THE PEOPLE, Plaintiff and Respondent, v. GLORIA DIANE MITCHELL, Defendant and Appellant.
E071660
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Filed 3/23/20
2020 WL 1329584
Jorge C. Hernandez, Judge
CERTIFIED FOR PARTIAL PUBLICATION*; Super.Ct.No. RIF1605470; OPINION; APPEAL from the Superior Court of Riverside County; Affirmed.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to
I. INTRODUCTION
Defendant and appellant Gloria Mitchell was convicted by a jury of several offenses involving three minor victims, John Doe 1, John Doe 2 and Jane Doe. With respect to John Doe 1, defendant was convicted of torture (count 1,
Defendant was sentenced to a term in state prison of seven years to life on count 1; the middle term of four years on count 2; 180 days in county jail on count 4; and another 180 days in county jail on count 5. However, the trial court stayed the sentence on count 2 pursuant to
Defendant appeals arguing that (1) the trial court erred in admitting a recorded interview with each minor victim pursuant to
II. FACTS AND PROCEDURAL HISTORY
A. Facts and Charges
In 2015, defendant took custody of three of her sister‘s children, John Doe 1, John Doe 2, and Jane Doe, to prevent their placement in foster care. On the afternoon of September 19, 2016, John Doe 1 was admitted to the hospital with severe injuries to his genital area. John Doe 1‘s penis had been “degloved”5 and a 12-centimeter long, two-
inch deep lacerаtion appeared on the left side of his scrotum. The wounds required two layers of sutures to close.6 The treating physicians did not believe such an injury could have been sustained on a playground without significant incident, significant bleeding at the scene, and tearing of John Doe 1‘s outer clothing. They referred John Doe 1‘s case to a social worker during his hospitalization.7
During the subsequent investigation of John Doe 1‘s injury, defendant told authorities that John Doe 1 sustained his injury while at school. However,
In his recorded RCCAT interview, John Doe 1 told investigators that defendant hit him with a white cord. He stated that she used the white cord to pull his “owie,” which caused him to cry. He further stated she used the cord to hit him on his back. He had to be taken to the hospital as a result of “the hurting” between his legs caused by defendant.
He also claimed defendant injured him with a tool that he described as something that “closed” and “opened“; was kept in a drawer; and used on green trees. It caused him to cry a lot and bleed in his underwear. Defendant told him not to tell anyone about the incident. He was afraid defendant would “whoop” him again if he told anyone.
In his separate RCCAT interview, John Doe 2 told investigators that John Doe 1 injured himself by falling at school. When John Doe 1 fell, his “area” got caught and ripped open, but John Doe 1 was not in pain and did not cry out. He did not witness the incident himself, but stated his sister did and told him about it. On further questioning, John Doe 2 recalled incidents in which John Doe 1 got into trouble and as a result defendant pulled on John Doe 1‘s “weenie wee.” He never saw defendant actually pull John Doe 1‘s “weenie wee,” but would hear screaming and John Doe 1 would return to their room and tell both he and his sister about it afterward. On one occasion, he saw the injury to John Doe 1 following one of these incidents. He described the injury to John Dоe 1 as “very bad“; “so bloody“; “the blood went on always—all over his underwear“; “it was all blood“; “it was ripped and his guts was . . . intestines, guts . . . was inside out.”
John Doe 2 also reported defendant would discipline him with a belt, switch, or back scratcher, although usually defendant would just ground him. Sometimes the whooping would be so hard that it would leave marks and bruises on John Doe 2. He showed the interviewer a mark still on his legs that he claimed resulted from being hit with a switch. Defendant would also discipline him with an extension cord. When asked about a noticeable burn scar on his left leg, John Doe 2 claimed he got the burn from playing with the stove. He set a plastic bowl on fire and then accidentally placed it in his
lap. When asked why the burn marks appeared to show multiple lines instead of a circle shape like a bowl, John Doe 2 acknowledged that it “should‘ve burned like a round” mark, but could not explain the lines.
On March 8, 2017, the People filed an information that charged defendant with one count of torture on John Doe 1 (count 1,
bodily injury or death on Jane Doe (count 4,
B. Relevant Evidence at Trial
1. Admission of RCCAT Interviews
Over defendant‘s objection, the trial court admitted each child‘s RCCAT interview pursuant to
2. Testimony of John Doe 1 at Trial
John Doe 1 was eight years old at the time of trial. He referred to his groin area as his “par par” or “nee nee” and testified that defendаnt hit his “par par” on multiple occasions when he used to live with her. When asked to describe
remember. He deniеd defendant ever hit him with a cord, but also stated that he witnessed defendant hit Jane Doe and John Doe 2 with a cord.
3. Testimony of John Doe 2 at Trial
John Doe 2 was 10 years old at the time of trial. He lived with defendant at the same time as John Doe 1 and Jane Doe. He did not like living with defendant, in part because she hurt John Doe 1‘s private parts. He recalled an incident in defendant‘s home where he heard John Doe 1 scream loudly from another room. When John Doe 1 returned to their shared room, John Doe 1 was crying and told John Doe 2 that defendant pulled on his private part area. John Doe 2 saw that John Doe 1 was bleeding from his private area. However, he and Jane Doe initially told people that John Doe 1 got injured on the playground at school because he feared defendant would hit them if they told the truth. He was afraid defendant would hit him if he did not lie about John Doe 1‘s injuries.
John Doe 2 also testified defendant would discipline him by hitting him with a wooden back scratcher, a switch, and an electrical cord. The hits with the cord sometimes left marks on his body. Contrary to his RCCAT statement, he now claimed the burns on his left leg occurred when defendant became angry with him and burned him with an iron. When аsked why he previously denied defendant hit him, he explained that he was afraid defendant would hit him again in the future.
4. Testimony of Jane Doe at Trial
Jane Doe was 11 years old at the time of trial. She used to live with defendant, but does not like speaking about what happened during that time because it makes her feel
bad and sad. She initially testified defendant never hurt her, but later admitted defendant would hit both she and John Doe 2 with a back scratcher as discipline. She testified that defendant would pull John Doe 1‘s private part every time he got in trouble. She knew because each time, she would hear John Doe 1 yell, scrеam, and return to their shared room with his underwear bloody. She recalls that on one occasion after such an incident, John Doe 1 showed her his penis and she saw marks on it. She admitted she lied to people about John Doe 1‘s injury being caused by an
5. Testimony of Forensic Pediatrician at Trial
A forensic pediatrician was also called to testify. She works with assisting in investigating cases of suspected child abuse and estimated she has testified in over 100 cases. She was called to the hospital to evaluate suspected abuse and first encountered John Doe 1 while he was a patient at the hospital recovering from the injury to his genital area. Over the course of John Doe 1‘s hospital recovery, she would encounter him as she made rounds with other patiеnts and John Doe 1 developed a familiarity with her.
More than a week after his discharge from the hospital, John Doe 1 was brought to the Children‘s Assessment Center for his RCCAT examination and interview. The forensic pediatrician happened to be working with a colleague in her office at the center
during that time. John Doe 1 saw her through her open office door, recognized her, ran over to say hi, and initiated general conversation with her. After some time, it appeared that John Doe 1 was lingering in her office, so she mentioned that she knew he was at the center fоr the purpose of undergoing an interview. In response, she observed John Doe 1‘s demeanor change and he volunteered that “his auntie did it.” He then picked up the forensic accountant‘s phone charging cord and demonstrated the manner in which defendant used a cord to hurt him. She did not ask any questions in response and just let John Doe 1 continue talking voluntarily. John Doe 1 proceeded to explain and demonstrate that defendant would wrap a cord around his genital area and pull, causing him to cry. He went on to explain and demonstrate that defendant would take some unspecified tool used to cut things and open and close it around his genital area, causing a lot of bleeding. When the pediatrician stated that she didn‘t understand what tool he was referring to, John Doe 1 pointed out the window and stated it was something used on green trees. When John Doe 1 finished, the pediatrician did not ask follow up questions to get details, but instead went and informed the assigned interviewer of the disclosures.
C. Verdict and Sentencing
The jury returned a verdict finding defendant guilty of torture regarding John Doe 1 on count 1; guilty of the lesser included offense of simple
1; the middle term of four years on count 2; 180 days in county jail on count 4; and another 180 days in county jail on count 5. The trial court stayed the sentence on count 2 pursuant to
The trial court also imposed a restitution fine in the amount of $300 (
III. DISCUSSION
A. Admission of RCCAT Statements Were Not Erroneous
Defendant contends the trial court erred in admitting the RCCAT interviews given by each child pursuant to
1. General Legal Principles and Standard of Review
“Section 1360 creates a limited exception to the hearsay rule in criminal prosecutions for a child‘s statements describing acts of child abuse or neglect, including statements describing sexual abuse. [Citations.]” (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367.) Thе statute includes a number of procedural and substantive safeguards designed to ensure the reliability of the minor victim‘s hearsay statement, requiring specific conditions be met before evidence can be admitted under its provisions.
(Ibid.;
However, defendant‘s challenge here is not premised upon the trial court‘s application of the procedural or substantive safeguards provided in the statute as a condition of admissibility. Instead, defendant argues that the statute on its face cannot be applied in cases where the criminal defendant is not charged with one of the offenses enumerated in subdivision (c) of “[I]n reviewing a trial court‘s interpretation of a statute, we apply a de novo, or independent, standard of review. . . . [O]ur task is to ascertain and effectuate the law‘s intended purpose. . . . [W]e look first to the statute‘s words. [Citation.] . . . If the statutory language is unambiguous, we will presume the Legislature meant what it said and the plain meaning of the statute will prevail unless its literal meaning would result in absurd consequences that the Legislature did not intend. [Citations.] [¶] However, if the statutory language is ambiguous and is reasonably susceptible to more than one meaning, we look to a variety of extrinsic aids, . . . Our ultimate objective in interpreting a statute is to construe the statute in a way that most closely comports with the apparent intent of the Legislature. [Citation.]” (People v. LaDuke (2018) 30 Cal.App.5th 95, 100.) Here, defendant takes the position that extrinsic aids are not necessary because the statute is not ambiguous and the Legislature‘s intent can be ascertained solely from the words of The provisions setting forth the scope of Defendant argues that because subdivision (c) of subdivision (c), is intended to define the terms “child abuse” and “child neglect” as used in the statute. As already set forth ante, the terms “child abuse” and “child neglect” are used to describe the substantive nature of the statements admissible under the statute. No language in the statute requires that any specific charges be filed in order for it to apply. The statute applies when the statement describes an act of child abuse as defined by specified Penal Code sections.8 In this case, the statements unquestionably describe such acts. Our interpretation of Finally, we avoid interpreting statutes in a manner that may produce illogical results. Under defendant‘s proposed interpretation of the statute, a minor victim‘s hearsay statement would be admissible in cases in which the defendant is only charged with a misdemeanor pursuant to Defendant‘s proposed interpretation of acts alleged in support of counts 1 and 2—inflicting a “degloving” injury to John Doe 1‘s penis—could also constitute “child abuse” under Accordingly, we find no merit in defendant‘s argument that Defendant also argues that the admission of the forensic pediatrician‘s testimony recounting John Doe 1‘s statements regarding the cause of his injuries was erroneous. The trial court admitted the testimony pursuant to Defendant also asserts that reversal is warranted as the result of the combined error of admitting hearsay statements pursuant to (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Since we have found no merit in defendant‘s individual claims of error with respect to the trial court‘s admission of evidence under Finally, defendant argues that we must strike the fines and fees imposed by the trial court because the trial court made a finding that she had no ability to pay, rendering the imposition of any fines or fees unconstitutional under Dueñas, supra, 30 Cal.App.5th 1157, 1160. We disagree with defendant‘s characterization of the record with respect tо the trial court‘s purported findings as well as defendant‘s conclusion that it runs afoul of any principles set forth in Dueñas. Here, at the time of sentencing, the trial court stated: “I‘m going to impose a $300 restitution fine, a $300 parole revocation fine. I find that at her age she really has no prospects for employment while she is in custody. And I do believe that she no longer has any prospects for any financial assistance from anywhere. So that‘s why I‘m assessing the $300 restitution fine and parole revocation fine.” (Italics added.) Defendant argues that this statement constitutes a finding that defеndant “had no ability to pay any fines or fees.” However, we cannot ignore the context in which this statement was made. At the time the trial court made this statement, the evidence before it included a probation department report that recommended defendant be ordered to pay over $1,000 for the costs of preparing the report; a $514.58 booking fee; $1,500 for presentence incarceration costs; a $9,000 restitution fine; a $120 criminal conviction assessment fee; a $160 court operations assessment fee; and a $10,000 parole revocatiоn fine. Thus, when viewed in context, the trial court‘s statement is properly viewed as its stated reasons for rejecting the probation department‘s recommendations and instead imposing a lower amount in fines and fees in light of defendant‘s financial condition. Contrary to defendant‘s assertion, the trial court‘s imposition of fines and fees in this manner does not run afoul of any principles set forth in Dueñas. Even assuming Dueñas was correctly decided,10 the case stands for the proposition that a trial court‘s imposition of fines and fees without first considering a defendant‘s ability to pay violates due process. (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1172-1173.) Dueñas did not declare аny of the statutory provisions providing for fines or fees per se unconstitutional, but instead held that due process required consideration of a criminal defendant‘s financial condition before such fines or fees could be imposed. (Ibid.) Here, the trial court‘s comments imply that it imposed reduced fines and fees after expressly taking into consideration defendant‘s financial condition. Such a situation does not run afoul of Dueñas, but rather applies the very principles that Dueñas espouses. Finally, to the extent defendant‘s challenge can be construed as an argument she was denied a formal “ability to pay hearing” or an argument thаt the trial court reached an erroneous conclusion with respect to her ability to pay, we would find no prejudice warranting reversal. Error under Dueñas is not reversible per se, but instead subject to a harmless error analysis. (People v. Jones (2019) 36 Cal.App.5th 1028, 1034-1035.) Since an alleged error under Dueñas involves a violation of due process, we consider whether the error was harmless beyond a reasonable doubt. (Ibid.; see Chapman v. California (1967) 386 U.S. 18, 24.) Here, the trial court imposed a restitution fine in the amount of $300 ( The judgment is affirmed. CERTIFIED FOR PARTIAL PUBLICATION FIELDS J. We concur: CODRINGTON Acting P. J. RAPHAEL J.2. The Language of Evidence Code Section 1360 Does Not Limit Its Application Based Upon the Specific Offenses Charged
B. Admission of John Doe 1‘s Statements to the Forensic Pediatrician Were Not Erroneous
C. No Combined Error Warranting Reversal
D. The Imposition of Fines and Fees Was Not Erroneous or Prejudicial
IV. DISPOSITION