P. v. Black

Filed 6/1/04 P. v. Black CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN MICHAEL BLACK,
Defendant and Appellant.
F042592
(Super. Ct. No. 79557)
O P I N I O N
APPEAL from a judgment of the Superior Court of Tulare County. William
Silveira, Jr., Judge.
Eileen S. Kotler, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy
Attorneys General, for Plaintiff and Respondent.
-ooOoo-

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2.
Appellant Kevin Michael Black was convicted by jury verdict of one count of
continuous sexual abuse (Pen. Code, § 288.5)1 against his stepdaughter (Victim) and two
counts of lewd or lascivious acts on a child under 14 years of age (§ 288, subd. (a))
against two of Victim’s friends, A. and T.
DISCUSSION
I.
A.
Appellant contends the prosecution committed misconduct and violated his
constitutional and statutory rights to discovery by failing to provide, in derogation of a
court order, certain police records relating to the investigation of Babysitter, a person
who had played somewhat of a grandfatherly role in Victim’s life.
Babysitter had known Victim’s family, though he was unrelated to it, for years and
had provided a form of childcare not only for Victim but also for Victim’s mother
(Mother) when she was young. Babysitter took Victim to school and picked her up from
school. He saw her everyday and often spent hours with her. Mother explained that
Babysitter did whatever Victim wanted him to do and brought her anything she wanted.
He would always buy her gifts of candy, clothes, and jewelry. Victim sometimes stayed
overnight at Babysitter’s home. On occasion, Mother noticed Victim would come home
wearing different clothes. Mother found children’s clothing, including Victim’s
underwear, in the clothes dryer at Babysitter’s house. When Victim stayed at her father’s
house, Victim’s stepmother, not Babysitter, provided Victim’s childcare. However,
Babysitter would come by on occasion and take Victim somewhere. Victim’s siblings
usually went along.
1 All statutory references are to the Penal Code unless otherwise noted.

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3.
Mother testified that, when Victim was about two years old, she asked, “does pee
pee come out of your pussy[?]” Mother asked her where she had learned that word.
Victim told her that Babysitter had taught her that. She told Mother that Babysitter had
touched her private area. Mother reported this information to the police and Mother kept
Victim away from Babysitter for a while, but later allowed them to spend time together
again.
Mother testified that, when she was living with her boyfriend, Victim accused the
boyfriend of molesting her, recanted, and then later accused him again. It was hard for
Mother to know if Victim was telling the truth about the boyfriend because nothing had
come of Victim’s earlier accusation against Babysitter. Mother did not report the
accusation against the boyfriend to the police.
Victim testified Babysitter had never touched her in a bad way. She said she told
the police officer that Babysitter had never molested her and she repeatedly told Mother
that Babysitter had never molested her. Babysitter had merely washed her while she was
in the shower when she was very little. Victim explained that Babysitter used to baby sit
her after school. He would take her to school and pick her up almost every day.
Babysitter loved her and was very nice to her. He would buy her a lot of presents and
candy. He would get swimsuits and other outfits for Victim and would have her try them
on. He kept a blanket in the car that he put over Victim’s lap when she was eating ice
cream to protect his new car. Victim usually sat in the back seat. Babysitter never let
Victim sit on his lap and drive the car.
B.
Appellant points particularly to a police report about Babysitter’s alleged
molestation of nine-year-old J.W. some six months before trial. That report states that
Babysitter would take J.W. for rides in his car. He would put his hand on her leg and
touch her vaginal area. He would buy her candy and clothes. Once, he tried to get her to
sit on his lap while he was talking to Victim on the telephone. J.W. told her father about

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4.
the touchings. The father, who had known Babysitter for many years, spoke to Babysitter
alone and, when they returned, Babysitter was crying. Babysitter told J.W. it would not
happen again.
Appellant maintains this information would have supported his defense theory that
Babysitter was molesting Victim, that, to ensure the silence and cooperation of Victim
and the other children, Babysitter showered them with gifts and money, and that Victim
was sexualized by Babysitter’s molestation and therefore possessed the sexual knowledge
required to falsely accuse innocent men such as appellant. According to appellant,
Victim chose to accuse appellant rather than Babysitter so she would not risk losing
Babysitter’s affection and gifts and so the other children would not ostracize her.
Appellant asserts that the information in the police records was material third party
culpability evidence because it demonstrated that Babysitter had recently molested a girl
of Victim’s age, that he was sexually interested in Victim, and that he admitted molesting
J.W. Appellant also maintains the information was a “crucial link” to impeach Victim’s
credibility by showing she was lying when she testified Babysitter had not molested her.
Appellant contends it is reasonably probable that disclosure and introduction of the
evidence at trial would have led to a different outcome because, “[h]ad the jury learned
that [Victim] was lying about [Babysitter], they would have been less likely to believe
that she was truthful when she accused appellant of raping her.” Appellant also argues
the information “would have changed the dynamics of the trial” and thus the outcome.
Finally, appellant contends the egregious misconduct by the prosecution requires reversal
per se, or at least application of the Chapman2 harmless-beyond-a-reasonable-doubt
standard.
2 Chapman v. California (1967) 386 U.S. 18.

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5.
C.
The prosecution’s obligation to disclose information to the defense has both a
constitutional and a statutory basis. (People v. Bohannon (2000) 82 Cal.App.4th 798,
804-805.) Under the due process clause of the United States Constitution, the
prosecution has a sua sponte obligation to disclose to the defense information within its
custody or control that is material to and exculpatory of the defendant. (Brady v.
Maryland (1963) 373 U.S. 83, 87-88.) This constitutional duty is different than and
independent of the statutory duty of the prosecution to disclose information to the
defense. (People v. Bohannon, supra, at pp. 804-805.) The California statutory scheme,
adopted by initiative in 1990, requires that the prosecution disclose specified information
to the defense, as set out in section 1054.1.
To prevail on appeal, the defendant must establish “‘“there is a reasonable
probability that, had the evidence been disclosed ..., the result of the proceedings would
have been different.”’ [Citation.]” (People v. Bohannon, supra, 82 Cal.App.4th at
p. 805.) “‘A “reasonable probability” is a probability sufficient to undermine confidence
in the outcome. [Citation.]’” (People v. Kasim (1997) 56 Cal.App.4th 1360, 1379-1380.)
Speculation or only a mere possibility that undisclosed evidence might have aided the
defense or affected the trial’s outcome is not sufficient. (People v. Fauber (1992) 2
Cal.4th 792, 829.)
Even assuming the prosecution in this case violated its obligation to disclose
information regarding the investigation of Babysitter and engaged in the egregious
conduct appellant alleges,3 appellant was not prejudiced under any standard of review
because, on this record, there is no reasonable probability that, had the police report
3 “‘In general, a prosecutor commits misconduct by the use of deceptive or
reprehensible methods to persuade either the court or the jury.’” [Citation.] (People v.
Rowland (1992) 4 Cal.4th 238, 274.)

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6.
evidence about J.W.’s accusations been disclosed, the result of the proceedings would
have been different. (People v. Kasim, supra, 56 Cal.App.4th at pp. 1379-1380; People
v. Rowland, supra, at pp. 274, 277 [prosecutorial misconduct is not reversible per se;
prejudice must be shown]; People v. Estorga (1928) 206 Cal. 81, 86.)
First, the evidence against appellant was considerable. Victim testified to
appellant’s acts of molestation in realistic (but childlike) detail. She stated she had
accused Boyfriend of molesting her because he had in fact molested her, but she denied
accusing Babysitter and testified he had never molested her. Victim explained that
appellant committed acts of intercourse against her, whereas Babysitter’s victims
described only acts of fondling. Also, appellant had previously molested his cousin.
Second, evidence that Babysitter recently molested J.W. (or other victims) would
not have contributed to appellant’s third party culpability theory in any material way.
The trial court liberally permitted the defense to introduce, and argue in summation, third
party culpability evidence to support the defense theory that Babysitter was a child
molester, that Babysitter had molested Victim, that Victim was lying when she denied
Babysitter had molested her, and that Victim had falsely accused the men in her mother’s
troubled relationships in order to remove them from her life. (See People v. Sandoval
(1992) 4 Cal.4th 155, 176 [defendant is entitled to present evidence of third party
culpability if it is capable of raising a reasonable doubt about his own guilt].) There was
abundant evidence Babysitter was a child molester who preferred girls about Victim’s
age and who had molested children for many years, including the past several years. The
evidence showed that Babysitter’s victims were three to nine years old and that he had
molested a child as recently as one month before trial.4
4 The evidence showed that Babysitter molested L. about 27 years before trial when
she was about 7 years old, C. about 21 years before trial when she was about 8 years old,
Mother some 20 years before trial when she was about 9 years old, T. about 6 years
before trial when she was about 3 years old, and Boyfriend’s son about 1 month before

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7.
There was also plentiful evidence from which the jurors, if they were so inclined,
could infer that Babysitter molested Victim, and thus that Victim was lying when she
denied it. The defense presented evidence that Victim, like Babysitter’s victims, spent a
lot of time with Babysitter, received a form of childcare from him -- which he represented
as paternal or grandfatherly -- and had an abnormal relationship with him. Evidence of
Babysitter’s molestation of J.W. (or other victims) would not have affected the evidence
regarding Babysitter’s relationship with Victim. Nor would it have provided the “crucial
link” to impeach Victim’s credibility. Appellant is incorrect when he argues the evidence
would have demonstrated that Victim was lying when she stated Babysitter had not
molested her. It would only have emphasized the fact that Babysitter molested many
children; it would not have established that Babysitter molested Victim. Indeed, an
endless parade of Babysitter’s victims, testifying that their circumstances were similar to
Victim’s and that Babysitter in fact molested them when they were Victim’s age, would
not have amounted to proof that Babysitter molested Victim. That conclusion relied on
an inference, which, as we have pointed out, was already sufficiently supported by a
wealth of evidence. Furthermore, evidence that Babysitter tried to get J.W. to sit on his
lap while he spoke to Victim on the telephone would not have demonstrated that
Babysitter was sexually interested in Victim rather than J.W. And, most importantly,
even evidence proving Babysitter molested Victim would not have established that
appellant did not molest Victim.5
Moreover, there was evidence from which the jurors could infer Victim falsely
accused appellant of molesting her. There was evidence Victim told her mother
trial when he was about 4 years old. J.W.’s alleged molestation occurred only about 6
months before trial when she was 9 years old.
5 As the trial court noted, and appellant concedes, Victim could have been molested
by more than one man.

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8.
Babysitter touched her when she was two years old, but later realized he was only
washing her. (This, of course, does not help appellant’s theory that Babysitter was
Victim’s molester.) And there was evidence Victim twice accused Boyfriend when she
was five or six years old, but later said it was just a dream or a lie. There was evidence
that Victim was prematurely sexualized, that she witnessed Mother’s volatile relationship
with the boyfriend, and that the relationship ended sometime after Victim’s accusations.
From this evidence, the jury could have rationally inferred that Victim had the tendency
to accuse men of molesting her, had the sexual knowledge required to falsely accuse men
of committing acts of intercourse against her, and was motivated to falsely accuse the
men in her mother’s troubled relationships. Evidence that Babysitter molested J.W. or
other victims would have been irrelevant to Victim’s tendency to fabricate accusations.
In sum, after reviewing the entire record, we conclude the trial court diligently
ensured the defense was permitted to present evidence and argument to support its theory
that Babysitter molested Victim and that Victim falsely accused innocent men, including
appellant, of molesting her. On the other hand, there also was more than enough
evidence to support the verdict against appellant. For these reasons, we are satisfied
beyond a reasonable doubt that, had evidence of Babysitter’s molestation of J.W. (or
other victims) been disclosed and introduced at trial, appellant would not have been
acquitted. (People v. Kasim, supra, 56 Cal.App.4th at pp. 1379-1380.) Appellant’s
speculation that the evidence would have helped his defense is not enough. (People v.
Fauber, supra, 2 Cal.4th at p. 829.) In view of the record, the guesswork possibilities
suggested by appellant are not sufficient to undermine confidence in the verdict.6
6 Having concluded that disclosure and introduction of the evidence of Babysitter’s
molestation of J.W. would not have affected the outcome, we need not address
appellant’s contention that his defense representation (including the defense
investigation) was deficient for failing to disclose such evidence. (People v. Frye (1998)
18 Cal.4th 894, 979 [to succeed on a claim of ineffective assistance of counsel, appellant
must show he was prejudiced by counsel’s deficient representation].)

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9.
II.
Appellant contends the trial court abused its discretion when it denied appellant’s
motion to disqualify the district attorney’s office. He argues the trial court failed to apply
the proper analysis under People v. Eubanks (1997) 14 Cal.4th 580 and the prosecutor’s
continuing discovery violations deprived appellant of a fair trial. He says the trial court
failed to consider whether a conflict existed, failed to hold an evidentiary hearing to
determine the truthfulness of the defense allegation that the grand jury was investigating
the prosecutor and the district attorney’s office for misconduct (impeding the Babysitter
investigation until appellant’s case was over), and failed to hold a hearing to determine
whether the prosecutor had hindered the defense investigation by inducing the defense
investigator to withhold evidence from the defense.
On October 22, 2002, appellant filed a motion to dismiss the information based on
prosecutorial misconduct or, in the alternative, to disqualify the prosecutor for conflict of
interest. The motion asserted that the district attorney’s office was withholding
exculpatory Brady evidence regarding the police investigation of Babysitter. Appellant
argued that the district attorney’s office had an actual conflict because it was being
investigated by the grand jury for misconduct affecting the case. He stated: “As such,
the prosecution has a conflict; it cannot prosecute this case while under investigation for
the manner in which it has prosecuted this case. The pending grand jury investigation
presents an actual conflict. The complex facts demonstrates [sic] that the prosecution’s
conflict of interest makes it unlikely that Defendant will receive a fair trial.” The
prosecution argued in its opposing papers that appellant’s claims had no factual basis
because they were not supported by affidavits, that the prosecution had not withheld
Brady material, and that a grand jury investigation would not amount to a conflict.
On November 12, 2002, the trial court heard appellant’s motion. Defense counsel
stated he would address “the disqualification issue based on a Grand Jury investigation
that’s ongoing.” The court said it had been informed the grand jury had suspended

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10.
inquiry into all matters referred to it by the defense investigator until the conclusion of
appellant’s case. Defense counsel asked the trial court to continue the case until the
grand jury completed its work to determine whether Babysitter would admit that he had
prodded the children to falsely accuse appellant of molesting them. The court stated:
“That would be an issue. But I’m not going to continue this trial on that speculation.
And that’s all that amounts to.” The court also expressly found that the material in
question did not contain any Brady evidence. Accordingly, the court denied appellant’s
motion to dismiss for prosecutorial misconduct or to disqualify the prosecutor and the
district attorney’s office.
The Supreme Court has summarized the rules controlling disqualification of a
prosecutor, as follows:
“The standard for a motion to disqualify the prosecutor is set forth in Penal
Code section 1424: ‘The motion may not be granted unless the evidence
shows that a conflict of interest exists that would render it unlikely that the
defendant would receive a fair trial.’ We detailed the history of this statute
and the associated legal principles in [People v. Eubanks (1996) 14 Cal.4th
580], where we explained that a ‘conflict,’ for purposes of section 1424,
‘“exists whenever the circumstances of a case evidence a reasonable
possibility that the DA’s office may not exercise its discretionary function
in an evenhanded manner.”’ [Citation.] However, ‘the conflict is disabling
only if it is “so grave as to render it unlikely that defendant will receive fair
treatment”’ during all portions of the criminal proceedings. [Citation.] The
statute thus articulates a two-part test: ‘(i) is there a conflict of interest?;
and (ii) is the conflict so severe as to disqualify the district attorney from
acting?’ [Citation.]” (Hambarian v. Superior Court (2002) 27 Cal.4th 826,
833, fn. omitted, emphasis added.)
On appeal, we determine whether substantial evidence supports the trial court’s
factual findings, and then, based on those factual findings, we determine whether the trial
court abused its discretion in denying the motion. (People v. Breaux (1991) 1 Cal.4th
281, 293-294.)
Here, the record discloses that appellant had no right to an evidentiary hearing to
determine whether there was any factual basis to his own unsupported assertions about a

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11.
prosecutorial conflict. It was appellant’s burden to present a factual basis, by affidavits,
to his claims. (§ 1424 [as part of its motion for disqualification, a defendant must include
a statement of facts supported by affidavits of witnesses who can testify to the facts in the
affidavits].)7 Having reviewed appellant’s moving papers, which do not include a single
evidentiary declaration or affidavit, and the prosecution’s opposing papers, which do
include declarations and affidavits, we conclude the trial court did not err by failing to
hold an evidentiary hearing. Appellant did not produce an evidentiary basis to justify
such a hearing. (§ 1424 [judge reviews the affidavits to determine whether or not an
evidentiary hearing is necessary].)
Moreover, substantial evidence supports the trial court’s implied finding that there
was no conflict requiring disqualification.8 Appellant’s motion was based on an asserted,
but factually unproved, conflict created by the simultaneous prosecution of the case and
the alleged investigation for misconduct in prosecuting the case. According to the
motion, the prosecution was impeding the arrest and prosecution of Babysitter, first, by
failing to act on evidence gathered on Babysitter and, second, by failing to disclose Brady
evidence to the defense in the present case. As for the first claim, there was no evidence
7 Section 1424, subdivision (a)(1) states in part: “Notice of a motion to disqualify a
district attorney from performing an authorized duty shall be served on the district
attorney and the Attorney General at least 10 court days before the motion is heard. The
notice of motion shall contain a statement of the facts setting forth the grounds for the
claimed disqualification and the legal authorities relied upon by the moving party and
shall be supported by affidavits of witnesses who are competent to testify to the facts set
forth in the affidavit. The district attorney or the Attorney General, or both, may file
affidavits in opposition to the motion and may appear at the hearing on the motion and
may file with the court hearing the motion a written opinion on the disqualification issue.
The judge shall review the affidavits and determine whether or not an evidentiary hearing
is necessary.”
8 Although the trial court did not state the basis of its reasoning, “‘[i]n the absence
of contrary evidence, we assume a trial court applied the correct legal standard.’
[Citation.]” (People v. Eubanks, supra, 14 Cal.4th at p. 598.)

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12.
that the prosecutor in this case was involved in the investigation of Babysitter or that any
failure to proceed on the case against Babysitter was attributable to her. The mere fact
that a grand jury proceeding was pending did not in itself amount to a conflict that would
require disqualification. Appellant’s claims of what might be revealed in the grand jury
proceedings were mere speculation, as the trial court noted. Had the trial court ordered a
hearing, it would have functioned as nothing more than a fishing expedition -- a means by
which appellant might attempt to determine whether there was in fact any proof to
support his suppositions. As for the second claim, the trial court expressly determined
the materials contained no Brady evidence, a ruling appellant does not challenge, and
therefore the court impliedly found the prosecution did not commit misconduct by
withholding Brady evidence.
Thus, there was no evidence of a conflict before the trial court. And, even
assuming there was a conflict, the defense failed to show such a conflict would render it
unlikely that appellant would receive a fair trial. (Hambarian v. Superior Court, supra,
27 Cal.4th at p. 833.)9 The trial court did not abuse its discretion by denying appellant’s
motion.
We deny appellant’s footnote motion in his brief that we judicially notice certain
records of the State Bar and of Tulare County. The records were not before the trial court
(People v. Welch (1999) 20 Cal.4th 701, 739 [an appellate court will consider only
matters that were part of the record at the time the judgment was entered]; Reserve
9 We note that appellant has not pointed out any specific instance where the
prosecutor’s discretionary powers were exercised unfairly to appellant or resulted in an
unfair trial (other than the alleged discovery violations addressed in section I. of this
opinion). (People v. Eubanks, supra, 14 Cal.4th at p. 593.) We do glean from the tenor
of his briefs that appellant takes the position the unfairness consisted of the decision to
prosecute him rather than Babysitter for the crimes against Victim. Given the testimony
of Victim, the decision to charge appellant cannot be deemed unfair to appellant as a
matter of law, regardless of the outcome of the investigation of Babysitter.

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13.
Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 [Same]) and, in any event, are
irrelevant given the basic evidentiary defects in appellant’s moving papers.
DISPOSITION
The judgment is affirmed.
_________________________________
Dibiaso, Acting P.J.
WE CONCUR:
__________________________________
Vartabedian, J.
__________________________________
Dawson, J.

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