People v. Dunn
205 Cal. App. 4th 1086
Cal. Ct. App.2012Background
- Dunn was convicted by a jury of sexual offenses against an eight-year-old relative, including a count for sexual intercourse with a minor and a lewd act on a child, with priors alleged.
- The defense moved for mistrial when Dunn’s retained expert, Lynne Ticson, unexpectedly could not testify; the court denied the motion.
- Minor described Dunn as placing himself on top and rubbing genitals, which was corroborated by others who heard her say she wasn’t Ava.
- Minor later tested positive for syphilis; Dunn and Minor’s mother were tested with Dunn testing positive.
- Katz, a public health expert, testified on syphilis transmission and chancre characteristics; the defense and prosecution theory centered on whether penetration occurred and what constitutes sexual intercourse.
- The trial court instructed the jury on sexual intercourse as labial penetration and the prosecution’s theory did not require vaginal penetration; the defense theory hinged on interpretation of penetration and the absence of physical findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of mistrial was an abuse of discretion | Dunn | Dunn | Not an abuse; evidence was strong and Ticson’s absence unlikely to change outcome |
| Whether failure to subpoena expert witness caused ineffective assistance | Dunn | Dunn | No reversible prejudice; not ineffective assistance |
Key Cases Cited
- People v. Clark, 52 Cal.4th 856 (Cal. 2011) (abuse-of-discretion standard for mistrial)
- People v. Davis, 31 Cal.App.3d 106 (Cal. App. 1973) (new trial considerations for absent witness)
- Beard, 46 Cal.2d 278 (Cal. 1956) (diligence in securing witnesses; subpoena practice)
- DePrima, 172 Cal.App.2d 109 (Cal. App. 1959) (factors for new trial when witness absent)
- Goodale, 33 Cal.App.2d 80 (Cal. App. 1939) (new trial considerations; defense witness availability)
- Glover, 270 Cal.App.2d 255 (Cal. App. 1969) (continuance and continuance-related issues for witnesses)
- Randle, 130 Cal.App.3d 286 (Cal. App. 1982) (defendant fault for witness nonappearance)
- In re Asencio, 166 Cal.App.4th 1195 (Cal. App. 2008) (testimony relevance to penetration; jury instructions)
- Stinson, 214 Cal.App.2d 476 (Cal. App. 1963) (evidence strength and guilt assessment)
- Quintana, 89 Cal.App.4th 1362 (Cal. App. 2001) (definition of sexual intercourse; labial penetration)
- Karsai, 131 Cal.App.3d 224 (Cal. App. 1982) (penetration standards for conviction)
- Stankewitz, 40 Cal.3d 391 (Cal. 1985) (jury instructions and standard for reasonable-doubt)
- Stinson, 214 Cal.App.2d 476 (Cal. App. 1963) (strength of evidence in upholding conviction)
- Chapman, 386 U.S. 18 (U.S. Supreme Court 1967) (harmless-error standard)
- People v. Babbitt, 45 Cal.3d 660 (Cal. 1988) (cumulative evidence and due process)
- People v. Ochoa, 19 Cal.4th 353 (Cal. 1998) (new trial based on absence of witness testimony)
- People v. Harris, 22 Cal.App.4th 1575 (Cal. App. 1994) (no reversible error where evidence overwhelming)
- In re Quintana, 89 Cal.App.4th 1362 (Cal. App. 2001) (definition of sexual intercourse; labial vs vaginal)