Filed 8/14/14 P. v. Madrid CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

MOISES ENCARNACION MADRID,

Defendant and Appellant. B251575

(Los Angeles County Super. Ct. No. MA059521)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Kathleen Blanchard, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Chung L. Mar and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and Respondent.

_____________ _____________2 Contending he was denied his right to cross-examine his then-six-year-old daughter E., appellant Moises Encarnacion Ma drid appeals from the judgment following his convictions for sexual offenses against her. We affirm.

FACTS AND PR OCEEDINGS

Appellant Moises Encarnacion Madrid is th e father of victim E., who was born in 2006. Appellant and E.’s mo ther were married but sepa rated in 2008. During the weekend of August 31-September 2, 2012, E. stayed with appellant in his home under appellant’s and mother’s visitation agreement. When appellant return ed E. to mother’s custody at the end of the weekend, mother sa w that E. seemed uncharacteristically quiet. When mother asked if anything happened ov er the weekend, E. said appellant had touched her “pee pee,” which E. demonstrated with a “circular rubb ing motion.” Mother reported appellant to law enforcem ent and child welfare authorities. The People filed an information allegi ng appellant had committed a lewd act upon a child under the age of 14 year s, misdemeanor child molesti ng, and sexual penetration of a child 10 years old or younger. Appellant pleaded not guilty. At trial, E. testified that she slept in appellant’s bed during he r visit. One night while she was in bed, appellant touched her “private part” by putting his finger inside her “pee pee” ten times. When th e prosecutor asked E. add itional questions about how appellant touched her, E. was largely unresponsive, many of her answers consisting of

two or three words or sometimes no answer at all. After E.’s repeated failure to answer questions, the court suggested it might be easier for E. to demonstrate with her hands how appellant touched her. Accordingly, E. sto od and, turning toward the jury, silently demonstrated appellant’s conduc t by putting one finger of her right hand inside her left

hand with which she made a circular motion. Appellant’s defense at trial was he belie ved E. had wet the bed while asleep, and

he had checked the outside of her underwear to confirm his suspicion. He denied placing

his hand inside her underwear or touching her sexually.3 The jury convicted appellant as charged. The court sentenced appellant to state prison for 15 years to life. This appeal followed.

DISCUSSION

When defense counsel cro ss-examined E., she did not answer more than three dozen questions, as indicated by the entry “N o Response” in the reporter’s transcript. Appellant contends that E.’s nonresponsiveness to defens e counsel’s questions denied appellant his right to cross-examine her. We disagree. The federal and state constitutions guarant ee “an opportunity for effective crossexamination, not a cross-examin ation that is as effective as a defendant might prefer.” ( People v. Homick (2012) 55 Cal.4th 816, 861.) E. was a young girl, testifying two months before her seventh birthday about ev ents that took place one month shy of her sixth birthday. Of the 40 questions by defe nse counsel that she did not answer, many focused on trying to establish th at appellant touched E. nonse xually in order to determine

if she had wet herself. Because of E.’s nonresponses, defense counsel made little headway. But the prosecutor did not have a much easier time getting E. to answer the prosecutor’s questions. The transcript c ontains 36 “no response” entries during the prosecutor’s examination of E. during whic h the prosecutor focused on proving that appellant touched E. sexually . Hence, appellant’s assertion that his trial “ was a case where the primary witness agai nst the defendant chose only to answer questions put by the Government, and refused to answer substan tive questions by the de fense” is incorrect. Here, defense counsel wanted to compar e E.’s description of how appellant touched her with the testimony by mother and law enforcement about E.’s statements to them about the touching, looking for discrepanc ies that might help appellant’s defense.

But a “defendant is not denied the constitutional right to confront a witness when the witness is present at trial and subjected to unrestricted cross-examination but answers ‘I don’t remember’ to virtually all questions.” ( People v. Perez (2000) 82 Cal.App.4th 760, 762.) The “ ‘traditional protections of the oath, cross-examination, and the opportunity4 for the jury to observe the witness’ demea nor satisfy the constitutional requirements.’ ” ( Id. at pp. 765-766.) Appellant does not contend E. toyed with the defense by refu sing to answer or feigning forgetfulness in order to help stac k the deck in the prosecution’s favor. And appellant does not contend he was denied his right to cr oss-examine mother and law

enforcement witnesses. The tr ial court did not limit, and the prosecutor did not object to, any of defense counsel’s questions of E. as defense counsel tried to establish appellant’s defense. Only E. frustrated defense counsel’s efforts at cross-exam ination, but she was a challenging witness for both prosecution and de fense. The most plausible explanation of

E.’s failure to answer was the likely embarrassment of an almost-seven-year old about any question involving either th e prosecution’s allegation of sexual touching or the defense’s theory of bed-wetting. Appellant’s reliance on People v. Morgain (2009) 177 Cal.App.4th 454 is misplaced. There, the prosecution called th e defendant’s girlfriend as a witness in defendant’s murder trial, but the girlfriend re fused to answer the prosecutor’s questions. The trial court thus struck all of her testimony. 1 Appellant quotes the following passage

from Morgain : “A defendant’s [confrontation] rights may well be violated where a prosecutor examines a recalcitr ant witness and poses questions that relate to prior statements made by that witness, in circ umstances where the w itness’s recalcitrance effectively prevents cross-examination concer ning those prior statements.” The passage is inapt because E.’s recalc itrance extended to bot h sides. If anything, a prosecution witness’s lack of cooperation and forthrig htness under cross-examination can redound to a defendant’s benefit if jurors perceive the witness’s reluctance refl ects bias, lack of candor, or an agenda to convict. ( People v. Homick, supra, 55 Cal.4th at p. 861 [witness “was called by the prosecution and . . . to th e extent that his behavior on the stand reflected poorly on his credibility, it benefited defendant.”].) Here, jurors had the chance

1 Appellant did not move to strike E.’s testimony, thus forfeiting the point on appeal.5 to observe E.’s demeanor while she testified on direct and under cross, and presumably relying on those observations reached their own conclusions about her credibility and what weight to give her testimony.

DISPOSITION

The judgment is affirmed.

RUBIN, J. WE CONCUR:

BIGELOW, P. J.

GRIMES, J.