People v. Chenault

THE PEOPLE, Plaintiff and Respondent, v. DARRELL L. CHENAULT, Defendant and Appellant.

D064276

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Filed: July 11, 2014

Certified for publication: July 21, 2014

(Super. Ct. No. SCE323881)

APPEAL from a judgment of the Superior Court of San Diego County, Allan J. Preckel, Judge. Affirmed.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Darrell L. Chenault appeals a judgment following his jury convictions on 13 counts of lewd acts on a child under 14 years of age (Pen. Code, § 288, subd. (a))¹ and two counts of forcible lewd acts on a child under 14 years of age (§ 288, subd. (b)). On appeal, he contends: (1) the trial court abused its discretion by allowing a support dog² to be present during the testimony of two child witnesses without individualized showings of necessity; and (2) the presence of the support dog was inherently prejudicial and violated his federal constitutional rights to a fair trial and to confront the witnesses against him. Because we conclude the trial court did not abuse its discretion by allowing the support dog to be present during the testimony of the two child witnesses, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Counts 1 through 12. Chenault and his wife Sh. had two daughters, V. and S., and an older son, B. S. was born in 1989 and V. was born in 1991. In or about 1993, Chenault and Sh. were divorced and Sh. received custody of their children. When the children visited Chenault on weekends, he would sleep on one mattress of a trundle bed with one of the children and the other two would sleep on the other mattress.

When V. was about six years old, Chenault told her to sleep without underwear and, on more than one occasion, touched and rubbed her vagina while they slept in the same bed. On around five subsequent occasions, Chenault inserted his fingers into V.'s vagina. When V. was seven years old, Chenault inserted his penis into her vagina on five or fewer different occasions. On two or three occasions, he penetrated V.'s anus with his penis. On one or two occasions when V. tried to resist and turn away as he touched her, Chenault got mad, hit V., and forced her to submit to him. V. did not tell anyone about the abuse because she was afraid of how others would react.

When S. was five or six years old, Chenault told her to sleep without underwear and "checked" her vaginal and breast areas even though she had not complained of any problems. On about five different occasions when S. was eight or nine years old, she woke up and found Chenault digitally penetrating her vagina. S. did not tell her siblings because she wanted to protect them.

When S. was about 10 years old, she woke up and found Chenault penetrating her anus with his penis while in a "spooning" position behind her. She rolled over and saw his erect penis. S. suffered anal pain thereafter. When S. was 10 or 11 years old, Chenault penetrated her anus again. Thereafter, S. made excuses not to visit Chenault, but did not tell anyone about the abuse because she wanted to protect her siblings. Also, because Chenault told S. stories about things he had gotten away with, she believed child protective service workers could not help her.

In 2000, Sh. entered into a relationship with C.M., who helped raise V. and S. Before Chenault's scheduled visitations with his children, C.M. noticed S. became visibly distraught. S. told her she did not want to go, hated Chenault, and wanted nothing to do with him.

In late 2000 or early 2001, C.M. asked S. whether Chenault had ever touched her inappropriately and made S. promise to tell the truth. S. turned away and cried. C.M. said that was all she needed to know. Later, S. approached C.M., asked her how she knew, and then described Chenault's sexual abuse of her.

On one occasion, while they were away on a trip, Sh. and C.M. allowed Chenault to stay overnight in their home with the children. On their return the next morning, C.M. saw Chenault lying behind V. on the floor of the children's bedroom. V. was wearing only her underwear, and Chenault had his arm around her with his hand at her panty line. C.M. immediately told Sh. what she saw and that Chenault needed to leave. C.M. told Chenault she would break his knees if he ever came near V. or S. again.

Rather than subject V. and S. to legal proceedings, Sh. and C.M. moved out of state with the children. While living in Illinois, V. learned Chenault had also sexually abused S. Between 2006 and 2011, V. and S. spoke with Chenault on the telephone to reach their grandmother, ask about her, or ask for financial assistance, but they never discussed their abuse with him. In 2011, Chenault stopped giving V. and S. financial assistance. In 2012, V. first reported Chenault's abuse to Detective Paul Ward.

Counts 13 through 15. Cr.C. is Chenault's niece. Cr.C. had four daughters, including C., born in 1999, and F., born in 2001. Before 2010, Chenault began residing with Cr.C.'s grandmother. When her grandmother became ill in 2010, Cr.C. communicated with Chenault more frequently because she had to ask him for financial assistance from her grandmother. She also took her daughters to visit her grandmother more frequently. Chenault was usually home during their visits with the grandmother.

When Cr.C.'s grandmother became hospitalized, Chenault asked Cr.C. if C. and F. could come over and help him go through her grandmother's personal property. When F. was eight or nine years old, she spent the night alone with Chenault. F. changed into her nightgown and appeared to fall asleep on the couch. Chenault sat on the couch, put her feet on his lap, and removed her underwear. He took her underwear to the bathroom and returned to the couch. F. kept her eyes closed, pretending to be asleep. Chenault rubbed F.'s leg and vagina and then inserted his finger into her vagina. Chenault then went to sleep elsewhere. The following morning, Chenault asked F. if she found her underwear in the bathroom. At church later that morning, Chenault placed his hand on F.'s thigh and rubbed it. F. did not tell anyone about Chenault's actions because she thought she might get in trouble.

A couple of nights later, F. and C. spent the night at Chenault's home. He set up an air mattress on the living room floor for the girls to sleep on. While Chenault was in the kitchen, F. and C. went to sleep. F. was wearing pajama bottoms and underwear. Chenault approached F. and tried to pull off her pajama bottoms, but she had a tight gripon them. He then put his hands inside her pajama bottoms, lifted up her underwear, and touched her vagina. He put his finger inside her vagina.

C. woke up when her blanket was pulled off of her back. Chenault pulled C.'s underwear down to her ankles and inserted his finger into her anus while she was lying on her stomach. After Chenault walked away, C. pulled up her underwear and covered herself with her blanket. She eventually fell asleep, but later awoke, ran to the bathroom, and vomited.

On arriving home, F. and C. told each other what Chenault had done to them. After their great grandmother died, F. and C. told their stepfather and then their mother (Cr.C.) about Chenault's sexual abuse of them. Cr.C. called her mother and then learned about Chenault's abuse of V. and S. F. and C. were subsequently interviewed by Sherri Rouse, a forensic interviewer for the Chadwick Center at Rady Children's Hospital.³

An amended information charged Chenault with 13 counts of lewd acts on a child under 14 years of age (§ 288, subd. (a)) and two counts of forcible lewd acts on a child under 14 years of age (§ 288, subd. (b)). The information also alleged Chenault committed offenses described in section 667.61, subdivision (c), against more than one victim within the meaning of the One Strike Law (§ 667, subds. (b), (c), (e)). It further alleged that in committing each of the offenses Chenault had substantial sexual contact with a child under 14 years of age (§ 1203.066, subd. (a)(8)). It further alleged that incommitting counts 1 through 12 Chenault committed the section 288 offenses within the meaning of section 801.1, subdivision (a).

At trial, the prosecution presented testimony substantially as described above. It further presented the expert testimony of Catherine McLennan regarding the behavior of children who are victims of sexual abuse. She testified that delayed disclosure by such victims was extremely common. Studies have shown two-thirds of victims had never told anyone about their sexual abuse and kept it a secret even as adults. In her clinical experience, most child victims wait for a period of time before telling anyone about the sexual abuse. Their reasons for delaying disclosure include embarrassment, shame, feeling partially responsible for the abuse, loyalty to the abuser and not wanting to get the abuser into trouble, and concerns about the negative consequences of disclosure, including not being believed, upsetting family situations, or being removed from the home. Child victims commonly continue to spend time with their abusers and may make partial disclosures before divulging more details. Children, especially young children, often have difficulty recalling the timing of events.

In his defense, Chenault presented the testimony of Detective Ward, who described what he observed during Rouse's interview of C. C. told Rouse that during a telephone call on Thanksgiving Day, her stepfather told her that, "If someone's touching you, you're supposed to tell us [her parents]." After C. and F. disclosed Chenault's sexual abuse of them, their stepfather told C. to hand the telephone to her mother. Ward also explained why there...