People v. Sisavath

• Decision Date: 27 May 2004
• Docket Number: No. F041885.,F041885.
• Citation: 13 Cal.Rptr.3d 753,118 Cal.App.4th 1396
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Seum SISAVATH, Defendant and Appellant.

13 Cal.Rptr.3d 753

118 Cal.App.4th 1396

The PEOPLE, Plaintiff and Respondent, v. Seum SISAVATH, Defendant and Appellant.

No. F041885.

Court of Appeal, Fifth District.

May 27, 2004.

Certified For Partial Publication.^*

Rehearing Denied June 10, 2004.

Review Denied September 15, 2004.

A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Jeffrey D. Firestone and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

WISEMAN, Acting P.J.

In this case we apply the recent decision of the Supreme Court in Crawford v. Washington (2004) 541 U.S. 36, [124 S.Ct. 1354, 158L.Ed.2d 177] to a child victim's hearsay statements admitted in a sexual abuse prosecution under Evidence Code section 1360. In Crawford, the court announced the new rule that the admission of "testimonial" hearsay statements against a criminal defendant violates the Confrontation Clause of the Sixth Amendment if the declarant is unavailable to testify at trial and the defendant had no previous opportunity to cross-examine. In the published part of this opinion, we hold that the hearsay statements challenged here were inadmissible under the Crawford rule. The error necessitates the reversal of four of defendant Seum Sisavath's abuse convictions. Five other abuse conviction and two convictions for drug possession are unaffected.

In the unpublished part of this opinion, we consider defendant's four other grounds for appeal: 1) improper admission of expert testimony; 2) penalizing defendant for exercising his right to remain silent; 3) improper amendment of the information; and 4) cumulative error. We reject each of these.

The judgment is affirmed in part, reversed in part, and remanded.

FACTUAL AND PROCEDURAL HISTORIES

Defendant was an acquaintance of Ly N., the mother of an 8-year-old (Victim 1) and a 4-year-old (Victim 2). He was introduced to Ly by Ly's ex-husband, who sometimes had defendant care for Victim 1 and Victim 2. Over a period of about five months, from September 2001 to January 2002, defendant visited on several occasions with Victim 1 and Victim 2 at Ly's apartment. He sometimes spent the night in the living room or in the children's bedroom. Occasionally, he took the children away with him.

On January 29, 2002, Victim 2 told her mother that defendant had touched her private parts the night before. When questioned by her mother, Victim 1 made similar statements. Ly called the police. The responding officers took statements from Ly, Victim 1, and Victim 2. When defendant came to the house later that evening, Ly called the officers and they returned and arrested defendant. He had cocaine and marijuana in his pants pockets when he was arrested.

The police investigation revealed evidence of numerous instances of sexual abuse of Victim 1 and Victim 2. Defendant was charged by information with 10 counts of sexual abuse and two counts of narcotics possession. The sexual abuse charges fall into three groups according to the dates of the offenses. Counts 1, 2, and 3 charged that between November 1, 2001 and January 1, 2002, defendant committed two forcible lewd acts upon Victim 1 (Pen.Code, § 288, subd. (b)(1))¹ and an assault of Victim 1 with intent to commit rape (§ 220). Counts 4 through 8 charged defendant with committing the following offenses on January 28 or January 29, 2002: an aggravated child sexual assault, forcible sexual penetration of Victim 1 (§ 269, subd. (a)(5)); an aggravated child sexual assault, forcible rape of Victim 1 (§ 269, subd. (a)(1)); a forcible lewd act upon Victim 1 (§ 288, subd. (b)(1)); an aggravated child sexual assault, forcible sexual penetration of Victim 2 (§ 269, subd. (a)(5)); and a forcible lewd act upon Victim 2 (§ 288, subd. (b)(1)). Counts 9 and 10 charged that between May 1, 2001 and January 27, 2002, defendant committed one lewd act (§ 288, subd. (a)) upon Victim 2 at her house and another in his truck. Count 11 charged possession of cocaine (Health & Saf.Code, § 11350, subd. (a)), and count 12 charged possession of marijuana (Health & Saf.Code, § 11357, subd. (b)). The information included multiple-victim allegations as to counts 1 through 10 pursuant to section 667.61, subdivision (b).

Trial evidence included testimony by Victim 1, a videotaped statement by Victim 2, and a police officer's testimony describing statements by Victim 1 and Victim 2. DNA test results were also introduced, showing that defendant's semen was found on a pair of panties on which cells from Victim 1 were also found. Other DNA test results showed that defendant's semen was on a blanket found in the children's bedroom. An expert on Child Sexual Abuse Accommodation Syndrome gave testimony bearing mainly on why a sexually abused child might not immediately report the abuse. A jury found defendant guilty of count 1 and counts 4 through 12. He was found guilty of the lesser-included offense of simple assault (§ 240) on count 3 and acquitted of count 2. The multiple-victim allegations were found true. The court sentenced defendant to an aggregate term of 32 years to life.

DISCUSSION

I. Victim hearsay statements

At trial the prosecution proffered Victim 2 as a witness. The court conducted a hearing to determine whether she was qualified to testify. After Victim 2 failed to respond to most of the questions that she was asked, the court concluded that she was disqualified because she could not express herself so as to be understood (Evid.Code, § 701, subd. (a)) and because she was incapable of understanding her duty to tell the truth (Evid.Code, § 701, subd. (b)).

Then the court took up the prosecution's contested motion to admit two sets of Victim 2's out-of-court statements pursuant to Evidence Code section 1360. They were a statement to Officer Matthew Vincent, one of the officers who responded when Ly called the police, and a videotaped interview with a trained interviewer at Fresno County's Multidisciplinary Interview Center (MDIC). The MDIC is a facility specially designed and staffed for interviewing children suspected of being victims of abuse.

The court took testimony by Vincent and an investigator from the District Attorney's office who attended the MDIC interview. On the basis of this testimony, the court found sufficient indicia of reliability. It also ruled that Victim 2 was unavailable to testify because of the disqualification ruling. Finding that the other requirements of Evidence Code section 1360 were satisfied, the court admitted the statements.

In his opening and reply briefs, defendant argued that hearsay statements by Victim 2 were improperly admitted at trial under the hearsay exception created by Evidence Code section 1360. While this appeal was pending, the Supreme Court announced its decision in Crawford v. Washington, supra, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. Crawford announced a new rule regarding the effect of the Confrontation Clause on the admission of hearsay statements in criminal prosecutions. "[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final...." (Griffith v. Kentucky (1987) 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649.) At our request, the parties submitted supplemental briefs on the effect of Crawford on the admissibility of Victim 2's statements.

A. Effect of Crawford on the admissibility of Victim 2's statements

In Crawford, the defendant was convicted of assault with a deadly weapon, partly on the basis of his wife's out-of-court, tape-recorded statement to police. The wife did not testify because the defendant invoked the spousal privilege. There was no pre-trial opportunity for the defendant to cross-examine. After finding that the statement bore adequate indicia of reliability, the trial court admitted it into evidence based on the hearsay exception for statements against penal interest, because the wife was arguably a participant in the crime her statement described. (Crawford v. Washington, supra, 541 U.S. at pp. 36-41, 124 S.Ct. at pp. 1356-1358.)

The Supreme Court held that admission of the statement violated the Confrontation Clause. Where a hearsay statement is "testimonial," the Confrontation Clause bars the prosecution from using it against a criminal defendant unless the declarant is available to testify at trial, or the defendant had a previous opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. at pp. 49-57, 124 S.Ct. at pp. 1363-1367.) The court held that this is so regardless of whether or not the statement falls within a state-law hearsay exception or bears indicia of reliability, overruling Ohio v. Roberts (1980) 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597. (Crawford, supra, at pp. 1369-1372.) It considered, without deciding, that testimonial dying declarations might be an exception to this bar and stated that they would be the only exception. (Id. at p. 1367, fn. 6.)

There is no doubt here that Victim 2 was made unavailable to testify by the disqualification ruling and no contention that defendant had a pre-trial opportunity to cross-examine her. The important question, therefore, is whether her statements to Officer Vincent and in the MDIC interview were "testimonial."

The Supreme Court declined to define this key term. "We leave for another day any effort to spell out a comprehensive definition of `testimonial.'" (Crawford v. Washington, supra, 541 U.S. at p. ___, 124 S.Ct. at p. 1374.) But it did list "[v]arious formulations" of the class of testimonial statements:

"`[E]x parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably...