P. v. Medrano-Melendez CA2/7 ( 2013 )

Filed 3/13/13 P. v. Medrano-Melendez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B228904
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA343652)
v.
CAMILO DANIEL MEDRANO-
MELENDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J.
Perry, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback
II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
______________________
INTRODUCTION
In an amended information, the People charged defendant Camilo Daniel
Medrano-Melendez with two counts of committing a lewd act on a child under the age of
14 years (Pen. Code,1 § 288, subd. (a); counts 1 & 2), one count of continuous sexual
abuse (§ 288.5, subd. (a); count 3) and one count of committing a lewd act on a child who
was 14 or 15 years old, where the defendant was at least 10 years older than the victim
(§ 288, subd. (c)(1); count 4). The alleged victim in count 1 was Evelyn L. The alleged
victim in counts 2, 3 and 4 was M.D. As to all counts, it was alleged that defendant
committed his crimes on multiple victims within the meaning of section 667.61,
subdivision (b).
A jury found defendant not guilty on count 1, involving Evelyn, but found him
guilty on counts 2, 3 and 4, involving M.D. Consequently, the jury found the multiple
victims allegation (§ 667.61, subd. (c)) to be untrue. As to count 2, the jury found true
the allegation pursuant to section 803, subdivision (f)(1), that the statute of limitations
had been extended. As to counts 3 and 4 the jury found true the allegation pursuant to
section 801.1, subdivision (a), that M.D. was under the age of 18 at the time of the
offenses and the prosecution was commenced prior to her 28th birthday. The trial court
sentenced defendant to state prison for a total of six years.2 This appeal followed.
Defendant raises three contentions on appeal. First, he contends the trial court
abused its discretion in permitting a forensic psychologist to testify regarding Child
Sexual Abuse Accommodation Syndrome (CSAAS) as a basis for explaining the victim’s
delay in reporting the abuse, and, notwithstanding the trial court’s limiting instruction, its
1 Unless otherwise noted, all further statutory references are to the Penal Code.
2 The court initially sentenced defendant to a total prison term of eight years and
eight months, believing it was required to impose consecutive sentences. The court
subsequently recalled this sentence and sentenced defendant anew to concurrent terms
totaling six years.
2
admission created a substantial danger that the jury would consider CSAAS as supporting
the claims of sexual abuse. Second, defendant contends the trial court improperly
sanctioned defense counsel by excluding in its entirety the expert testimony of Dr. C.
Paul Sinkhorn (Sinkhorn) due to counsel’s failure to disclose to the prosecution the
substance of Sinkhorn’s testimony, and its ruling compromised defendant’s constitutional
rights to present a defense and due process. Finally, defendant contends the trial court
abused its discretion in denying his motion to release juror identification information in
order to investigate juror misconduct. We conclude there is no merit to defendant’s
contentions and affirm the judgment.
FACTS
Given the nature of the issues before us, and defendant’s acquittal of the crime
involving Evelyn L., we briefly detail the evidence supporting the judgment convicting
him of the crimes against M.D.
M.D. was three days old when her mother died. Her father had difficulty raising
her, so, when M.D. was two or three, he sent her to live with defendant and his family.
When M.D. was five or six years old, defendant began to touch her
inappropriately. He touched her chest and vagina directly and through her clothing. This
conduct continued from time to time. On one occasion, he asked her to give him a “blow
job” and, with his hands on her head, guided her into position. When M.D. was nine, she
returned to live with her father and two siblings across the street.
Eventually, M.D. visited with defendant and his family. During these visits,
defendant resumed touching her breasts and vagina.
When M.D. was about 12, she, along with defendant’s two daughters and their
cousin who then was living in defendant’s home, began taking algebra lessons from
defendant. He taught the classes in the basement of his home. Occasionally, defendant
called M.D. and asked her to come to class early before the others arrived. He would
touch her breasts and vagina. In addition, he would rub his penis on her body, ask her to
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give him a “blow job” or have sexual intercourse with her. Their last sexual encounter
occurred just before M.D. turned 15.
In May 2004, right before her 15th birthday, M.D. was removed from her father’s
home and placed in foster care after reporting that her father had been forcing her to have
sexual intercourse at least twice a week since the age of 11 or 12. Before being placed in
foster care, M.D. told the social worker that she preferred to live with defendant and his
family.
Although M.D. had opportunities to tell the social workers about defendant’s
sexual abuse, she chose not to. She wanted to spare defendant’s wife and daughters any
embarrassment.
Upon her release from foster care in October or November 2004, M.D. moved to
Arizona to live with her brothers. While in Arizona, she maintained contact with
defendant and his family, via telephone and letters.
In February 2008, M.D. was still living in Arizona and about to graduate from
high school when she received an unexpected telephone call from Los Angeles Police
Detective Leslie Mariscal. The detective informed M.D. that the mother of a girl had
called the police about defendant and stated that another girl, who had been raised by
defendant and his family, might also be a victim. At this point, M.D. related her own
experiences with defendant to the detective.
M.D. explained that she had not told anyone about defendant’s conduct, not even
the police officers who years earlier had interviewed her about her father’s sexual abuse.
She did not want defendant’s wife or daughters to find out for fear of being rejected by
them.
It was stipulated that on May 19, 2004, a sexual assault examination was
performed on M.D. A DNA profile matched M.D.’s father, not defendant. The nurse
who examined M.D. noted that M.D. had a worn away hymen, which is a sign of chronic
sexual intercourse.
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DISCUSSION
A. Expert Testimony Regarding CSAAS
1. Standard of Review
We review the trial court’s decision to admit expert testimony under the abuse of
discretion standard. (People v. Lindberg (2008) 45 Cal.4th 1, 45; People v. Bradley
(2012) 208 Cal.App.4th 64, 84.)
2. CSAAS
The theory of CSAAS was first delineated by Roland Summit. (Summit, The
Child Sexual Abuse Accommodation Syndrome (1983) 7 Int’l J. of Child Abuse &
Neglect 177; see also Comment, The Admissibility of “Child Sexual Abuse
Accommodation Syndrome” in California Criminal Courts (1986) 17 Pacific L.J. 1361.)
“The syndrome assumes the child is a ‘legitimate victim’ of sexual abuse; its purpose is
to explain why such victims exhibit certain types of behavior so as to assist psychology
professionals in providing therapy and treatment.” (People v. Bowker (1988) 203
Cal.App.3d 385, 392, fn. 8, citing Summit, The Child Sexual Abuse Accommodation
Syndrome, supra, at pp. 179-180.)
It is well established that expert testimony regarding CSAAS is inadmissible to
prove that a defendant sexually abused a child and thus committed the sex crimes with
which he is charged. (People v. Perez (2010) 182 Cal.App.4th 231, 245; People v. Wells
(2004) 118 Cal.App.4th 179, 188; People v. Patino (1994) 26 Cal.App.4th 1737, 1744.)
However, expert testimony about CSAAS is admissible for the very limited purpose “‘of
disabusing a jury of misconceptions it might hold about how a child reacts to a
molestation.’ [Citations.]” (People v. Wells, supra, at p. 188; accord, People v. McAlpin
(1991) 53 Cal.3d 1289, 1300-1301; People v. Patino, supra, at p. 1744; People v.
Bowker, supra, 203 Cal.App.3d at p. 392.) Stated otherwise, “CSAAS testimony ‘is
admissible to rehabilitate [the molestation victim’s] credibility when the defendant
suggests that the child’s conduct after the incident—e.g., a delay in reporting—is
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inconsistent with his or her testimony claiming molestation. [Citations.]’” (People v.
Sandoval (2008) 164 Cal.App.4th 994, 1001, quoting People v. McAlpin, supra, at pp.
1300-1301.) “‘Such expert testimony is needed to disabuse jurors of commonly held
misconceptions about child sexual abuse, and to explain the emotional antecedents of
abused children’s seemingly self-impeaching behavior. . . .’ [Citation.]” People v.
McAlpin, supra, at p. 1301.) CSAAS “evidence must be tailored to address the specific
myth or misconception suggested by the evidence.” (People v. Wells, supra, at p. 188,
citing People v. Bowker, supra, at pp. 393-394.)
3. Relevant Facts and Analysis
Prior to trial in this case, the People filed a motion pursuant to Evidence Code
section 402, seeking to admit testimony regarding CSAAS. The People sought to offer
the testimony of Eisen to explain CSAAS. The People anticipated that the defense would
attack the credibility of the victims by “rely[ing] upon common misconceptions
associated with the victim’s conflicting statements and delayed disclosure.” In the
People’s view, the expert’s proffered testimony was necessary “to support the victim’s
credibility and to rebut the inferences raised by the defense at trial in this matter.”
Defendant filed written opposition to the motion, arguing, among other things, that the
proffered testimony was inadmissible pursuant to Evidence Code section 352. Defendant
further argued that if the court admitted the evidence, it had to restrict the evidence and
give the jury a limiting instruction.
Following an Evidence Code section 402 hearing, the court ruled: “I will allow the
expert to testify on secrecy, helplessness and delay, but I expect his testimony to be very
brief and directly to the point. And of course, I will give [an] appropriate limiting
instruction. I’m not very comfortable with this . . . . but I am going to allow it because I
see other cases have allowed it and I think that it is of some possible value. But if I feel
it’s being abused, I will certainly step in. So over objection, that is the court’s ruling.”
While Eisen testified, the trial court took painstaking care to ensure that his
testimony stayed within the perimeters of its ruling. Eisen explained that CSAAS is a
6
theory or model that sheds light on why child victims of sexual abuse delay in reporting
the abuse. Despite its name, CSAAS is not a syndrome at all. Nor is it a diagnostic tool
or “a science concept per say.” Rather is it a “simple clinical theory about why many
kids don’t tell about their abuse experiences right away.”
When the prosecutor asked Eisen to explain the key elements of the model, the
trial court interjected: “That’s too broad. I’ve limited Dr. Eisen’s testimony, Ladies and
Gentlemen, and he’s here principally to talk about what the research has shown regarding
whether or not persons or children claiming to have been victims of m[olestation]
immediately report, or is it common that they do not. And that’s really what we’re
focusing this testimony on.”
Upon inquiry by the trial court, Eisen acknowledged that he had not interviewed
anyone about the claims in this case and he was only in court to testify that there may be
a commonly held misconception about the behavior of victims of abuse. At that juncture,
the court addressed the jury: “And, Ladies and Gentlemen, you are not to consider this
evidence from this witness as evidence that any of the claims of the victim, the alleged
victims in this case are, in fact, true. His testimony is very limited only to this idea that to
the common person it might be thought that well, if somebody has something bad happen
to them they immediately report it, and he’s here to say, well, the research shows
otherwise and I think we’re going to have a few more questions and that’s going to be it.
I’ll give you a more limiting instruction at the appropriate time, but this is what is called a
limiting instruction as to what he is saying and you must not rely on his testimony to
determine if the claims of the alleged victims in this case are true or not. That is a jury
question and you are the jury and I’m not allowing him to opine on that.”
Thereafter, Eisen testified that one of the key elements of CSAAS is delayed
disclosure by the victim. He explained that “all abuse happens in secrecy and children
feel helpless in the face of adult authority because they’re in charge.” Participation in the
activity with the adult, shame and self-blame are common reasons children might not
disclose the sexual abuse.
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On the other hand, Eisen noted that some children do report the abuse right away.
He explained that “[e]verybody differs in this regard. Everybody is different and all the
circumstances are different, but I think what everyone accepts, and I can safely say
there’s general acceptance on folks on all sides of this issue, is that retrospective studies
with adults tell us that most folks who report having experiences, sexualized experiences
with adults when they’re children do not tell when they’re children and really kind of
keep it to themselves over time.”
Eisen explained that CSAAS is not a predictor of whether sexual abuse actually
occurred and that a delay in reporting sexual abuse is not an indicator that there was
abuse. He emphasized that the individual who created the model did not use it as a
diagnostic tool to determine if sexual abuse occurred. Rather, his model was derived
from his observations in “actual cases” of child sexual abuse that children delayed in
reporting the abuse for a variety of reasons.
Immediately after Eisen completed his testimony, the court instructed the jury as
follows: “Ladies and Gentlemen, you have heard testimony from Dr. Mitchell Eisen
regarding Child Sexual Abuse Accommodation Syndrome. Dr. Eisen’s testimony about
the Child Sexual Abuse Accommodation Syndrome is not evidence that the defendant
committed any of the crimes charged against him. You may consider this evidence only
in deciding whether or not Evelyn L. and [M.]D.’s conduct was not inconsistent with the
conduct of someone who has been molested and in evaluating the believability of those
witness’ testimony.”3
M.D. testified defendant began molesting her sexually when she was around five
years old. The abuse continued until she was eight or nine when she returned to live with
her father. The abuse resumed in middle school when defendant was tutoring.
M.D. never intended to report the abuse. When police contacted her in February
2008 and told her that defendant had molested another girl, M.D. revealed that defendant
3 This instruction on CSAAS is set forth in CALCRIM No. 1193.
8
had molested her as well. She had been afraid to report the abuse, believing it would
destroy her relationship with defendant’s wife and daughters, whom she considered as
her mother and sisters, respectively.
Given M.D.’s substantial delay in reporting the sexual abuse at the hands of
defendant, and in reasonable anticipation that defendant would attack M.D.’s credibility
as a result, the trial court acted well within its discretion in allowing Eisen to give limited
testimony about CSAAS in order to help the jury understand alternative explanations for
M.D.’s delayed reporting of the sexual abuse. (People v. Lindberg, supra, 45 Cal.4th at
p. 45; People v. McAlpin, supra, 53 Cal.3d at pp. 1300-1301; People v. Sandoval, supra,
164 Cal.App.4th at pp. 1001-1002.) And the trial court diligently ensured that the
“evidence [was] tailored to address the specific myth or misconception suggested by the
evidence.” (People v. Wells, supra, 118 Cal.App.4th at p. 188, citing People v. Bowker,
supra, 203 Cal.App.3d at pp. 393-394.)
4. Instructional Challenge
In accordance with CALCRIM No. 1193, the trial court instructed the jury as
follows: “You have heard testimony from Dr. Mitchell Eisen regarding child sexual
abuse accommodation syndrome. Dr. Eisen’s testimony about child sexual abuse
accommodation syndrome is not evidence that the defendant committed any of the crimes
charged against him. You may consider this evidence only in deciding whether or not
Evelyn L.’s and [M.]D.’s conduct was not inconsistent with the conduct of someone who
has been molested, and in evaluating the believability of their testimony.” This is the
same instruction, the trial court gave the jury right after Eisen completed his testimony.
Defendant contends that this instruction “told the [jurors] that they could indeed
base their verdict on the very assumptions inherent in CSAAS — that [M.D.]’s behavior
in not reporting [defendant’s] abuse until more than 4 years after the last act was ‘not
inconsistent with the conduct of someone who has been molested’ and could also serve to
support her testimonial credibility.” We disagree.
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CALCRIM No. 1193 correctly told the jury that it was not to consider Eisen’s
testimony about CSAAS as evidence that defendant committed the crime against the
alleged victims. The instruction did not tell the jury to believe Evelyn or M.D. if their
conduct was consistent with the CSAAS. Instead it cautioned the jury not to disbelieve
the witnesses simply just because they did not report the abuse when it happened. Thus,
the instruction served to ensure that the jury would consider the evidence regarding
CSAAS only to evaluate Evelyn’s or M.D.’s credibility. We perceive no misdirection in
this instruction.
B. Discovery Sanctions
1. Relevant Facts
In correspondence dated September 30, 2009, the defense provided the prosecutor
with a list of witnesses it “reasonably intend[ed] to call at trial.” Among the individuals
listed was Sinkhorn. Defense counsel specified that “[n]o report from Dr. Sinkhorn is
anticipated, but will be provided to you if and when received by us.”
During a recess taken while the prosecutor was examining her last witness, she
advised the trial court that defense counsel had yet to disclose the substance of
Sinkhorn’s testimony. The prosecutor stated that Sinkhorn was on the defense’s witness
list and that defense counsel indicated that he would let her know once she rested.
Defense counsel stated that he told the prosecutor “that I wouldn’t mention him by name.
I wouldn’t mention what he was going to testify by name. I would tell her immediately
upon her resting. And if the court decides that it’s inappropriate at that time and it’s not
proper impeachment, okay. But for strategic work product reasons, I don’t want to
disclose at this point.”
After the prosecutor rested her case, the trial court inquired if defense counsel was
going to call Sinkhorn to testify. Defense counsel answered in the affirmative, after
which the following transpired:
“THE COURT: And what’s he going to testify to?
10
“[DEFENSE COUNSEL]: He’s going to testify that were a nine-year-old girl to
be raped for five to ten minutes in the manner that Evelyn described herself as having
been raped,[4] that there would be even to this day demonstrable evidence, physical
evidence which would be displayed by a medical exam confirming the existence of that
rape. And given the People’s failure to provide any such evidence, the natural conclusion
is that none exists albeit; therefore, no such rape occurred. He is certainly not going to
argue — he’s just going to say that in a case like this where a girl nine, who is raped in
the fashion she says she was raped, for the period of time she said she was raped,
experiencing pain which would indicate a breaking of the hymen, that would mean that
there would be tissue scarring and that — and that any gynecological examination today
would show.
“THE COURT: He has not examined her; is that correct?
“[DEFENSE COUNSEL]: He has not and he’s not going to say that he has. The
argument is that the People didn’t put on such any evidence. And I’m, again going to
rely on a jury instruction that says if you conclude — the one that says you can take from
the absence of evidence — you know which one I’m talking about, your Honor.
“THE COURT: Sure, the circumstantial evidence instruction.
“[DEFENSE COUNSEL]: Well, there’s the one that specifically says — and I’m
drawing a blank right now, but the gist of it is if such evidence — you can assume by the
absence — you can conclude that if they failed to put on better evidence, something like
that — I have to look at the instructions.”
The court then inquired whether the People had an objection, and the prosecutor
answered in the affirmative. The prosecutor argued that the proffered evidence was
untimely, was not impeachment evidence and should have been disclosed earlier. The
4 Evelyn testified that defendant raped her when she was between seven and nine
and that the rape lasted about five minutes. It was not until she was 16 years old that she
told a doctor about the rape during a medical examination. After talking to the police,
Evelyn told her mother what had happened.
11
court sustained the objection, stating: “This is not what is anticipated by Izazaga[ v.
Superior Court (1991) 54 Cal.3d 356] as to material that can be withheld for the purpose
of cross-examining a witness and that’s my position. So I’m not going to allow him to
testify. I think it’s unfair surprise, . . . .” The following colloquy then took place:
“[DEFENSE COUNSEL]: Well, your Honor, just so I may?
“THE COURT: Sure.
“[DEFENSE COUNSEL]: The fact of the matter is that dollars for donuts if the
prosecution had that evidence, they’d put it on. I’m not required to —
“THE COURT: You can argue, there’s no physical evidence in the case. That’s
certainly permissible. Ladies and gentlemen — this is the argument I think you’re going
to be giving is, Ladies and Gentlemen, you can’t believe this witness. You can’t believe
this evidence. Where is the D.N.A. linking my client? Where is the physical evidence?
There’s nothing. We’re told that Evelyn went to the doctor. We don’t know anything
about what that doctor found. There’s no evidence of anything that shows that she was
penetrated in any way. I think that’s your argument. But for you to call a medical doctor
now and have him say, well, you know, I am impeaching her testimony because I’m
giving a medical opinion as to what her physical condition would be, I think it’s unfair to
the People. You had an obligation to have given it to the People.
“[DEFENSE COUNSEL]: Just so the record is clear, and the reason I didn’t is
because of the testimony that she went to a medical doctor. Okay. So the point being
that they introduced as their case in chief that she saw a doctor, thereby lending the
inference that she was examined in connection with this rape. At that point I’m entitled
to bring in impeaching evidence of what — what such examination should have shown
without prior disclosure.
“THE COURT: I don’t consider this impeaching evidence and you’ve got your
record.
“[DEFENSE COUNSEL]: Fair enough.
“THE COURT: You’ve got your objection. I just don’t think so. I think you had
to give notice. So I’m declaring failure of discovery.”
12
The following day, defense counsel filed a brief in support of his request to permit
Dr. Sinkhorn to testify. After both sides addressed the trial court, it ruled as follows:
“All right. I’ve heard the argument. I stand by my decision. Now, first of all, I think
your argument today makes little sense to me. I don’t think there’s anything on the basis
of this record that suggests that because [M.D.] has a worn hymen that that points at your
client. The D.N.A, evidence supports the fact that her own father was sexually assaulting
her. She testified to that fact — to that effect. If anything, the fact that the People are
stipulating that there is physical evidence of a worn hymen invites the argument from
you, and I would allow this argument, is where is the evidence that Evelyn had a worn
hymen. There is no medical evidence in this case. What I find so unfortunate here is that
I do think this was clear out-and-out surprise and an attempt to surprise the prosecution
for the very reason that the People have said.”
The court thereafter added: “And I can tell you that even if you didn’t have a
report from Sinkhorn, in the court’s view you were required to tell the People what you
were calling him for. And as you said yesterday, you were calling him to say that there
should be some type of physical evidence on Evelyn and the fact that the People did not
put any physical evidence in suggests that Evelyn is stretching the truth or is not being
truthful with the jury. And frankly, many of these arguments can still be made in light of
the fact that there is evidence, according to the stipulation that will be entered into, that
[M.D.] had a worn hymen. So I don’t feel I’m really hamstringing the defense. I am
viewing this as an attempt to ambush the People and an attempt to preclude them from
calling the doctor who saw Evelyn years ago. Who knows what that doctor would say,
but we’re entering into an area where the People cannot respond effectively when you
spring it on . . . at the last minute. And I do not consider this to be impeachment. So
that’s the court’s ruling. In terms of a lesser sanction, I don’t see one that’s possible
because the only way to rebut what Dr. Sinkhorn would say about Evelyn would be to
call Evelyn’s doctor and have the doctor say, well, according to my notes, and I mean,
who knows if the notes are destroyed. I don’t know. You can argue . . . to the jury there
is no medical evidence to support that Evelyn was penetrated.” “And there is medical
13
evidence to show [M.D.] was and we know who penetrated [M.D.], you’ve got the
D.N.A. You’ve got your argument, but . . . I’m not going to let you call Sinkhorn
because I feel that you did ambush the People and I think you were under an obligation to
produce it.”
2. Analysis
On June 5, 1990, California voters adopted Proposition 115, the Crime Victims
Justice Reform Act. This proposition was a “broad anticrime initiative measure” that,
among other things, added to the Penal Code statutory provisions establishing “a new
scheme of reciprocal discovery in criminal cases.” (Galindo v. Superior Court (2010) 50
Cal.4th 1, 10; accord, Clinton K. v. Superior Court (1995) 37 Cal.App.4th 1244, 1248.)
Before the adoption of Proposition 115 and the enactment of the statutory criminal
discovery provisions (§ 1054 et seq.), criminal discovery primarily was governed by case
law. (Schaffer v. Superior Court (2010) 185 Cal.App.4th 1235, 1242.)
Section 1054.3 provides: “(a) The defendant and his or her attorney shall disclose
to the prosecuting attorney: [¶] (1) The names and addresses of persons, other than the
defendant, he or she intends to call as witnesses at trial, together with any relevant written
or recorded statements of those persons, or reports of the statements of those persons,
including any reports or statements of experts made in connection with the case, and
including the results of physical or mental examinations, scientific tests, experiments, or
comparisons which the defendant intends to offer in evidence at the trial. [¶] (2) Any
real evidence which the defendant intends to offer in evidence at the trial.”
Whether defendant was required to disclose the substance of Sinkhorn’s testimony
prior to trial pursuant to section 1054.3, whether Sinkhorn’s proposed testimony
amounted to impeachment evidence, whether impeachment evidence is subject to
discovery and whether the trial court abused its discretion in precluding Sinkhorn from
testifying as a discovery sanction are questions we need not decide. Reversal of the
judgment is only required if the erroneous exclusion of evidence is prejudicial, resulting
in a miscarriage of justice. (Evid. Code, § 354; Cal Const., art. 6, § 13; People v. Watson
14
(1956) 46 Cal.2d 818, 836; People v. Memory (2010) 182 Cal.App.4th 835, 862.) It is a
miscarriage of justice if a result more favorable to defendant would have been attained in
the absence of error. (Watson, supra, at p. 836.) Inasmuch as the jury found defendant
not guilty of count 1, he cannot demonstrate that the exclusion of Sinkhorn’s testimony, if
error, was prejudicial insofar as the only count involving Evelyn L. was concerned.
As to the remaining counts involving M.D., the parties stipulated that during a
sexual assault examination performed in May 2004, the nurse discovered that M.D. had a
worn away hymen, a sign of chronic sexual intercourse. In addition, the DNA profile
matched M.D.’s father, not defendant. Since none of this evidence in anyway implicated
defendant, to the extent defendant argued that Sinkhorn would have testified it was
impossible to say with a degree of medical certainty which of two males caused M.D.’s
worn hymen, such testimony would not have aided in the determination whether
defendant molested M.D. We therefore reject in its entirety defendant’s contention that
the trial court improperly sanctioned defense counsel and violated his constitutional
rights to present a defense and due process by precluding Sinkhorn from testifying.
C. Motion for Release of Juror Identification Information
1. Relevant Proceedings
At the March 3, 2010 probation and sentencing hearing, defense counsel informed
the trial court that an investigation into possible juror misconduct was underway. The
trial court granted the defense’s request for a continuance in order to prepare a motion for
new trial.
On May 13, 2010, defendant petitioned the court for an order disclosing juror
information pursuant to Code of Civil Procedure section 237, claiming the information
was necessary to prepare a motion for new trial based, in part, upon jury misconduct.
The trial court denied the motion, concluding that counsel’s own declaration was
insufficient to establish a prima facie showing of good cause for release of the requested
information. The court continued the matter to allow defense counsel to renew the
motion.
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On June 11, 2010, defendant filed an amended petition seeking disclosure of juror
information. This time, the motion was supported by the declaration of Juror No. 7.
At the hearing on this renewed motion, the trial court noted that Juror No. 7’s
declaration contained 14 numbered paragraphs, the first two of which were foundational
in nature. With respect to paragraphs 3 through 12,5 the court found them “clearly
5 Therein Juror No. 7 declared:
“3. I did not believe that [M.]D.’s [sic] testified truthfully. I do not believe today
that [M.D.] testified truthfully. I know that other jurors did not believe [M.D.] testified
truthfully because during deliberations they so stated.
“4. Although I believe I understood most of the instructions that were provided to
the jury, I was confused by some of the wording contained therein. I know that other
jurors were also confused by the jury instructions because during deliberations they so
stated. Specifically, I was confused by the jury instruction pertaining to Counts 2, 3, and
4 regarding [M.D.]
“5. But for the wording of the jury instructions, I would not have voted to convict
the Defendant. Furthermore, based on what was said during deliberations, I do not
believe several other jurors would have voted guilty but for the wording of the jury
instructions.
“6. When deliberations began, the jury was split approximately in half as to the
charges relating to [M.D]. Most of the female jurors (with the exception of one or two)
believed that [M.D.] was telling the truth and voted to convict the Defendant. Most of
the men, however, did not believe [M.D.]’s testimony, thought she was lying, and
initially voted ‘not guilty’. Several jurors were undecided.
“7. After repeated votes without any change in the voting, we referred to the jury
instructions.
“8. I and other jurors did not believe the Defendant raped or otherwise had sex
with [M.D.] at any time, and to this day I still hold this belief.
“9. Specifically, the jurors (myself included) who previously voted to acquit the
Defendant were confused by the instruction pertaining to Counts 2, 3, and 4, in that it
lead [sic] us to believe that if there was any possibility that Defendant touched [M.D.] on
any part of her body at any time, he was guilty of the crime alleged in Counts 2, 3, and 4.
“10. Accordingly, I answered yes to the question of whether the Defendant
‘willfully touched any part’ of [M.D.]’s body because I believed it was possible the
Defendant did touch her.
“11. Once we reached the conclusion that it was possible that the Defendant may
have touched [M.D.] on some part of her body, we found that it must have been for
sexual gratification because (of the jurors who initially voted not guilty) we collectively
believed there would be no other reason for him to do so. Accordingly, I answered yes to
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insufficient to show good cause because they contain hearsay statements and evidence of
the juror’s subjective reasoning processes which by law would be incompetent to
impeach the verdict pursuant to Evidence Code section 1150.” After stating that there
was nothing in the first 12 paragraphs that would cause it to commence the process
entailed in releasing juror information, the trial court turned to paragraphs 13 and 14 in
which Juror No. 7 stated:
“13. Furthermore, I know that at least one of the jurors slept through at least 25%
of the trial because I saw her sleeping, and because the juror admitted having been asleep.
Other jurors told me they saw her sleeping as well.
“14. Also, I know that one of the jurors did not speak sufficient English to
adequately understand or communicate, which prevented her from participating in
deliberations, because it was discussed during deliberations and because it was apparent
to me by her words and conduct. Significantly, this juror stated during voir dire that she
did not speak English well and believed it would prevent her from performing her duties
as a juror.”
With regard to paragraph 13, the trial court stated, “I can tell you I presided at this
trial. One of my jobs is to watch the jurors. In a recent trial I excused a juror for
sleeping. I did not see anyone in this short trial sleeping and I take exception to the
juror’s allegation. I think I do not place a great deal of weight on it based on my own
observation of the trial.”
As for paragraph 14, the court observed, “That leaves me with paragraph
number 14, that one of the jurors did not speak sufficient English to adequately
understand or communicate. Now, that’s — again, that’s a conclusion by this Juror
Number 7 who is unhappy with the verdict for some reason after having agreed that the
the question whether the Defendant ‘committed the act with the intent of arousing,
appealing to, or gratifying [his] lust, passions, or sexual desires’.
“12. I further believed that if I answered yes to the foregoing, that I had to answer
yes to the question of whether this amounted to ‘substantial sexual conduct or lewd and
lascivious conduct’, and therefore voted guilty on counts 2, 3, and 4.”
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verdict was his verdict, having been polled in open court. Each juror participated in voir
dire. Each juror provided in open court in front of others in English that juror’s
residence, marital status, occupation, occupation of spouse, if the juror had prior jury
service, the juror’s education, and whether the juror belonged to any politically affiliated
organization. And in addition, as []is my custom in cases such as this, I ask how many
children the jurors had and the age and sex of the children, and I believe I did in this case.
My notes show in the jury selection, in addition I asked each juror, giving each juror a
microphone, to respond that if the juror had ever known anyone who was a victim of
child molestation or accused of child molestation. In short, it is my observation that in
questioning the jurors, that the jurors who ended up on this panel or on this jury spoke
sufficient English to respond to all of these questions.
“I’ve been doing this a long time and it is often the case in jury selection that
jurors will assert that they don’t speak good English for one reason or another, and I have
frequently excused from panels jurors that I believe did not have a sufficient command of
the English language to fulfill their obligations as jurors. I did not have that concern
about any of the jurors in this case. Again, I watched carefully as the jurors responded in
open court to voir dire. And frankly, I felt there was a sufficient understanding of the
English language evidence by all jurors who ended up on the case and I’m not accepting
of this Juror Number 7’s statements that his opinion now, well after the fact, that one of
the jurors did not understand sufficient English to participate meaningfully and the jury
instructions has any bearing in fact. I just am very doubtful of that, and I’m very
concerned of this kind of allegation that comes forward well after the fact. So I therefore
reject based on my own observation that these last two points made by the juror.”
The court further noted that “this is kind of a grasping-at-straws effort by the
defense to find error in a case that was a very simple, straightforward case. The jury was
presented with the testimony of two alleged victims. The jury rejected the testimony of
one of the alleged victims and believed [M.]D. This court found [M.]D. to be an
extremely believable witness, despite the evidence of the defense to impeach her for
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possible bias. There just wasn’t any showing of meaningful bias that the court could see,
and I think the jury felt the same way.”
Commenting further, the court stated: “I’ve given counsel I think more than
adequate time to bring this motion. This is the second attempt by the defense in this case
to obtain juror identifying information. This defendant was convicted back in February
of 2010. My records show the conviction was returned on February 10th. Here it is,
we’re near the end of July and the only allegation that I think has any merit is — the only
allegations that have any merit for consideration are that, well, gee, maybe one of the
jurors was sleeping and one of the jurors didn’t speak good enough English, and I reject
both of those frankly. I was here. I saw the trial. I thought the defendant got a fair trial.
It was a very short trial. It was a question of who are you going to believe, and frankly,
the prosecution produced in my view a very believable witness. So that’s where I come
out with this. That’s the record.”
2. Applicable Law
After a criminal jury verdict is recorded, all identifying juror information is sealed
until further order of the trial court. (Code Civ. Proc., § 237, subd. (a)(2).) Code of Civil
Procedure section 206, subdivision (g), permits a defendant to petition the trial court,
pursuant to Code of Civil Procedure section 237, for access to personal juror
identification information—i.e., jurors’ names, addresses, and telephone numbers—upon
a showing that such information is necessary for a new trial motion or any other lawful
purpose. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1087.) A motion for
disclosure of juror information must be “supported by a declaration that includes facts
sufficient to establish good cause for the release of the juror’s personal identifying
information. The court shall set the matter for hearing if the petition and supporting
declaration establish a prima facie showing of good cause for the release of the personal
juror identifying information . . . .” (Code Civ. Proc., § 237, subd. (b).)
The trial court’s decision to deny a petition for an order disclosing juror
information pursuant to Code of Civil Procedure section 237 “is reviewed under the
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deferential abuse of discretion standard.” (People v. Carrasco (2008) 163 Cal.App.4th
978, 991; accord, People v. Santos (2007) 147 Cal.App.4th 965, 978.)
3. Analysis
Defendant contends the trial court abused its discretion in refusing to release juror
identification information so that he could investigate juror misconduct. On appeal, he
only relies on the grounds set forth in paragraphs 13 and 14 of Juror No. 7’s declaration
to support this contention.
With regard to Juror No. 7’s claim that a juror was asleep for one-quarter of the
trial, the trial court rejected that assertion, noting that it had watched the jury and did not
notice any juror sleeping. The court’s disbelief of Juror No. 7 based upon its own
personal observations was more than a sufficient basis for rejecting this ground for
defendant’s motion for disclosure of the jurors’ personal identifying information.
(People v. Carrasco, supra, 163 Cal.App.4th at p. 991; People v. Santos, supra, 147
Cal.App.4th at p. 978.)
With regard to Juror No. 7’s claim that one juror did not understand English
sufficiently, the record discloses that during voir dire Prospective Juror No. 41 said she
was having trouble understanding. The court thereafter asked if anyone else was having
trouble understanding English. When Prospective Juror No. 32 indicated she was having
trouble, the following colloquy transpired:
“THE COURT: How long have you lived in the United States?
“PROSPECTIVE JUROR NO. 32: 12 years.
“THE COURT: And what do you do for a living?
“PROSPECTIVE JUROR NO. 32: I’m not doing anything. I — I — I just a
housewife.
“THE COURT: Well, your English sounds terrific.
“PROSPECTIVE JUROR NO. 32: But I don’t think I fully understand, you know,
sometimes the names.
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“THE COURT: Let me tell you — well, Juror Number 32, your English is so
good, I’m going to hold on to you. Let me tell you that sometimes — sometimes people
come to court and they’re concerned about their ability to understand, and let me explain:
it’s up to the attorneys to explain the case to you. Don’t be afraid that they might be
using big words that you don’t understand because if they do, it’s on them, it’s their
problem. The job of an attorney, in part, is to help the jurors understand what the case is
about and what the evidence is, and don’t — don’t be concerned in that regard.”
Noting it was “more concerned” about Prospective Juror No. 41, the trial court
excused her. Upon inquiry, neither the prosecutor nor defense counsel had any objection.
They also voiced no concerns about Prospective Juror No. 32, who had no problem
understanding or answering questions posed during further voir dire, who had served on a
prior jury, and who ultimately was seated as Juror No. 10. Neither the prosecutor nor
defense counsel challenged Prospective Juror No. 32 for cause, and they did not exercise
a peremptory challenge against her despite having additional peremptory challenges to
exercise.
Under these circumstances, we conclude that the declaration of Juror No. 7 did not
establish juror misconduct justifying a hearing under Code of Civil Procedure section
237. Defendant has failed to demonstrate that the trial court abused its discretion in
denying his motion for an order disclosing juror information. (People v. Carrasco,
supra, 163 Cal.App.4th at p. 991; People v. Santos, supra, 147 Cal.App.4th at p. 978.)
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DISPOSITION
The judgment is affirmed.
JACKSON, J.
We concur:
PERLUSS, P. J.
ZELON, J.
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