People v. Spence
| Citation | 212 Cal.App.4th 478,151 Cal.Rptr.3d 374 |
| Decision Date | 10 April 2013 |
| Docket Number | D059463 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. James Edward SPENCE, Defendant and Appellant. |
OPINION TEXT STARTS HERE
APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. Affirmed. (Super. Ct. No. SCD220378)
David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, William M. Wood and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted James Spence of two counts of sexual offenses against a child 10 years old or younger (his housemate's daughter D.), occurring on April 20, 2009 (Pen.Code, § 288.7, subd. (b), count 1, sexual penetration; and § 288.7, subd. (a), count 2, sodomy; all further statutory references are to the Penal Code unless noted). The jury also convicted him of two counts of sexual activity with D. occurring in March 2009 (§ 288, subd. (a), count 4, committing a lewd act; and § 288.7, subd. (b), count 5, oral copulation.) He was acquitted of two other charges and an additional count was dismissed on the People's motion.
Spence was sentenced to a total term of 55 years to life. He appeals, first contending the trial court erred in permitting the prosecutor to rebut the opinions of the defense expert witness, a psychologist who testified about Spence's educational level and writing ability, by presenting the jury with statements Spence previously made in his testimony at a pretrial hearing on his motion to suppress evidence, concerning whether he had the ability to express himself in writing (such as in letters found in his pocket when he turned himself in for arrest). (James v. Illinois (1990) 493 U.S. 307, 110 S.Ct. 648, 107 L.Ed.2d 676 ( James ) []; § 1538.5.) This is a question of first impression about the allowable scope of impeachment of a defense expert witness's opinion that is based in part upon statements by the defendant, through the use of the defendant's suppression hearing testimony. We conclude the rules and policies expressed in James are not implicated by the procedures used here, and there was no error.
Spence also challenges the ruling of the trial court allowing a different expert witness, the interviewing pediatrician who specialized in child abuse treatment, to be questioned about her opinion about the truth of the charges, albeit in a somewhat hypothetical manner. Although this is a close question, any evidentiary or other error that occurred was harmless.
In another question of first impression, Spence argues he was deprived of due process of law at trial when the trial court misapplied statutory provisions concerning certain sex offense prosecutions that allow one support person to accompany the child witness to the stand. (§§ 868.5, 868.8; Evid.Code, § 765.) Spence argues the court erred by additionally allowing a therapy dog or support canine to be present at the child's feet while she testified, and contends this was “overkill” that unduly focused the jury upon the child's alleged status as a victim, before any conviction was achieved. He complains the necessary statutory findings were not made, and the necessary admonitions were not given to properly educate this victim advocate and the jury about the appropriate demeanor restrictions in testimony. (§§ 868.5, 868.8.) We find no prejudicial error or abuse of discretion in these respects.
In a further statutory argument, Spence contends the terms of section 288.7, supporting his three convictions for molesting a child “10 years or younger,” are ambiguous and were misconstrued by the trial court, because this child victim had passed her 10th birthday at the time of the charged offenses, although she was not yet 11 years old. The California Supreme Court recently resolved this issue in People v. Cornett (2012) 53 Cal.4th 1261, 139 Cal.Rptr.3d 837, 274 P.3d 456 ( Cornett ), finding the statute was not ambiguous, and this identical claim consequently fails.
Having reviewed all of Spence's arguments as they are applied to this record, we find no reversible error and affirm the judgment of conviction.
Spence's challenges to his convictions do not include any claims of insufficiency of the evidence. The basic underlying facts follow and will later be expanded upon, as we evaluate his constitutional and statutory arguments.
When these incidents occurred in 2009, Spence was about 25 years old and had been living for about 10 years as a housemate to D.'s mother, D. Smith (Ms. Smith), who was older and had four children, two with Spence. Spence acted as the stepfather to D., who was born in 1998 and whose father did not live with the family. Due to various problems with one of the other children in the home, the family had a child protective services (CPS) caseworker, Melinda Pellegrino. Ms. Smith wanted to break up with Spence and have him move out and leave the family, but he did not want to do so. The night of April 20, Spence and his male friend Dale Williams were at Ms. Smith's house overnight, and she was out with friends.
On the morning of April 21, 2009, D. told Ms. Smith that while Ms. Smith had been absent the night before, her dad (which is what she called Spence) “raped her,” by telling her to come into the bathroom and pull down her pants, and putting his finger in her vagina. Ms. Smith drove her son to school, discussed the matter further with D., and then woke Spence to have him go to a Kaiser clinic with them. Spence said it was not true. At Kaiser, D. was seen by a male nurse, Matthew Sager, and she was crying and upset while telling him her “dad” had pulled her pants down and touched her private parts. She said something similar had happened a month ago.
Nurse Sager told Ms. Smith that Kaiser's policy was to send such patients to Children's Hospital. Ms. Smith became angry and left with D., so the nurse called 911 and police followed their car. When Ms. Smith got home, she called her CPS caseworker, Pellegrino, and they talked to D. about what had happened. Pellegrino told Ms. Smith and D. they should cooperate with police officers, who had arrived at the Smith home. Spence called home and Pellegrino told him he needed to come home, but he did not do so.
D. was taken to Children's Hospital, where she did not want to speak to a caseworker, but agreed to speak with Dr. Lorena Vivanco, a board certified pediatrician specializing in child abuse treatment. While crying and upset, D. told Dr. Vivanco that the night before, her dad Spence took her into the bathroom and pulled down her pants, and then started touching her “privacy” and put his fingers inside her privacy. Then he put his privacy inside her “butt” after turning her over and putting something slippery on his own privacy. The month before, while D. was asleep, Spence came to her bed and tried to put his “privacy” into her mouth, after putting his finger in it first. D. told Dr. Vivanco that she had not told anyone about the first incident because she did not think it would happen again and Spence told her not to tell.
While D. was being examined by Dr. Vivanco, Detective Dana Hoover was at the hospital talking to Ms. Smith. Spence called Ms. Smith and said that he wanted to talk to the detective to clear things up. Detective Hoover asked him to call her the next day, which he did, and she made arrangements for him to come to the police station for an interview on the following day.
Spence came to the police station on April 22, was escorted upstairs and interviewed by plainclothes Detective Hoover and Detective Cindy Brady. Although he originally said he had not sexually touched D. and offered to take a polygraph examination to clear himself, the detectives learned that the equipment was out of order and nothing happened.1
Eventually, Spence admitted to the detectives he had molested D. in April, but not in March. The detectives asked him if he wanted to apologize to D., and he said he could not write and did not know how to begin, so Detective Hoover offered to take down his dictation, wrote down what he said, and kept the original (the dictated letter). Hoover and the other detective then told him to go take care of his affairs and to turn himself in for arrest in a few days, because that would look better for him and for the family.
On April 28, 2009, Spence came to the police station to turn himself in for arrest. Two handwritten, signed letters about his remorse and sadness regarding the incidents, dated April 27, 2009 and addressed to D. and Ms. Smith, were found in his pocket.2 Detective Hoover made copies of these (here, designated the two copied letters) and returned the originals to him. Charges were filed April 30, 2009.
On July 7, 2010, the San Diego County District Attorney filed an amended information alleging three counts against Spence arising out of the April 20, 2009 incident with D. (sexual penetration by putting his finger in her vagina, sodomy and sexual intercourse, all with a child 10 years old or younger; § 288.7, subds. (a), (b)). As to the March 2009 incident, two counts were charged (committing a lewd act upon a child by putting his finger in the child's mouth before inserting his penis, and oral copulation with a child 10 years old or younger; § 288, subd. (a); § 288.7, subd. (b)).3
In preparation for his defense at trial, Spence was interviewed by an expert psychologist,Dr. Carroll Waymon, to evaluate his educational level and his ability to make decisions when confronted with female authority figures, such as the detectives. Dr. Waymon reviewed Spence's...
To continue reading
Request your trial