PEOPLE v. MANUEL (1991)

Defendant Manuel M. was charged by information with committing numerous sex related offenses against his daughter, D.¹  D. refused to testify at the preliminary examination, and after arraignment in superior court defendant filed a motion to set aside the information (Pen.Code, § 995) on the ground that the People had failed to present any competent evidence of the corpus delicti.   After the motion was denied, defendant waived his right to jury trial.   During the court trial which ensued, there was a brief examination of D. after which the court declared her unavailable as a witness.   The parties agreed to submit the question whether the People had established the corpus delicti on the basis of the brief examination of the victim, the preliminary examination transcript, and the transcript and moving papers from the Penal Code section 995 motion.   The court found the People had established the corpus delicti, admitted defendant's extrajudicial statements, and then found defendant guilty of all charges except for one count alleging sodomy by force.   Defendant was sentenced to 12 years in state prison.   On appeal, defendant renews his contention that the People failed to introduce any competent evidence of corpus delicti.   In addition, he argues that Count I, a rape charge, must be reversed for lack of evidence.

FACTS

The evidence presented at trial consisted of the preliminary hearing testimony of several witnesses regarding D.'s out-of-court statements concerning the sexual abuse as well as tapes and transcripts of defendant's extrajudicial admissions.

D.'s friend, Delfina, testified D. first told her about defendant's sexual advances during gym class sometime after the start of the 1988–1989 school year.   On that occasion D. said defendant “had been touching her and she didn't want to talk about it.”   Approximately two months later, the girls were at school when D. started crying, said defendant had come into her bedroom and “tried to stick it all the way in,” and told Delfina she was afraid she might be pregnant.   Although D. asked Delfina to keep the conversation a secret, Delfina suggested D. tell her mother what had happened.   D. said she would talk to a teacher, and sometime after this second conversation, D. told Delfina the police had been called.²

D.'s 12–year–old sister, M., testified D. told her defendant had been “touching [her] in the private wrong places,” and that, the next day, D. also told their mother about the abuse while M. was present.

D.'s mother testified D. first told her about defendant's sexual advances on February 7, 1989.   D. said defendant “had been touching her the wrong ways.”   When defendant returned home that evening, and his wife told him what D. had said, defendant “didn't say anything․”  Mrs. M. and her three daughters spent that night at a relative's house.   The next day defendant and his wife argued over who was going to leave the house.   Mrs. M. testified she did not notify the police because she was “confused and upset and [she] didn't know what to do.”

On February 9, 1989, D. reported the abuse to her teacher, who testified D. told her she hated her father, that he didn't want her to go to the dance or to have any friends.   In response to the teacher's questions, D. said her father wanted her for himself, that he sexually abused her, and that she thought he had made her pregnant.   D. said her father had been sexually abusing her since she was six years old.   The teacher referred D. to the school psychologist.

San Jose Police Officer Johnson testified he interviewed D. in the psychologist's office later that day.   D. said that, when she was six, defendant put her on some pillows and gave her money to play with as a distraction while he inserted his penis into her vagina.   She related an incident in 1988 when the family was installing bricks in the yard, her mother was not home, and she was taking a shower;  defendant entered the locked bathroom, forcibly removed her from the shower, and then “put his penis into direct contact with her vagina.”   D. said in January of 1989, defendant climbed through her bedroom window, removed her night clothes, touched her breasts and genitals with his hands, put a finger into her vagina, unzipped his pants and forced her mouth onto his penis.   He then “inserted or tried to insert” his penis into her vagina and finally turned her over and “inserted” his penis in her anus.   D. told Johnson that during the same month, defendant molested her in a camper parked at the family residence;  he forced D. to rub his penis until fluid came out of his penis and then placed some of the fluid on D.'s lips.   D. said the most recent incident took place on February 6, 1989, when defendant touched her breasts and genitals with his hands, forced her to put her mouth on his penis and put his penis “into direct contact with” her vagina and anus.

At the end of the interview, Johnson told D.'s mother that D. had been raped;  Mrs. M. asked D. if this was true, and D. replied that it was.   However, when her mother asked if defendant “had gone all the way” with her, D. said he had not.

Dr. Cronan, D.'s pediatrician, examined D. on February 10, 1989.   Cronan testified that both D. and her mother told her D. had been sexually assaulted by her father.   Cronan performed a visual examination of the external genitalia and tests for pregnancy and sexually-transmitted diseases.   The tests were all negative and the doctor found no physical evidence of sexual abuse.   Cronan noted that lack of such evidence does not rule out sexual abuse.

On February 9, 1989, defendant was interviewed by Officers Johnson and Lopez.   After waiving his Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) rights, defendant said he began molesting or fondling D. when she was ten or eleven.   He substantially corroborated D.'s account of some of the specific instances of abuse, including the time he took her from the shower, the time he entered her room through her window, and the incident inside the camper.   He admitted fondling her breasts, buttocks and genitals, penetrating her vagina with his finger, forcing her to rub his penis with her hands, forcing her to orally copulate him, and trying to sodomize her.   He admitted simulating intercourse by placing his penis between D.'s legs but denied ever penetrating her vagina with his penis.   Defendant said he knew D. never wanted to participate in these sexual acts, and that he had told her he would be sent to jail and she would never see him again if she told anyone about the abuse.

I

Defendant contends the judgment must be reversed because the People failed to introduce any competent evidence of corpus delicti.

“In every prosecution for crime, it is necessary to establish the corpus delicti, i.e., the body or elements of the crime.   These are, broadly speaking, (1) the fact of the injury, loss or harm, and (2) the existence of a criminal agency as its cause.”  (1 Witkin and Epstein, Cal.Criminal Law (2d ed. 1988), § 136, p. 152;  accord, People v. Hamilton (1989) 48 Cal.3d 1142, 1175, 259 Cal.Rptr. 701, 774 P.2d 730.)  “The significance of the corpus delicti concept lies in the rule that no part of it can be proved by the extrajudicial admissions or confessions of the defendant.   Unless the corpus delicti is established, such statements cannot be admitted in evidence.”  (1 Witkin and Epstein, op. cit., supra, § 137, p. 153;  accord, People v. Hamilton, supra, 48 Cal.3d at p. 1175, 259 Cal.Rptr. 701, 774 P.2d 730.)

 Proof of corpus delicti “may be by circumstantial evidence (citation), and it need not be beyond a reasonable doubt.   A slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient.  [Citations.]  If the independent proof meets this threshold requirement, the accused's admissions may then be considered to strengthen the case on all issues.  [Citation.]”  (People v. Alcala (1984) 36 Cal.3d 604, 624–625, 205 Cal.Rptr. 775, 685 P.2d 1126.)   Corpus delicti may not be established by hearsay evidence which is not admissible under an exception to the hearsay rule.  (People v. Moreno (1987) 188 Cal.App.3d 1179, 1190–1191, 233 Cal.Rptr. 863.)

In the instant case, the People adduced no physical evidence showing that D. was molested, and D. refused to testify both at the preliminary examination and at trial.   However, she did make hearsay statements to several witnesses which, if admissible, would have constituted a sufficient prima facie showing of corpus delicti.   The issue we face is whether some or all of D.'s statements to the witnesses who did testify were admissible under any exception to the hearsay rule.

The magistrate found D.'s various out-of-court statements admissible on four theories:  fresh complaint, spontaneous declaration, declaration against interest, and state of mind.   The court reviewing defendant's Penal Code section 995 motion to dismiss found D.'s statements admissible only on the latter two grounds found by the magistrate.   The trial court, without stating reasons, simply announced.  “I have considered what was before me, and I find that there is a corpus.”   The People on appeal rely primarily on only one of the four theories adopted by the magistrate.   After conceding that “the only independent evidence of the corpus delicti was the testimony regarding D [ ] M[ ]'s out-of-court statements complaining of and describing appellant's acts of sexual abuse,” they argue that “D[ ]'s out-of-court statements were admissible under Evidence Code section 1230 as declarations against interest, and that their admission did not violate appellant's rights under the Sixth Amendment.”

 We first note that the “fresh complaint” doctrine is inapplicable to the facts before us.   Evidence of fresh complaint is not hearsay as it is not admitted to prove the crime occurred;  it “is admitted solely for the purpose of corroborating [the victim's] testimony.”  (People v. Bernstein (1959) 171 Cal.App.2d 279, 285, 340 P.2d 299.)  “Since the only object of the evidence is to repel the supposed inconsistency between the [victim's] present testimony and her former silence, it is obvious that if she has not testified at all, there is no inconsistency to repel, and therefore the evidence is irrelevant.”  (4 Wigmore on Evidence (Chadbourn rev. 1972) § 1136, pp. 307, 310, fn. omitted.)   California follows this rule, only allowing for an exception when the victim is a child too young to testify.  (People v. Meacham (1984) 152 Cal.App.3d 142, 159–160, 199 Cal.Rptr. 586.)   Given that D., age 15 at the time of trial, is presumed competent to testify (People v. Harrison (1912) 18 Cal.App. 288, 294, 123 P. 200, overruled on other grounds in People v. McCaughan (1957) 49 Cal.2d 409, 420–421, 317 P.2d 974;  People v. Bernal (1858) 10 Cal. 66) and did not do so, there was no testimony for evidence of fresh complaint to corroborate.   The People have correctly conceded that they cannot rely upon the theory of fresh complaint to support admissibility of D.'s out-of-court statements.

We next address whether any of D.'s statements were admissible under the spontaneous declaration exception to the hearsay rule, which provides:  “Evidence of a statement is not made inadmissible by the hearsay rule if that statement:  [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant;  and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”  (Evid.Code, § 1240.)  “The rationale of this exception is that the spontaneity of such statements and the consequent lack of opportunity for reflection and deliberate fabrication provide an adequate guarantee of their trustworthiness.”  (Cal.Law Revision Comm. com., § section 1240, West's Ann.Evid.Code, p. 237.)

 The Supreme Court, in Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468, 106 P.2d 895, set forth the test for admission of spontaneous declarations:  “To render them admissible it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting;  (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance;  and (3) the utterance must relate to the circumstances of the occurrence preceding it.   [Citation.]”  Whether a statement meets this test for admission as a spontaneous declaration is within the discretion of the trial court.   (People v. Poggi (1988) 45 Cal.3d 306, 318–319, 246 Cal.Rptr. 886, 753 P.2d 1082.)

 Here the People failed to “show that the declarant made the statement spontaneously, while under stress of the excitement, with no time to contrive․”  (People v. Hughey (1987) 194 Cal.App.3d 1383, 1388, 240 Cal.Rptr. 269.)   M. testified that when D. first talked in the bedroom about their father touching her in the wrong places it was “[t]he day before she told my mom.”   When D. talked with M. in the bedroom “[s]he wasn't crying, she was pretty scared and frustrated.”   In light of the testimony of the mother, we can reasonably infer that D.'s first hearsay statements to her sister were sometime on February 6, 1989.   That conversation was interrupted when their mother called them to the kitchen to eat.   Although D.'s statement to Officer Johnson suggests that the last sexual assault occurred on the same date as D.'s conversation with M., the record is silent as to what time on that date either the assault or the conversation took place;  the sexual assault could have occurred in the early morning and D. may not have confided in her sister until after school prior to dinner.   When the proponent has failed to adduce evidence showing when the statements were made and whether the excitement of the incident has worn off, it would be an abuse of discretion to admit the statements as spontaneous declarations.  (Wiley v. Easter (1962) 203 Cal.App.2d 845, 855–856, 21 Cal.Rptr. 905.)   We therefore conclude that D.'s hearsay statements to her sister M. were not admissible under the spontaneous declarations exception set forth in Evidence Code section 1240;  the People properly concede that D.'s other out-of-court statements which were admitted into evidence do not fall within the spontaneous declarations hearsay exception.

 The People also correctly concede the state of mind theory of admissibility is not “viable here” since it does not “allow the admission of D [ ]'s statements for their truth.”  (See the Assem.Com. on Judiciary com. to Evid.Code § 1250, subd. (b), West's Annot.Evid.Code, p. 271;  Shepard v. United States (1933) 290 U.S. 96, 106, 54 S.Ct. 22, 26, 78 L.Ed. 196;  People v. Deeney (1983) 145 Cal.App.3d 647, 652–654, 193 Cal.Rptr. 608.)

We next address whether D.'s statements were admissible as declarations against interest.

Evidence Code section 1230 provides:  “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”   We conclude that D.'s statements concerning the sexual abuse by her father were properly admitted as declarations against her social interest.

 When a court decides whether or not a witness is available to testify, “the important element is whether the testimony of the witness is sought and is available and not whether the witness's body is available.”  (Mason v. United States (10th Cir.1969) 408 F.2d 903, 906.)   A trial court may properly find a witness “unavailable” if the witness, though physically present, nevertheless refuses to testify, where the court has taken reasonable steps to induce the witness to testify or it is obvious that such steps would be unavailing.  (People v. Francis (1988) 200 Cal.App.3d 579, 587, 245 Cal.Rptr. 923;  People v. Walker (1983) 145 Cal.App.3d 886, 894, 193 Cal.Rptr. 812;  People v. Sul (1981) 122 Cal.App.3d 355, 364–365, 175 Cal.Rptr. 893.)

 On May 16, 1989, the magistrate took elaborate steps to induce D. to testify at the preliminary examination.   He explained that he could fine her, that her refusal to testify could allow her father to sexually abuse her siblings, that her testimony would be in the best interest of the family, “including your father,” and that there was a possibility her refusal to testify would result in the charges being dismissed and allowing her father to “walk away from this thing.”   The magistrate added that one way the conduct of defendant “can be taken care of is if you help the situation by telling us what happened to you regardless of the consequences.”   The magistrate then told D. that if she chose not to testify, “I think you're making a mistake for your sake, for your sisters' sake, for your father's sake but that's your decision to make, and I will respect that decision.”   When D. declined taking “some time to think,” the magistrate made one final effort to induce her to testify by telling her “you are a person, you should take pride in yourself at being a person.   Nobody has the right to violate you as a person, nobody, your father, your mother, nobody.   That right is protected by the law, and I don't want you to give up being an individual person by refusing to testify here because basically that's what you're doing.   You should be able to look in the mirror and say hey, I am worth it, I'm worth something.   Nobody should do this to me and get away with it because I am somebody.”   Despite repeated threats of fines and inducements to testify, D. decided she was “still” not going to testify.

Five months later, at trial, D. was again called to the stand on the issue of her availability to testify against her father.   She reiterated that she would refuse to testify “[b]ecause I still love [defendant]” and because “I just don't want to see him in jail․”  After being told she did not have a privilege not to testify, that “[b]y law, you should testify in this hearing,” that she could be fined but not placed in jail or Juvenile Hall if she refused to testify, D. said she still would refuse to testify “for the reasons [she'd] given ․ before.”

We conclude that the record made by the trial court, when read in context, amply supports the trial court's implied finding that further steps to induce D.'s testimony would have been unavailing.  (See People v. Turner (1990) 219 Cal.App.3d 1207, 1213–1216, 268 Cal.Rptr. 686.)

 We next consider whether D.'s statements complaining of and describing defendant's acts of sexual abuse created such a risk of making her the object of ridicule or social disgrace in the community that they were against her social interest within the meaning of Evidence Code section 1230.   Ours is a society “which gives grudging acknowledgment to the abstract concept of child sexual abuse but which [often] challenges and represses the child who presents a specific complaint of victimization.”  (Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse & Neglect (1983) 177, 178.)   Moreover, in a case of incest, family members often have difficulty accepting the victim's accusations because of a conflicting sense of loyalty to the perpetrator.  (See Burgess, et al., Divided Loyalty in Incest Cases, Sexual Assault of Children and Adolescents (1978) pp. 115–126.)   Even when it is clear sexual activity has taken place, the victim's family and friends often conclude the victim seduced the perpetrator or is otherwise to blame for the abuse.  (See de Young, The Sexual Victimization of Children (1982) pp. 24–27;  Summit, supra, at p. 178.)   In fact, the potential social consequences of making accusations of molestation often keep actual child victims from revealing the abuse until they are adults, if ever.  (Summit, supra, at pp. 181–182;  de Young, supra, at pp. 41–42.)   We conclude it was against D.'s social interest to make statements that she had been engaging in a variety of sexual activities with her own father since the age of six and that she believed she was pregnant with her father's child.   D.'s disclosures may have received a sympathetic and understanding response, but they were made with the risk that they would just as easily subject her to ridicule, disgrace, and “odium.”  (See People v. Parriera (1965) 237 Cal.App.2d 275, 285, 46 Cal.Rptr. 835 [declarant's out-of-court statements that her gunshot wounds were self-inflicted admissible as declarations against interest];  United States v. Lang (2d Cir.1978) 589 F.2d 92, 97 [statement made to undercover agent indicating culpability for crime against penal interest though declarant thought agent was confederate when he made statement];  United States v. Bagley (5th Cir.1976) 537 F.2d 162, 165 [reasonable person would not falsely admit commission of serious crime, even to friend and cellmate].)

Defendant's reliance upon In re Weber (1974) 11 Cal.3d 703, 114 Cal.Rptr. 429, 523 P.2d 229 is misplaced.   In that case, inmate Anderson told his cellmate Weber that inmate Devins admitted framing Weber by committing perjury at Weber's trial.   Weber argued that Anderson's statement was admissible because it was against Anderson's social interest to betray another inmate's trust and be labeled a “ ‘snitch.’ ”  (Id., at p. 721, 114 Cal.Rptr. 429, 523 P.2d 229.)   The court found the statement not against Anderson's social interest because “[n]othing in the content of Anderson's statement reflects adversely on his character in such a way as to guarantee that it is reliable” (ibid ) and “both the content of the statement and the fact that the statement was made must be against the declarant's social interest.”  (Id., at p. 722, 114 Cal.Rptr. 429, 523 P.2d 229.)   The court then noted that “Anderson actually cannot be regarded as a ‘snitch’ in the usual sense of one who informs on another inmate to the authorities;  and although his statement of what Devins told him reflected adversely on Devins and may have caused Anderson to incur the hatred of Devins and his immediate friends, the statement at the same time served to benefit petitioner, who was another convicted felon.   Consequently, even within the prison community Anderson's statement could just as well be regarded as having had the effect of holding him up to approbation.”  (Ibid.)  Here, to the contrary, it was the content of D.'s statements which created a risk of social disgrace in the community, and her statements were not likely to bring her praise or commendation.

D. had personal knowledge whether defendant had sexually abused her;  she was unavailable as a witness;  and her statements complaining of and describing defendant's abuse were sufficiently against her social interest to guarantee their trustworthiness.   The statements therefore were admissible as declarations against social interest within the meaning of Evidence Code section 1230.

 Defendant next contends the admission of D.'s out-of-court statements violated his Sixth Amendment right to confront witnesses.   However, the admission of hearsay testimony against a criminal defendant does not violate the confrontation clause where the prosecution demonstrates that (1) the declarant is unavailable as a witness, and (2) the out-of-court statement bears adequate indicia of reliability.  (Idaho v. Wright (1990) ––– U.S. ––––, ––––, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638.)   “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.”  (Ibid;  Ohio v. Roberts (1980) 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597.)   If the evidence does not fall within such an exception, it may still be admitted if it carries “ ‘particularized guarantees of trustworthiness' ”;  that is, if the totality of the circumstances surrounding the making of the statements render the declarant particularly worthy of belief.  (Idaho v. Wright, supra, 110 S.Ct. at p. 3149.)

 The hearsay exception for declarations against social interest, of comparatively recent origin, cannot qualify as a “firmly rooted” exception for confrontation clause purposes.  (See Bourjaily v. United States (1987) 483 U.S. 171, 182–184, 107 S.Ct. 2775, 2782–2783, 97 L.Ed.2d 144.)   However, the fact that a statement made is so against one's social interest that it creates the risk of making the declarant the object of ridicule or social disgrace to the community renders the declarant particularly worthy of belief.  (See People v. Parriera, supra, 237 Cal.App.2d at pp. 284–285, 46 Cal.Rptr. 835;  see Morgan, Declarations Against interest (1952) 5 Vand.L.Rev. 451, 475 and Jefferson, Declarations Against Interest:  An Exception to the Hearsay Rule (1944) 58 Harv.L.Rev. 1, 39 [declarations against social interest at least as reliable as declarations against pecuniary or proprietary interest].)

 Here, the totality of the circumstances surrounding D.'s statements render D. particularly worthy of belief.   The fact that she was visibly upset when describing the events suggests she was telling the truth as does the detail of her descriptions and the fact that she waited to reveal the years of abuse until she suspected she was pregnant.   Similarly, the fact that the content of the statements made, namely, that she had engaged in sexual conduct with her own father for several years and felt she was pregnant by him, was so against D.'s social interest also renders D. particularly worthy of belief.   We find that admission of D.'s statements did not violate the confrontation clause of the Sixth Amendment.

 In sum, we conclude that D.'s statements were properly admitted and constituted a prima facie showing of the corpus delicti of the charged offenses sufficient to allow admission of defendant's extrajudicial statements.

II

 Defendant contends the evidence was insufficient to establish the elements of rape in Count I.   That count charged defendant with the rape of D. at the time the family was installing bricks in the front yard while D. was in the shower.   Officer Johnson testified that D. said defendant put “his erect penis into direct contact with her vagina” on this occasion.   The crime of rape requires more than contact with the victim's vagina;  it requires actual penetration of the vagina.  (Pen.Code, § 263.)   To satisfy this requirement, penetration of the labia is sufficient, and the victim's testimony of penetration to this degree is sufficient to support a conviction.   (People v. Karsai (1982) 131 Cal.App.3d 224, 232–233, 182 Cal.Rptr. 406, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, 250 Cal.Rptr. 635, 758 P.2d 1165.)   But evidence is insufficient to show penetration when the victim says the defendant “ ‘put his privates against mine.’ ”  (State v. Whittemore (1961) 255 N.C. 583, 586, 122 S.E.2d 396, 398.)

The People concede that “evidence of genital contact short of penetration is insufficient to prove rape,” but “submit, however, that in the instant case Officer Johnson used the phrase ‘direct contact’ as a euphemism for penetration, rather than as a description of contact short of penetration.”   We cannot surmise that the phrase “direct contact” as used to describe the conduct involved in Count I was a “euphemism for penetration”;  Officer Johnson used the word “insert” several times throughout his testimony regarding other counts in which penetration was an issue.   His testimony about “contact” between the defendant's penis and the victim's vagina is insufficient to establish penetration;  accordingly Count I must be reversed.

DISPOSITION

Count I is reversed.   In all other respects, the judgment is affirmed.   The matter is remanded for resentencing in light of the reversal of Count I.

COTTLE, Associate Justice.

AGLIANO, P.J., and PREMO, J., concur.