THE PEOPLE, Plaintiff and Respondent, v. TERENCE BOTHUEL, Defendant and Appellant.
No. D004552
Fourth Dist., Div. One.
Oct. 26, 1988.
205 Cal. App. 3d 581
Charles L. McKinstry, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, William M. Wood and Randa McDaniel Trapp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WIENER, Acting P. J.—Defendant Terence Bothuel appeals after a jury found him guilty on six counts of various sex crimes involving the alleged
FACTUAL AND PROCEDURAL BACKGROUND
D. was five years old when her parents, Terence and Laurie Bothuel, moved into the Mountain View Apartments in February 1984. During this time, Laurie worked nights as a nursing assistant and Terence stayed home to care for D. and her infant brother. D. testified that her father allowed her to watch the Playboy cable channel while her mother was at work. She explained that Terence used his hands and “weenie” to touch her vaginal, naval аnd rectal areas as well as her nipples and mouth. She also stated that her father gave her a “marriage kiss” all over her body. D. described a “marriage kiss” as “one of those real long kisses.”
D. first told her mother about the alleged molestations in early September 1984.2 The Bothuels were having marital difficulties at that time. On September 23, apparently in response to verbal and emotional abuse, Laurie moved out of their apartment and into the Battered Women‘s shelter. In answer to Laurie‘s inquiries, D. repeated her allegations at the shelter. Laurie then contacted the police who interviewed D. on September 29. During the hour-and-a-half interview, D. changed the details of her story a number of times and also told the detectives she had had sex with strange men in the neighborhood. Near the end of the interview, after being reminded of the importance of telling the truth and informed about the seriousness of her allegations, D. admitted she had made up the entire story. After additional questioning, the detectives concluded there was no basis for pursuing the matter further.
Terence proceeded to D.‘s room to visit. The nurses allowed him to spend the night in a chair in his daughter‘s room. At least until 11 p.m., a video camera was in opеration which allowed the nurses to monitor the interior of D.‘s room. Later the monitoring system was turned off. Throughout the night, the nurse on duty checked D.‘s room at one- to two-hour intervals. D.‘s maternal grandmother and aunt came to visit her between 8 and 8:30 p.m. and stayed for about a half-hour. Although they noticed nothing unusual about D., they did recall that Terence acted uncommonly nervous.
D. testified that Terence molested her on the night of October 4-5. Using anatomically detailed dolls at trial, D. demonstrated how Terence used his hands and mouth to touch her vaginal area, navel, nipples and rectal area. She testified that Terence gave her a “marriage-type kiss” on the mouth and forced her to touch his penis. She also manipulated the dolls to show the adult male‘s penis touching the female child‘s vagina, rectal area and nipples. During the demonstration, D. undressed the female doll but left the adult male doll fully clothed. Nonetheless, she testified verbally that her father was naked during the molestation and that afterward, he watched television in her room with his clothes off. She also stated that the “bad touching” occurred before her grandmother and aunt visited her.
Laurie arrived at the hospital at approximately 11 a.m. on the morning of October 5 to arrange for D.‘s release. She met Terence in D.‘s room and went to hаve a cup of coffee with him. Returning to D.‘s room a short time later to get her dressed, Laurie discovered several small, dried yellowish spots on the bottom sheet and a yellowish sticky discharge on the lips of D.‘s vagina. She described it as having a “salty” odor.
Laurie immediately called the duty nurse, Bernardina Ochoa, to check the situation. Ochoa discovered a brown, dried substance on D.‘s inner
D. wаs then interviewed by the hospital social worker. In unsupervised play with commercially available toy dolls, D. acted out and narrated several stories. The stories all ended with D. saying, “And father molested her.” At the end of one of the stories, D. added, “And he kicked her in the head and broke her and she died.”
D. was examined by Dr. Joan Reese, a pediatrician at Children‘s Hospital, late in the afternoon of October 5. Dr. Reese testified she observed a variety of things which were consistent with both long-term and recent sexual abuse including a relaxation of the sphincter, hyperpigmentation and wrinkling of the labia, a relaxation and thickening of the hymenal opening and erythema (redness) in both the vaginal and rectal areas. On cross-examination, the doctor agreed that the symptoms she observed could have been caused by things other than sexual abuse. She also testified that D. did not exhibit certain symptoms such as anal fissures or hymenal tears which would also be consistent with abuse. Based largely on the absence of the latter factor, Dr. Reese admitted her observations were more consistent with digital rather than penile penetration.
Another pediatrician, William McCord, testified as a defense expert. In addition to agreeing that the observed symptoms were not necessarily attributable to sexual аbuse, Dr. McCord also testified that a monillia infection causes a vaginal discharge which is easily confused with semen.
DISCUSSION
I
Dr. Margaret Vernon, a licensed psychologist, testified for the prosecution regarding the CSAAS. Her wide-ranging testimony discussed in general how children react to abuse, how they report abuse and why they behave in ways which adults often misinterpret as indicating the child is fabricating all or part of the story.
Defense counsel initially objected to the introduction of Dr. Vernon‘s testimony as violating the Kelly-Frye test.4 The trial court ruled that the
In People v. Bowker, supra, 203 Cal.App.3d 385, this court considered the general question of the admissibility of CSAAS testimony within the constraints of the Supreme Court‘s rape-trauma-syndrome decision in People v. Bledsoe (1984) 36 Cal.3d 236 [203 Cal.Rptr. 450, 681 P.2d 291]. We explained that Bledsoe and the Kelly-Frye test preclude the admission of CSAAS evidence to prove that a child has been abused because the syndrome was developed not to prove abuse but to assist in understanding and treating abused children. In other words, the syndrome assumes as its premise that the child has been sexually molested. Bowker goes on to examine the tension between the inadmissibility of CSAAS evidence to prove abuse and Bledsoe‘s allowance that testimony about the behavior of abuse victims, which derives in large part from CSAAS research, is admissible to dispel common misconceptions the jury may hold as to how such children react to abuse. We discussed how expansive “educational” testimony on CSAAS by a psychology professional—even if reference to the specific victim is avoided—has the potential of being used by an untrained jury as a construct within which to pigeonhole the facts of the case and draw the conclusion that the child must have been molested. (203 Cal.App.3d at p. 393.)
We endeavored to resolve this tension by impоsing two requirements. First, the expert‘s testimony must be narrowly tailored to the purpose for which it is admissible. In other words, the prosecution is obligated to “identify the myth or misconception the evidence is designed to rebut” and the testimony must be limited to exposing the misconception by explaining why the child‘s behavior is not inconsistent with his or her having been abused. (203 Cal.App.3d at p. 394.) Second, if requested the jury must be
In this case, Dr. Vernon‘s testimony clеarly violated the first of the two Bowker requirements.5 The prosecutor did not identify any misconceptions and, more importantly, Dr. Vernon‘s testimony was not limited to explaining why D.‘s behavior was not inconsistent with her testimony that her father had molested her. Nonetheless, we do not believe it reasonably probable that the overbreadth of Dr. Vernon‘s testimony contributed to the result.
To begin with, much of the evidence would have been admissible in any event. Although Dr. Vernon gave a general outline of CSAAS which included a brief description of the five component parts or stages of the syndrome, most of her testimony focused on those components which relate to why abused children often delay reporting and why they make inconsistent statements when they finally do report an incident or practice of molestation. Here, D. initially delayed in reporting abuse by her father and then told varying stories about the details of such abuse, going so far as to retract her accusations after the police investigators emphasized to her the seriousness of the charges.6 Dr. Vernon‘s testimony was clearly admissible to explain why D. might behave in such a manner and still be a victim of sexual abuse.7
In addition, although defense counsel made an initial general objection to any expert testimony related to CSAAS, he never made any specific objections based on the breadth of Dr. Vernon‘s comments. Moreover, much of
Finally, the trial court clearly demonstrated its understanding of the limited basis for which the testimony was admissible and—despite defense counsel‘s failure to request an instruction—admonished the jury about its restricted use. (See ante, p. 587.) Although Bothuel would likely have been entitled to more comprehensive instructions on request, the admonition given went a considerable distance toward dispelling any prejudice arising from the overbreadth of Dr. Vernon‘s testimony. Accordingly, we conclude it is not reasonably probable the jury would have reached a result more favorable to Bothuel in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; People v. Bowker, supra, 203 Cal.App.3d at p. 395.)
II
The events at Bay General Hospital on the night of October 4-5 formed the basis for three separate charges against Bothuel: one count of oral
The jury was appropriately instructed it had to unanimously agrеe on a particular act before it could convict on either of the Penal Code section 288 counts. Because there was no special verdict, however, we cannot know which two of the lewd acts relied upon by the prosecutor the jury unanimously agreed upon in order to convict Bothuel. There remains, therefore, the question whether each of the various acts described by D. can properly support a separate violation of
Conceptually it is helpful to distinguish two categories of acts which can serve as the basis for a section 288 charge. First, subdivision (a) specifically provides that acts constituting separate crimes punishable under other sections may also be charged as violations of section 288. Thus, acts of unlawful sexual intercourse (
In People v. Perez (1979) 23 Cal.3d 545 [153 Cal.Rptr. 40, 591 P.2d 63], a multiple sex offense case involving a single adult victim, the Supreme Court held that
A more difficult issue is presented when some or all of the Penal Code section 288 charges against a defendant are based on so-called “undefined lewd acts.” This is because acts of touching and fondling are оften incidental and preparatory to the commission of other defined acts and must appropriately be viewed as part and parcel of a single offense. (See People v. Hammon, supra, 191 Cal.App.3d at p. 1097 (“To define a sexual offense along the lines of each individual penetration or contact would lead to absurd results.“).) Thus, in People v. Greer (1947) 30 Cal.2d 589, 604 [184 P.2d 512],10 the Supreme Court held that the forcible removal of the victim‘s underclothes before a rape was not a separately punishable lewd act within the meaning of section 288. A year later in People v. Slobodion (1948) 31 Cal.2d 555 [191 P.2d 1], the Supreme Court distinguished Greer in a case in which evidence of an act of rape supported a conviction for violating section 288 apart from a separatе conviction for oral copulation based on
The principles of Greer and Slobodion were applied in People v. Cline (1969) 2 Cal.App.3d 989 [83 Cal.Rptr. 246] and People v. Ross (1965) 234 Cal.App.2d 758 [44 Cal.Rptr. 722] to reverse Penal Code section 288 convictions which were based оn “undefined lewd acts” incidental to another defined crime. In Cline, the defendant touched various portions of the victim‘s body before he performed an act of oral copulation. In Ross, over a period of 20 to 30 minutes, the defendant touched the breasts and genitals of the 13-year-old victim before he engaged in forcible intercourse. In each
Greer and Slobodion stand for the proposition that where there is but a single defined sexual act, incidental touchings may simply constitute part of a single indivisible course of conduct which is punishable as a single violation of section 288.11 Here, D.‘s testimony suggested she may have been raped, sodomized and digitally penetrated during her stay in the hospital. She also identified other touchings which, given the lack of specificity in her testimony, must be assumed to have been incidental ones.12 If the two Penal Code section 288 convictions were based on unanimous jury agreement as to the rape, sodomy and/or digital penetration, they would clearly be proper under People v. Perez, supra, 23 Cal.3d 545 and its progeny. But not only did the information fail to specify which acts the two counts pertained to; the prosecutor invited the jury to consider any number of other incidental touchings whiсh were insufficient to support a separate section 288 conviction.
Because of this error, we cannot know for certain whether the jury relied on a permissible or impermissible basis for finding Bothuel guilty on two counts of violating
III
Officer John Duncan of the Chula Vista Police Department transported D. from Bay General Hospital to Children‘s Hospital on the afternoon of August 5. While he was at Children‘s Hospital, he learned the washcloth and towel which had been used by Nurse Ochoa to clean D. had been retained at Bay General. He later contacted the police dispatcher between 8 and 9 p.m. and was informed the items had been saved for some period of time but had since been placed in the laundry bin. Thereafter he made no further attempt to retrieve the items even though they apparently remained separated from the rest of the laundry in a plastic bag until approximately 10 p.m.
Defense counsel made a pretrial motion based on People v. Hitch (1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361] and People v. Nation (1980) 26 Cal.3d 169 [161 Cal.Rptr. 299, 604 P.2d 1051] to dismiss the case or for “favorable findings of fact.” The hearing on the motion included testimony by Officer Duncan and Nurse Ochoa. The evidence failed to establish the police were at any time made aware that the towel and washcloth were retrievable after they were plаced in the laundry bin. The trial court denied the motion.
Hitch and Nation, to the extent they are not supplanted by California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528],15 establish a duty on the part of police investigative agencies to take appropriate steps to preserve evidence which it is reasonably possible may be material to the defense. As the Supreme Court recognized in People v. Hogan
Here, no one from the police department ever obtained the washcloth and towel from the hospital. Bothuel suggests the police were in constructive possession of items when hospital personnel informed them of their existence. At best, however, the evidence presented in support of the Hitch motion established that certain hospital employees recognized the towel and washcloth were significant. Unfortunately, this information was communicated to the police in such a way that Officer Duncan reasonably believed the items had already been disposed of. Accordingly, even if a constructive possession theory were available in a Hitch/Nation situation, there is an insufficient factual basis for applying it here.
Under these circumstances, the trial court properly denied Bothuel‘s Hitch motion.
IV
Part of Bothuel‘s defense was his attempt to establish that D. had engaged in a pattern of making false molestation allegations. Consistent with this theory, D. herself admitted she had falsely told her mother at one point that two neighbors had molested her. Bothuel also sought to introduce evidence that approximately eight months after the hospital incident, D. reported to a therapist that her maternal uncle had molested her. Defense counsel made an offer of proof that the uncle would testify he did not molest D.
The prosecution objected to the admission of the uncle‘s testimony and the trial court excluded it under
The trial court‘s ruling was within its discretion. Evidence of D.‘s allegation against her uncle was relevant only if the defense could show it was a false allegation. The uncle‘s self-serving testimony that he did not molest D.
V
During in limine motions, defense counsel sought a ruling from the trial court as to whether Bothuel could be impeached by his 1977 conviction for burglary. Counsel explained that Bothuel would testify in any event. The court ruled that burglary was a crime involving moral turpitude—and hence admissible under People v. Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111]—but declined to consider exercising its discretion under
Bothuel now contends the court erred in failing to сonsider the nature of the crime underlying the burglary conviction in assessing whether it was a crime involving moral turpitude. He also argues the court was obligated to prerule on the admissibility of the burglary conviction for impeachment purposes. Significantly, he does not assert the trial court abused its discretion in admitting the prior felony conviction.
As to the first contention, Bothuel cannot be heard to complain since defense counsel agreed burglary was a crime involving moral turpitude. In any event, under People v. Castro, supra, 38 Cal.3d at page 314, a crime involving moral turpitude is broadly defined as one indicating “a readiness to do evil.” Regardless of its object, a burglary satisfies this threshold. (People v. Williams (1985) 169 Cal.App.3d 951, 957 [215 Cal.Rptr. 612]; People v. Almarez (1985) 168 Cal.App.3d 262, 268 [214 Cal.Rptr. 105].)
As to thе timing of the court‘s ruling, Bothuel might have a basis for concern if his decision to testify was dependent on the court‘s ruling. Here, however, Bothuel announced his intention to testify in any event. Thus, even if a defendant is entitled to a ruling on the admissibility of a prior conviction before he decides to testify, there can be no prejudice on the facts of this case.
The judgment is affirmed.
Work, J., concurred.
WOODWORTH, J., Concurring and Dissenting.* —I fully concur in the majority opinion so far as it affirms the judgment of conviction as to counts 1, 2, 4, 5, and 6.
As to counts 2 and 3, however, I believe the appellant is correct in contending there is no factual distinction between those counts. Although the information labels them “first incident” and “second incident” the evidence actually showed only one indivisible course of conduct in the hospital room.
Furthermore, due process of law requires the state to identify the acts upon which the prosecution is based. (People v. Van Hoek (1988) 200 Cal.App.3d 811, 818 [246 Cal.Rptr. 352].)
On count 2 there was a consecutive sentence and on count 3, concurrent. The conviction of count 3 is duplicative of count 2, and should be reversed.
* Assigned by the Chairperson of the Judicial Council.
Notes
“A The reason I‘m getting hung up on this is because disclosure is correlated with actual abuse because rarely do children disclose when they have not been abused.
“Q Okay. [¶] We‘ll get into that a little later.”
Defense counsel made no motion to strike the answer as nonresponsive. In fact, he later brought up the subject again:
“Q Now, you indicated earlier that you feel that children don‘t usually lie about reporting sexual abuse; is that correct?
“A That‘s been my experience.
“Q And that‘s something that you believe?
“A That‘s something I believe. I believe that it sometimes can occur.
“Q And doesn‘t Dr. Summit sort of expouse [sic] the feeling that professionals like yourself, when dealing with a child should start out strongly in believing them; isn‘t that true?
“A I think it is important to portray a feeling of belief to the child. [¶] You may have some of your own questions in your mind, but I think it is important not to portray those.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Q And as a result of that feeling, would you agree that there are cases where a child has lied that have gone undetected by yourself because you have the attitude that you‘re assuming they‘re telling the truth?
“A No, I feel like—when I first began in this field, I was taught that children never lie about this, and that was my attitude. [¶] I feel like I‘m more aware now of the possibility and I do entertain that possibility.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Q So there‘s some percentage, ninety or ninety-five, whatever percentage you choose to fix, you feel the children are telling the truth about sexual abuse?
“A Yes. Yes.
“Q But whatever minute percеntage there is on the other side, those children are lying, and you believe that, then?
“A It has not been that common, but yes, I believe that exists.”
“Another leud [sic] act which she described was a marriage-type kiss on her mouth and she described what she thought a marriage-type kiss was. Another separate act again in the hospital was the defendant making the victim touch his penis with her hand and she described others. She talked about the penis and the penis touching her chest, and she pointed on the doll to the nipple areas of the doll. She also pointed to the rectal area. Those were all leud [sic] acts different from the oral copulation which is alleged in separate charges.”