People v. Uribe

• Decision Date: 24 April 2008
• Docket Number: No. H030630.,H030630.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. AGUSTLN SANTILLAH URIBE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

162 Cal.App.4th 1457

76 Cal. Rptr. 3d 829

THE PEOPLE, Plaintiff and Respondent, v. AGUSTLN SANTILLAH URIBE, Defendant and Appellant.

No. H030630.

Court of Appeals of California, Sixth District.

April 24, 2008.

[CERTIFIED FOR PARTIAL PUBLICATION^*]

George O. Benton and David D. Martin, under appointments by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Gerald A. Engler, Assistant Attorneys General, Seth K. Schalit and Sharon Wooden, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DUFFY, J.

Defendant Agustin Santillah Uribe was convicted following a jury trial of two counts of aggravated sexual assault of a child (Pen. Code, §§ 269, 261, subd. (a)(2)),¹ and two counts of lewd or lascivious acts on a child (§ 288, subd. (a)). The sex crimes involved defendant's granddaughter, Anna Doe (Anna). The court denied defendant's two separate motions for new trial and sentenced defendant to a term of 30 years to life, consecutive to eight years in prison.

Defendant contends that his first new trial motion should have been granted because the prosecution's nondisclosure of a videotape of a medical examination of Anna—an examination commonly (and hereafter) referred to as a SART (sexual assault response team) exam—constituted prejudicial Brady error (Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194]). (Hereafter, this videotape is sometimes referred to as the SART video.) He contends further that, irrespective of whether the nondisclosure constituted Brady error, the SART video constituted newly discovered evidence that warranted the granting of defendant's first new trial motion.

Defendant also argues that Anna's posttrial execution of a declaration recanting her claims that her grandfather sexually assaulted her constituted newly discovered evidence that required the granting of his second new trial motion. A further claim of error concerns the court's preclusion of defense counsel's cross-examination of Anna as to whether her therapist had coached her testimony. Defendant also urges that the trial court erred by permitting the testimony of a prosecution investigator concerning child sexual abuse accommodation syndrome (hereafter CSAAS). Lastly, defendant contends that there was an insufficient basis for giving an instruction concerning CSAAS.

We conclude that nondisclosure of the SART video by the prosecution constituted prejudicial Brady error. We therefore reverse the judgment and remand the matter for a new trial.²

FACTUAL BACKGROUND³

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I., II.^*

III. Medical Testimony¹¹

A. Testimony of Mary Ritter (Prosecution)

Mary Ritter is a physician assistant, clinic coordinator, and the primary examiner at the Center for Child Protection (Center) in the department of pediatrics at Santa Clara Valley Medical Center (Valley Medical). As of the time of trial, she had been employed at Valley Medical for over 18 years and had been the primary examiner for nearly that entire time. In that capacity, Ritter saw the majority of children brought to the Center at Valley Medical in the daytime by the police or child protective services for sexual abuse examinations, known as SART exams. She received her training in performing these examinations from Dr. David Kerns, medical director of the Center. As of the time of trial, Ritter had performed roughly 4,000 SART exams. The trial court qualified her as an expert in the field of child sexual assault and the examination of children alleged to have been sexual assault victims.

A SART exam occurs as a result of an initial contact to the Center at Valley Medical by the police or social services. Ritter routinely takes a history from the investigative officer. After performing a physical examination of the child head to toe, Ritter, in the case of a girl, would perform a genital examination, using a special instrument called a colposcope. The colposcope has a camera attached to it that permits the examiner to take magnified photographs. The child is examined while she is lying on her back with her feet in stirrups (supine position). After this portion of the genital examination is completed, "a real[ly] important part of the examination" involves turning the child over so that she is positioned on her hands and knees with her knees brought up to her chest (knee-chest position). Because (1) "[t]he most common place for a penetrating injury is the bottom portion of the . . . hymen," and (2) "gravity" often makes it more difficult to get a clear view of the hymen when the child is in the supine position, it is often easier for the examiner to observe evidence of injury when the child is in the knee-chest position. If the SART exam occurs within 72 hours of the alleged assault and there is any chance of getting forensic evidence for the crime lab, Ritter would swab the alleged victim for DNA. Even if the alleged assault were not recent, the SART examiner might obtain cultures to test for sexually transmitted diseases. After the completion of the examination, Ritter would get the photographs from the SART exam developed, obtain any laboratory studies, prepare a report, and send the report to the investigator on the case.

Ritter explained that for prepubescent girls, the results of SART exams fall within a spectrum. At one end, there would be no objective evidence of injury. At the other end of the spectrum, there would be evidence of "absolute tears of the vaginal opening, the hymenal opening. And then . . . in the middle of that spectrum, . . . there would be bruises and abrasions." Ritter testified that it would often be the case that a child victim of sexual assault would present with normal findings after a SART exam.¹² This would be explained by the fact that, in her experience, between 85 to 90 percent of alleged child victims do not report assaults immediately and are examined at least three days and as long as years after the alleged assault. Thus, injuries resulting from sexual penetration, such as bruising and tearing, may have had enough time to heal because of the victim's delayed reporting of the assault.

On July 28, 2005, Ritter performed a SART exam of Anna. She was accompanied by a counselor from the children's shelter. Anna chose to have the counselor wait in the reception area rather than to have her present during the SART exam. Ritter interviewed Anna to obtain a history that would be relevant for the medical examination. She told Anna that she was examining her because she had heard that Anna's grandfather had sexually assaulted her. Ritter asked whether Anna, around the time of the sexual assault, had experienced pain when she urinated. Anna responded in the negative "and then she proceeded to say that never really did happen."

Ritter conducted a SART exam of Anna. She examined Anna in the supine position; Ritter did not note an injury but felt that there was too much tissue for her to get a complete view of the hymenal opening. After this portion of the examination, she had Anna position herself in the knee-chest position. From this position, Ritter determined that there was evidence of an old injury. "[I]nstead of having [a] nice smooth broad hymen, . . . [Ritter] saw . . . a V-shape configuration that went up at 1:00 o'clock almost . . . to the fossa." It "[was] not a recent tear." She opined that this V-shaped configuration was evidence that "the hymen tissue that was here has been torn and when hymen tears it doesn't heal by knitting together like cutting a skin . . . . It doesn't come over and smooth over like nothing happened. When hymen tissue tears[,] it's essentially going to stay, that's going to stay there." "[T]here was nearly no hymen at all at the point of the V."

During the examination, Ritter observed a small red area at the edge of the hymen. She did not believe that it represented an injury, but swabbed it to determine if it was an infection, possibly herpes. Ritter also took a culture of Anna's vaginal area to rule out the existence of any sexually transmitted diseases. The test results were negative for any infection or sexually transmitted diseases.

Ritter concluded that there was physical evidence "consistent with a penetrating event occurring." Both Ritter and her superior, Dr. Kerns, signed off on a written report containing Ritter's findings as described in her testimony.

On cross-examination, Ritter confirmed that it was her opinion that the V-shaped configuration represented a hymenal tear that was evidence of penetrating trauma. She testified that "it certainly is a deep tear. It's not the deepest kind of tear that we have seen." There would be severe pain associated with the type of tearing Ritter concluded had occurred in this instance. In response to questioning as to whether the condition she had observed could have been consistent with a normal variation as opposed to evidence of a penetrating event, Ritter testified that she had never seen any studies or instances in which such a V-shaped configuration was within limits of a normal condition.¹³ She also testified on cross-examination that she would not necessarily expect that there would have been heavy observable bleeding at the time of the penetrating event that resulted in the tearing of the hymen as she concluded had occurred with Anna. There might have been observable bleeding, or, alternatively, the blood might have "essentially [been] absorbed back into the tissue and sitting in the vaginal canal." Ritter testified that she had "seen lots of [hymenal] tears that bled and the child didn't seem to be aware that [she was] bleeding."

B. Dr. Theodore Hariton (Defense)

Defendant called an expert, Dr. Theodore Hariton, a retired medical doctor specializing in obstetrics and gynecology who had practiced for 40 years. He reviewed the Valley Medical records, including...