Filed 8/25/20 P. v. Rivera CA2/3
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION THREE

THE PEOPLE,                                               B298187

         Plaintiff and Respondent,                        Los Angeles County
                                                          Super. Ct. No. VA142780
         v.

CARLOS A. RIVERA,

         Defendant and Appellant.



     APPEAL from a judgment of the Superior Court of
Los Angeles County, John A. Torribio, Judge. Affirmed.

      David M. Thompson, under appointment by the Court
of Appeal, for Defendant and Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.
                      _________________________
       A jury convicted Carlos A. Rivera of two counts of oral
copulation or sexual penetration of a child 10 years old or
younger, and three counts of lewd acts upon a child under
14 years old. He appeals, and we affirm.
                           BACKGROUND
       An amended information charged Rivera with two counts
of oral copulation or sexual penetration of Yvette M., a child
under 10 years old, between May 31, 2014 and September 6,
2016, in violation of Penal Code section 288.7, subdivision (b)
(counts 4 and 5). The information also charged that during
the same time period Rivera committed two lewd acts against
Yvette (counts 7 and 8), and between September 1, 2013 and
September 6, 2016, he committed a lewd act against Melissa M.
(count 6), in violation of Penal Code section 288, subdivision (a).
The information alleged a multiple victim special circumstance
under Penal Code section 667.61, subdivisions (b) and (e). (The
court dismissed counts 1, 2, and 3 before trial.)
       At the preliminary hearing, the court found then-
four-year-old Yvette incompetent to testify. Two years later,
at a hearing just before trial, the prosecutor sought to introduce
the videotapes of forensic interviews of Yvette and Melissa
conducted on September 6, 2016, over objections by the defense.
The trial court watched the videotape of Yvette’s interview and
found it admissible. Defense counsel argued Yvette was required
to testify if the videotape was admitted, and even then, the
videotape was hearsay and playing it for the jury would violate
Rivera’s confrontation rights. (Melissa had testified at the
preliminary hearing and the defense had an opportunity to
cross-examine her.) The court asked Yvette whether she knew
a truth from a lie. She answered yes, and said telling lies was




                                 2
bad and got you in trouble. The court found Yvette competent
to testify, and admitted both videotapes.
       Yvette, the prosecution’s first witness, testified she was
six years old and in first grade. She promised to tell the truth.
She lived in an apartment but did not know the street or town,
and Melissa was her older sister. She used to live with her
family in a front house, and she recognized Rivera as one of
two men who lived in the back house. Yvette went into the
back house when she was little. Asked what the man did inside
the back house, she said she could not remember and it was a
“bad question.” She did remember talking to a lady a long time
ago about what happened at the back house, but then said she
could not remember what she talked about, or whether anyone
was with her when she talked to the lady. She was smaller then.
       The prosecutor asked to refresh Yvette’s recollection,
and the court excused the jury. With everyone else out of the
courtroom, the prosecutor showed Yvette the videotape of
her interview. The prosecutor then told the court Yvette said,
“[T]hat was the truth and that she remembers. She doesn’t
want to talk about it. . . . And she’s afraid she has done
something bad. . . . She remembered. We went through [it].
It was a tickle in the butt and the chichi.”
       Yvette and Rivera returned to the courtroom. The
prosecutor asked Yvette if that was her in the videotape, and
she said yes, “[a] long time ago.” Asked if she had talked about
“el señor,” Yvette said she was scared. The court reminded
Yvette this was a safe place and she should answer out loud “yes”
or “no,” but Yvette did not answer. The trial court excused Yvette
from the courtroom, stating she was “clearly reluctant and not
willing to testify. I don’t want to turn it into coercion and maybe




                                3
exacerbate a situation that exists. . . . I’m inclined to find that
she’s not available.”
        The court and counsel discussed whether Yvette was
unavailable to testify, and whether allowing her videotaped
interview into evidence violated Rivera’s confrontation rights
and met the requirements of Evidence Code section 1360.1
The prosecutor pointed out that Rivera admitted his conduct
toward Yvette, and Melissa and Melanie (the girls’ cousin) would
testify they saw him touch Yvette’s chest. The court concluded
the videotaped interview was sufficiently corroborated to make
Yvette’s statements admissible, given that she was “available
but not available” as a witness. Defense counsel renewed her
objection that she never had the opportunity to cross-examine
Yvette: “She was found incompetent at the preliminary hearing.
She is found unavailable today. And I believe that allowing her
. . . videotaped interview that was several years ago violates my
client’s right to cross-examine his accuser.” The court admitted
the videotaped interview.
        The jury returned to the courtroom. Nine-year-old Melissa
testified she and her family used to live in a front house in
Norwalk, and Rivera (whom she called “el señor”) and another
man lived in the back house. Melissa had told her cousin
Melanie what happened in the back house with Rivera. Then
she had to tell the police and a lady who used teddy bears so
Melissa could show her what had happened. Yvette was in
the back house too, playing around and listening to music,
when Rivera “touched us from the sides.” She saw Rivera
touch Yvette the same way he touched her.

1       All subsequent statutory references are to the Evidence
Code.



                                  4
       After Melissa said it would help her remember, she
watched the videotape of her interview outside the jury’s
presence. Melissa then testified Rivera touched her on her
chest and her privates, and she saw Rivera touch Yvette in
the same places, through her clothes. On cross-examination,
Melissa testified this happened on Labor Day, when she and
Yvette were sitting next to each other inside the back house
with Rivera. She told Melanie about it when Melanie was at
her house for a party. Melanie told Melissa’s grandmother,
and her grandmother called the cops.
       Nine-year-old Melanie testified Melissa and Yvette were
her cousins. She had talked about a “bad thing” with Melissa,
and saw a “bad thing” happen to Yvette. Melissa told Melanie
that Rivera touched Melissa and Yvette. Melanie saw Rivera
touch Yvette’s breasts. Melanie did not see him touch Melissa,
but from the way Melissa described it, Melanie knew “it was
a bad touch.” “After she told me, I went to go tell my mom and
everybody that was in the front house,” including Melissa’s
mother.
       On cross-examination, Melanie testified she was outside
the back house when she saw Rivera touch Yvette, who was
standing inside the back house. She told Yvette to go to the front
house, and the two of them went together. Melanie told Yvette’s
father what she saw and what Melissa had told her earlier that
day. Melissa’s mother and grandmother were in the next room.
       Sheriff’s Deputy Jason Marx, the investigating officer, took
the children to be interviewed at the Child Abuse Service Team
center the next day, September 6, 2016. He listened and watched
through a two-way mirror. The prosecutor played the videotapes
of the interviews for the jury.




                                 5
       Melissa, then in first grade, told the interviewer she and
Yvette went into the back house when only Rivera was there, and
he closed the door. Rivera was dancing, and he picked them up,
put them on the couch, and rubbed their breasts and between
their legs, first Melissa and then Yvette. It tickled and he was
laughing.
       Yvette told the interviewer she was four years old.
“El señor” lived in the back house and had tickled her all over.
When she was alone with him inside the back house, he put his
hand inside her underwear, inserted his finger in her vagina,
and moved it around, with his hand in his pants. He also put
his finger in her anus, which hurt. Rivera tickled her breasts
inside her clothes, and he kissed her on the mouth.
       Yvette said Rivera also touched her when Melissa was
there. When she was in Rivera’s bed with him, he took her
clothes off and kissed her mouth and her butt, and tickled
her butt. Then he kissed her “pee-pee” with his mouth. Rivera
told her not to tell anyone, and he gave her a bracelet.
       Martin M., Yvette and Melissa’s father, testified that on
September 5 he heard Melissa telling her cousin Melanie that
Rivera touched them on the breasts and “down there.” Shocked,
he started to ask Melissa questions. After she told him what
happened, he took Melissa and Melanie inside the front house
and told his wife.
       Blanca M., the girls’ grandmother, testified she arrived
later and tried to talk to Melissa about the “problem.” Melissa
screamed and yelled that she did not want to talk about
anything, and started throwing “everything that was in her
sight.” Yvette asked Blanca if she knew why Melissa was crying,
and she told Yvette Melissa was crying because Rivera touched




                                6
her. Blanca told Yvette to look her straight in the eye and
tell her the truth, and asked if Rivera had touched her. Yvette
answered yes.
       Deputy Marx interviewed Rivera on September 7. An
audiotape was played for the jury. Rivera said he was 55 years
old. The two girls who lived in the front house would visit the
back house to see him and his roommate and ask for food. About
five months earlier he played with them both by throwing them
on the couch.
       About two weeks ago, the littlest girl came over by herself.
Rivera admitted kissing Yvette on the mouth, pulling her panties
down, and kissing her vagina. He also rubbed her vagina several
times over her underwear. He denied he ever penetrated her.
He knew it was wrong; it was just curiosity, and he thought she
wouldn’t say anything. He was “mentally excited” when he did it.
He denied he ever touched Melissa.
       Dr. Bradley D. McAuliffe testified for the defense as an
expert on forensic interviewing and the suggestibility of children.
He had reviewed the interviews of the children and Rivera, the
police reports, and the preliminary hearing testimony, but he
did not interview anyone in the case. The accuracy of a child
witness’s statements could be affected by conformity, pressure
from family members, and overhearing other information.
Although the child was not trying to lie or deceive, his or her
memory had been compromised. Leading interview questions
from an authority figure also could influence a child’s testimony,
especially a preschooler. Cross-contamination could occur when
other information in the child’s environment became encoded in
the child’s memory as if it were part of the actual event. In this
case, he was concerned that other family members had been




                                 7
interviewed inside the front house with the girls nearby, and the
girls had been questioned by a lot of family members and police
officers. He also had concerns about Yvette’s cognitive ability,
including whether she could tell the truth from a lie.
       The jury found Rivera guilty on all five counts. The
trial court sentenced him to a total term of 30 years to life,
with custody credit, and imposed restitution, fines, and fees.
                           DISCUSSION
1.     The court did not abuse its discretion when it found
       Yvette unavailable as a witness under section 1360
       Rivera argues the court abused its discretion when it found
Yvette unavailable as a witness and allowed the jury to watch
the videotape of her interview.
       Because Yvette did not testify at trial, and her interview
was offered to prove the truth of the matter stated, her
statements in the interview were hearsay. (§ 1200.) “ ‘[S]ection
1360 creates a limited exception to the hearsay rule in criminal
prosecutions for a child’s statements describing acts of child
abuse or neglect, including statements describing sexual abuse.
[Citations.]’ [Citation.] The statute includes a number of
procedural and substantive safeguards designed to ensure the
reliability of the minor victim’s hearsay statement, requiring
specific conditions be met before evidence can be admitted under
its provisions.” (People v. Mitchell (2020) 46 Cal.App.5th 919,
927.) We review the trial court’s decision to admit evidence
under section 1360 for a clear abuse of discretion. (People v.
Giron-Chamul (2016) 245 Cal.App.4th 932, 959.)
       In a criminal prosecution with a minor victim, a statement
the victim made while under the age of 12 describing any act
of child abuse on the victim is not inadmissible as hearsay if




                                8
the court finds (in a hearing outside the presence of the jury) that
the time, content, and circumstances of the statement show the
statement is reliable. (§ 1360, subd. (a)(2).) If the child does
not testify at trial, the child must be “unavailable as a witness,
in which case the statement may be admitted only if there is
evidence of the child abuse or neglect that corroborates the
statement made by the child.” (§ 1360, subd. (a)(3)(B).) A
witness is unavailable if the witness is “[d]isqualified from
testifying to the matter.” (§ 240, subd. (a)(2).) “A person is
disqualified to be a witness if he or she is: (1) Incapable of
expressing himself or herself concerning the matter so as to
be understood . . . ; or (2) Incapable of understanding the duty
of a witness to tell the truth.” (§ 701, subd. (a).) “The party
challenging a witness’s competency has the burden to prove
incompetency by a preponderance of the evidence.” (People v.
Giron-Chamul, supra, 245 Cal.App.4th at p. 959.)
       Rivera argues the trial court’s questioning and Yvette’s
response did not show she was incapable of either expressing
herself or understanding her duty as a witness to tell the truth,
and so the court abused its discretion when it found Yvette was
unable to qualify as a witness and therefore was unavailable.
       “In general, every person, irrespective of age, is qualified
to be a witness.” (People v. Roberto V. (2001) 93 Cal.App.4th
1350, 1368.) Yvette’s age alone (six at the time of trial) did not
disqualify her from being a witness. (Id. at pp. 1368-1369.)
       The court did not abuse its discretion in finding Yvette
unavailable to testify. Once on the stand, Yvette said she
did not remember anything she did in the back house, and
the prosecutor’s question whether she remembered what Rivera
did there was a “bad question.” Asked if she had talked to a lady




                                 9
about what happened, she said yes, but she did not remember
what she talked about or whether she was alone. After the
prosecutor showed Yvette the videotape to refresh her memory,
she told the prosecutor she didn’t want to talk about it and was
afraid she did something bad. Back before the judge, with Rivera
present, she confirmed she was shown on the videotape, but
would not answer the prosecutor’s questions whether she talked
about Rivera in the videotape. She would not answer whether
she remembered, or whether she didn’t want to talk about it.
She said she was scared. She refused to answer “yes” or “no”
to whether she told the interviewer about Rivera. She was not,
as Rivera claims, “somewhat ‘reluctant’ ” to testify. This was not
reluctance, but a flat refusal to testify by a frightened six-year-
old girl after she viewed the videotape of the interview when she
was only four, describing the sexual abuse she had suffered days
earlier. The trial court was able to assess Yvette’s demeanor on
the stand. The court did not abuse its discretion in deciding she
was incapable of expressing herself about Rivera’s sexual abuse,
and therefore was unavailable as a witness.
       The court also fulfilled its obligation under section 1360,
subdivision (a)(3)(B) by finding that other evidence of Rivera’s
sexual abuse corroborated Yvette’s statements. Melissa testified
she saw Rivera touch Yvette’s chest and “private[s]” through her
clothes. Melanie testified she saw Rivera touch Yvette’s breasts.
And Rivera himself admitted he kissed Yvette on her vagina
and rubbed her vagina over her underwear several times.
The videotape of Yvette’s interview was properly admitted
into evidence.




                                10
2.     Yvette’s hearsay statements had adequate indicia
       of reliability under the Confrontation Clause
       Rivera argues the admission of the videotaped interview
violated his right to confront Yvette. For hearsay to be
admitted without violating the Confrontation Clause of the
Sixth Amendment, the prosecution must show the statement
has adequate indicia of reliability, which we infer if the
evidence is admitted under a “ ‘firmly rooted’ ” hearsay exception.
(People v. Eccleston (2001) 89 Cal.App.4th 436, 443 (Eccleston).)
Section 1360 is not a firmly rooted hearsay exception.
(Eccleston, at p. 445.) The statute does, however, include in
subdivision (a)(3)(B) a corroboration requirement, which is not
constitutionally required but serves as “ ‘an additional safeguard
against the possibility of fabrication by very young witnesses
whose out-of-court statements are insulated from the rigors of
cross-examination.’ ” (Eccleston, at pp. 449-450.)
       We have already determined the trial court did not abuse
its discretion in finding Yvette unavailable to testify. Whether
Yvette’s hearsay statements in her interview had adequate
indicia of reliability for Confrontation Clause purposes is
a separate question which we review independently. (Eccleston,
supra, 89 Cal.App.4th at p. 445.)
       Section 1360, subdivision (a)(2) requires the trial court to
find at the hearing “the time, content, and circumstances of the
statement provide sufficient indicia of reliability.” The minimum
standards for determining reliability for Confrontation Clause
analysis include “(1) spontaneity and consistent repetition; (2) the
mental state of the declarant; (3) use of terminology unexpected
from a child of that age; and (4) lack of a motive to fabricate.”
(Eccleston, supra, 89 Cal.App.4th at p. 445.) We also may




                                11
consider any other factor bearing on reliability. (Ibid.) The
courts have considerable leeway in their consideration of
appropriate factors, and the “ ‘unifying principle is that these
factors relate to whether the child declarant was particularly
likely to be telling the truth when the statement was made.’
[Citation.]” (People v. Roberto V., supra, 93 Cal.App.4th at
p. 1374.) We do not consider corroborating evidence introduced
at trial. (Ibid.)
       Yvette’s interview statements meet these requirements for
reliability. She was interviewed by a trained interviewer shortly
after the alleged abuse, with no family members present. Yvette
spontaneously and repeatedly stated Rivera touched her breasts,
vagina, and anus, kissed her vagina and anus, and inserted his
finger in her vagina and anus. Rivera does not question Yvette’s
mental state. She used appropriately childish words to describe
where and how Rivera abused her, describing sexual acts far
beyond the usual knowledge of a four-year-old. Yvette did not
say she disliked Rivera and nothing in the interview suggests
she had a motive to fabricate the sexual abuse she described.
       Rivera claims as confrontation clause error the lack of
express findings on the reliability of Yvette’s hearsay statements.
But nothing required the trial court to make an express finding
of reliability. The court was aware of and correctly applied
section 1360, the applicable law, and we will presume the trial
court had a proper basis to find Yvette’s statements reliable
under the statute. The court heard and rejected defense counsel’s
argument that the interview violated Rivera’s right to confront
and cross-examine Yvette. Generally, unless the legislature
mandates that a trial court express its findings on the record,
we will infer that the court made all the findings necessary




                                12
to support its ruling. (§ 402, subd. (c); People v. Stowell (2003)
31 Cal.4th 1107, 1114.)
       Rivera argues Yvette’s hearsay statements in the interview
were unreliable and “suspect,” given the testimony of his expert
witness about suggestibility and cross-contamination. But expert
testimony at trial is not relevant to the trial court’s pretrial
assessment of reliability when it decided to admit the hearsay
statements. The jury was entitled to consider and reject the
expert testimony challenging the credibility of Yvette’s and
Melissa’s descriptions of Rivera’s abuse.
       Our independent review of Yvette’s interview shows
adequate indicia of reliability. The record supports the trial
court’s implied findings of reliability in support of its decision
to admit the interview. No violation of Rivera’s confrontation
rights occurred.
3.     Rivera forfeited his challenge to the testimony
       of Yvette’s grandmother
       Rivera raises similar hearsay and confrontation clause
challenges to Yvette’s grandmother’s testimony that Yvette
answered yes when asked if Rivera had touched her. Defense
counsel did not object to the testimony at trial, and the trial
court’s ruling addressed only the videotape of Yvette’s interview.
       “[N]umerous decisions by this court have established
the general rule that trial counsel’s failure to object to claimed
evidentiary error on the same ground asserted on appeal results
in a forfeiture of the issue on appeal.” (People v. Dykes (2009)
46 Cal.4th 731, 756.) Rivera also “did not raise an objection
below based upon the confrontation clause, and therefore has
forfeited this claim.” (People v. Redd (2010) 48 Cal.4th 691, 730.)




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                       DISPOSITION
     The judgment is affirmed.

     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                    EGERTON, J.

We concur:




             LAVIN, Acting P. J.




             DHANIDINA, J.




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