NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appellant was sentenced to 30 years to life in prison for sexually abusing his children. On appeal, he contends the prosecution failed to give sufficient notice it intended to introduce the children's pretrial statements into evidence. He also argues the prosecutor committed prejudicial misconduct by impugning his attorney's character in front of the jury. Finding these claims unmeritorious, we affirm the judgment.
Appellant and his ex-wife Margaret were low-level criminals who often spent time in jail. Consequently, their children — referenced herein as Jane and John — lived with Margaret's mother Roberta, a New Mexico resident, most of the time. However, in early 2011, appellant moved with the children to Orange County. The plan was to have Margaret join them later, but that reunion never occurred.
At the time of the move, Jane was nine years old. After they were settled into their Santa Ana apartment, appellant made her watch pornographic movies with him. He also touched her vagina and made her touch and suck his penis. Jane did not tell anyone this was occurring because appellant told her he would have to go to jail if she did.
Appellant made John, then age six, watch a pornographic movie with him. While the movie was playing, appellant stroked his own penis and told John to do the same. John complied out of fear, but someone knocked on the front door, and appellant told John to go into his room. Later, John disclosed the incident to his uncle, and when appellant found out, he whipped John with a belt.
In June 2011, Roberta contacted appellant and told him to bring Jane and John back to her in New Mexico. Appellant refused at first, but when Roberta threatened to involve law enforcement, he promptly returned the children to her care. He did this by leaving the children on her doorstep, ringing her doorbell and driving away when she answered the door. No words were exchanged.
Margaret was in custody, so Roberta became the children's caretaker. Roberta testified it wasn't long before she noticed John was acting quieter than usual and having bedwetting issues. When she asked him if everything was okay, John said "big people do very bad things." He went on to explain appellant had shown him "nasty things on television" and made him touch his "private parts." Following that disclosure, Roberta spoke to Jane, and she said appellant had shown her pornographic movies and touched her inappropriately.
Roberta relayed the children's allegations to the Orange County Sheriff's Department. Although she never heard back from that agency, the local police in New Mexico contacted her in 2013. After she told them about the allegations, the children were taken to a receiving home, where a social worker interviewed them separately. Both of the interviews were video recorded for investigative purposes. The children's interview statements were more detailed than — but largely consistent with — their trial testimony, as set forth above.
At trial, appellant took the stand and denied the children's allegations. He said he loved his kids and could not understand why they were trying to get him into trouble. The jury rejected appellant's claim of innocence and convicted him of multiple counts of child sex abuse.
Notice Requirement in Evidence Code section 1360
Appellant contends the trial court erred in admitting the children's pretrial interviews into evidence. The contention is based on the belief the prosecution failed to provide adequate notice of its intent to introduce the interviews at trial, as required under section 1360. We find the prosecution provided sufficient notice in that regard.
Section 1360 creates a hearsay exception for children's statements that describe acts of physical or sexual abuse. (§1360, subd. (a).) As a prerequisite for admission, the proponent of such a statement must "make known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement." (Id., at subd. (b).) Generally, this requirement is satisfied in a criminal trial when notice of intent is provided before the jury is sworn. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1372.) However, "[t]he trial court has discretion in each instance to determine whether the party adverse to the statement had a fair opportunity to prepare to meet the statement, depending upon the particular circumstances of each case." (Id. at p. 1373, fn. 14.)
Here, the jury was sworn on April 9, 2015. The day before, the prosecution filed a motion to admit Jane and John's interview statements pursuant to section 1360. The motion was heard that same day, April 8. At the hearing, defense counsel argued he did not receive sufficient notice to meet the children's statements. Asked how this affected his trial preparation, defense counsel said that had he known the prosecution was going to introduce the statements, he might have hired or consulted with an expert to determine whether the statements were reliable. In response, the prosecutor pointed out that as part of discovery, she had provided DVD's of the children's interviews to the defense in January 2014, which was months before the preliminary hearing, and over a year before trial. She argued it would be "bizarre" to think this did not provide defense counsel with notice of her intent to use the interviews at trial. The prosecutor also noted transcripts of the interviews had been given to the defense before the parties answered ready for trial. Defense counsel did not dispute the timing of these disclosures. However, he insisted they failed to provide him with adequate notice of the prosecution's intent to use the interview statements at trial.
The trial judge disagreed. After observing that victim interviews are commonly used in cases involving alleged child molestation, the judge stated, "It's hard for me to believe that these could be supplied in discovery and the defense wouldn't assume the People intend[ed] to use them. . . ." The judge also noted Jane and John were going to be testifying at trial, so defense counsel could question them about their interviews on cross-examination. Furthermore, because the children were not expected to testify for several days, the judge felt defense counsel had ample time to review the interviews, which were not very long. In light of these circumstances, the judge determined the defense had a sufficient opportunity to prepare to meet the children's statements, as required under section 1360.
We uphold the trial judge's decision as a proper exercise of discretion. As codified in Penal Code section 1054 et seq., the discovery rules in criminal cases are designed to prevent gamesmanship and unfair surprise at trial. (Roland v. Superior Court (2004) 124 Cal.App.4th 154, 165-167; People v. Jackson (1993) 15 Cal.App.4th 1197, 1201.) To that end, the rules require the prosecution to disclose all relevant recorded statements of witnesses it intends to call at trial. (Pen. Code, § 1054.1, subd. (f).) Thus, by providing DVD's of the children's interviews to the defense as part its discovery obligations, the prosecution effectively alerted the defense of its intention to use those interviews at trial. Granted, the prosecution did not expressly refer to section 1360 in turning over the DVD's. But since the interviews contained statements made by the alleged victims of child sex abuse, any reasonably competent defense attorney would have understood they were potentially admissible under section 1360. And they would have understood the need to prepare to meet them. Since the interviews were provided over a year in advance of the trial, defense counsel had ample opportunity to do so.
Not only was defense counsel supplied with DVD's of the children's interviews well in advance of trial, the prosecution also gave the defense written transcripts of the interviews before the parties answered ready for trial. Although the exact dates the transcripts were disclosed is not clear in the record, it appears the defense had them at least a week before the children testified and their pretrial interviews were offered into evidence. In addition, the prosecution formally advised the defense of its intent to use the interviews before the jury was empaneled, which, as explained above, is typically sufficient to satisfy the notice requirement of section 1360. (People v. Roberto V., supra, 93 Cal.App.4th at p. 1372.) Therefore, even if the initial disclosure of the DVD's failed to satisfy that requirement, the defense had sufficient time to prepare to meet them. There was no violation of section 1360, and we cannot quarrel with the trial court's exercise of its discretion in allowing the statements into evidence. (Compare id. at pp. 1369-1373 [section 1360 violation found where the prosecutor failed to disclose his intent to introduce statements under that section until after the trial had already commenced].)
Alleged Prosecutorial Misconduct
Appellant also contends the prosecutor committed prejudicial misconduct by accusing defense counsel of misrepresenting the evidence he intended to elicit from appellant. We disagree.
During the trial, defense counsel wanted to show there had always been bad blood between appellant and his wife Margaret's side of the family. The effort was part of a larger strategy to suggest that someone in Margaret's family had planted the sexual abuse allegations in the children's minds as a way to falsely implicate appellant. Here is how that issue played out:
The prosecutor argued that what happened in 1998 was irrelevant. In her opinion, it made no sense "to get into [the] specifics of something that happened so many years before [the] children were born[.]" However, defense counsel maintained the topic was relevant to show Margaret's family may have had a motive to frame appellant for child abuse. The court agreed with defense counsel, stating "sometimes there can be issues that start at one point and . . . keep going on in the relationship[.]" Therefore, it permitted the defense to inquire about that issue. Its only concern was that it did not want defense counsel "getting into some story in the family history that takes a lot of time."
When appellant's testimony resumed, defense counsel asked him what happened in 1998 that led to bad blood between him and Margaret's family. Appellant replied, "The murder of my brother," which invoked a strong objection from the prosecutor. She protested, "This is not — this is 352. This is absolutely a misrepresentation of our conversation in chambers. This is not relevant." The trial court did not rule on the objection. Instead, it told the jury to "hang on" while it held another sidebar with counsel.
During the sidebar, defense counsel insisted he never misrepresented anything. He said he simply wanted to establish Margaret's sister had given the gun to the person who shot appellant's brother. Defense counsel believed this evidence was consistent with his bad blood/motive theory, which the trial court had previously approved. As far as basic relevancy was concerned, the court said it was having a hard time understanding how Margaret's family's involvement in appellant's brother's murder proved they wanted to frame him in the current case. It also felt that defense counsel should have brought the murder evidence to the court's attention during the last sidebar, due to its inflammatory nature. However, even though the court barred further questioning about the murder in particular, it ruled the defense was free to inquire generally about the relationship between appellant and Margaret's family.
During the sidebar, defense counsel also requested a curative admonishment respecting the prosecutor's objection. Worried the prosecutor's "misrepresentation" allegation may have damaged his credibility with the jurors, defense counsel wanted the court to tell them that, contrary to the prosecutor's insinuation, he did not actually do anything wrong or misleading. However, the judge refused to do so. He reasoned, "I don't think there's any real prejudice from that comment. It was so quick. I didn't quite catch it. And so I don't think there's any reason for the court to admonish the jury on the point."
The law is clear. "A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.] `An attack on the defendant's attorney can be [as] seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 832.) Thus, the prosecutor should not have accused defense counsel of making a "misrepresentation" — at least not in front of the jury. Although the prosecutor had every right to object to defense counsel's question, this case illustrates the problems that arise when a party flouts the rules of evidence and decorum by making a speaking objection in front of the jury.
However, prosecutorial misconduct will not result in a reversal of the judgment unless it is reasonably probable the defendant would have achieved a more favorable result absent the misconduct. (People v. Crew (2003) 31 Cal.4th 822, 839; People v. Barnett (1998) 17 Cal.4th 1044, 1133.) "Whether a prosecutor has been guilty of prejudicial misconduct must be determined in the light of the particular factual situation involved." (People v. Lyons (1958) 50 Cal.2d 245, 262.)
In this case, the alleged misconduct consisted of a single, isolated remark. The comment, which was made in connection with an evidentiary objection, was so fleeting it even escaped the trial court's attention, so it is unlikely the jury placed too much stock in it. This was a discretionary call and the trial judge was in a good position to assess the impact of the comment. The impugnment of counsel was so vague and minimal we are comfortable with the trial court's resolution of this issue. For this reason, and because the evidence against appellant was very strong, we do not believe the prosecutor's comment warrants a reversal.
The judgment is affirmed.
O'LEARY, P. J. and FYBEL, J., concurs.