PEOPLE v. CAREY (1995)

Stuart Lawrence Carey appeals a judgment convicting him of 17 lewd and lascivious acts (most of which were in violation of Pen.Code,1 § 288) committed against his 3 stepchildren, all under the age of 14.   He contends there was insufficient evidence to support 13 charges, because there was no corroboration of the children's prior accusatory statements which they repudiated at trial.   He also contends the court erred by failing to instruct the jury sua sponte that corroborative evidence is required.   Further, he contends the court erred in admitting into evidence a videotape containing prior statements by one of the children, since the videotape did not contain prior inconsistent statements and violated his right of confrontation.   He also asserts the court erred in failing to instruct the jury sua sponte that misdemeanor molestation is a lesser included offense of certain charged offenses.   Finally, he contends the court erred in imposing a $200 restitution fine for a previous conviction for which he was on probation at the time of the instant offenses, in addition to a $10,000 restitution fine for the instant offenses.   For the reasons discussed below, we affirm the judgment.

 I **

II

 Carey first contends there was insufficient evidence to support 13 of his convictions, because no evidence corroborated certain extrajudicial statements by the children which they later recanted at trial.   He essentially contends the corroboration rule for repudiated prior identifications, as stated in People v. Gould (1960) 54 Cal.2d 621, 631, 7 Cal.Rptr. 273, 354 P.2d 865 (hereafter Gould ), extends to repudiations of prior statements regarding the commission of crimes, thereby requiring independent evidence to corroborate those prior allegations made by Jennifer, Jerimy, and Catherine which were later denied.   We disagree and conclude the Gould rule does not extend to require corroboration in this case, and we further conclude sufficient evidence supports his convictions.

In Gould, the Supreme Court stated:

“An extrajudicial identification that cannot be confirmed by an identification at the trial is insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime.”   (Gould, supra, 54 Cal.2d at p. 631, 7 Cal.Rptr. 273, 354 P.2d 865.)

Accordingly, corroborative evidence is normally required to support a conviction based on a repudiated, extrajudicial identification.

 Carey does not dispute that the children's prior statements were properly admitted into evidence as prior inconsistent statements under Evidence Code section 1235.⁴  Regardless of their proper admissibility, he contends the prior statements cannot serve as sufficient evidence on their own, as independent corroborative evidence is required.   However, Carey fails to cite any case, and we are aware of none, which expressly holds the rule of Gould requiring corroboration of repudiated, extrajudicial identifications extends to all repudiated, extrajudicial statements regarding the commission of crimes.   We decline to so extend the Gould rule.

 Prior inconsistent statements are properly admissible to impeach the credibility of a witness, but also, once admitted, they may serve as independent substantive evidence.  (See, e.g., California v. Green (1970) 399 U.S. 149, 164–169, 90 S.Ct. 1930, 1938–41, 26 L.Ed.2d 489;  People v. Fierro (1991) 1 Cal.4th 173, 221–222, 3 Cal.Rptr.2d 426, 821 P.2d 1302;  People v. Plasencia (1985) 168 Cal.App.3d 546, 549–552, 223 Cal.Rptr. 786;  People v. Jones (1980) 105 Cal.App.3d 572, 580–581, 164 Cal.Rptr. 605.)   In particular, one court allowed a prior inconsistent statement by a defendant's wife as substantive evidence in support of his conviction, rejecting the defendant's contention the “California Constitution precludes a conviction where the only evidence connecting the accused with a crime is a prior statement repudiated by a witness at trial.”  (People v. Brown (1984) 150 Cal.App.3d 968, 969, 972–973, 198 Cal.Rptr. 260.)   Accordingly, we conclude the prior statements by the children which they later repudiated or denied were properly admissible as substantive evidence in support of Carey's conviction.   Further, we conclude the prior statements constitute sufficient evidence of the offenses charged without any independent corroborative evidence.⁵

Without repeating all evidence supporting the 13 offenses in question, we briefly summarize those parts of the record which support those convictions.   First, the videotape of Catherine's interview by Sachs details many of the offenses.   In particular, Catherine described incidents where Carey had sexual intercourse with her on two occasions, placed his penis on her buttocks, orally copulated her on two occasions, sometimes touched her breasts, and made her touch his penis.   At trial, she contradicted these prior statements, testifying Carey never touched her in a “bad way,” never touched her inappropriately with his mouth, never made her touch his penis, and never touched her with his hands anywhere other than her “front private.”

Similarly, Jennifer contradicted her prior statements regarding Carey.   Before the trial, she told her mother, Williams and Freitag of Carey's attempts to touch her breasts and buttocks.   However, at trial, Jennifer denied Carey had ever tried to touch her breasts or buttocks.   Jerimy also contradicted his prior statements.   Before the trial, he told his mother, Williams and Frances that Carey had orally copulated him and fondled him.   However, at trial, Jerimy denied this, stating he was lying and Carey never touched him inappropriately.   Based on this record of ample evidence regarding prior statements by the children which support the 13 offenses in question and which are substantive evidence of the offenses, we conclude sufficient evidence supports his convictions on those counts.

The two cases relied upon by Carey are either inapposite or contain dicta.   In re Eugene M. (1976) 55 Cal.App.3d 650, 127 Cal.Rptr. 851, is inapposite, involving an extrajudicial identification by an accomplice obtained by threats of incarceration and prosecution and which was later repudiated at trial by the accomplice.  (Id. at pp. 657–659, 127 Cal.Rptr. 851.)   In that case, there was no question whether a crime had occurred, since a victim had been shot and killed by three assailants.  (Id. at p. 658, 127 Cal.Rptr. 851.)   Thus, that case does not vary from the corroboration requirements of Gould and its progeny regarding repudiated extrajudicial identifications.

The second case, People v. Montiel (1993) 5 Cal.4th 877, 21 Cal.Rptr.2d 705, 855 P.2d 1277, is not only inapposite, but also contains dicta regarding the Gould rule.   It involved the penalty phase of a first-degree murder conviction case, where prior statements were admitted regarding the defendant's history of family violence.  (People v. Montiel, supra, 5 Cal.4th at pp. 897–898, 928–929, 21 Cal.Rptr.2d 705, 855 P.2d 1277.)   Evidence of prior statements to the police by the defendant's father, mother, and sister-in-law regarding these incidents was admitted, as the statements were denied by them.  (Id. at p. 929, 21 Cal.Rptr.2d 705, 855 P.2d 1277.)   Rejecting the contention such prior statements were erroneously admitted, the Supreme Court held this contention was waived as trial counsel “made no effort to exclude or strike the evidence․”  (Id. at p. 928, 21 Cal.Rptr.2d 705, 855 P.2d 1277.)   Further, the court held the defendant failed to show any error was prejudicial, even assuming there was insufficient evidence of the prior violent incidents.  (Id. at pp. 928–929, 21 Cal.Rptr.2d 705, 855 P.2d 1277.)   However, the court went on to state in dicta:

“Generally, an extrajudicial statement repudiated at trial cannot form the sole basis for a conviction.  [Citations.]  The concern is that ‘where “no evidence” incriminates the accused save a single witness's extrajudicial statement repudiated under oath, the extrajudicial statement lacks the “traditional indicia of reliability” which attach to an accusation made under oath and subject to cross-examination in a formal judicial proceeding․’  [Citations.]   We therefore assume, as defendant suggests, that an extrajudicial statement repudiated under oath is also legally insufficient, standing alone, to establish aggravating violent criminal conduct beyond a reasonable doubt [citation] at the penalty phase of a capital trial.

“The People argue that the Gould/Miguel L. rule applies only when identification of the perpetrator is the crucial issue.   While the rule developed in that context, however, its reach seems broader.   The reliability concerns that prompted the rule apply equally when the issue is whether any crime occurred at all.”  (Id. at p. 929, 21 Cal.Rptr.2d 705, 855 P.2d 1277, fn. omitted.)

In any event, the court concluded, “[e]ven if counsel should have intervened, however, we find no reversible prejudice.”  (Id. at p. 930, 21 Cal.Rptr.2d 705, 855 P.2d 1277.)

We admit the dicta quoted above indicates the California Supreme Court may believe the Gould rule is broader than merely requiring corroboration in repudiated identification cases, as the court acknowledged “reliability concerns that prompted the rule apply equally when the issue is whether any crime occurred at all.”  (People v. Montiel, supra, 5 Cal.4th at p. 929, 21 Cal.Rptr.2d 705, 855 P.2d 1277, italics added.)   Inthis light, the issue in the instant case would be similar to the dicta in Montiel.   Carey clearly argues there are concerns regarding the reliability of the children's prior statements, particularly when they repudiated them under oath during the trial.   Indeed, reliability of prior statements in such situations is of great concern.   However, we believe the appropriate method to test such reliability is to admit such statements as substantive evidence and allow the trier of fact to weigh them against the testimony at trial by such persons in the course of determining their credibility and whether such offenses actually occurred.   Thus, even though we generally attribute much weight to statements made in dicta by the California Supreme Court, we conclude the Gould rule does not extend to require corroboration of repudiated prior statements regarding the commission of crimes such as in this case, pending any express holding by that court making such an extension.⁶

III

Carey also contends the court erred in failing to sua sponte instruct the jury regarding the purported requirement the children's repudiated prior statements must be corroborated by independent evidence of the offenses.   However, in light of our discussion in the above section declining to extend the application of the Gould rule to the facts of this case, the trial court, of course, had no sua sponte duty to so instruct the jury.

IV

 Carey next meritlessly contends the court erred in admitting the videotaped interview of Catherine into evidence.   Carey's counsel adequately objected to its admission as a prior inconsistent statement, as he made a general objection to playing the videotape.   However, we conclude the trial court acted well within its discretion when it admitted the videotape as a prior inconsistent statement under Evidence Code section 1235.

At trial, Catherine denied most of the incidents she previously described had occurred.   For instance, when asked whether Carey had ever touched her in a “bad way” with his “private,” Catherine unequivocally answered, “No.”   She also clearly denied Carey had ever touched her with his mouth in a bad way or touched her anywhere other than her “front private.”   These denials by Catherine directly contradicted her prior statements contained in the videotaped interview which was played for the jury.   Such denials clearly constituted sufficient inconsistency for the trial court to admit the videotape into evidence under Evidence Code section 1235 as a prior inconsistent statement.   Carey attempts to “color” Catherine's trial testimony as merely a lack of recall or memory which was insufficient to constitute a prior inconsistent statement.   However, as we note, her testimony consisted not only of lack of recall, but also express denials of events she had previously described in detail.

To the extent Carey asserts there existed an insufficient procedural foundation for admission of the videotape, we disagree.   Before the videotape was played for the jury, the prosecutor gave Catherine an opportunity to explain or deny her prior statements, complying with the requirements of Evidence Code section 770.   In fact, the prosecutor frequently mentioned Sachs by name, the fact and place of Catherine's interview by Sachs, and incidents she described to Sachs during that interview.   Thus, Catherine was given a “realistic opportunity” to explain or deny her prior statements made during that videotaped interview.  (People v. Garcia (1990) 224 Cal.App.3d 297, 303–304, 273 Cal.Rptr. 666.)

We also reject Carey's contention admission of the videotape violated his constitutional right to confront witnesses.   He had the full opportunity to cross-examine Catherine at trial regarding her prior inconsistent statements and otherwise, and her apparent lack of recall regarding certain events or incidents did not impair his right of confrontation.  (See, e.g., People v. Pinholster (1992) 1 Cal.4th 865, 936–938, 4 Cal.Rptr.2d 765, 824 P.2d 571.)   The jury had the opportunity to observe and evaluate Catherine's demeanor both at trial and on the videotape.   Accordingly, the court did not err in admitting the videotape into evidence.

V & VI ***

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

FOOTNOTE.   See footnote *, ante.

4.   That statute provides:  “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770.”

5.   We note Evidence Code section 411 is consistent with our disposition of this issue, as it provides:  “Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.”

6.   We note the California Supreme Court granted review on October 13, 1994 in the unpublished case of People v. Cuevas (S041514).   That case deals with the mainstream issue of repudiated extrajudicial identifications and whether the Gould rule should be reconsidered and, if not, whether a court has a sua sponte duty to instruct the jury regarding the requirement of corroboration in such situations.   It does not appear the issues in that case deal with the question of extending or expanding the Gould rule as Carey asks us to do in this case.

FOOTNOTE.   See footnote * ante.

WORK, Acting Presiding Justice.

BENKE and NARES, JJ., concur.