with a colposcope. That is precisely what occurred in the instant case. The colposcope, as described in defendant's exhibit A which was received in evidence by the trial court, is nothing more than a modality of binocular magnification with a 5x to 30x potential. It has been in use for years to study cervical pathology and for detection of early carcinoma in situ, and is used as well as a tool for clarifying the diagnosis of sexual abuse. The instrument is in general use in the medical community in situations where it is beneficial to make areas of the body more visible to the examining physician by the direction of light to the area on which the binoculars are focused. The instrument was not inserted in the vaginal canal.

According to Dr. Diamond and exhibit A, the colposcope has been in use at least since 1977. Of course, the ordinary microscope has long been accepted as scientifically reliable. The opinions given by the witness at trial were based on his visual examination and observations made more vivid with the aid of the colposcope. Beyond...