Other Cases Affecting Children

People v. Brodit (1998) 61 Cal.App.4th 1312 [72 Cal.Rptr.2d 154]. Court of Appeal, First District, Division 3.

A defendant in a felony sexual abuse case was convicted of a single count of continuous sexual abuse of a child pursuant to Penal Code section 288.5. The defendant was convicted in part based on hearsay evidence of the victim that was admitted under Evidence Code sections 1360 and 1253. The victim of the abuse was the stepniece of the defendant. The abuse occurred when she was eight and nine years old and the defendant was living with the child, her mother, her stepfather, and other relatives. The mother and the stepfather separated and moved in with the child's maternal grandmother. One day when the grandmother was baby-sitting, the child complained of vaginal and abdominal pain. When asked by the grandmother, the child stated that she had been touched or hurt by her uncle. The grandmother contacted Child Protective Services (CPS). CPS conducted an investigation by interviewing the child and using anatomically correct drawings. A few days later, after prompting by her maternal aunt, the child told her aunt about the abuse. The child also told a police detective about the abuse. Later, a family nurse practitioner conducted a sexual abuse examination of the child that included the child's description of the sexual abuse that had occurred. The nurse did not believe that there was evidence of sexual contact. The child also sought treatment from a therapist.

The statements made by the child to the individuals noted above were admitted at trial under the newly created hearsay exceptions in sections 1360 and 1253. These Evidence Code sections became effective January 1, 1996, and allow hearsay statements of a sexual abuse victim under the age of 12 to be admissible under certain conditions. Defendant argued that these statutes violated due process because they provided a nonreciprocal benefit to the state in that a prosecutor would benefit from the admission of statements made by an alleged sexual abuse victim but the defendant would not. The court rejected this contention holding that the exception is applicable to both the prosecution and the defense because a defendant may choose to introduce other hearsay statements by the victim to contradict assertions introduced by the prosecution. The defendant also argued that it was an ex post facto violation for the court to allow the prosecution to introduce the hearsay evidence since the alleged abuse occurred between June 12, 1992 and December 31, 1994, and the statutes did not become effective until January 1, 1996. The court found that this was not an ex post facto violation because the sections "do not alter the definition of a crime, increase punishment, or eliminate a defense." Finally, defendant contended that the hearsay evidence was improperly admitted because it did not meet the requirements of the statutes. The court rejected these claims. First, under section 1360, hearsay evidence can be admitted if three conditions are met: "(1) the court finds that the time, content and circumstances of the statements provides sufficient indicia of reliability; (2) the child either testifies at the hearing or there is corroborating evidence of the hearsay statements; and (3) the proponent of the statement gives notice to the adverse party that it intends to use the statement at trial." The defendant contended that the circumstances of the statements did not provide sufficient indicia of reliability; however, the court found that since the victim consistently told the same account of the abuse, did not have a motive to lie, had knowledge of sexual acts beyond her age, and did not evidence any mental problems, the statements were admissible. Finally, on the defendant's challenge to section 1253, the court held that statements identifying the defendant as the abuser were relevant to medical diagnosis by a nurse practitioner and since the statements were made for medical diagnosis, it did not matter whether an intern therapist or a licensed therapist heard the statements.