1 Filed 4/29/15 P. v. Lewis CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte)

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THE PEOPLE, Plaintiff and Respondent,

v. THOMAS LEE LEWIS, SR., Defendant and Appellant. C076108 (Super. Ct. No. CM038184)

After a trial to the court, defendant Th omas Lee Lewis challenges the trial court finding him guilty of committi ng a lewd act on a child unde r 14. Defendant claims admission of the victim’s out-of-court statem ents violated his rights under the Sixth Amendment’s confrontation clause, and the erroneous admission of those statements prejudiced him in two ways. He first conten ds that without the vi ctim’s statements in evidence, his out-of-court inculpatory statements should not have been admitted because the evidence offered by the prosecution was otherwise insu fficient to establish the required corpus delicti. He then contends th at even if his inculpatory statements were2 admissible, his conviction was improper because those statem ents, without an established corpus delicti, were an insufficient basis for his conviction. Because we conclude that defendant’s inculpatory statements were prop erly admitted into ev idence and that the record contains sufficient i ndependent evidence to establis h the corpus delicti of the crime charged even without th e victim’s statements, we fi nd no prejudicial error and affirm. FACTUAL AND PROCEDUR AL BACKGROUND In March 2013, the then three-year-old J. R. stop ped attending Grandma Linda’s Day Care where she had been go ing five days a week for a ye ar and one-half. The adults generally present at the day care were defendan t, his wife Linda, and his mother-in-law. J. R. stopped attending Grandm a Linda’s Day Care because, according to her mother, Pearl, J. R. came home one day and told Pearl that she had been “touched [i]nappropriately” and that “something bad had happened to her at Grandma Linda’s.” Pearl went to the Valley Oaks licensing depart ment the next day and made a complaint. Shortly thereafter, Butte Coun ty Sheriff’s Detective Christopher D’Amato became involved with the inve stigation. Detective D’Amato cont acted Pearl to arrange a forensic interview of J. R. A forensic interview is a nonconfrontational interview of an alleged child victim conducted by a specially tr ained Department of Children’s Services employee. According to Detective D’Amato, the “prime focus” of the interview is to provide information for law enfor cement. During the interview, J. R. told the interviewer that defendant had pulled down her underpants , licked her vagina, and told her not to tell anyone. Detective D’Amato and the prosecu ting attorney, Stacy Edwards, watched the interview from a separate room. The inte rviewer took several breaks during which Detective D’Amato and Edward s suggested questions. The recording of the interview was turned over to th e Butte County Sheriff’s Department. Detective D’Amato then called defendant a nd arranged to meet at the Sheriff’s Department. Detective D’Amato began the co nversation by telling defendant that he was3 not in trouble, under arrest, or being detained , and that he was free to leave. Defendant denied inappropriately touching J. R. un til Detective D’Amato rubbed defendant’s mouth with a buccal swab, left the room for approx imately one-half hour, and returned, asking defendant to “tell [him] how [defendant’s ] DNA ended up on [J. R.]” Although defendant initially continued to deny touching J. R. inappropriately, he eventually told Detective D’Amato that “[s]he pulled down her pants and I licked [her vagina] for her. That’s what she wanted.” He denied a ny further wrongdoing. At the end of the interview, defendant was placed under arrest . The recording of this conversation was also turned over to the Butte County Sheriff’s Depart ment. Defenda nt was charged with committing a lewd act upon a child. Defendant pled no t guilty and waived his right to a jury trial. At the bench trial, J. R. briefly took the witness stand and was found incompetent to testify due to he r age. The trial court allowe d the prosecutor to play the video of J. R.’s forensic interview over defendant’s Sixth Amendment objection. The trial court also allowed the prosecutor to pl ay the video of defendant’s interview with Detective D’Amato over defendant’s objections that his statements were not a confession as required by Evidence Code section 1228 and that the Pe ople had not established the corpus delicti required before defendant’s stat ements could be used as the basis for a conviction. The trial court overru led all of defendant’s objections. The court then found defe ndant guilty of the crime charged. Defendant was sentenced to six years in prison . This appeal followed. DISCUSSION Defendant contends his convi ction must be reversed because he was prejudiced by the trial court’s admission in evidence of J. R .’s statements from the forensic interview. He alleges that this impacted his trial in two ways, both of which were prejudicial. His first argument is that because J. R.’s statements were inadmissible due to the confrontation clause, his own inculpatory stat ements were inadmissib le because, without J. R.’s statements, the People could not establish the corpus delicti of the crime charged.4 He claims that this prejudiced him because “[w]ithout the[se] statements . . . , the prosecution could not have proven that [defendant] committed the crime beyond a reasonable doubt.” He next argues that, even if his inculpatory statements were admissible without an established corpus delicti, “t he statements could not form the basis of [his] conviction because[, absent J. R.’s st atements,] there was a lack of independent evidence to satisfy th e corpus delicti rule,” which “prohibits conviction where the only evidence that the crime was committed is the defendant’s own [out-o f-court] statements” ( People v. Alvarez (2002) 27 Cal.4th 1161, 1180) and, therefore, he was necessarily prejudiced by the admission of J. R.’s statements. While we conclude that defendant’s st atements were admissible regardless of whether the corpus delicti was established, we also conclude that the record contains sufficient independent ev idence to establish the corpus de licti here. For that reason, we find no prejudicial e rror and affirm. I Although The Sixth Amendment Prec luded The Admission Into Evidence Of J. R.’s Statements, Defendant’s St atements Were Nevertheless Admissible Evidence Code section 1228 purports to allow courts to admit into evidence the out-of-court statement of an alleged child victim, even though the statement may otherwise be hearsay, “for the purpose of es tablishing the elements of the crime in order to admit as evidence the confession of a pe rson accused of [committing, among other things, lewd or lascivious acts on a child un der 14].” Defendant contends and the People agree that the trial court erred by admitting J. R.’s statements into evidence pursuant to Evidence Code section 1228 because that admission violated his rights under the confrontation clause. Defenda nt contends that because J. R.’s statements were inadmissible, there is insuffi cient independent evidence of the corpus delicti and, therefore, his inculpatory stat ements were inadmissible.5 We agree with both parties that J. R.’s statements we re inadmissible. “In all criminal prosecutions, the accuse d shall enjoy the right . . . to be confronted with the witnesses against him . . . .” (U.S. Const., 6th Amend.) Through this clause, the Sixth Amendment bars the admission into evidence “o f testimonial statements of a witness . . . unless [the witness] was unavailable to te stify, and the defendant had had a prior opportunity for cro ss-examination.” ( Crawford v. Washington (2004) 541 U.S. 36, 53-54 [158 L.Ed.2d 177, 194].) “[Statements] are testimonial when the circumstances objectively indicate that there is no . . . ongoi ng emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” ( Davis v. Washington (2006) 547 U.S. 81 3, 822 [165 L.Ed.2d 224, 237].) This prohibition applies even wher e the testimonial statements are said to be admissible under a state law exce ption to the hearsay rule, ( Crawford , at pp. 61-62 [158 L.Ed.2d at p. 199]) such as Evidence Code se ction 1228. Because J. R.’s statements were testimonial and defendant di d not have a prior opportuni ty for cross-examination, admission of those statements violated Crawford

. But it does not follow that just because J. R.’s statem ents were inadmissible, so were defendant’s. It was once true that “d efendant’s extrajudicial statements [would] have been deemed inadmissible over a corpus delicti objection absent some independent evidence of the crime to which the statements relate . . . .” ( People v. Alvarez , supra , 27 Cal.4th at p. 1170.) “Because[, however,] ofthe adoption of [the right to truth-inevidence rule, which states that relevant evidence shall not be excluded in any criminal proceeding (Cal. Const., art. I, § 28, subd. (f)(2))], there no longer ex ists a trial objection to the admission in evidence of the defendant’s out-of-court statements on grounds that independent proof of the corpus delicti is lacking.” ( Alvarez , at p. 1180.) For this reason, even if the People had failed to establish th e corpus delicti because J. R.’s statements should not have been admitted, defendant’s objection to the admission in evidence of his inculpatory statements was without merit. His statements were admissi ble in any event.6 II The Corpus Delicti Has Been Satisfactorily Established “[T]he corpus delicti of a crime is (1) the fact of the . . . harm, and (2) the existence of a criminal agency as its cause.” ( People v. Dorsey (1974) 43 Cal.App.3d 953, 961.) These elements may be establishe d by “circumstantial ev idence” and by only “[a] slight or prima facie s howing, permitting the reasonable inference that a crime was committed . . . .” ( People v. Alcala (1984) 36 Cal.3d 604, 624- 625, superseded by statute on other grounds, as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911.) Defendant points to two cases to support his argument that there was no sufficient evidence to satisfy the corpus delicti rule except J. R.’s inadmissible statements. The first is People v. Herrera (2006) 136 Cal.App.4th 1191. In Herrera , the defendant was arrested for stealing a large amount of pseudo ephedrine pills and char ged with conspiracy to manufacture methamphetamine. ( Id. at pp. 1195-1196.) The defendant admitted to the investigating detective that he sold the pills to someone who used them to make methamphetamine. ( Id. at p. 1196.) No methamphetamine producing equipment was found in the defendant’s home. ( Ibid. ) The defendant appealed the trial court’s decision to deny his motion to dismi ss the conspiracy charge arguing that, absent his own statement about his coconspirator, there was insufficient inde pendent evidence to establish the corpus delicti of a conspiracy charge. ( Id . at pp. 1196-1197.) In response, the People argued that the large quantity of pills combined with the nonexistence of a methamphetamine lab in the defendant’s reside nce “ ‘support[ed] an inference that [the defendant] conspired with at least one othe r person to manufacture methamphetamine.’ ”

( Id . at pp. 1204-1205.) The Thir d Division of the Fourth Di strict rejected the People’s argument and granted the motion to dismiss be cause “ ‘ “ ‘ “ [a] legal inference cannot flow from the nonexistence of a fact; it ca n be drawn only from a fact actually7 established.” ’ ” ’ ” ( Id . at p. 1205.) Because the People were therefore unable to rely on the nonexistence of a methamphetamine lab, there was absolutely no evidence other than the defendant’s own out-of-court statements that he was enga ged in a conspiracy. This case is no help to defendant because the record contains independent evidence establishing corpus de licti of the crime. Similarly, in People v. Powers-Monachello (2010) 189 Cal.App.4th 400, the second case defendant cites, the reviewing court found a complete lack of evidence , other than the defendants’ out-of-court statements , to support a reasonable inference that a conspiracy existed. The Peopl e offered a list of ten “ ‘overt acts’ ” that they claimed established the corpus delicti of conspiratorial intent. ( Id. at pp. 410-411.) The Second Division of the First District disagreed, conc luding that while “[t]he permissible evidence . . . show[ed] an association between the defendants, [it showed] no agreement to do more than store a safe . . . . [T]his record contain[ed] no evid ence of any overt act . . . in furtherance of a common [criminal] purpose. . . .” ( Id. at p. 418.) “ ‘ “Mere association does not make a conspiracy.” ’ [Citation.] [S]imply knowing that a person’s products or services are being used for a crim inal purpose is insufficient.” ( Id . at p. 419.) Like Herrera , Powers-Monachello features a complete lack of independent evidence to support a conspiracy charge. In both cases, th e courts found nothing in the record, absent the defendants’ out-of-court statements, to esta blish the corpus delicti of the crime. Here, even without J. R.’s statements, the record still contains enough evidence to establish the corpus delicti of th e crime charged. J. R.’s moth er testified to several facts that, taken together, are sufficient to make the “slight . . . showing” needed. ( People v. Alcala , supra , 36 Cal.3d at p. 624.) She testified th at J. R. had attended Grandma Linda’s Day Care and that defendant lived there. She we nt on to say, without objection, that J. R. no longer attended day care there because J. R. came to her and told her that she had been “touched [i]nappropriately” and that “som ething bad had happened to her at Grandma Linda’s.” This testimony is sufficient to “permit[ a] re asonable inference” ( id. at pp. 624-8 625) that J. R. was harmed and that th is harm was due to a criminal agency ( People v. Dorsey , supra , 43 Cal.App.3d at p. 961). Theref ore, the corpus delicti was established and defendant’s inculpatory statements were properly considered “to strengthen the case on all issues.” ( People v. Alvarez , supra , 27 Cal.4th at p. 1181.) III The Trial Court’s Error In Admitting J. R.’s Statements Was Harmless Defendant is correct that where “there [i]s a lack of inde pendent evidence to satisfy the corpus delicti rule,” a defendant’s incriminating st atements “[cannot] form the basis of [a] conviction.” The right to truth-in-evidence ru le, discussed above, “did not eliminate the independ ent-proof rule insofar as [it] prohibits conviction where the only evidence that the crime was committed is th e defendant’s own statements outside of court.” ( People v. Alvarez , supra , 27 Cal.4th at p. 1180.) Defendant contends that because the “err oneous admission of [J. R.’s] statement[s] . . . violated [his] rights under the federal C onstitution . . . , the standard of prejudice in Chapman v. California (1967) 386 U.S. 18, 24, applies. ” We agree. “Confrontation clause violations are subject to federal harmless-error analysis under Chapman

. . . [which] asks: ‘Is it clear beyond a reasonable doubt that a rational [finder of fact] would have found the defendant guilty absent the error?’ ” ( People v. Geier (2007) 41 Cal.4th 555, 608, overruled on another ground in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [174 L.Ed.2d 314].) Defendant argues that the People cannot show harmlessness here because, absent the errone ous admission of J. R.’s statements, the corpus delicti has not been proven. Howeve r, because we have concluded the corpus delicti requirement was satisfied even withou t considering J. R.’s statements, their admission was harmless beyond a reasonable doubt. DISPOSITION The judgment is affirmed.9 ROBIE , Acting P. J.

We concur:

BUTZ , J.

HOCH , J.