People v. McAlpin
| Citation | 53 Cal.3d 1289,812 P.2d 563,283 Cal.Rptr. 382 |
| Decision Date | 18 July 1991 |
| Docket Number | No. S010577,S010577 |
| Court | United States State Supreme Court (California) |
| Parties | , 812 P.2d 563 The PEOPLE, Plaintiff and Respondent, v. Bruce McALPIN, Defendant and Appellant. |
Campbell & Demetrick, James Farragher Campbell and Linda Lee DeMetrick, San Francisco, for defendant and appellant.
John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Steve White and Richard B. Iglehart, Chief Asst. Attys. Gen., John H. Sugiyama, Asst. Atty. Gen., Stan M. Helfman, Rene A. Chacon, Laurence K. Sullivan and Catherine A. Rivlin, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
Kent S. Scheidegger and Charles L. Hobson, Sacramento, as amici curiae on behalf of plaintiff and respondent.
Defendant appeals from a judgment convicting him of nonviolent lewd conduct with a child under the age of 14. (Pen.Code, § 288, subd. (a).) He complains of a number of evidentiary rulings by the trial court. As will appear, we conclude that the principal rulings were correct, and the incorrect rulings were not prejudicial on the entire record of this case. We therefore affirm the judgment.
Defendant met Anita M. at a church dance in April 1985 and began dating her. Anita, who was divorced, had three children: Stephanie (then age 8), Valerie (then age 7), and Isaac (then age 1). Sunday, June 9, 1985, was Stephanie's ninth birthday. About noon on that day, defendant, Anita, and her children went shopping for birthday gifts for Stephanie. Next they drove to defendant's house, and after looking at Stephanie's gifts they all lay down together on a large bed in defendant's bedroom to watch television. It was hot, and the children were lightly clothed; the girls wore short "jumper" suits. Anita soon left with Isaac to sit on the floor, and eventually took him outside to play. Defendant remained lying on the bed between the two girls, facing Stephanie.
Stephanie testified that defendant began touching her while her mother was tending to Isaac, and "When my mom would turn around to look at the T.V. or so or somewhere close where he was, he'd stop." The touching continued after her mother took Isaac outside, and Stephanie described the events in detail. On direct examination she testified that "At first [it] was around my pants and then around the elastic part of my underwear." At different times defendant used either his fingers or his whole hand. Stephanie continued, "Then it was inside my underwear," against her skin. Finally, Stephanie testified that defendant put his finger "inside ... my vagina" and also touched "my chest." Stephanie testified she knew it was wrong for defendant to touch her in this way, but she did not move away at first because she was scared. After a few minutes, however, she told defendant she had to go to the bathroom; instead, she went directly to her mother and told her what defendant had done.
On cross-examination Stephanie not only adhered to her description of defendant's conduct, but gave additional details in response to defense counsel's questions. For example, she explained precisely how defendant touched her when his hand reached the cuff of her suit, illustrating her testimony both by gesture and by reference to a photograph of her taken in that suit on that day. 1 She also reiterated that she did not call out during the touching, but that as defendant moved his hand closer to her vagina she became "scareder and scareder." On redirect examination she testified that she did not know what to do when defendant began touching her. And when the prosecutor asked her if she had any other feeling about the experience, she replied, "Sad."
Anita corroborated much of her daughter's testimony. She stated that Stephanie emerged from defendant's bedroom about 10 minutes after she had left with Isaac. According to Anita, Stephanie Anita asked what was the matter; at first Stephanie was "pretty choked up with crying" and said that defendant was "bothering" her. When pressed to say how he was "bothering" her, Stephanie "stuttered around with it and finally said, 'Well, he put his hand in my private.' " Anita immediately went inside and confronted defendant, demanding an explanation. Defendant, however, "denied having any idea what was wrong," and went back to whatever he was doing at the time. Anita testified, "I was lost for words" and She told defendant that maybe she should "just go home," but he suggested instead that they all get something to eat. 2 They went to a restaurant for dinner; at the restaurant Stephanie was quiet and withdrawn, and in the restroom she again talked to her mother about the event.
Anita acknowledged that she dated defendant once more a week or two later, and that she did not report the matter to the police. She did, however, discuss it with her mother, who knew defendant. Shortly thereafter Anita also saw defendant with a mutual friend on a rafting trip sponsored by her church group, and at that time she told the friend about the incident. On redirect examination Anita was asked why she went out with defendant once more after Stephanie told her what had happened, and she replied, "It's in my personality or character, if you will, to sit on the fence until you have enough information to actually point your finger and accuse somebody of something that is that extreme and emotional and traumatic." She also stressed that she had "los[t] a baby and a husband," the latter through divorce, in the year preceding these events.
In June 1986 Stephanie reported the incident to authorities at her school, and the police were notified.
Defendant took the stand and denied the charge. His version of the events leading up to the molestation was the same as that of Stephanie and her mother, except that he insisted it all occurred one day earlier. With regard to the touching, he told a very different story. First he acknowledged that while they were lying together on his bed he put his right arm on Stephanie's thigh. Then he claimed that after Anita left the room with Isaac, Stephanie "started moving her left arm over next to my genitals." Defendant testified that he "grabbed her arm and said, 'don't touch me there' "; that Stephanie left the room and Anita returned soon thereafter; that he and Anita discussed the incident in private; that he told Anita, "Your daughter touched me where she shouldn't have been"; that Anita replied, ; and that he and Anita then calmly told Stephanie not to let it happen again.
Defendant was allowed to introduce evidence of his standing in the community. Counsel began the case for the defense by eliciting, without objection, a full statement of defendant's education and employment history: thus defendant testified he had served four years in the Navy; had attended two colleges; had been trained as an electronics technician; had worked first for the Atari Company; had then taken a job with IBM; had worked for six years for IBM, where he became a "senior manufacturing method specialist"; and at the time of trial was a "technical analyst" in "product development" at IBM.
Defendant was also permitted to call two character witnesses on his behalf. The first, Vicki Daybell, was a clerk in the Alameda County Superior Court; she was divorced and had a small daughter. She had dated defendant for four or five months, and had stayed in contact with him thereafter. Ms. Daybell testified that in the course of dating defendant she came to know his circle of friends, and from that experience she learned he has an excellent reputation for truth and veracity in the community. As Ms. Daybell testified, "They all regard him very highly ... [f]or being very honest."
The second witness, Robert Tarkanian, had known defendant for some 11 years. Their friendship began when they were in college together, and continued when they both went to work for IBM. Tarkanian thus came to know defendant's circle of friends on the job, and testified that "He's well respected within the corporation," i.e., among his fellow workers. The witness further testified that on a trip to Texas with defendant they stayed in defendant's family home, and "I was very proud to meet his parents." When asked about defendant's reputation among his fellow workers, Tarkanian reiterated that "He's very well respected." And the witness agreed in particular that defendant has "a high reputation among his fellow workers for truth and veracity."
In rebuttal the prosecution called Debbie Hill. Like Anita, Ms. Hill was a single parent whom defendant had dated. She was also the woman whom Anita testified she spoke with on a rafting trip shortly after these events. Ms. Hill testified that when Anita spoke with her on the topic she was "extremely upset" and told her what had happened between defendant and Stephanie. According to Ms. Hill, Anita explained that "I wanted to let you know because you have children and you do see him." On cross-examination Ms. Hill testified she was shocked and thereafter "monitored" defendant's interaction with her children because she was afraid.
The jury returned a guilty verdict after 45 minutes' deliberation. The Court of Appeal affirmed the ensuing judgment of conviction, and we granted review.
Defendant first contends the trial court abused its discretion in allowing opinion testimony by an expert witness. (Evid.Code, § 801.) The prosecutor proposed to call Police Officer Jeffrey Miller as an expert on child molestation investigations. Defense counsel examined Officer Miller at length on voir dire. It appeared from such examination that the witness had received from 350 to 400 hours of specialized training in such topics as juvenile and adolescent...
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