PEOPLE v. ZEEB (1992)

Michael Zeeb (Zeeb) appeals following his conviction of three counts of committing a lewd and lascivious act on his daughter Alexis, a child under the age of 14, in violation of Penal Code section 288, subdivision (a).¹  Zeeb asserts his conviction must be reversed and the matter dismissed because he was denied his constitutional right to a speedy trial.   Zeeb also asserts error by reason of other rulings of the trial court improperly admitting evidence of prior testimony, allowing expert testimony concerning a child sexual abuse accommodation syndrome, denying a motion for mistrial, and excluding Zeeb's family from the courtroom.   Zeeb also asserts that in any event there was not sufficient evidence to support his convictions.   For the reasons which follow, we reach only the speedy trial question.   Because we have concluded that error occurred in the ruling which denied Zeeb his right to a speedy trial, we reverse.

PROCEDURE

After charging Zeeb with five counts of violating section 288, subdivision (a), at the end of the preliminary examination the People moved to amend to conform to proof by adding a sixth count alleging the same offense.   The magistrate determined, however, (by a process of inference and deduction) that while there had been no testimony supporting counts 1 and 2, sufficient evidence had been presented as to counts 3, 4 and 5, “although it certainly is not entirely clear with regard to some of the alleged acts.”   The information thereafter filed on March 12, 1990, alleged three violations of section 288, subdivision (a).   Counts 1 and 2 allegedly took place “[o]n and between August 2, 1988, and October 30, 1989,” while count 3 allegedly occurred July 4, 1989.

At his arraignment on March 19, 1990, Zeeb entered a plea of not guilty, and trial was set for May 1, 1990.   The May 1 trial date was confirmed at the April 24, 1990 readiness conference.   On May 1, the trial was trailed to May 9, 1990.   The court's minutes reflect there were “2 days left” of the 60 days in which Zeeb must be brought to trial or the case dismissed as mandated by section 1382, subdivision (a)(2).

On May 9, 1990, the People's motion to continue the trial to July 30, 1990 (82 days past the § 1382, subd. (a)(2) statutory limit) was granted by Judge Rodriguez, and Zeeb's motion to dismiss for violation of his right to speedy trial was denied.   When the case was sent out for trial on August 1, 1990, Zeeb attempted to renew his motion to dismiss, but the trial judge determined that the earlier ruling which had continued the matter past the statutory deadline was “the law of the case” and thus the trial judge was without power to rehear the issue.

Trial began August 1, 1990.   At 9:30 a.m. on Thursday, August 16, the jury retired to deliberate.   They continued their deliberations throughout that day and all day Friday, and returned for another full day of deliberations on Monday.   At 1:40 p.m. on Tuesday, August 21, the jury finally returned its verdicts finding Zeeb guilty as charged.

FACTS 2

Alexis, Zeeb's and Mary's daughter, was born April 27, 1981.   Zeeb and Mary separated in 1986 and divorced in 1987.   In October 1988, Mary remarried to Gary J.   Soon after Alexis acquired a new stepfather, she began to complain about visiting her father.

Alexis complained in late 1988 about Zeeb's kissing and hugging her too closely.   Zeeb's fiancee, Cheri Reiter, moved in with him in May 1989, and the complaints intensified.   In a June 1989 conversation Mary told Cheri she had asked Alexis if Zeeb touched her in a bad way, because she (Mary) had been molested by her own father.

In the summer of 1989 Zeeb and Cheri met with Mary and Gary J. about Alexis's problems.   Zeeb suggested counseling for Alexis was appropriate, but Mary did not agree.   At the beginning of third grade in September 1989, Alexis began crying excessively and wanting to stay with her mother.   Mary agreed to a teacher's suggestion that Alexis see Francis Cooper, a Poway school district counselor.

In a session with Cooper on September 21, 1989, Alexis repeated her complaints that Zeeb had kissed and hugged her excessively.   Cooper suspected child abuse, discussed “molest” with Alexis, and also read from “I Told My Secret” and “No More Secrets.”   Cooper reported the suspected sexual abuse to Child Protective Services (CPS).   On October 4, 1989, in a session with CPS worker Bonnie Notar, Alexis now said that on one occasion Zeeb pulled down her underwear and touched her “like a little pinch.”   She said it happened only once, a year earlier, when Cheri was living with Zeeb (which had only been for five months).

In another interview with Cooper, Alexis now said that Zeeb had put his finger inside her.   Cooper thought from her notes of the interview it was “about three different times.”   A week later, however, Alexis said the finger incident was a lie she had told to make things worse for her father so she wouldn't have to visit him any more.   Alexis was now also saying that Cheri Reiter participated with Zeeb in touching her.   The variations on the two-person molest included touchings both outside of and underneath her clothing.

Steven Baker, a district attorney's investigator, interviewed Alexis with the trial deputy district attorney, Rubin.   Baker's report stated Alexis said Zeeb “ ‘never placed his hand inside her underwear and never pulled the underwear down or off.’ ”   At this time also Alexis first began to focus on July 4, 1989, as a fairly firm date for a “bad touching.”   Finally, at the preliminary hearing Alexis denied Cheri Reiter ever touched her, although once in a car Alexis thought Cheri had “tried to touch” Alexis's vagina.

Alexis testified at trial she did not remember when Zeeb touched her improperly.   The prosecutor asked “Do you remember talking about a bad touch happening on July 4, 1989?” and Alexis said, “A little bit.”   Then she said Zeeb had touched her vagina, but she could not remember if it was once, or more than once.  (Alexis testified also that her memory of events at the time of trial was less clear than it had been at the time of the preliminary examination.)

Alexis could not remember if anything happened on visits with her father in Pacific Beach, but “something” happened at night in Point Loma (where Zeeb had moved in January 1989), but Alexis could not remember what.   At this point on Friday afternoon the proceedings were recessed until Monday.   On Monday, when asked by the prosecutor, “What kind of bad touching was that that you didn't like?”   Alexis answered, “It was like molesting me.”   Alexis explained, “I went to a group, and they taught me what the word ‘molest’ meant.”   She said Zeeb touched her “Once, I think.”

Alexis went on to say she thought the touching happened when she was in the second grade, but gave the name of her third grade teacher.   When she was touched she wore “a T-shirt and underwear.”   When asked if it ever happened again she said, “I'm not that sure, but I think so.”   After extensive foundational efforts, including having Alexis read her transcribed testimony from the preliminary hearing, she testified that on July 4, 1989, Zeeb “rubbed me where I didn't like it.”   At the time she was wearing a nightie and her underwear.

Alexis also testified that she had in the past told Francis Cooper the molest allegations were not true, but people “kept on asking me more questions, so I decided to tell the real truth.”   It was not true that nothing happened, and after July 4th “once more he rubbed me right where I didn't like.”  (This completed her testimony on direct examination.)

DISCUSSION

WAS “GOOD CAUSE” ESTABLISHED FOR DELAY UNDER SECTION 1382?

 On May 9, 1990, fifty-eight days after the information was filed, the People appeared to request the trial be continued another eight weeks.   Francis Cooper, a family counselor, testified in support of the motion that in April, Alexis had recanted her allegations against her father, and on May 5, Cooper notified the district attorney's office of this.   Cooper believed the recantation was due to stress from the February preliminary hearing, and that it would take a couple of months to prevent damage to the witness from testifying and to “loosen some of the denial that she has gone into.”   Cooper had not sought advice from either a doctor or a psychologist in reaching this conclusion.

 Although there was no medical evidence in support of a threat of damage to the witness, the district attorney sought the requested continuance on the basis of section 288, subdivision (d), which provides that in a section 288 prosecution “the court shall consider the needs of the child victim and shall do whatever is necessary, within existing budgetary resources, and constitutionally permissible to prevent psychological harm to the child victim.”   The court found that this section provided “good cause to grant the continuance over the objection of the defense in this case” and set a new trial date of July 30, 1990.   We now consider whether section 288, subdivision (d) does indeed provide a basis for the continuance here requested and granted.

In Hochheiser v. Superior Court (1984) 161 Cal.App.3d 777, 789, 208 Cal.Rptr. 273, the court rejected “[t]he People's claim that Penal Code section 288, subdivision (c)³ expressly mandates the closed-circuit procedure [for testimony of a child witness].”   The court held the purpose of the statute was to make protection of the victim an equal priority with prosecution of the offender, and thus “[w]e construe this language to mandate a philosophical change focusing on the minor's needs.   But we cannot read into this statute a legislative mandate for a closed-circuit television procedure or, indeed, any other specific procedure, which so drastically affects the rights of a defendant.”  (Id. at p. 791, 208 Cal.Rptr. 273, italics added.)

The court went on to observe that it could not imply from the statutory language “a fundamental change in our organic law which would abrogate traditional statutory rights․  Indeed, were we to read [section 288, subdivision (d) ] as literally and broadly as the People urge, it would authorize wholesale revision in the entire procedural format of a criminal trial.”  (Hochheiser v. Superior Court, supra, 161 Cal.App.3d at p. 791, 208 Cal.Rptr. 273.)

We agree.   The statute mandates what is “constitutionally permissible,” which can hardly be construed as a mandate to disregard the constitutional rights of a defendant.   Also, Statutes 1989, chapter 1402, section 3, added language constraining the court to prevent psychological harm to the child victim “within existing budgetary resources,” which again can hardly be taken to indicate anything other than procedural (and cost-free) changes in operation were intended by the statute ab initio.

People v. Pitts (1990) 223 Cal.App.3d 606, 870, 273 Cal.Rptr. 757 agreed with Hochheiser.  Pitts also noted appointment of separate counsel for the minor in that case was improper as the showing made was “utterly insufficient.”  (Id. at p. 871, 273 Cal.Rptr. 757.)  (The rationale for appointment of separate counsel for the victim here is unclear, but is not challenged by Zeeb.)   Citing Hochheiser, Pitts held the burden of proof for a novel procedure assertedly permitted by section 288, subdivision (d) is on the proponent thereof, and that burden must be sustained, like any other burden, by competent evidence.  (Id. at p. 872, 273 Cal.Rptr. 757.)   While Pitts held appointment of separate counsel for the minor victim had not been proper, that error was not of constitutional dimensions, in contrast to the denial of the right to a speedy trial, here at issue.

The correct view of the matter is clearly set forth in Pitts at page 873, 273 Cal.Rptr. 757:  “Section 288, subdivision (d) cannot properly be interpreted so as to override a defendant's right to a fair trial or to fully present his or her case.”   We agree fully with this view of the scope, intent and limitations of section 288, subdivision (d), which was improperly interpreted below as authorizing denial of Zeeb's right to a speedy trial.   This was error.⁴

 In Barker v. Wingo (1972) 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, the United States Supreme Court set forth a four-part test in determining whether there has been a violation of the right to a speedy trial.   Factors to be considered include (1) length of the delay, (2) reason for delay, (3) assertion of the right, and (4) prejudice.   Here the length of delay (82 days) was greater than the time normally allotted for bringing a case to trial, we have already found an inadequate basis for the delay, and the right to go to trial within constitutional and statutorily established limits was repeatedly asserted below.

 Given that the ruling denying Zeeb's speedy trial right was error, the dispositive question remains whether Zeeb was prejudiced thereby.   This is of course the single most difficult point, as delay has seldom been found to have prejudiced a criminal defendant.  (Indeed, courts have stated delay ordinarily inures to the benefit of defendants.)   In this case, however, the record demonstrates that the delay was prejudicial to Zeeb, in that it effectively denied him the availability of the single most persuasive witness who could have testified on his behalf, his daughter Alexis.  (Cf. Penney v. Superior Court (1972) 28 Cal.App.3d 941, 952–953, 105 Cal.Rptr. 162.)   Had Alexis testified the events charged had not occurred, it is impossible to imagine a conviction herein based only upon her prior (and themselves internally inconsistent) statements.

 Also, it is clear from questions asked by the prosecutor as well as the defense that Alexis's memory had become less clear between the time of the preliminary examination and the time of trial.   At a time when her recollection was fresher, she denied the occurrence of any criminal acts against her.   As prejudice may be established by the effect of delay on a prosecution witness as well as a defense witness, such prejudice has been fully established here.  (People v. Hill (1984) 37 Cal.3d 491, 498–499, 209 Cal.Rptr. 323, 691 P.2d 989.)   It appears from this record Alexis would not have testified against Zeeb in May.   By August, she was prepared to do so.   Whatever sophistries of legal analysis might be employed, common sense leads to the single possible conclusion:  Zeeb was indisputably prejudiced by the erroneous denial of his clearly asserted constitutional right to a speedy trial.

DISPOSITION

The judgment is reversed, and the superior court is directed to enter an order dismissing the within information.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise specified.

2.   To a degree seen seldom, even in the very difficult cases of so-called “residential molest” allegations, the “facts” of this matter are obscure, and their existence (or non-existence) strongly related to the time at which they are attempted to be determined.   That is, during counseling and therapy sessions prior to the filing of charges the victim, Alexis, offered many (and usually conflicting) versions of what had been done to her.Finally, while recognizing the problem of “residential molest” (see, e.g., § 288.5) we must note this is not such a case, but instead a matter alleging that a small number of unlawful acts, not a pattern of conduct, occurred.

3.   Section 288, subdivision (c), adopted in 1981, was renumbered section 288, subdivision (d) by Statutes 1988, chapter 1398, section 1.   In 1989 the Legislature added the language stating that protection of the child victim shall be done “within existing budgetary resources.”

4.   Even absent reliance on section 288, subdivision (d), the denial of Zeeb's motion to dismiss could be supported providing “good cause to the contrary” had been shown.   But in order to provide “good cause” for violation of the right to speedy trial, we apprehend there must be a showing of at least some substantiality before the trial court, as to the genuine existence of threatened “psychological harm to the child victim,” to support a finding of good cause.   Here there was nothing presented to the trial court except the statement of a counselor that the witness was fearful after the preliminary examination, and “I would like to see her feel in control ․ for a couple of months;  at least until we can loosen some of the denial that she has gone into.”   This testimony was insufficient.While this evidence may have been relevant, if only minimally, it was not possible on this basis alone to make any principled determination that psychological damage was either (1) imminent, or (2) causally related to the pendency of a trial date required by statute and the Constitution.   In short, absent some testimony from a competent professional about either (1) the extent of threatened psychological damage, or (2) why violation of the defendant's speedy trial right was necessary to assuage that threatened psychological damage, there was an insufficient evidentiary basis for the ruling that “good cause” had been shown to continue the trial.

NARES, Associate Justice.

KREMER, P.J., and FROEHLICH, J., concur.