PEOPLE v. SCHAENING

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. John Bennett SCHAENING, Defendant and Appellant.

B006159.

Decided: February 07, 1986

Keith C. Monroe, Santa Ana, for defendant and appellant. John K. Van de Kamp, Atty. Gen., William R. Weisman, Supervising Deputy Atty. Gen., and Paul C. Ament, Deputy Atty. Gen., for plaintiff and respondent.

Following a jury trial, defendant, John Bennett Schaening, was convicted of (count I) kidnapping for the purpose of committing a lewd and lascivious act on a child (Pen.Code, § 207, subd. (b)), and (count II) lewd and lascivious conduct (Pen.Code, § 288, subd. (a)).  Defendant was sentenced to the maximum term of seven years on count I.   A consecutive sentence of eight years, the maximum term, was imposed on count II.   Defendant was given 30 days of custody credit and 15 days of behavior credit.

On appeal defendant contends that the court erred in excluding expert testimony as to the reliability of eyewitness testimony and that the imposition of multiple sentences violated Penal Code section 654.   We have concluded that the second contention is well-taken, but that the first one is not.   Accordingly, we affirm the judgment but modify the sentence.

FACTS

The five-year-old victim of the instant offenses, Brandy D., lived on Fifth Street in Manhattan Beach.   Fifth Street was closed to vehicular traffic and was referred to by the residents of the area as “the walk street.”   The children who lived on the block regularly played on the walk street.   On Sunday, October 9, 1983, several people in the neighborhood observed Brandy and her three-year-old brother Dustin seated on the curb of the walk street talking to a man.   The man got up and walked around a corner with the children following him.   Minutes later Dustin returned home and told his mother (Mrs. D.) that he had not gotten into the car with the man who took Brandy.   Mrs. D. alerted her husband and the two of them rushed to the street to look for Brandy.   Not finding her, Mr. D. returned home and telephoned police.   The call was logged in by the police department at 11:36 a.m.

Brandy testified at trial that the man who took her grabbed her arm, put her in his car, told her to get down on the floor and then drove her to “someplace near polywog park.”   He took her to an area where there were a lot of leaves.   There he made her take off her clothes and then he put his finger inside her “privacy place.”   This was the same place as the “place [she went] to the bathroom.”   It hurt when the man put his finger inside her.   She said “ouch” and the man slapped her face.   Then he left and she put her clothes back on.   Some boys came along on bicycles.   She told them she needed help and they took her to a neighbor's house.   A few minutes later the police came with her parents and took her back home.

Kevin Dessert was 13 years old.   He lived near Voohees and Rowell in Manhattan Beach.   At that location there was a swampy area which the children in the neighborhood called miniature polywog park.   They went there on bicycles and motorbikes.   On October 9, 1983, Kevin went there on his bike with three other boys.   He saw Brandy.   She was crying and said that she was lost.   She said a “mean man” had brought her there.   She said that she lived on Fifth Street.   Kevin and his friends took her to a house on Fifth Street occupied by Virgil Eubank.   Eubank telephoned police.   The call was logged in at 12:02 p.m.   Minutes later Brandy's parents arrived with the police and the family was reunited.

Later that afternoon, Mrs. D. noticed Brandy squirming.   Brandy said that she had dirt in her panties.   Mrs. D. asked why and Brandy told her that the man had taken her clothes off.   Mrs. D. checked and found dirt and dead leaves between Brandy's legs.

On either October 4 or October 6, 1983, at about 5:30 p.m., Brandy and Dustin had been out on the walk street.   Mrs. D. went out to get them because it was starting to rain.   She saw them seated on the curb under an overhanging tree in front of a neighbor's house.   They were with a man whom Mrs. D. had not seen before.   She called to them but they did not respond.   Mrs. D. walked down to where they were and told them to get their bicycle and come home.   They did not move until the man told them, “Go on.   Go with your mother.”   After the abduction, Brandy told her mother that the man who took her was the man she had been with under the tree on the rainy day.

Defendant's brother, Hal Schaening (Hal), lived on Fifth Street, down the block from Brandy's family.   Hal's house was near the overhanging tree.   Hal had a one-year-old son named Morgan.   Defendant visited Hal from time to time and was known by several of Hal's immediate neighbors.1  On the day after Brandy's abduction, Mrs. D. was speaking to a neighbor, Andrea Newmark (Newmark).   Mrs. D. described the man she had seen under the tree on the rainy day.   Newmark said that the description resembled Hal's brother John.   She further said that he had come to her house on a rainy day the previous week looking for Hal.   Mrs. D. passed this information on to police.

On October 16, 1983, Brandy went to the Lund home, which was next door to Hal's residence, to deliver a birthday card to the Lund's five-year-old daughter.   When Brandy returned home, she told her mother that she had seen the man who took her.   He was going into Morgan's house.   The police were called, but when Manhattan Beach police officer John Milligan (Milligan) arrived, defendant was no longer at his brother's house.   Milligan did confirm that he had been there, however, through conversations with Hal and Mrs. Lund.

On October 17, 1983, Milligan obtained a black and white photograph of defendant, and assembled a black and white photographic lineup which he showed to Mrs. D. and to one of her neighbors who had seen Brandy with her abductor on October 9th.   Neither could make any identification.

On October 21, 1983, Milligan obtained a color photograph of defendant and assembled a color photo lineup which he showed to Brandy.   She pointed to defendant's photograph and said that he was the man she saw on the walk street on the rainy day, under the tree.   Milligan then asked her if defendant was the man who took her.   She said, “No.”   She appeared “somewhat uneasy about her answer,” so Milligan asked her “if she had seen the man at any other time.”   She replied, “Yes.   That's the man who took me.”   He asked her if she had seen the man any other time, and she said, “Yes, at Morgan's house.”   Milligan verified that she meant the night of October 16th.

Milligan also showed the color photo lineup to Mrs. D. and to several of the neighbors who had observed Brandy with her abductor on October 9th.   The only person other than Brandy who was able to identify defendant's photograph was a neighbor named Wynne Zabel.   She was 70 percent certain defendant was the man.

At trial, Brandy identified defendant as the man who abducted and molested her, and as the man who was with her under the tree on the rainy day.   She had also seen him in the neighborhood on one other occasion prior to the abduction.   He had some cheese and pretzels on that occasion and gave some to Dustin and to Shelby Lund.   She saw him again on a day after the abduction when she went to Shelby's house, and reported this to her mother.   Brandy denied having seen defendant at his nephew Morgan's birthday party.2  Mrs. D. identified defendant at trial as the man she had seen with Brandy on the rainy day.   The first time she saw him in person after that was in the hallway of the courthouse at his preliminary hearing.   She recognized him immediately when she stepped off the elevator.   There were between 50 and 100 people in the hallway at the time.

Wynne Zabel (Zabel), an adult, testified that she lived on Fifth Street in Manhattan Beach.   At about 11:30 a.m. October 9, 1983, from her bathroom window, Zabel observed Brandy and Dustin sitting with a man on the curb outside.   She was about 70 feet from their location.   She had an unobstructed view.   Zabel assumed the man was the children's father.   She watched them for about five minutes because it was a pretty day.   Zabel was 60 to 70 percent certain that defendant was the man she saw.   She thought that he had a mustache that day.3  She indicated she was basing her identification on her having seen him on the day of the abduction, not on her having seen the photo lineup.

Zabel further testified that her mother had gone outside to move her car while the man and the children were on the curb.   Zabel's mother had passed within five feet of them, but she was not able later to identify defendant as the man she had seen.

Brian Sieger (Brian), age 10, testified that he was visiting his friend Jason Maurry (Jason) on October 9, 1983.   Jason lived on Fifth Street, down the block from Brandy.   While looking out Jason's window, Brian saw Brandy and Dustin sitting on the curb with defendant.   Brian and Jason came outside.   Defendant started walking away.   Brandy and Dustin followed him.   A few minutes later Dustin came back alone and ran home.   Shortly thereafter Brandy's parents came looking for her.   Brian had seen a photo lineup but had not been able to identify anyone in it.   Brian did not live on Fifth Street.   He had not previously seen defendant in the neighborhood.   Brian did not think defendant had a mustache on October 9th.

Jason was 11 years old.   He testified that on October 9, 1983, while he and Brian were playing in his room, he saw defendant sitting on the curb near his house with Brandy and Dustin.   He saw them again when he and Brian came outside.   Defendant, Brandy and Dustin walked around the corner.   Then Dustin came running back.   Jason thought defendant had a two or three day growth of mustache on October 9th.   Jason was unable to identify anyone in the photo lineup.

Defendant testified in his own behalf that on October 9, 1983, he went grocery shopping shortly after 10 a.m. in Bellflower, near his home.   He spent 15 or 20 minutes in the market.   Afterwards he went to Cargo Auto Parts to buy a throttle clip for his girl friend's car, which he was repairing.   He spent about 35 minutes in the parts store.   He went home at about 11:15 a.m. and worked on his girl friend's car for the rest of the day.   As he arrived home, his neighbors across the street were in front of their house, about to drive away.   He made no effort to contact his neighbors after his arrest to see if they could corroborate his alibi.

Defendant denied ever taking Brandy to a park or molesting her.   He never sat with Brandy on the curb.   He had never spoken to her.   He had never seen Mrs. D. before coming to court.   He never went to Newmark's house on a rainy day, although he had gone to her house the previous summer.   He was at Morgan's birthday party, but he did not remember seeing Brandy there.

David Glover (Glover) testified that he was employed by Cargo Auto Parts in Bellflower on October 9, 1983.   Defendant came into the store that morning to buy a throttle clip.   The clip Glover had was unsuitable for defendant's purpose, and defendant did not make a purchase that day.   He knew defendant by sight because he had been in the store some 15 or 20 times before October 9th.   He estimated that defendant came into the store between 10:30 and 11 a.m.   He estimated the time of defendant's arrival based on the fact that defendant arrived while Glover was brewing his second pot of coffee of the morning.   The store opened at 9 a.m.   Glover made a pot of coffee then and he and a co-worker finished the first pot just before defendant's arrival.   Glover was first contacted by defendant with respect to defendant's alibi shortly after October 24, 1983.

Defendant presented evidence that Cargo Auto Parts was slightly more than 30 miles from Hal's house, and that it took 38 minutes to drive there.4

Defendant attempted to call Dr. June Cmiel as a witness “to report and illustrate on the conception, memory and recall of individuals who are eyewitnesses.”   Defense counsel's initial offer of proof was as follows:

“Her background and experience would be in the field dealing with traumatized children.   She would be dealing specifically with questions, objective questions, dealing with children's ability to form specific recollection of incidents and the factors concerning their recollection and their memory, not specifically in this case, but to lay out what some of the problems may be.

“As an offer of proof we would ask, among other questions, to give an opinion as to the effect of a child identifying a person in court with the assistance of a—with the previous assistance of a photo mug shot, and never previously having an identification of that person.

“This is different, I believe, than asking a witness to invade the province of the jury, and to testify specifically as to the credibility of that witness.”

As a further and more specific offer of proof defense counsel stated:

“I guess my offer of proof ․ maybe I am asking for the court's determination now in dealing with the specific areas, proposing a hypothetical to this witness that a hypothetical would include a specific conversation and question and answer between a police officer and the child leading up to the alleged identification by the photo lineup, the questions asked by the officer and the answers given by the child;  and everything the witness answers as to whether or not in her opinion that would be suggestive, that would be one.

“Two, whether as a hypothetical, taking two ten-year-old boys and their first exposure to the defendant would be the photographs, and then their failing to identify the defendant from the photographs, and subsequently identifying the defendant for the first time in court, I would ask the witness then, based on her experience with memory retrieval, perception, recognition, whether that was suggestive, and whether there is something inherently deficient in the witnesses' identification based on the fact they may be identifying from their memory of the photographs rather than from the individual.

“And, furthermore, the fact that they are seeing the individual in a very specific area in a courtroom setting, and them being 12-year-olds [sic ], and the effect of the courtroom setting on the particular witness.

“Those would be the two areas that I would address, Your Honor.   Both are very specific.”

The prosecutor objected to the proffered testimony on the grounds that there already had been a pretrial hearing before another judge on a motion to suppress identification testimony, based on the suggestiveness of the photo lineup, which resulted in a ruling adverse to defendant.   The prosecutor further argued that the evidence should be excluded under the court's discretionary powers (Evid.Code § 352), and asserted the People's right to bring in other witnesses who would dispute Dr. Cmiel's testimony, should the motion to exclude be denied.   In granting the People's motion to exclude the evidence, the court concluded, “I think it invades a province.   I don't think experts can be helpful to a jury in this regard, and I think it only tends to confuse the issue.”

DISCUSSION

I

On appeal, relying on People v. McDonald (1984) 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709, defendant contends that the court erred in excluding the expert evidence.   In People v. McDonald, supra, the Supreme Court held:  “When an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony.”  (37 Cal.3d at p. 377, 208 Cal.Rptr. 236, 690 P.2d 709, fn. omitted.   Emphasis added.)

The Court also held that the issue of admissibility was initially committed to the trial court's discretion and that the prejudicial effect of any error was to be measured by the Watson standard.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)   The Supreme Court has demonstrated its intention that People v. McDonald, supra, be applied retroactively to cases not yet final on appeal.  (People v. Brown (1985) 40 Cal.3d 512, 220 Cal.Rptr. 637, 709 P.2d 440.) 5

 Applying People v. McDonald, supra, to the instant case, we find that the trial court herein erred to the extent that its ruling was predicated on a finding that the proffered testimony would invade the province of the jury, but that the error was harmless because the court had a sound basis for excluding the evidence under Evidence Code section 352 based on its finding that the evidence would confuse rather than assist the jury.

In People v. McDonald, supra, the defendant was on trial as a result of a street robbery and murder.   The observations of the eyewitnesses to the confrontation between the defendant and the victim were very brief.   The eyewitnesses happened upon the event unexpectedly as passersby either on foot or in vehicles.   Their opportunity to observe the perpetrator was fleeting, and, in some cases, partially obstructed.   The defendant and all but one of the eyewitnesses were of different races.   The one eyewitness who shared the defendant's race said that defendant was not the perpetrator.   Given those circumstances, the Supreme Court ruled that it was error, under the standard quoted above, to exclude evidence of scientific studies involving factors affecting eyewitness identification, including cross-racial identification, weapon focus and stress.   A similar conclusion was reached in People v. Jackson (1985) 164 Cal.App.3d 224, 210 Cal.Rptr. 680;  however, the error was deemed nonprejudicial.

A far different factual situation exists in the present case.   Here not only did the victim survive and testify, but she had had the opportunity to observe defendant, in the closest proximity, over a period of more than 30 minutes.   Furthermore, she had seen him on previous occasions which had not been stressful or traumatic.

The victim's mother had seen defendant on a prior occasion which had caused her concern but not severe stress.   Her opportunity to observe him on that occasion had not been curtailed by his flight.   The remaining eyewitnesses had an opportunity to observe defendant for a period of at least five minutes at a time prior to his conduct turning criminal.   Their observations were therefore not made under the impact of stress.   There was no issue of cross-racial identification and no weapon was involved.

Furthermore, the only area which the offer of proof sought to explore was the suggestiveness of the photographic lineup as to the children.6  This area had been the subject of a full-fledged pretrial hearing, the results of which have never been challenged.

Since the expert testimony was not offered as to the adult eyewitnesses, their identification testimony must be treated as independent corroboration of the children's testimony.   Although Brandy's testimony was sometimes contradictory and sometimes unclear, it is patently obvious that this was the result of her extreme youth.   This was undoubtedly obvious to the jury and defendant's offer of proof in no way suggested that the expert witness would be able to assist the jury in assessing Brandy's credibility except insofar as it related to her prior observation of the photograph.

McDonald, supra, holds that expert evidence is most needed when the case is evenly balanced.   Defendant's alibi defense was weak, however, in that Glover's estimate of the time defendant was in the store was imprecise and because the defense failed to establish how Glover was able to pinpoint the date defendant was in his store when first asked about the incident some two and one-half weeks later.   The defense was further weakened by defendant's failure to contact the neighbors who had allegedly seen him at home at the time of the crime.

Finally, it is impossible to conclude that any benefit which defendant might have derived from Dr. Cmiel's testimony would not have been counteracted by the opposing experts the prosecution would then have called.   Given the state of the evidence and the narrow focus of the offer of proof, we have concluded that the trial court's discretion to exclude the evidence under Evidence Code section 352 was not abused.

II

Defendant further contends that it was error to sentence him on both counts because they formed a single transaction.  (Pen.Code, § 654.)   The conviction on count I included a finding that the kidnapping was for the purpose of committing a lewd act upon a child.   The conviction on count II was for a violation of Penal Code section 288.   The People do not concede that defendant's position is correct, but they do assert that defendant's position finds support, by analogy, in People v. Milan (1973) 9 Cal.3d 185, 197, 107 Cal.Rptr. 68, 507 P.2d 956;  People v. Beamon (1973) 8 Cal.3d 625, 639, 105 Cal.Rptr. 681, 504 P.2d 905;  and In re Ponce (1966) 65 Cal.2d 341, 342–343, 54 Cal.Rptr. 752, 420 P.2d 224.   More importantly, the People offer no theory upon which the kidnapping might be deemed a separate transaction than the molestation under Penal Code section 654.

 The trial court rejected defendant's section 654 argument on the grounds that:  “The kidnapping occurred at a totally different place at a different time, and it was not a part of a continuing course of conduct.”   There is no support in the record for the finding that there was not a continuing course of conduct.   The abduction immediately preceded the molestation.   It covered a distance of approximately a mile and a half.   It terminated immediately upon the conclusion of the molestation.   No financial or other possible motive appears in the record.   The fact that the abduction occurred at a different place is essential to any determination that there was a kidnapping.  (People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225.)   What is crucial for section 654 purposes is the jury's determination that the kidnapping was for purposes of molestation.

The judgment is hereby modified to provide that sentence on count I is stayed pending service of sentence on count II, the stay to become permanent upon completion of sentence on count II.   As so modified, the judgment is affirmed.

FOOTNOTES

1.   Brandy's family had lived on the block for only six weeks prior to Brandy's abduction and did not know defendant, although he had been friends with the former owner of Brandy's house.

2.   Morgan Schaening's birthday party was on September 25th.   Hal testified that defendant and Brandy were both at the party.

3.   At the time of trial defendant was clean-shaven.

4.   In rebuttal, the People presented evidence that the drive could be made in 31 minutes.

5.   See also People v. Plasentia (1985) 168 Cal.App.3d 546, 214 Cal.Rptr. 316 which the Supreme Court retransferred to the Court of Appeal for reconsideration in the light of People v. McDonald, supra.

6.   On appeal defendant argues that the children's observation of defendant at the preliminary hearing was suggestive, but the offer of proof did not indicate that Dr. Cmiel could shed expert light on this factor.

FEINERMAN, Presiding Justice.

ASHBY and EAGLESON, JJ., concur.