People v. Roberto V.

• Decision Date: 28 November 2001
• Docket Number: No. B142127.,B142127.
• Citation: 93 Cal.App.4th 1350,113 Cal.Rptr.2d 804
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. ROBERTO v. Defendant and Appellant.

113 Cal.Rptr.2d 804

93 Cal.App.4th 1350

The PEOPLE, Plaintiff and Respondent, v. ROBERTO

v.

Defendant and Appellant.

No. B142127.

Court of Appeal, Second District, Division 3.

November 28, 2001.

Randy Short, under appointment by the Court of Appeal, Torrance, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Paul M. Roadarmel, Jr., Deputy Attorney General, for Plaintiff and Respondent.

ALDRICH, J.

A jury convicted appellant Roberto V. of eight counts of committing lewd acts upon his two young daughters, three-year-old Maria and seven-year-old Stephanie. Maria, who was four years old at the time of trial, did not testify. Over appellant's objection, the trial court admitted the girls' mother's testimony about Maria's out-of-court statements pursuant to Evidence Code section 1360. That section creates a hearsay exception for statements made by certain child victims of abuse or neglect, provided that various requirements are met. Among other things, if the child does not testify at the proceeding, the statement is admissible only if he or she is unavailable as a witness. Additionally, the proponent of the evidence must inform the adverse party of his or her intention to admit the child's statement sufficiently in advance of the proceeding to provide a fair opportunity to prepare to defend against it.

We conclude that, because neither the notice nor the unavailability requirement was met, the challenged hearsay statements were not properly admitted pursuant to Evidence Code section 1360. Moreover, because there was an insufficient showing that the statements were reliable, their admission violated appellant's rights under the Confrontation Clause of the United States Constitution, requiring reversal.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. Prosecution's case.

Martina D. and appellant had two daughters, Stephanie, seven, and Maria, three. Martina and appellant had lived together at various times for 10 years. When the alleged molestations occurred, appellant and Martina had been living separately for approximately a year and a half. Appellant lived in a converted garage he rented from Mirta Sagrero. Sagrero and her family lived in a house in front of the garage.

(i) June 1999 incidents and investigation.

In June 1999, Martina wished to visit her father, who was ill. Appellant agreed to baby-sit the two girls at Martina's apartment. Martina left the girls in his care on the evening of Wednesday, June 16, and returned at approximately midnight on Thursday, June 17.

A day or two later,¹ Martina saw three-year-old Maria inappropriately kissing a toy and attempting to insert it into her vagina. Martina asked Maria what she was doing. Martina understood from Maria's answer that Maria was playing, and wished her to play along. Maria told her mother to lie on the bed. Maria sat on top of Martina's pelvic area, moved in a manner that simulated sexual intercourse, and attempted to kiss Martina on the mouth. Martina asked Maria who had taught her to play that way. Maria said "ella ["she" in Spanish] and Poppy." Martina asked who "ella" was, and Maria pointed to a picture of Stephanie. Martina also stated that Maria had placed her prone on the bed and said "Poppy would get in that position."

On one or two other occasions thereafter, Maria attempted similar conduct, including attempting to disrobe Martina, kiss her, and touch her. During those incidents, Maria stated that she wanted to "play like Daddy plays."

After witnessing Maria's conduct with the toy and questioning her, Martina questioned Stephanie. Stephanie initially said Maria was lying, but then stated she did not wish to explain because she did not want her father to go to jail. After Martina promised she would not harm appellant, Stephanie admitted appellant had molested her. Stephanie told her mother that she had bled when appellant had molested her, asked Martina to check her genital area, and showed Martina a pair of panties that she said appellant had repeatedly washed. Martina examined the panties and saw only urine stains. Martina initially did not believe Stephanie because the children had never showed any fear of appellant and liked to spend time with him.

On June 22, 1999, Martina took both girls to a hospital for a sexual assault examination by Dr. Scott Oslund. Maria's examination was normal. There was no evidence of anal or vaginal penetration or trauma, her hymen was intact, and there were no bruises on her body. Had digital penetration of Maria's vagina occurred, Dr. Oslund would have expected to see damage or irritation. Stephanie's examination likewise disclosed no bleeding, irritation, scarring, vaginal or anal trauma, or other injuries. However, her hymen was completely absent. Other than the missing hymen, there was no evidence of vaginal penetration. Dr. Oslund would have expected to find a completely intact hymen in a girl Stephanie's age, and there was a high medical probability that Stephanie had been born with one. A girl's hymen could be lost through sexual penetration or through accidental trauma, such as falling from a boys' bicycle and hitting the vaginal area. Dr. Oslund had conducted between 30 and 40 sexual assault examinations on children; it was uncommon to find physical evidence of molestation during such examinations. Dr Oslund opined that Stephanie was "way too comfortable" with the examination procedure.

Detective Sonia Ayestas interviewed Stephanie at her elementary school. After describing the acts of molestation, Stephanie wrote a note to her father expressing sorrow that he was in jail, and stating that she loved him and her mother, sister, and brother.

(ii) Stephanie's account of the 1999 molestations at Martina's apartment.

Stephanie, who was eight years old at the time of trial, testified as follows. While Martina was visiting her father, appellant sexually molested both girls. The girls were watching a movie in the living room of Martina's apartment. Appellant and Maria went into the bedroom. Stephanie heard noises coming from the room. She took a knife from the kitchen, and picked the lock on the door.² When she entered the room, she observed her father and sister, completely disrobed. Appellant was lying on his stomach and Maria was lying on top of him. Stephanie entered the room, hid underneath the bed, and played with a toy she found beneath the bed for 15 minutes. She knew 15 minutes had elapsed because she kept track of the time on her gold watch. It was "about 1:00" when she went under the bed.

When Stephanie emerged from under the bed, five more minutes elapsed, and then she observed her father and sister "doing S-E-X." Using language appropriate for a child her age,³ Stephanie explained that she saw appellant kiss Maria on the mouth, orally copulate her, digitally penetrate her anus, engage in intercourse with her, and clean her genital area with tissue. Appellant held Maria's buttocks, and made noises. He and Maria were moving "like shaky." Stephanie described appellant's penis as looking "kind of like a little rat." He was "sticking it on" Maria and putting it inside Maria's "private part" a "little bit," approximately one inch.

Maria eventually saw Stephanie in the room and told appellant. When appellant realized Stephanie was present, he asked her how long she had been there and called her a foul name. Stephanie dressed Maria and Maria returned to the living room.

Appellant told Stephanie to remove her clothing and lie on top of him. Stephanie protested "that's bad to do" and that "I know what you're telling me to do ... that's the same thing that ... you were doing when I was a little girl." Appellant held Stephanie very hard, kissed her on the mouth, orally copulated her, engaged in sexual intercourse with her, and cleaned her with tissue. During the incident, appellant's penis was "soft." Approximately one and one-fourth inches of his penis penetrated her "private part."

On cross-examination, Stephanie testified that no molestation occurred the first night Martina left on her trip.

Stephanie saw "yellow blood" in her genital area and on her underwear the day after the molestation occurred. She did not see any "red blood" after the incident.

(iii) Molestations at the garage apartment.

Stephanie testified that the next day, in the afternoon, appellant took both girls to his garage apartment and molested them. Appellant, who was naked, removed Stephanie's clothing, laid on the bed with her, "sticked his private part" on hers, and cleaned her with tissue. His penis was "soft." Initially, Stephanie testified that appellant penetrated her vagina "a little bit." After a break in testimony, she testified that vaginal penetration did not occur, but that appellant digitally penetrated her anus and orally copulated her. At that point, Stephanie's cousins knocked on the door. The cousins did not live at Sagrero's house. Stephanie went outside to play with them.

Stephanie heard a noise in the garage and looked in the garage window. She observed appellant orally copulating Maria. In order to see into the garage window, Stephanie had to climb approximately nine stairs. She then fell from the stairs into a sandbox. She and her friends had been making a sand castle and she destroyed it by falling down. She got muddy sand on her face and went to the house next to the garage to wash.

Stephanie stated both that she did not recall opening the door to the garage apartment with a knife, and that she thought she had opened the garage apartment door with a knife.

According to Stephanie, appellant had taken the girls to Knott's Berry Farm and a movie while Martina was away on her trip.

Appellant told her not to tell anyone about the molestations or he would not buy her anything, and that he would kill her m...