C F C C - Delinquency Case Law

Delinquency Case Law

In re Daniel W. (Feb. 10, 2003) 106 Cal.App.4th 159 [130 Cal.Rptr.2d 412]. Court of Appeal, Fourth District, Division 2.

The juvenile court concluded that a youth had committed sodomy as well as lewd and lascivious acts on a child under the age of 14, in violation of Penal Code sections 286(c)(1) and 288(a), and sentenced the youth to the California Youth Authority for eight years.

The youth was babysitting the victim, who was four years old, at the time of the molestation. Their mothers were sisters. The youth's mother testified that her sister told her that her son did not want to sit down because his bottom hurt. He claimed that it hurt because the youth had "put his pee-pee in his butt too hard." These statements were admitted only to explain the mother's subsequent conduct. The victim made the same statements to several others, including the youth's mother and medical staff. The youth was taken into custody.

A criminalist testified that semen was found on the victim's underwear and on rectal swabs. In addition, the examining doctor and a hospital nurse testified that they heard the victim explain that the youth had "put his pee-pee in his butt too hard." At the time, the doctor and nurse were examining the victim to determine the cause of his rectal trauma. The doctor also testified that there were physical signs of trauma, including rectal penetration. Such signs were consistent with sodomy. Based on this testimony, the trial court determined that the allegations of the petition were true and sentenced the youth to the California Youth Authority for eight years. On appeal, the youth contended that the trial court's reliance on the victim's extrajudicial statements violated his due process and confrontation rights. He further contended that the statements were not admissible as exceptions to the hearsay rule under Evidence Code sections 1253 and 1360.

The Court of Appeal concluded that neither the confrontation clause nor the hearsay rule barred the victim's statement because the statement was properly admissible under the hearsay exception of Evidence Code section 1253 for purposes of medical diagnosis. The confrontation clause provides that a criminal defendant is entitled to confront the witnesses against him or her. Therefore, when dealing with hearsay statements offered against the accused, the prosecution must either produce the hearsay declarant or demonstrate the unavailability of the declarant. Once the declarant is shown to be unavailable, his or her statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded unless there is a showing of particularized guarantees of trustworthiness.

Evidence Code section 1360(a)(2) provides that statements by children in child abuse proceedings are admissible if "the time, content, and circumstances of the statement provide sufficient indicia of reliability." If the child does not testify, the court must also find that the child is unavailable as a witness. (Evid. Code, § 1360 (a)(2).) However, because Evidence Code section 1360 only applies if the statement is not otherwise admissible by statute or court rule, the appellate court thought it proper to first analyze whether the statements were admissible under Evidence Code section 1253.

Evidence Code section 1253 applies to extrajudicial statements made by a victim under the age of 12 that describe any act, or attempted act, of child abuse or neglect. So long as the statement was made "for purposes of medical diagnosis or treatment, and describes medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment[,]" the statement is a statutory exception to the hearsay rule. (Evid. Code, § 1253.) However, evidence of a statement is inadmissible "if the statement was made under circumstances such as to indicate its lack of trustworthiness." (Evid. Code, § 1252.)

The appellate court found that the victim's statements clearly fell within Evidence Code section 1253 as reasonably pertinent to medical diagnosis or treatment. The victim was taken to the hospital for treatment of his injuries. He told the doctor that his "butt hurts because Danny put his pee-pee in too hard." The doctor then examined the victim and found physical signs corroborating his statement. A nurse who prepared the boy heard him make the same statement while he was trying to determine what caused the rectal damage. Therefore, the victim's extrajudicial statement was statutorily excepted from the hearsay rule.

The appellate court further concluded that the victim's identification of the abuser as a household member did not affect the admissibility of the statement. Relying on People v. Brodit (1998) 61 Cal.App.4th 1312, it noted that, "although a declarant's statement to a physician that identifies the person responsible for the declarant's injuries is ordinarily inadmissible under Federal Rules of Evidence, rule 803(4) (28 U.S.C.), a hearsay statement revealing the identity of a sexual abuser who is a member of the victim's family or household is admissible where the abuser has such an intimate relationship with the victim that the abuser's identity becomes reasonably pertinent to the victim's proper treatment." (Id. at p. 1331.) The appellate court agreed that, in a family situation, the identity of the abuser is reasonably pertinent to the question of proper treatment of the victim since proper treatment must include emotional and psychological treatment in addition to the physical manifestations of abuse. Therefore, it held that a hearsay statement identifying the abuser as a household member is admissible under Evidence Code section 1253.

The appellate court also noted that the youth had failed to demonstrate that the statements made to the treating doctor and nurse were unreliable or untrustworthy. The statement was made shortly after the incident, and no motive to lie was shown. The victim knew he was going to the hospital for treatment. Moreover, the victim repeated the statement in the same terms to five adults who asked him, and showed knowledge of matters beyond the knowledge of a normal four-year-old. Therefore, the appellate court concluded that there was sufficient evidence that the statements were made for the purpose of medical diagnosis and treatment and were trustworthy. Since the statements were clearly admissible under Evidence Code section 1253, including the identification of the offender, the appellate court concluded that neither the confrontation clause nor the hearsay rule barred the victim's statement. Although other witnesses testified to the same statement under circumstances that might not qualify for the hearsay exception, the multiple admission of such statements was, at most, harmless error under any standard.