People v. ChenaultPeople v. Chenault
Siri Shetty, 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, Assistant Attorney General, A. Natasha Cortina and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL BACKGROUND
Counts 1 through 12.
Chenault and his wife Sh. had two daughters, V. and S., and an older son, B. S. was born in 1989 and V. was born in 1991. In or about 1993, Chenault and Sh. were divorced and Sh. received custody of their children. When the children visited Chenault on weekends, he would sleep on one mattress of a trundle bed with one of the children and the other two would sleep on the other mattress.
When S. was five or six years old, Chenault told her to sleep without underwear and “checked” her vaginal and breast areas even though she had not complained of any problems. On about five different occasions when S. was eight or nine years old, she woke up and found Chenault digitally penetrating her vagina. S. did not tell her siblings because she wanted to protect them.
When S. was about 10 years old, she woke up and found Chenault penetrating her anus with his penis while in a “spooning” position behind her. She rolled over and saw his erect penis. S. suffered anal pain thereafter. When S. was 10 or 11 years old, Chenault penetrated her anus again. Thereafter, S. made excuses not to visit Chenault, but did not tell anyone about the abuse because she wanted to protect her siblings. Also, because Chenault told S. stories about things he had gotten away with, she believed child protective service workers could not help her.
In late 2000 or early 2001, C.M. asked S. whether Chenault had ever touched her inappropriately and made S. promise to tell the truth. S. turned away and cried. C.M. said that was all she needed to know. Later, S. approached C.M., asked her how she knew, and then described Chenault‘s sexual abuse of her.
On one occasion, while they were away on a trip, Sh. and C.M. allowed Chenault to stay overnight in their home with the children. On their return the next morning, C.M. saw Chenault lying behind V. on the floor of the children‘s bedroom. V. was wearing only her underwear, and Chenault had his arm around her with his hand at her panty line. C.M. immediately told Sh. what she saw and that Chenault needed to leave. C.M. told Chenault she would break his knees if he ever came near V. or S. again.
Rather than subject V. and S. to legal proceedings, Sh. and C.M. moved out of state with the children. While living in Illinois, V. learned Chenault had also sexually abused S. Between 2006 and 2011, V. and S. spoke with Chenault on the telephone to reach their grandmother, ask about her, or ask for financial assistance, but they never discussed their abuse with him. In 2011, Chenault stopped giving V. and S. financial assistance. In 2012, V. first reported Chenault‘s abuse to Detective Paul Ward.
Cr.C. is Chenault‘s niece. Cr.C. had four daughters, including C., born in 1999, and F., born in 2001. Before 2010, Chenault began residing with Cr.C.‘s grandmother. When her grandmother became ill in 2010, Cr.C. communicated with Chenault more frequently because she had to ask him for financial assistance from her grandmother. She also took her daughters to visit her grandmother more frequently. Chenault was usually home during their visits with the grandmother.
When Cr.C.‘s grandmother became hospitalized, Chenault asked Cr.C. if C. and F. could come over and help him go through her grandmother‘s personal property. When F. was eight or nine years old, she spent the night alone with Chenault. F. changed into her nightgown and appeared to fall asleep on the couch. Chenault sat on the couch, put her feet on his lap, and removed her underwear. He took her underwear to the bathroom and returned to the couch. F. kept her eyes closed, pretending to be asleep. Chenault rubbed F.‘s leg and vagina and then inserted his finger into her vagina. Chenault then went to sleep elsewhere. The following morning, Chenault asked F. if she found her underwear in the bathroom. At church later that morning, Chenault placed his hand on F.‘s thigh and rubbed it. F. did not tell anyone about Chenault‘s actions because she thought she might get in trouble.
A couple of nights later, F. and C. spent the night at Chenault‘s home. He set up an air mattress on the living room floor for the girls to sleep on. While Chenault was in the kitchen, F. and C. went to sleep. F. was wearing pajama bottoms and underwear. Chenault approached F. and tried to pull off her pajama bottoms, but she had a tight grip
C. woke up when her blanket was pulled off of her back. Chenault pulled C.‘s underwear down to her ankles and inserted his finger into her anus while she was lying on her stomach. After Chenault walked away, C. pulled up her underwear and covered herself with her blanket. She eventually fell asleep, but later awoke, ran to the bathroom, and vomited.
On arriving home, F. and C. told each other what Chenault had done to them. After their great grandmother died, F. and C. told their stepfather and then their mother (Cr.C.) about Chenault‘s sexual abuse of them. Cr.C. called her mother and then learned about Chenault‘s abuse of V. and S. F. and C. were subsequently interviewed by Sherri Rouse, a forensic interviewer for the Chadwick Center at Rady Children‘s Hospital.3
An amended information charged Chenault with 13 counts of lewd acts on a child under 14 years of age (
At trial, the prosecution presented testimony substantially as described above. It further presented the expert testimony of Catherine McLennan regarding the behavior of children who are victims of sexual abuse. She testified that delayed disclosure by such victims was extremely common. Studies have shown two-thirds of victims had never told anyone about their sexual abuse and kept it a secret even as adults. In her clinical experience, most child victims wait for a period of time before telling anyone about the sexual abuse. Their reasons for delaying disclosure include embarrassment, shame, feeling partially responsible for the abuse, loyalty to the abuser and not wanting to get the abuser into trouble, and concerns about the negative consequences of disclosure, including not being believed, upsetting family situations, or being removed from the home. Child victims commonly continue to spend time with their abusers and may make partial disclosures before divulging more details. Children, especially young children, often have difficulty recalling the timing of events.
In his defense, Chenault presented the testimony of Detective Ward, who described what he observed during Rouse‘s interview of C. C. told Rouse that during a telephone call on Thanksgiving Day, her stepfather told her that, “If someone‘s touching you, you‘re supposed to tell us [her parents].” After C. and F. disclosed Chenault‘s sexual abuse of them, their stepfather told C. to hand the telephone to her mother. Ward also explained why there had been a delay from the time he was assigned to investigate the
The jury found Chenault guilty on all 15 counts and found true all of the sections 667.61 and 1203.066 allegations.4 The trial court sentenced Chenault to a total term of 75 years to life in prison, consisting of five consecutive terms of 15 years to life for counts 3, 4, 11, 13, and 15, and concurrent terms of 15 years to life on the remaining counts. Chenault timely filed a notice of appeal.
DISCUSSION
I
Presence of a Support Dog
Chenault contends the trial court abused its discretion by allowing a support dog to be present during the testimony of F. and C. without individualized showings of necessity. He argues the presence of the support dog was inherently prejudicial and violated his federal constitutional rights to a fair trial and to confront the witnesses against him.
A
At the time of trial, F. was 11 years old and C. was 13 years old. Before trial, the prosecutor filed a trial brief that requested F. and C. be permitted to have a support dog
The trial court granted the prosecutor‘s request to allow a support dog to be present during the testimony of F. and C. The court stated:
“Yes. We may talk more about that as we go along, because I would expect that the K-9‘s presence, so to speak, would be limited to actually accompanying [F.] and [C.] to the witness stand and then kind of playing lap dog at their feet. But one thing I don‘t want is for [F.] and/or [C.] and said support animal to be wandering the hallway out here on any recesses with pats on the head by everyone [who] loves dogs, including jurors.
“Okay. So, yes, I‘ll accommodate that request, but I would expect everyone is understanding of the Court‘s expectations in that regard.”
Chenault‘s counsel later asked the court to reconsider its ruling and urged it to not allow the dog in the courtroom. She explained:
“The reason for my request is as follows: These aren‘t little kids. They‘re tweens. They are currently 11 and 13. They have talked about this case to police, to social workers at Children‘s Hospital. They‘ve talked about the case to the prosecutor. They came to court and testified at the preliminary hearing without any problem at all.
“The first time the issue of using the dog came up is when it was offered to them at [the] preliminary hearing, they said, ‘Yes, we‘d like the dog.’
“At that time the dog was disallowed on the grounds of the age of the children and the fact the children didn‘t ask for the dog, but the idea of the dog had been suggested to them by the prosecution.
“My problem with the dog is this: People look at a dog and they immediately -- most people -- many people experience very warm, loving, good feelings about the dog, and they‘re going to translate those feelings to the child that‘s testifying. It will be hard for some jurors to separate the fact of the dog, and looking at the child critically and analytically and trying to decide if the child is telling the truth, particularly in a case like this, where the stakes are so high. I worry that the dog will be a distraction, and I don‘t see a need for the dog when we do have support people in court.”
The trial court replied:
“Well, I‘m sensitive to some of your concerns as expressed, . . . but I‘ve also seen the support animals in operation, and I know how stressful testifying in an environment such as this usually is, especially for children of a tender age.
“And yes, they‘ve had to talk about it and retell it and tell it again, which perhaps is an argument in favor of a support animal rather than against it.
“But I respect your argument and concern, and I‘m sure that I‘ll be talking to the jurors a little bit about the reason for the support animal and also saying something along the lines of seeking to assuage the concerns that you‘ve just expressed, that, you know, I‘m not going to get down from the bench and kick the support animal in the ribs, but the support animal, I think, has a place in a proceeding such as this.
“And in my experience, typically the support animal is at the feet of the witness in the witness stand, concealed out of view of the jurors. So they‘ll likely see it when it comes in, when [F.] or her sister take the witness stand, and probably see it again when it marches out at the close of each witness‘[s] testimony.
“But I‘m sensitive to the concerns that you‘ve expressed, but I don‘t believe that there‘s anything out of bounds in permitting, within proper parameters, the support animal‘s presence.
“And we‘re only talking, of course, about the testimony of the two minor victims [i.e., F. and C.], who are still minors. We‘re not talking about the now adult victims [i.e., V. and S.], as charged in Counts 1 through 12.”
The court denied Chenault‘s request for reconsideration.
Before jury selection, the trial court set forth the logistics for the presence of the support dog, stating the jury would take a recess before F. or C. took the stand and then during that recess F. or C. would enter the courtroom with the support dog and its handler through the back hallway. After the witness took the stand with the support dog, the jury would reenter the courtroom. The court indicated that procedure would minimize, if not eliminate, “any untoward prejudice that might otherwise inure against Mr. Chenault.”
Before F.‘s testimony, the prosecutor informed the trial court the support dog‘s handler would need to be seated where the dog could see the handler to ensure it did not stand up or otherwise misbehave. The court stated the handler could sit in a chair near
When the jury entered the courtroom after the recess, the trial court told them:
“The People‘s next witness is [F.], who is already on the witness stand.
“And, ladies and gentlemen, [F.] and her sister [C.] in turn, will be accompanied by a service animal, companion dog, whose [name] happens to be Asta.
“The law permits the Court to make reasonable accommodations for child witnesses, and accordingly, I‘ve granted the request for Asta to be present during the testimony of [F.] and [C.]
“And Asta will otherwise be a nonparticipant. And, frankly, I often find myself having more problems with two-legged animals than the four-legged variety.”
F. then testified. The record does not reflect any problems caused by the support dog during F.‘s testimony.
The same procedures for the support dog‘s presence apparently were followed before C.‘s testimony. The record does not reflect any problems caused by the support dog during C.‘s testimony.
Although
“(a) The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.
“(b) With a witness under the age of 14 or a dependent person with a substantial cognitive impairment, the court shall take special care to protect him or her from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions. . . .” (Italics added.)
C
Chenault asserts the presence of the support dog during F. and C.‘s testimony was inherently prejudicial and violated his federal constitutional rights to a fair trial and to confront the witnesses against him.
In the context of
We do not believe the presence of a support dog is inherently more prejudicial than the presence of a support person. Another court stated: “[P]ermitting a comfort dog to accompany a child victim to the stand during testimony can be considered less prejudicial than allowing ‘support persons.’ ” (People v. Tohom (N.Y.App. 2013) 109 A.D.3d 253, 272, 969 N.Y.S.2d 123, 137 (Tohom).) Citing only “reason and common human experience,” Chenault argues the presence of a support dog will cause a jury to decide a defendant‘s guilt based on impermissible factors. He argues “the one[-]sided deployment of a universally beloved animal distracts the jury from a dispassionate review of the evidence and unfairly bolsters the prosecution‘s case by aligning witnesses with a powerful symbol of trustworthiness and vouching for their credibility as victims.” Although it is possible in certain circumstances that a support dog might cause a jury to consider impermissible factors in deciding a defendant‘s guilt, we conclude that scenario will not necessarily, and likely will only rarely, result when a support dog is used to comfort a testifying witness. Any purported impermissible consideration by a jury of a support dog‘s presence must be determined based on the facts and circumstances in a particular case.
D
Chenault also asserts the trial court abused its discretion under
Because we believe in the context of the federal Constitution the presence of a support dog under
Instead of requiring a case-specific finding that an individual witness needs the presence of a support dog, we conclude that in exercising its discretion under
Nevertheless, the court should also take appropriate measures to reduce, if not eliminate, any prejudice to the defendant possibly caused by the presence of the support dog during the witness‘s testimony. For instance, the court should attempt to make the presence of the support dog as unobtrusive and least disruptive to the proceedings as reasonably possible. The court may have the jury recess while the witness takes the stand and the support dog enters and is positioned, and then recess again before the witness and dog leave the courtroom. In certain physical courtroom settings, it may be possible to have the support dog lie on the floor near the witness, entirely out of the jurors’ view. If not, the support dog should be positioned, if possible, so its presence is not significantly distracting to the jurors.
Furthermore, whenever the support dog‘s presence becomes known, or is likely to become known, to the jury, it generally will be the preferred practice for the court to give an appropriate admonishment to the jury to avoid, or at least minimize, any potential prejudice to the defendant. For example, the court may admonish the jury that it should disregard the dog‘s presence and decide the case based solely on the evidence presented, should not consider the witness‘s testimony to be any more or less credible because of the dog‘s presence, and should not be biased either for or against the witness, the prosecution,
We reject Chenault‘s argument that we should adopt and apply the standard for the presence of support dogs recently set forth by the Washington Supreme Court in State v. Dye, supra, 309 P.3d 1192, 1199, 178 Wash.2d 541, 553 (“[W]here special courtroom procedures implicate constitutional rights, it is not the defendant‘s burden to prove that he or she has been prejudiced, but the prosecution‘s burden to prove that a special dispensation for a vulnerable witness is necessary. . . . However, we do not require a showing of ‘substantial need’ or ‘compelling necessity’ . . . . [W]e will not overrule the trial court‘s exercise of discretion unless the record fails to reveal the party‘s reasons for needing a support animal, or if the record indicates that the trial court failed to consider those reasons.“].)
Chenault argues the trial court abused its discretion under
The trial court granted the prosecutor‘s request, stating it expected the presence of the support dog to be “limited to actually accompanying [F.] and [C.] to the witness stand and then kind of playing lap dog at their feet.” Chenault‘s counsel later requested reconsideration of that ruling, arguing F. and C. were not “little kids,” had previously talked to police, social workers, and the prosecutor about the case, and testified at the preliminary hearing “without any problem at all” without the presence of the support dog. She further argued the presence of the support dog would be prejudicial to Chenault because most people (presumably including most jurors) view dogs favorably and thus,
To minimize, if not eliminate, any potential prejudice to Chenault, the trial court adopted specific procedures for the support dog to be as unobtrusive and least distracting as possible. When the jury was in recess, the support dog and its handler were to enter with F. and C. through the back hallway and they would get situated before the jury reentered the courtroom. The dog‘s handler would sit in a chair near the back door. However, when the support dog entered and was situated before F.‘s testimony, Chenault‘s counsel complained that “the dog is on the floor here,” apparently noting for the record that the dog was within the jury‘s view. The court explained the support dog was located there “because of the size of the dog and the space available.”
When the jury entered the courtroom after the recess, the trial court told them that Asta, a companion dog, would be accompanying F. and C. during their testimony, explaining:
“The law permits the Court to make reasonable accommodations for child witnesses, and accordingly, I‘ve granted the request for Asta to be present during the testimony of [F.] and [C.]
“And Asta will otherwise be a nonparticipant. And, frankly, I often find myself having more problems with two-legged animals than the four-legged variety.” (Italics added.)
Based on our review of the record, we conclude the trial court made implicit findings that the presence of Asta, the support dog, would assist or enable F. and C. to testify completely and truthfully without undue harassment or embarrassment. The court also took measures to reduce any possible prejudice to Chenault by setting forth logistics for the entry, positioning, and departure of the support dog, along with F. and C., during jury recesses so the dog was as unobtrusive and least disruptive as reasonably possible. (Cf. Spence, supra, 212 Cal.App.4th at p. 517 [“[T]he trial court took care to ensure that the therapy dog would be mainly unnoticeable once everybody took their seats, and that corrective action would be taken if there was a problem . . . .“].) The court also instructed the jury (albeit not as specifically as we discussed above), that the law allowed the presence of the support dog during the testimony of F. and C., as child witnesses, and that the dog “will otherwise be a nonparticipant.” Because the trial court implicitly found the presence of the support dog would likely assist or enable F. and C. to testify completely and truthfully without undue harassment or embarrassment and took steps to minimize any prejudice to Chenault, we conclude the court did not abuse its discretion under
Finally, contrary to Chenault‘s assertion, there is nothing about the ages of F. and C. (i.e., 11 and 13 years of age) that precluded the trial court from finding they were children under 14 years of age whose complete and truthful trial testimony would, in fact, likely be assisted or enabled by the presence of a support dog. Contrary to Chenault‘s assertion, the trial court considered all of the circumstances he cited that weighed against allowing the support dog and nevertheless properly exercised its discretion by implicitly finding the presence of the support dog would likely assist or enable F. and C. to testify completely and truthfully without undue harassment or embarrassment. Chenault has not carried his burden to show the trial court abused its discretion under
E
Assuming arguendo the trial court abused its discretion by allowing the presence of the support dog during F.‘s and C.‘s trial testimony, we nevertheless conclude that error was harmless. Because Chenault merely speculates, and does not persuade us, that his federal constitutional rights to a fair trial and to confront witnesses were violated by the presence of the support dog in the circumstances of this case, we apply the state standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836. In this case, the
Based on our review of the entire record, we conclude it is not reasonably probable Chenault would have obtained a more favorable result had the trial court not allowed the presence of a support dog during F.‘s and C.‘s trial testimony. Importantly, the jury found Chenault guilty on counts 1 through 12, none of which involved F. or C. Rather, those counts involved V. and S., whose testimony was presented at trial without the presence of a support dog. Because the jury found V.‘s and S.‘s testimony credible without the presence of a support dog, it is unlikely the jury would have found F.‘s and C.‘s testimony was not credible had the support dog not been present during their testimony. F.‘s and C.‘s testimony described circumstances and acts by Chenault quite similar to those described by V. and S., thereby supporting the jury‘s inference that F.‘s and C.‘s testimony was credible.
Also, the trial court admonished the jury the support dog was not a participant in the proceedings, effectively instructing the jury it should not consider the presence of the support dog in weighing the evidence and deciding the merits of the case. Although, as
The fact that F.‘s and C.‘s testimony was not corroborated by physical evidence or by Chenault‘s admissions does not show it is reasonably probable he would have obtained a more favorable result in the absence of the support dog. Although we presume the jury could have rationally found F.‘s and C.‘s testimony to be not credible, as Chenault asserts, that is not the standard of prejudice we apply in this case. Rather, we examine the entire record to determine whether it is reasonably probable he would have obtained a more favorable result had the support dog not been present when F. and C. testified. Chenault does not persuade us the jury would have found their testimony to be not credible had
Finally, the trial court‘s attempt at humor did not prejudice Chenault. After admonishing the jury that the support dog was a nonparticipant, the court commented: “And, frankly, I often find myself having more problems with two-legged animals than the four-legged variety.” Although it is possible to construe that comment as suggesting two-legged animals (i.e., human beings) are more likely to cause problems (e.g., commit crimes) than four-legged animals, it is not reasonably probable the jury would have inferred the trial court was referring to Chenault‘s tendency, as opposed to two-legged persons in general, to cause problems. Based on our review of the entire record, we conclude it is not reasonably probable Chenault would have obtained a more favorable
II
Abstract of Judgment
The People assert, and we agree, the abstract of judgment does not properly reflect the trial court‘s oral judgment. The jury convicted Chenault on count 15 of a
DISPOSITION
The judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment consistent with this opinion and forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
McDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
THE COURT:
The opinion in this case filed July 11, 2014 was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c) the People‘s request pursuant to California Rules of Court, rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports” appearing on page one of said opinion be deleted and the opinion herein be published in the Official Reports.
Haller
_____________________________
Acting Presiding Justice