People v. Giron-Chamul (245 Cal. App. 4th 932, 2016)

Opinion

HUMES, P. J.

— Ricardo Giron-Chamul was charged with one count of sexual intercourse with a child age 10 years or younger, one count of sexual penetration of a child age 10 years or younger, and one count of oral copulation with a child age 10 years or younger, based on accusations made by his four-year-old daughter (daughter). A jury convicted Giron-Chamul of the oral copulation count and acquitted him of the other two counts, and he was sentenced to a term of 15 years to life in prison.

On appeal, Giron-Chamul claims that (1) he was denied his right to a speedy trial; (2) insufficient evidence supports his conviction; (3) the testimony of daughter, who was five years old at the time of trial, should have been excluded because she was not competent to testify; and (4) he was deprived of his constitutional right to confrontation. We reject the first three arguments but agree with the last. We hold that Giron-Chamul was denied an opportunity to effectively cross-examine daughter because she did not answer hundreds of questions posed by his trial counsel, including approximately 150 that sought substantial information on important issues. We also conclude that Giron-Chamul was prejudiced by daughter’s refusal to answer these questions, and we therefore reverse his conviction.

I.

Facts

A. The Initial Report.

Giron-Chamul married K.S., daughter’s mother, in September 2005, and daughter was born in December 2006. The couple separated in January 2010, after Giron-Chamul, who was a master sergeant in the United States Air Force during the events in question, returned from a deployment. After the separation, daughter stayed with Giron-Chamul at his home in Fairfield every other weekend. K.S. believed daughter and Giron-Chamul, whom daughter called “Papi,” had “a close relationship,” and she trusted him with daughter. K.S. testified that she had an “amicable” relationship with Giron-Chamul “at most times” after they separated, although they were involved in an active divorce case in the fall of 2011.

Daughter returned from a visit with Giron-Chamul on Sunday, September 4, 2011, a few months before she turned five years old. The following Thursday, Giron-Chamul called K.S.’s home and had a brief conversation with daughter. Later that night, K.S. was getting daughter ready for bed, a routine that included applying ointment to daughter’s vaginal area to treat occasional rashes. K.S. testified that daughter “grabbed her labia,” “moved it as if it were talking,” and said in a “playful . . . but . . . rougher tone of voice,” “ ‘I’m going to eat you.’ ” K.S. asked daughter, “Where did you learn that?” Daughter responded, “ ‘My [papi].’ ”

K.S. asked daughter if Giron-Chamul had done anything else to her. Daughter “slapped [her groin] with her hand cupped,” explaining that Giron-Chamul “ ‘goes like this’ ” and denying that she meant he had slapped her own hand when she tried to touch herself. Daughter also told her mother that Giron-Chamul had pinched her and demonstrated by pinching a stuffed bear in its “groin area.” Daughter became “an[ts]y” as she talked to K.S., and K.S. stopped questioning her and put her to bed.

The next day, K.S. took daughter to the small day care she had been attending since she was two years old. K.S. told the day care provider that daughter had reported that “somebody had touched her,” and she asked the day care provider to try to elicit more information from daughter. The day care provider testified that K.S. said daughter “was grabbing her vagina” the night before and had tied the action to “her [papi].”

After K.S. left, the day care provider asked daughter if “somebody [did] something to [her] ‘pompi al frente,’ ” which the day care provider testified meant daughter’s “private in the front,” or to her “ ‘pompi del atras,’ ” which meant her bottom. Daughter responded, “Yes, my [papi],” and attempted to demonstrate by “pick[ing] up her dress and pull[ing] down her pants” before the day care provider stopped her. In response to further questions, daughter said she had told Giron-Chamul to stop and claimed that “[Papi’s] amigos,” who were in the room at the time, also told him to stop. Daughter mentioned “her best friend Jessie” was present as well. Daughter also said Giron-Chamul would touch her when she was taking a bath and “he would be sneaky.”

The day care provider then took daughter to the day care’s playroom. Without prompting, daughter grabbed a baby doll and squeezed its “vaginal area.” She then licked her index finger, “put it on her forehead and then on her hand, . . . and then on her other hand and then on her vagina,” and made a “sizzling sound.” The day care provider immediately called K.S. to tell her she believed daughter should see a doctor and then made a report to Child Protective Services.

The day care provider had daughter sit with some of the other children while waiting for K.S. to arrive and gave the children paper so they could draw. Daughter drew a face next to three short vertical lines, two large circles underneath the face, and another set of three longer vertical lines touching the bottom of one of the circles. Daughter explained to the day care provider that the drawing, which was admitted at trial, depicted daughter’s “sad face because . . . she didn’t like it.” The circles depicted daughter’s “bottom,” and referring to the sets of vertical lines, daughter “specified that the small tongue was her tongue, and that the big tongue was [Papi’s] tongue when [Papi] was licking her bottom.”

K.S. picked daughter up and took her to a hospital later that morning. A physical exam of daughter’s external genitalia revealed “no bruising, no bleeding, no redness, no swelling,” nor any other indications that daughter had been hurt, and daughter denied experiencing any pain. K.S. made a police report later that night, and she soon obtained a restraining order in family court preventing Giron-Chamul from having contact with her or daughter.

B. The Forensic Interview and Sexual Assault Examination.

A trained police technician employed by the Fairfield Police Department conducted a forensic interview of daughter in mid-October 2011, about five weeks after her initial report, and a video recording of the interview was played for the jury. At the interview’s outset, daughter was able to answer questions about her name, age, and address, but she did not exhibit a clear understanding of the difference between the truth and a lie when the interviewer asked her about that concept.

Using anatomical diagrams, daughter indicated that she used the term “colita” for both vagina and penis and the term “booty” for bottom. The interviewer said she had heard that daughter “told [her] mommy . . . something about [her] colita” and asked her what it was. After licking her index finger and placing it on her lower back while making a sizzling sound, daughter stated, “[M]y dad do it like this.” Daughter then stated, “He touched my colita.” When the interviewer asked daughter what her father “touched it with,” daughter pointed to her vagina and said, “He touched with ... a lengua,” which means “tongue” in Spanish. She said, “He can’t stop . . . [¶] [c]ause he’s so crazy” and “he [did] it again like a hundred times.”

Daughter then lay back in her chair, spread her legs in the air, and touched her vagina, saying that it “was red and ... it was night. . . . [¶] And [Giron-Chamul] was cleaning it. And it’s . . . red.” Daughter indicated he had licked his finger and touched her vagina as well as her “butt.” When asked what her father said when he touched her “butt,” she said, “He says yes to me and I say no to him.” She also said that “he said[,] ‘I’m sorry,’ ” because “he like me, because he’s my best friend.” She could not provide clear or consistent answers about where or when the touching had occurred.

The interviewer then gave daughter a glass, explaining that the exterior was “outside of [daughter’s] colita” and the interior was “inside [daughter’s] colita,” and a pen, explaining it was “daddy’s finger,” and asked daughter to demonstrate how Giron-Chamul touched her vagina. Daughter put the pen straight into the glass and then made a stirring motion around the inside rim. She agreed with the interviewer that her father “moved his finger around” inside her vagina.

The interviewer showed daughter the male anatomical diagram and asked, “Now can you show me any other parts of daddy’s that he touched your colita with?” Daughter indicated that Giron-Chamul had touched her with his “colita” and drew a line from the penis on the male diagram to the vagina on the female diagram. It had happened at Giron-Chamul’s house on her “big bed,” and he took a bath afterward because “[h]e was smelling dirty.” Daughter denied, however, “seefing] anything come out of daddy’s colita.” Daughter stated her father “said sorry” and “said he [was her] best friend.”

The interviewer asked daughter whether Giron-Chamul “touched [her with] any other parts of his body.” Daughter pointed to the mouth on the male anatomical diagram. Initially, she said she did not know what part of her own body Giron-Chamul had touched with his mouth, but then she indicated that it was on her “boobs.”

Finally, the interviewer showed daughter the picture she had drawn at the day care provider’s house. Daughter explained that it depicted Giron-Chamul “laying back” and herself, and she also stated that both tongues were his. She said a few times that she did not know what he was doing with his tongue and then said he “licked the food” at Burger King. In response to more direct questioning, however, daughter stated that Giron-Chamul’s tongue was on her “booty” in the drawing. After being asked “[w]hat else ... he [did] with his tongue ... on [her] body,” daughter made a back-and-forth motion with a pen over the vagina on the female anatomical diagram. The interviewer then wrote “touched colita with tongue” on that diagram.

After the forensic interview ended, a sexual assault nurse examiner examined daughter. The nurse testified that daughter was “calm and cooperative” during the examination. An internal and external examination of daughter’s genitalia did not reveal any “indications of trauma,” any indication her hymen had ever been penetrated, or anything else unusual. The nurse testified that children’s hymens are particularly sensitive and that “touching the hymen of a four year old [would be] very painful” for the child. But she also testified that it was possible to insert something in a child’s labia without reaching the hymen, and it was possible for the hymen to be injured and heal to appear normal again.

C. Daughter’s Testimony.

Daughter was five years two months old at the time of trial. Her trial testimony lasted for about four hours, spread over three days, and it was videotaped. We have carefully reviewed the recordings, which are far more revealing than the transcript, and describe daughter’s testimony in detail because our ultimate disposition of this appeal turns on the nature and frequency of the attorneys’ questions and the extent of daughter’s selective responsiveness.

1. The competency hearing.

Before the jury was sworn, the trial court held a hearing under Evidence Code section 402 to determine whether daughter was competent to testify. The prosecutor had to carry daughter, who was crying, to the witness stand. According to the prosecutor, daughter repeatedly said on her way to the stand that she was “scared” of her father, who was present in court and was also crying, and that she did not want him to look at her. The prosecutor attempted to question daughter, but she hid behind a chair, and the court granted the prosecutor’s request to recess.

After the break, the trial court held a hearing on whether daughter should be permitted to testify by closed-circuit television, which is authorized in the case of a young child who would otherwise be unavailable as a witness because of the negative impact of being in the defendant’s presence. (§ 1347, subd. (b).) The prosecutor argued that the section 1347 procedure was appropriate based on daughter’s behavior in court earlier that morning. Over Giron-Chamul’s objection, the court ruled that daughter could testify by closed-circuit television.

The competency hearing was held by closed-circuit television a few days later. Daughter, who testified from a jury deliberation room, answered almost all of Giron-Chamul’s trial counsel’s questions, although she got out of her chair and had to be repeatedly asked to return. After daughter struggled to answer counsel’s more abstract questions about the meaning of truth and lies, the trial court permitted the prosecutor to take over the questioning.

Although daughter’s attention wandered throughout the prosecutor’s examination, she again responded to most of the questions asked. Daughter accurately indicated whether statements about clothes worn by the prosecutor and daughter’s victim advocate, who was in the room with daughter, were “real” or “not real.” The prosecutor was also able to elicit daughter’s testimony that it is bad to lie, that daughter would only tell the truth and “things that are real” in court, and that K.S. punished her if she lied and was happy if she told the truth.

When defense counsel began questioning daughter on redirect, she quickly lost interest and got out of her chair again, prompting a recess. After the hearing resumed, daughter refused to answer any more questions, climbed under the room’s conference table, and would not come out. The trial court ended the hearing and ruled that she was a competent witness.

2. Procedure for testifying by closed-circuit television.

Daughter’s trial testimony was also given by closed-circuit television. Her victim advocate, a bailiff who was not in uniform, and a camera technician were in the jury deliberation room with her. Daughter had a chair next to the victim advocate’s at the conference table, behind which was a large whiteboard. Giron-Chamul, the attorneys, the trial court, and the jury remained in the courtroom.

Consistent with section 1347, daughter’s testimony was recorded. Our record contains video recordings from three different cameras. One camera in the deliberation room was focused on daughter and transmitted her image to the courtroom. When, as often occurred, she would leave her chair and either walk around the room or go under the table, the technician used this camera to track her movements so that those in the courtroom could see what she was doing. A second camera in the deliberation room remained fixed on daughter’s and the victim advocate’s chairs from a different angle. Finally, a third camera recorded an image of the courtroom that was transmitted to a monitor on the conference table. The image permitted daughter to see both counsel’s tables, the attorneys, and Giron-Chamul, but not the trial court or the jury.

3. Direct examination.

Daughter’s direct examination began relatively smoothly. Daughter often spun around in her chair or lay across the conference table to look at the monitor, but she answered the prosecutor’s questions about topics like her name and birthday. She also successfully answered questions that demonstrated her ability to distinguish between the truth and a lie.

Less than 10 minutes into her testimony, however, daughter disappeared under the table after testifying that she called her bottom her “butt” and her vagina her “colita.” She was coaxed back into her chair a couple of minutes later, and the prosecutor showed her the drawing she had made at the day care provider’s house. Daughter identified the drawing and explained that it was “[o]f [herself] and [Papi’s] butt and his tongue and his other tongue up and down.” She then said it was “[herself] and [her] butt and [Papi’s] tongue,” but she quickly became reluctant to continue discussing the drawing and went under the table again. Daughter repeatedly refused to come out, and the trial court granted the prosecutor’s request for a recess.

After the break, the prosecutor asked more questions about the drawing. Within seconds, daughter again disappeared under the table. She could not be convinced to get back in her chair until the prosecutor promised they would “talk about something else.” The prosecutor then asked a few questions about a dog daughter had seen at the prosecutor’s office when she came there for the forensic interview, but daughter did not answer and went back under the table. After she refused to come out, the trial court granted the prosecutor’s request to break early for lunch.

After lunch, the prosecutor asked daughter several times what the drawing depicted before daughter finally agreed that it was “a picture of [her] butt and of [Papi’s] tongue.” When the prosecutor asked daughter “what [her papi] did with his tongue on [her] butt,” daughter disappeared under the table again and failed to respond. She soon emerged and began walking around the room, not answering the prosecutor’s repeated questions about what her father had done to her.

After being unable to elicit any further testimony from daughter about the drawing’s significance, the prosecutor asked a few questions about the dog, to which daughter responded by nodding even though she was urged to give verbal answers. When the prosecutor began asking about the forensic interview, daughter did not respond at all. There was a brief sidebar, after which the prosecutor asked daughter some questions about the day care. Daughter buried her face in the back of her chair, refused to respond, and went back under the table.

The prosecutor then spent several minutes asking daughter about the dog, a doll the victim advocate had given her, which she had in the deliberation room with her, and daughter’s lunch. Daughter responded to most of these questions, although she was out of her seat most of the time. When the prosecutor asked daughter to tell her “what [Papi] did to [her] butt with his tongue,” however, daughter flatly refused. Referring to statements daughter had apparently made during a break, the prosecutor was eventually able to elicit daughter’s testimony that she was “scared” to talk about this topic “[b]ecause [Papi] did something to [her].” Daughter failed to respond to the prosecutor’s repeated questions about what her father had done, however, and daughter’s testimony was halted again so that the parties and trial court could discuss outside the jury’s presence “what the next step is going to be in this case.”

After acknowledging that daughter was “not answering questions about anything related to what happened to her,” the prosecutor requested that the trial court break for the day, saying, “I don’t think that it is unreasonable to ask for one last opportunity at a break for me to have time with [daughter] to see if there’s anything I can do to get her to talk about this in front of the jury . . . .” The court noted its concern that there had already been multiple breaks since daughter had begun testifying, even though the actual testimony “lasted very, very briefly,” and it expressed skepticism that an “overnight break” would accomplish anything. After hearing argument from the parties, the court agreed to break for the day but indicated that if daughter refused to testify the following morning, “there will be nothing further that can be done.”

When the jury returned, the prosecutor made one more attempt to question daughter. She asked daughter four more times to say what Giron-Chamul had done to her, and daughter refused, disappearing under the table. Daughter then said, “I’m not going to answer questions,” the prosecutor made her request to break for the day, and the trial court granted it, saying, “I am prepared to give you one final opportunity so that we can reconvene in the morning . . . , and if you are not able to go forward at that time, then some decisions will need to be made.”

The following morning, daughter resumed her testimony. She was permitted to color in a coloring book while testifying, and this helped her to sit still through most of the first portion of her testimony.

The prosecutor began by showing daughter various photographs of Giron-Chamul’s house, and daughter identified his bedroom and her bedroom. She was then shown her drawing from the day care provider’s house again, and she agreed that it showed “[her] butt and [Papi’s] tongue” and was “a picture of something that happened.” The prosecutor asked, “Can you please tell me what [Papi] did to your butt with his tongue?” Daughter responded, “Licked it.”

Next, daughter was asked whether “[Papi] put his tongue on any other part of [her] body,” and she responded that she did not know. The prosecutor showed her the female anatomical diagram from the forensic interview, pointed to the figure’s vagina, and said, “[W]e were going to talk about this private part here. We were going to call that a ‘colita’ at the time. Remember we said that yesterday?” Daughter agreed. The prosecutor asked, “Can you tell me, has [Papi] ever put his tongue on your colita?” Daughter said, “Yes.” The prosecutor was then able to elicit testimony that this had happened in Giron-Chamul’s room, on his bed, while daughter was lying down. Giron-Chamul did not have his clothes on, and he had put his tongue “on [her] colita; on [her] skin,” not on her clothes. Daughter said it had happened 10 times when she was four years old. She did not respond, however, to questions about whether Giron-Chamul had performed this act in any other room of the house. And when the prosecutor asked daughter about her testimony that Giron-Chamul had licked her “butt,” daughter said it also had happened 10 times but then said he “was licking his underwear.”

The prosecutor repeatedly asked daughter whether Giron-Chamul had ever touched any part of her body with his penis, and daughter finally responded that “he just put his penis in his mouth.” Putting her thumb in her mouth, she said, “This is the penis. ... He drink it just like a baby.” The prosecutor then asked, “[D]id he ever put his penis on your colita?,” and daughter responded affirmatively. She said this touching occurred at Giron-Chamul’s house in his bedroom, but she resisted the prosecutor’s attempts to learn further details, saying that she did not know, refusing to answer, or attempting to change the subject.

After several minutes passed without any relevant testimony being elicited, the prosecutor returned to showing daughter photographs of Giron-Chamul’s house. Daughter began providing responsive answers again, including her testimony that she sometimes slept in Giron-Chamul’s bed and that her father “licked [her] boobies.” She became evasive, however, when the prosecutor asked a series of questions about whether Giron-Chamul had made daughter put her mouth on his body, whether he put his penis on any other part of her body, or whether he had touched her “colita” with his hand. After daughter crawled under the table and refused to answer more questions, the trial court granted the prosecutor’s request for a recess.

After the break, the prosecutor said to daughter, “[W]hen we were talking before, we had talked about your [papi] putting his tongue on your colita.” Daughter said, “I don’t want to talk about this,” and disappeared under the table. For the next few minutes, daughter moved around under the table and throughout the room, refusing to answer the prosecutor’s questions about Giron-Chamul’s touching of her with his hands or tongue. She returned to look at the monitor after asking to see a photograph of Giron-Chamul’s garage, but when the prosecutor could not produce the photograph she wanted, she went back under the table.

After a sidebar, daughter got back into her chair, and the prosecutor asked her several questions about other topics, including the other children at the day care, “Kyra,” whom daughter said was her best friend, and the food daughter had eaten recently. Daughter responded to most of these questions, although she went under the table again. When the prosecutor resumed questioning daughter about what Giron-Chamul had done, however, daughter stopped cooperating again. She denied that Giron-Chamul had “put his penis in [her] colita” and said she did not “want to talk about this.” She then stopped responding at all and refused to get back in her chair.

After another sidebar, the prosecutor promised that she would ask daughter “only ... a few more questions.” Daughter initially came out from under the table and sat in the victim advocate’s lap, but she did not respond to several questions about what Giron-Chamul had done. After Giron-Chamul’s trial counsel objected to a question about a statement daughter had made during the forensic interview, the prosecutor stated, “[Daughter’s] being willfully evasive at this point. I’m asking her about prior inconsistent statements.”

Daughter eventually agreed that she remembered saying during the forensic interview that Giron-Chamul had “put his finger in [her] colita.” The prosecutor repeatedly asked her whether this had actually occurred, with no response, before daughter finally said, “Yes.” Daughter then testified that it happened in Giron-Chamul’s room, he was not wearing clothes, and she was sitting up with her clothes on but he “ripped” her clothes. When asked about the ripping of clothes, however, daughter complained that she was “tired” and “[her] tummy hurtQ,” and she mostly stopped answering questions. After several minutes of this, the prosecutor finally ended the examination, saying, “I think that’s about the best she can do at this point.”

4. Cross-examination.

Cross-examination began after a recess was taken. Daughter was back in her chair and coloring. In response to Giron-Chamul’s trial counsel’s questions, she eventually testified that the terms “pompi al frente” and “pompi del atras” both meant “butt,” although she complained several times that she did not like it when defense counsel spoke Spanish. Defense counsel then asked “who told [her] about the word ‘penis,’ ” given that she had used the word “colita” to refer to her father’s penis during the forensic interview. Daughter began moving her lips without making any sound, which she explained was her “talking crab,” something she had learned to do from a friend. She continued talking crab as defense counsel asked her more questions. Eventually, she said she wanted to talk to the prosecutor instead of him.

Defense counsel then asked a series of questions about daughter’s testimony that Giron-Chamul had ripped her clothes. Daughter said she “[did not] like talking about that,” but she did testify that her father had ripped her “Hello Kitty suit” with his hands while it was hanging on a hanger in the closet. She also said she had “[a] thousand” Hello Kitty suits at her father’s house and “[a] thousand” more at her mother’s house. When defense counsel asked her what Giron-Chamul did with the suit after ripping it, daughter disappeared under the table.

Soon, daughter came out and got into the victim advocate’s lap, but she refused to face the camera transmitting her image to the courtroom and did not give intelligible responses to defense counsel’s questions about the drawing from the day care provider’s house. After a short sidebar, defense counsel told daughter that they were going “to talk about other stuff that’s a little more fun,” and she answered a series of questions about the Disney character Jasmine. But when defense counsel asked if she remembered saying during her direct testimony “that [she] was in [her] room and [Papi] was coming into [her] room, but he left, and ... he was going to see other little girls,” she would not answer and began talking crab again.

Eventually, daughter answered a few questions about “Jessie,” but she lay down in the victim advocate’s arms and would not answer when defense counsel asked her about “Kyra.” Defense counsel switched to questions about more innocuous topics, including a children’s television show, but daughter said she did not want to talk. When asked who had given her the doll she had had during the previous day’s testimony, daughter denied that it was the victim advocate and refused to say who it was, prompting another sidebar. Upon returning to question daughter, defense counsel greeted her. She immediately disappeared under the table and refused to come out, and yet another sidebar was necessary.

Back on the record, the prosecutor attempted to convince daughter to talk to defense counsel by explaining that he was one of the prosecutor’s friends, but daughter yelled, “No” when asked if she would answer his questions. She said she “[did not] like talking to him” and wanted to talk to the prosecutor instead. Defense counsel offered to ask daughter questions with his back turned to her so she would not have to see his face. She agreed and got into the victim advocate’s lap. But she became upset when defense counsel asked her about the Hello Kitty suits, said she did not want to talk to him, even if he changed the subject, and went back under the table. The trial court decided to break early for lunch.

After lunch and back on the record, daughter was in the victim advocate’s lap, coloring. She answered questions about the Disney character Aladdin, and she eventually agreed that the victim advocate had given her the doll from the day before. But when defense counsel said he was “going to ask [her] a couple of questions about some of this stuff [the prosecutor] tallied to [her] about now,” daughter went under the table and began crawling back and forth. She said it was “real” that her father had “put his mouth on his penis” and that it happened 10 times, but she refused to answer questions about what his penis looked like. After daughter hid behind a chair and would not come out, there was a sidebar. When testimony resumed, daughter would not answer questions about topics including shapes, swimming, what her father’s penis looked like or whether she had seen anyone else’s penis before. Daughter went back under the table, and there was another sidebar.

When questioning resumed, daughter was sitting in the bailiff’s lap. She answered questions about counting and her doll, claiming that the doll ate soup for lunch. Daughter was told that she could draw on the whiteboard, and she began writing numbers on it. At this point, she stopped answering questions, saying she did not want to talk anymore and “want[ed] to go home.” The trial court called yet another sidebar.

After the sidebar, defense counsel asked daughter to draw a picture of Giron-Chamul’s house on the whiteboard, but she said she did not know how. She then complied with counsel’s request to draw a series of things unrelated to the case. But when counsel asked daughter whether he could “ask [her] about the other little girls that [she was] talking about to [the prosecutor] this morning at dad’s house,” daughter shouted, “No.” She ran away from the victim advocate, who was trying to remove a pen from daughter’s mouth, and crawled under the table again.

Daughter soon returned to drawing on the whiteboard, but she would not answer defense counsel’s questions about little girls being at Giron-Chamul’s house. Nor did she respond to questions about what it looked like when her father put his penis in his mouth or what his penis looked like. She was eventually coaxed back into her chair, and when defense counsel asked her again whether she could “show us what it looked like when [Papi] put his penis in his mouth,” she said, “Yes.” Counsel told her to go ahead, at which point she disappeared under the table and said, “Tricked you.”

The proceedings were paused for technological reasons, after which daughter sat in the victim advocate’s lap and colored. She answered questions about drinking milk when she was a baby, but she again refused to demonstrate what it looked like when her father put his penis in his mouth. Immediately afterward, however, she said she was ready to show defense counsel what her father’s penis looked like, and she drew it on the whiteboard. She then drew another picture showing her father’s “butt.”

Daughter erased the pictures and told defense counsel that she wanted to play Simon Says. He briefly indulged her, but she ignored him when he asked her several times about the last time she had talked to her father. As she continued drawing on the whiteboard, she testified that Giron-Chamul had one penis and she had seen it 10 times, but she then failed to respond to numerous questions about whether she had seen anyone else’s penis. She eventually said, “I’ve seen it in this,” and wrote the number “10” on the whiteboard. The prosecutor’s objections to defense counsel’s attempts to clarify were eventually sustained, and daughter’s only further testimony on the topic was that the other people were boys whose names she did not know.

After another break for discussion of an evidentiary objection, daughter agreed to resume drawing on the whiteboard, but she would not answer questions about whether she had seen other people’s penises or whether she understood various terms used to refer to going to the bathroom. Defense counsel returned to the topic of whether she had seen anyone else’s penis, but after she continued not to respond, the trial court directed him to try another topic. When he asked her questions about the day care provider’s house, however, she continued to be unresponsive, and she soon disappeared under the table, prompting a sidebar. Afterward, she returned to the victim advocate’s lap, but she squirmed and would not answer more questions about the day care provider’s house. She soon went under the table again, and the court determined they should break for the day.

Daughter’s cross-examination resumed the following morning. As soon as defense counsel greeted her, daughter slid out of her chair and began walking around the room. After she returned to her chair, defense counsel demonstrated the sizzling sound she had made in the forensic interview and asked her what it meant. In response, she licked her finger and touched her forehead, her hip, and her chest, but she then went under the table again. Defense counsel continued trying to get an answer from her, but she refused to come out from under the table so that he could demonstrate the action for her. She eventually responded that she did not know what the action meant and denied having done it when talking to anyone about her father.

Defense counsel then asked a series of questions about who was present when “[Papi] licked [her] butt,” but daughter, who was still crawling around under the table, did not answer. When counsel switched to asking her about the drawing she had done at the day care provider’s house, daughter briefly emerged to look at the monitor, but she began walking around the room and did not respond to questions about the drawing except to say that she did not want to talk about it.

Daughter crawled under the table and started eating something. As she remained under the table, she answered a series of defense counsel’s questions about when her father had “licked [her] butt.” Daughter claimed that “Jessie” was present and said “stop it” when Giron-Chamul was licking daughter. Daughter also testified, “[Papi] got Jessie and lickfed] her butt, and I said, ‘Stop it,’ and [Papi] licked my butt too.” Finally, daughter claimed that Jessie’s dad and 100 of Giron-Chamul’s “amigos” were present and that when his friends asked him to stop licking daughter and Jessie, Giron-Chamul said, “ ‘You can’t stop'me.’ ” Defense counsel asked, “Is what you are telling us right now real or not real, hon?,” and daughter responded, “Real.”

Defense counsel then asked more questions about where daughter had learned the term “penis.” Daughter repeatedly refused to tell and said to counsel, “You’re boring.” The prosecutor eventually objected to this line of questioning, the objection was discussed at a sidebar, and the trial court sustained the objection.

After the sidebar, defense counsel indicated that he was going to ask daughter more questions, and she responded, “Leave me alone.” Defense counsel asked a series of questions to determine whether daughter used the terms “peepee” and “poopoo,” but she was uncooperative. Defense counsel then asked, “Did you tell your mommy that [Papi] peed on your neck?” Daughter responded affirmatively and said it was “real” that that had happened. Similarly, she agreed that she had told her mother that “[Papi] pooped in [her] hair” and that that was “real” as well. After defense counsel asked whether anyone else was there “when [Papi] pooped in [her] hair,” however, daughter said, “Give me a break. Give me a break,” and the trial court called a recess.

When testimony resumed, daughter was in her chair, coloring. Defense counsel asked daughter how her break was, but she did not respond and then admitted she was “ignoring” him. As he began to ask her another question, she got out of her chair, drew her hand across her throat, and made a gesture into the camera as if she were breaking something with both hands. She got back in her chair, but she told defense counsel to “[l]eave [her] alone” after he asked if she was ready to start answering questions.

Defense counsel told daughter they could talk about anything she wished, at which point she slid under the table. She was responsive to a few questions about Hello Kitty, but when defense counsel said he needed to “ask a couple more questions about the stuff [they] were just doing,” she became unresponsive again. She refused to tell him whether anyone else was there when “[Papi] pooped in [her] hair.” After defense counsel asked whether daughter saw “[Papi] put his penis in [Jessie’s] colita” on the day that daughter “saw [Papi] licking Jessie’s butt,” daughter got into the victim advocate’s lap and turned her face away. She then failed to respond to a series of other questions about that day and to the question whether she had ever “seen [Papi] lick any other little girl [s’] butts.”

Still in the victim advocate’s lap, daughter eventually began coloring again, and defense counsel moved to the topic of time-outs. Daughter was initially reluctant to respond, but she eventually agreed that her mother had told her during a previous break that “if [she] didn’t pay attention, [she’d] get a time-out.” After two brief sidebars in response to objections by the prosecutor, defense counsel said, “Hi, [daughter],” and daughter responded, “I don’t want to.” He then asked her whether her mother had told her “what to say” during a break. Daughter initially responded by talking crab and would not give a verbal answer, but she eventually nodded affirmatively after being asked the same question several times.

Defense counsel then returned to whether Giron-Chamul had done anything else to “Jessie” or to other girls. Daughter ignored repeated questions on this topic, prompting the trial court to ask whether she was able to hear. Daughter indicated that she could hear, but when defense counsel then asked her to look at the monitor, she sighed in exasperation and would not comply. The prosecutor requested a sidebar.

When the sidebar was over, the prosecutor asked daughter “to do a huge favor for [her],” explained that defense counsel “ha[d] questions that he want[ed] to ask [daughter]” for which he needed her to look at the monitor, and got daughter to agree that she would briefly look at him. Daughter watched as defense counsel demonstrated the sizzling action but then immediately went under the table. She failed to respond to repeated questions about whether she had “ever done that before with [her] finger and [her] hip.” Only after defense counsel indicated his examination was almost done and promised he would not ask the question again if she “answerfed] out loud” did daughter finally respond, “No.”

Defense counsel then promised he was “really getting near the end” and would “ask these last questions really fast.” Daughter resumed talking crab and would not get back in her chair. Counsel asked, “[H]as [Papi] ever done anything to hurt you before?” Daughter did not respond. Counsel then said, “[Daughter], answer this one. Pm really, really, really almost done, honey. Just look at us and tell us if [Papi] has ever done anything to hurt you before.” Daughter, who was facing the water cooler in a corner of the deliberation room, said, “Huh-uh.” Neither defense counsel nor the prosecutor asked her any further questions.

D. Giron-Chamul’s Defense.

The defense case, which also included the testimony of character witnesses, centered on Giron-Chamul’s testimony, in which he denied having any inappropriate contact with daughter. He acknowledged that he would touch her vagina on the occasions when he needed to clean it. Due to daughter’s young age, he also had to help her wipe herself after she had bowel movements.

His testimony suggested Giron-Chamul was very concerned about avoiding contact with daughter that might be misinterpreted. For example, he said that when daughter stayed overnight at his house, she would fall asleep in her own bedroom, but she often woke up afraid. He permitted her to sleep in his bed but placed “pillows in between [them]” because he did not “feel comfortable [about] her being next to [him].” He also stated that on one occasion, K.S. was angry with him because he had not done a good job cleaning daughter’s vagina, and he told K.S. that he was “not comfortable” doing so. Similarly, his girlfriend testified that he told her K.S. wanted him to do a better job of cleaning daughter’s vagina and applying the ointment, but he was “cautious” about doing so because he did not want to be accused of inappropriate touching.

Giron-Chamul had no explanation for where daughter might have learned to open and close her labia and say “eat me,” how she could have learned about oral copulation and the other sexual behavior she seemed to allude to in the forensic interview and her testimony, why she would have drawn a picture of her bottom and his tongue, or why she would have accused him of molesting her.

Giron-Chamul’s testimony did, however, suggest the possibility that K.S. had a hand in prompting daughter’s accusations. Giron-Chamul testified that he and K.S. had “a really messy break-up” and “she got really nasty” in text messages, which he had kept on an old cell phone after their separation because he was “scared” she might accuse him of something and he wanted proof of what she had said. For example, K.S. admitted that in April 2010, she sent him a text message saying, “We’ll see one day if you [are] very sick or in jail, who is there for you.” In closing argument, Giron-Chamul’s trial counsel argued that even if K.S. was not “vengefully, intentionally trying to imprison a man [whom] she [knew] didn’t do it,” she had made a serious mistake in interpreting daughter’s behavior and had an interest in Giron-Chamul’s being convicted to justify putting daughter through the investigation and trial.

II.

Discussion

A. Giron-Chamul’s Claim That His Statutory Right to a Speedy Trial Was Violated Lacks Merit.

Giron-Chamul claims that the trial court erred by not dismissing the charges against him after the trial did not begin on time under section 1382, which provides a statutory right to a speedy trial. We reject this claim because he has demonstrated no prejudice from the purported error.

The original information was filed on December 15, 2011, and Giron-Chamul was arraigned five days later. He pleaded not guilty and did not waive time, requiring that the trial begin by February 21, 2012. Trial was set for February 16.

On February 10, the prosecutor moved to continue the trial because she had just learned the investigating police officer would be on vacation from February 17 to February 26. The trial court found good cause for a continuance. After Giron-Chamul stipulated to moving the last day for trial to February 23 and the prosecutor did not object, the court set the trial for that date.

On the morning of February 23, both counsel announced that they were ready to proceed. Counsel and the trial court then discussed the issue of when daughter’s competency hearing should be held, with the prosecutor arguing it should occur before voir dire and Giron-Chamul’s trial counsel arguing that either the jury should be sworn first or the parties should stipulate to having jeopardy attach once the competency hearing began. The court ruled it would hold the competency hearing before beginning voir dire. It attempted to begin the hearing later that morning, but as noted above, daughter became very upset upon taking the stand and the hearing was postponed.

Meanwhile, the trial court heard juror hardship requests, which resulted in the dismissal of all but 51 prospective jurors with some requests still pending. The court noted its belief that there were not “enough [prospective jurors] to warrant starting full voir dire.” Defense counsel objected, arguing that trial would not commence within the statutorily required time period unless jury selection began that day. The court disagreed. After noting that it would continue to deal with hardships and consider the parties’ motions in limine, it stated, “So we will be engaged and moving forward doing things that we normally do before a jury trial starts. There’s not a whole lot of difference; it’s just that our number of jurors was inadequate, given the hardships that were requested.” About 40 jurors were left after the hardship process was completed.

The next day, Giron-Chamul moved to dismiss the case on the ground that his right to a speedy trial had been violated. On February 27, when the parties next returned to court, defense counsel argued that the stipulation to February 23 as the last day of trial did not trigger the 10-day grace period under section 1382, subdivision (a)(3)(B) because the prosecutor did not assert a right to the additional time. After taking the matter under submission, the trial court ultimately denied the motion to dismiss. Although it agreed that the grace period did not apply, it determined that trial had commenced on February 23 despite the fact that voir dire had not begun that day.

Section 1382 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.” (§ 1382, subd. (a)(2).) “When a defendant’s trial has been properly continued to a date beyond the 60-day period, section 1382 further provides that the defendant is entitled to be brought to trial on the new trial date ‘or within 10 days thereafter.’ (§ 1382, subd. (a)(2)(B).)” (Smith v. Superior Court (2012) 54 Cal.4th 592, 609 [142 Cal.Rptr.3d 880, 278 P.3d 1231].)

Giron-Chamul claims he was not “brought to trial” in time based on decisions establishing that “ ‘an accused is “brought to trial” within the meaning of section 1382 when a case has been called for trial by a judge who is normally available and ready to try the case to conclusion. The court must have committed its resources to the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn.’ ” (People v. Hajjaj (2010) 50 Cal.4th 1184, 1196 [117 Cal.Rptr.3d 327, 241 P.3d 828].) He argues that even though the trial court and the parties were ready to proceed on February 23, the “last day of trial agreed to by the defense,” he was not brought to trial on that day because the court did not summon and swear the jury panel.

We agree with the trial court’s determination, which neither party challenges, that the 10-day grace period under section 1382, subdivision (a)(2)(B) was not triggered by Giron-Chamul’s stipulation to a two-day extension of the last date for trial. (See Bailon v. Appellate Division (2002) 98 Cal.App.4th 1331, 1345-1349 [120 Cal.Rptr.2d 360].) We need not determine whether Giron-Chamul was “brought to trial” under section 1382 on February 23, however, because he fails to establish that any prejudice resulted from the purported delay. Although prejudice is presumed when a defendant seeks pretrial writ relief for a violation of section 1382, “on appeal from a judgment of conviction a defendant asserting a statutory speedy trial claim must show that the delay caused prejudice” (People v. Martinez (2000) 22 Cal.4th 750, 769 [94 Cal.Rptr.2d 381, 996 P.2d 32]) such as if “the statute of limitations would bar a new information or indictment for the same offense” (People v. Egbert (1997) 59 Cal.App.4th 503, 513, fn. 4 [68 Cal.Rptr.2d 913]). But Giron-Chamul never mentions the issue of prejudice in his briefing, even in response to the Attorney General’s argument that he failed to make the required showing. Thus, even if we were to assume that his right to a speedy trial was violated, he is not entitled to relief.

B. The Conviction Was Supported by Sufficient Evidence.

Giron-Chamul argues that there was insufficient evidence to convict him of oral copulation with a child age 10 years or younger. Although we recognize that daughter refused to answer many questions and made fantastical and sometimes inconsistent assertions, we nonetheless conclude that her trial testimony constituted substantial evidence to support the conviction.

In evaluating Giron-Chamul’s claim, “ ‘we review the whole record to determine whether . . . [there is] substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] “Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” ’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 87 [165 Cal.Rptr.3d 1, 314 P.3d 1].)

Section 288.7, subdivision (b) provides that “[a]ny person 18 years of age or older who engages in oral copulation . . . with a child who is 10 years of age or younger is guilty of a felony . . . .” In turn, “oral copulation” is defined as “the act of copulating the mouth of one person with the sexual organ or anus of another person.” (§ 288a, subd. (a).) “ ‘[A]ny contact, however slight, between the mouth of one person and the sexual organ [or anus] of another person constitutes oral copulation.’ ” (People v. Dement (2011) 53 Cal.4th 1, 41 [133 Cal.Rptr.3d 496, 264 P.3d 292].)

In her closing argument, the prosecutor identified two alternative acts that could support Giron-Chamul’s conviction of the oral copulation count: that his mouth had contact with daughter’s “vagina” or that it had contact with her “butt.” As required, the trial court gave a unanimity instruction directing that the jurors had to unanimously agree on the same act to convict. (See People v. Napoles (2002) 104 Cal.App.4th 108, 114 [127 Cal.Rptr.2d 777].)

The prosecutor’s argument was incorrect to the extent it suggested that Giron-Chamul could be convicted if the evidence showed that he had licked daughter’s buttocks, as opposed to her anus. But “when a prosecutor argues two theories to the jury, one of which is factually sufficient and one of which is not, ... the reviewing court must assume that the jury based its conviction on the theory supported by the evidence.” {People v. Seaton (2001) 26 Cal.4th 598, 645 [110 Cal.Rptr.2d 441, 28 P.3d 175].) Thus, we need not determine whether daughter’s testimony that her father licked her “butt” constituted sufficient evidence to support the theory that he orally copulated her anus because we conclude there was sufficient evidence that he orally copulated her vagina.

Daughter’s testimony during trial constitutes substantial evidence that Giron-Chamul’s mouth had contact with her vagina. As set forth above, the prosecutor showed daughter the female anatomical diagram, pointed to the figure’s vagina, and said, “[W]e were going to talk about this private part here. We were going to call that a ‘colita’ at the time.” After daughter said she remembered, the prosecutor asked, “Can you tell me, has [Papi] ever put his tongue on your colita?” Daughter responded, “Yes.” She testified that it had happened at Giron-Chamul’s house on his bed. The prosecutor then asked, “Did he put his tongue on your clothes, ... or did he put it on your colita on your skin?” Daughter responded, “On my colita; on my skin.”

Giron-Chamul argues that, despite this testimony, there was insufficient evidence of oral copulation of daughter’s vagina because daughter “used the term ‘colita’ to [refer] to both her vaginal area and her butt.” He points to K.S.’s testimony that the term “ ‘colita’ ” is used to “generaliz[e] the private parts in Spanish” and that daughter used it to refer to “her private parts.” He also points to the day care provider’s testimony that daughter referred to her vagina as her “ ‘pompi al frente’ ” and her butt as her “ ‘colita.’ ” In addition, in giving the testimony quoted above about Giron-Chamul’s tongue touching her “colita,” daughter appeared to mix up the terms “colita” and “butt.” For example, after she said her father had put his tongue directly on her skin, the prosecutor asked her, “[W]hen he did that, what did he do with his tongue?” Daughter responded, “Just licked my butt; and licked my butt.” This conflict in the evidence about which terms daughter used to refer to which body parts does not, however, require reversal. Daughter herself testified that she called her vagina “colita” and her bottom “butt.” This was substantial evidence that she meant her vagina when she indicated that Giron-Chamul had “put his tongue on [her] colita.” (See People v. Manibusan, supra, 58 Cal.4th at p. 87.)

C. Daughter Was Properly Determined to Be Competent to Testify.

Giron-Chamul claims that the trial court erred by determining that daughter was competent when she testified at trial, because her testimony reveals that she was “unable to distinguish between what was true and what was false.” We conclude that the court did not abuse its discretion.

As mentioned above, the trial court held a hearing on daughter’s competency before the jury was sworn. In finding daughter competent, the court “acknowledge [d] that she had a lot of energy and lost interest in this proceeding, was wiggling all over the table and crawled under the table once she became very bored” but found that “her answers . . . satisfied the requirement of the law that she understand her duty to tell the truth.” Giron-Chamul does not challenge this ruling.

After daughter testified, Giron-Chamul moved to strike her testimony on the basis that its “fantastical” nature demonstrated she was “unable to understand [her] duty to tell the truth” and did not “have the capacity to understand the difference between the truth and a lie.” The trial court denied the motion, finding that daughter had “testified competently” under Evidence Code section 701, subdivision (a)(2).

Giron-Chamul raised the issue again in his motion for a new trial. In denying the motion, the trial court found that daughter “quite patently knew the difference between the truth and a lie . . . and understood her duty to tell the truth.” It observed that daughter “seemed very rigorous in her integrity in terms of when things were said that she thought were not true,” as revealed when, for example, Giron-Chamul’s trial counsel counted using the wrong sequence of numbers and she corrected him. The court also disagreed that daughter’s more unbelievable statements — including her claims that her father had put his mouth on his own penis and had molested her in front of many other people — bore on her competency, stating that “there is a distinction between a person being competent versus someone being credible, and that credibility is a call for the jury.”

In general, “every person, irrespective of age, is qualified to be a witness.” (Evid. Code, § 700; see People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1368 [113 Cal.Rptr.2d 804] [collecting cases in which four- and five-year-old children found competent to testify].) “A person is disqualified to be a witness,” however, “if he or she is . . . [¶] . . . [¶] . . . [i]ncapable 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 of truth . . . .” (People v. Avila (2006) 38 Cal.4th 491, 589 [43 Cal.Rptr.3d 1, 133 P.3d 1076]; see People v. Mincey (1992) 2 Cal.4th 408, 444 [6 Cal.Rptr.2d 822, 827 P.2d 388]; In re Katrina L. (1988) 200 Cal.App.3d 1288, 1299 [247 Cal.Rptr. 754].) The party challenging a witness’s competency has the burden to prove incompetency by a preponderance of the evidence. (Avila, at p. 589.) “We . . . uphold a trial court’s ruling on the competence of a witness in the absence'of a clear abuse of discretion.” (People v. Gonzales (2012) 54 Cal.4th 1234, 1265 [144 Cal.Rptr.3d 757, 281 P.3d 834].)

Giron-Chamul relies exclusively on People v. Lyons (1992) 10 Cal.App.4th 837 [13 Cal.Rptr.2d 112], which reversed a conviction based on the admission at trial of the preliminary hearing testimony of an adult witness — found incompetent at the time of trial — who “was delusional and unable to distinguish truth from lies at the time of the preliminary hearing.” (Id. at pp. 844-845.) The Lyons witness testified at the preliminary hearing that the defendant had “penetrat[ed] her in one of her ‘three holes,’ ” explaining that she “ha[d] a third orifice between her vagina and anus.” (Id. at p. 842.) She also testified that the defendant’s father had killed her first husband and the “defendant had killed her second husband ... by blowing up the airplane on which he was flying.” (Id. at p. 843.) Finally, “an in camera hearing at trial . . . revealed that [she] might suffer from a multiple personality syndrome.” (Ibid.) Giron-Chamul argues that daughter “testified to ‘facts’ that were just as fantastic,” including her testimony “that she had 1000 Hello Kitty [suits] at her mother’s house,” that “she had seen [Giron-Chamul] place his own mouth on his penis [10] times,” and that other girls, “Jessie,” and “hundreds of his friends” were there when her father “licked her butt.”

Daughter’s testimony was not akin to that of the witness in People v. Lyons, supra, 10 Cal.App.4th 837. During both the pretrial hearing on her competency and her testimony on direct, daughter demonstrated that she understood the difference between the truth and a lie, the consequences of lying, and the requirement that she tell the truth in court. In contrast, the Lyons defendant did not challenge the witness’s truth competency at the preliminary hearing, and the witness apparently was not questioned at that time about her appreciation of the duty to be truthful. (Id. at p. 844.) Thus, unlike here, there was no direct evidence that the witness understood that duty at the relevant time.

Moreover, daughter is a child, and children have imaginations. “[T]he 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 the child’s testimony may be “inherently incredible.” (Adamson v. Department of Social Services (1988) 207 Cal.App.3d 14, 20