Defendant was denied opportunity to effectively cross-examine child witness because the witness refused to answer hundreds of questions. After a jury convicted Giron-Chamul of committing sex offenses against his 4-year-old daughter, he appealed raising a number of contentions, including that he was denied his constitutional right to confrontation because he did not have an adequate opportunity to effectively cross-examine his daughter, who refused to answer questions on cross-examination. Held: Reversed. The Confrontation Clause gives the accused the right to be confronted with the witnesses against him. It guarantees an opportunity for effective cross-examination. Several decisions have held that the right to cross-examination is violated where a very young witness appears at trial but refuses to answer most of the questions posed at trial. Here, Giron-Chamul’s daughter refused to answer hundreds of questions, including approximately 150 questions by defense counsel that were crucial to testing her claims. The court concluded that it “need not determine the exact line on the continuum when a child witness’s refusal to answer questions impedes cross-examination enough to violate the Confrontation Clause because the line was clearly crossed here.” Giron-Chamul’s daughter’s failure to respond to questions on critical topics deprived him of a full and fair opportunity to probe and expose infirmities in her testimony and therefore her testimony should have been stricken.

Child-witness was competent to testify even though she made fantastical statements during her testimony. Giron-Chamul also argued that the trial court erred by determining that his daughter was competent because she was unable to distinguish what was true from what was false. The Court of Appeal disagreed. In general “every person, irrespective of age, is qualified to be a witness.” (Evid. Code, § 700.) However, a person is disqualified to be a witness if he or she is incapable of understanding the duty of a witness to tell the truth. (Evid. Code, § 701, subd. (a)(2).) The issue of competency is distinct from the issue of credibility, and contradictory or inconsistent testimony does not suffice to show incapacity to understand the duty to tell the truth. (People v. Avila (2006) 38 Cal.4th 491, 589.) Here, the trial court did not abuse its discretion by finding Giron-Chamul’s daughter competent. Although she testified to facts that were fantastic (she testified that she had 1000 Hello Kitty costumes at her mother’s house, that Giron-Chamul placed his own mouth on his own penis 10 times, and that hundreds of Giron-Chamul’s friends were present when he orally copulated her) she was a child “and children have imaginations.” “‘The fact that a very young witness makes inconsistent or exaggerated statements does not indicate an inability to perceive, recollect, and communicate or an inability to understand the duty to tell the truth,’ even if some parts of her testimony are ‘inherently incredible.'” (Quoting Adamson v. Department of Social Services (1988) 207 Cal.App.3d 14, 20.) The daughter’s exaggerations bore on her credibility, not her competency, and were therefore insufficient to disturb the trial court’s competency ruling.

Speedy trial violation did not require reversal because defendant failed to demonstrate prejudice. Giron-Chamul also argued that his statutory right to a speedy trial was violated, requiring reversal. The Court of Appeal disagreed. Section 1382, subdivision (a)(2) provides that unless good cause to the contrary is shown or the defendant waives the time limit, a trial court must dismiss a felony case when the defendant is not brought to trial within 60 days of the defendant’s arraignment. Here, assuming Giron-Chamul was not brought to trial within the statutory time frame, he failed to establish prejudice from the purported delay.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A140628.PDF