NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

LEVY, Acting P.J.

INTRODUCTION

After jury trial in September 2009, appellant Hector Vera was convicted of forcibly committing a lewd and lascivious act on his girlfriend's five-year-old daughter. (Pen. Code, § 288, subd. (b)(1).)1 Appellant filed a new trial motion, which was denied. He was sentenced to eight years' imprisonment.2

Appellant challenges the sufficiency of the evidence proving the molestation was forcible within the meaning of section 288, subdivision (b)(1). Also, he argues the trial court erroneously admitted testimony about the victim's initial disclosure of the molestation. Finally, appellant contends denial of his new trial motion was an abuse of discretion. None of these arguments is persuasive. We will affirm.

FACTS

I. Prosecution Evidence.

In 2008, the victim's parents divorced. The victim has a sibling who is approximately 10 months older. As part of the custody arrangement, the two children stayed with their mother, J.R., during the week and with their father, A.H., on most weekends from Friday evening until Monday morning.

J.R. and appellant entered into a romantic relationship. In September 2008, appellant moved in with her. J.R. bore appellant's child around June 2009. In September 2009, appellant was 17 years old and J.R. was 26 years old.3

Around 7:20 p.m. on May 15, 2009, A.H. picked up the victim and her sibling from their mother's apartment for a weekend visit. The victim was five years old on that date. She indicated to A.H. that her private part (i.e., vaginal area) hurt. A.H asked his sister, M.H., to talk to the victim.

M.H. testified she and the victim talked privately. M.H. said the victim was nervous and cried. The victim did not answer M.H.'s initial questions why her vaginal area hurt. M.H. testified the victim eventually told her that if she told, she did not want to return to her mother's house. M.H. assured the victim that she would not have to return there. M.H. testified that after being reassured, the victim "told me that Hector had put his finger inside her private part." M.H. also testified the victim said appellant told her if she told anyone, "she would not see us again, or her father."

M.H. told A.H. about the victim's statements. They took the victim to the hospital. Hospital personnel contacted the police. Corcoran Police Department Officer Trent Augustus responded to the call.

Officer Augustus interviewed the victim at the hospital. The older sibling, A.H. and G.H.4 were present during this interview. The interview was digitally recorded and transcribed. The digital recording and transcript were received into evidence. The interview was played for the jurors and they were provided with a copy of the transcript.

During this interview, the victim told Officer Augustus that while she was staying with her mother that week, appellant unbuttoned her pants. He touched her vaginal area and put one of his fingers inside her. Then he buttoned her pants up. Appellant told her she was not going to go to her dad's house any more. The victim was sitting on a sofa in the living room when this occurred.

The sibling told Officer Augustus that he/she witnessed the incident. The sibling was in his/her bedroom and the victim was taking a shower. Their mother was at the store. Appellant told the sibling to close the bedroom door but he/she kept the door cracked open. Officer Augustus asked, "Did you see Hector touch sissy?" The sibling replied, "Yeah." The sibling told Officer Augustus that the victim "said that she told my mom about it." The sibling said appellant never sexually touched him/her. However, appellant hits them when they do "bad stuff."

The victim and her sibling both testified as prosecution witnesses. The victim was frightened and had difficulty answering questions. Ultimately, the victim testified that on the same day she went to her father's house, she sat on the sofa in the living room. Appellant sat on the sofa next to her. Appellant unbuttoned her pants and touched her vagina with one of his fingers. Then appellant put a finger inside of her body and moved it around. This hurt her. She pulled her pants up and appellant buttoned them. The victim testified appellant told her that she wasn't going to get to see her daddy anymore. This made her feel sad. The victim did not remember if appellant pulled down her underpants or pulled them away from her body before he touched her vagina. The victim testified that her mother was at the store when the touching occurred; when her mother came home, she told her about it.

The sibling testified appellant was sitting on the living room sofa. He/she saw the victim sit down next to him. The victim was crying as she sat down. The sibling testified he/she saw appellant unbutton the victim's pants and pull them off. Appellant did not take off the victim's underwear. The victim stood in front of appellant. Appellant stood up. The sibling saw appellant touch the victim's vaginal area. Then he sat down on the sofa. He put the victim's pants on her and buttoned them up. The sibling did not hear appellant say anything to the victim.

II. Defense Evidence.

Appellant testified in his own defense. He denied sexually touching the victim or putting his finger in her vagina. Appellant said he got along well with the victim and her sibling. He spanked the victim on one occasion because she lied. Appellant testified he had a conversation with the victim about sexual molestation because one of the victim's cousins touched her sibling sexually.5 He told the victim she should tell her mother if anyone, including himself, ever did anything bad to her.

J.R. testified neither the victim nor her sibling ever told her anything about appellant molesting or touching the victim. J.R. testified she was almost nine months pregnant in May 2009 and was very tired; therefore, she did not go to the store during that week.

J.R. also testified A.H. owes her approximately $3,300 in back child support and in May 2009, his wages were being garnished for child support payments. J.R. testified that one week before the molestation allegation was made, A.H. asked her "to make him a favor." A.H. "wanted me to go back to child support and tell them to stop charging him the $3,000 something that he owes me." J.R. said she refused. Then A.H. "said if I didn't want to help him that me and my boyfriend were going to pay [for] it." J.R. testified this meant, "like get in trouble."6

J.R. further testified she is disabled and receives SSI. Appellant's parents give her money and appellant earns money working at his parents' ranch. If appellant was convicted he might be deported and this concerned her.

Christy Watts, a social services worker, conducted a multiple disciplinary interview with the victim. The victim was unable to tell her anything about the molestation. The victim became uncomfortable and "shut down" when they started talking about body parts.

Wayne Autry, the defense's private investigator, testified he is trained in interviewing victims of sexual assault. Watts and Autry both testified that when interviewing sexual assault victims, including children, other people should not be present.

III. Stipulation.

It was stipulated that Jennifer Pacheco is a registered nurse and is considered to be an expert in sexual assault examinations. Pacheco examined the victim and did not make any findings. This is neither consistent nor inconsistent with sexual assault.

DISCUSSION

I. There is substantial evidence proving the molestation was forcible.

The crime of committing a forcible lewd act on a child under the age of 14 requires proof that the defendant committed the act "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§ 288, subd. (b)(1).)

Appellant argues there is no evidence proving the molestation was forcible. We disagree. As will be explained, the record contains substantial evidence of duress. "Since we have found duress, we need not discuss whether force was also present." (People v. Cochran (2002) 103 Cal.App.4th 8, 16, fn. omitted (Cochran ).)

The legal principles applied to a challenge to the sufficiency of the evidence are axiomatic.

In this context, duress means "`a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' [Citations.]" (Cochran, supra, 103 Cal.App.4th at p. 13.)

When appraising the existence of duress, the entirety of the circumstances is considered, including the age of the victim and his or her relationship to the defendant. (Cochran, supra, 103 Cal.App.4th at pp. 13-14.) "Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. [Citations.]" (Id. at p. 14.)

In Cochran, the appellate court determined duress was present where a father molested his nine-year-old daughter, despite the absence of violence or explicit threats. It explained:

The court noted that the parent/child relationship does not establish force or duress as a matter of law. "Nonetheless, as a factual matter, when the victim is as young as this victim and is molested by her father in the family home, in all but the rarest cases duress will be present." (Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6.)

In People v. Veale (2008) 160 Cal.App.4th 40 (Veale) the appellate court relied on Cochran to find duress was present where the victim was sexually molested over a period of time by her stepfather, beginning when she was six or seven years old. It reasoned:

We agree with respondent that, just as in Cochran and Veale, the element of duress was adequately proven in this case. The victim was only five years old when appellant molested her. The disparity in physical size between the victim and appellant "contributes to a youngster's sense of his relative physical vulnerability." (People v. Pitmon (1985) 170 Cal.App.3d 38, 51.) Appellant assumed the role of stepfather towards the victim. He was clearly an authority figure in the home. Appellant testified that he spanked the victim on one occasion because she lied. The molestation occurred when the victim and her sibling were home alone with appellant; they were entirely dependent on him. The defendant's position of dominance and authority over the victim is relevant when determining duress. (People v. Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239.) Also, appellant threatened the victim by telling her that if she reported the molestation she would never see her father again. A warning not to disclose the molestation is another relevant factor. (Cochran, supra, 103 Cal.App.4th at p. 14.)

Appellant argues his threat to the victim was directed at later disclosure of the molestation, and not the failure to perform the sex act itself, so it did not place pressure on the victim to submit to the molestation. This argument was rejected in People v. Senior (1992) 3 Cal.App.4th 765 (Senior), as follows: "Defendant relies on opinions that distinguish between warnings enjoining nondisclosure and noncompliance. [Citations.] We doubt that young victims of sexual molestation readily perceive this subtle distinction. A simple warning to a child not to report a molestation reasonably implies the child should not otherwise protest or resist the sexual imposition." (Id. at p. 775.) We are persuaded by Senior's reasoning on this point and adopt it here.

Appellant heavily relies on People v. Hecker (1990) 219 Cal.App.3d 1238 (Hecker). We find such reliance misplaced. In Hecker, the appellate court found insufficient evidence of duress in a case where the defendant had intercourse with his 12-year-old stepdaughter. The defendant did not use any force or threaten the victim with any harm. The defendant urged the victim not to disclose the molestation because it would ruin his marriage and naval career. The victim said she felt pressured psychologically and was subconsciously afraid of the defendant. The court wrote: "`Psychological coercion' without more does not establish duress." (Id. at p. 1250.)

This matter is factually distinguishable from Hecker. The victim in Hecker was 12 years old. Here, the victim was only five years old. The seven-year age difference between the two victims is significant. Also, the defendant in Hecker told the victim he would suffer adverse consequences if she reported the molestation. Here, appellant told the victim she would never see her father again if she told on him, which constitutes a threat of harm she would suffer. In addition to these key factual differences, Hecker's language concerning the insufficiency of psychological coercion alone to establish duress was later determined by the same court to be "overly broad." (Cochran, supra, 103 Cal.App.4th at p. 15; see also Veale, supra, 160 Cal.App.4th at p. 48.)

Viewing the evidence in its totality and assuming the jury resolved all conflicting inferences in favor of the prosecution, we hold there is substantial evidence to support a finding of duress within the meaning of section 288, subdivision (b)(1). (Cochran, supra, 103 Cal.App.4th at pp. 15-16; Veale, supra, 160 Cal.App.4th at p. 47; People v. Sanchez (1989) 208 Cal.App.3d 721, 747-748 [grandfather molested his eight-year-old granddaughter]; People v. Pitmon, supra, 170 Cal.App.3d at p. 51 [eight-year-old boy molested by adult stranger].)

II. M.H.'s testimony was properly admitted.

A. Facts.

Prior to calling M.H. as a witness, the prosecutor informed the court he intended to introduce hearsay testimony through M.H. He stated M.H. would testify about the victim's initial disclosure of the molestation, and argued this evidence was admissible under the fresh complaint doctrine and as a prior consistent statement.

Defense counsel objected. He argued this was "just another way to get in an out of court hearsay statement." Also, this evidence was not admissible under the fresh complaint doctrine. Defense counsel argued, "There has to be something to show that it was a spontaneous thing, not at the direction of [M.H.'s] questions, and I think it is inadmissible under any theory that the People can use."

The court conducted an evidentiary hearing to ascertain the content of M.H.'s proposed testimony. M.H.'s testimony during this hearing concerning the victim's statements to her was generally consistent with M.H.'s trial testimony. After M.H. was examined, the prosecutor and defense counsel both informed the court they did not have any further comments.

The trial court ruled M.H.'s testimony about statements the victim made to her was admissible under the fresh complaint doctrine, as a prior consistent statement, and pursuant to Evidence Code section 1360. However, testimony concerning statements A.H. made to M.H. was inadmissible, excepting testimony that M.H. spoke with the victim because A.H. told her the victim was in pain.

B. This testimony was correctly admitted under the fresh complaint doctrine.

In People v. Brown (1994) 8 Cal.4th 746 (Brown), the California Supreme Court examined the historical origins of the fresh complaint doctrine and articulated the modern view of this rule. It determined that "evidence of the fact of, and the circumstances surrounding, an alleged victim's disclosure of the offense may be admitted in a criminal trial for nonhearsay purposes under generally applicable evidentiary principles, provided the evidence meets the ordinary standard of relevance. [Citation.]" (Id. at p. 763.) The court explained:

Yet, "evidence of the victim's report or disclosure of the alleged offense should be limited to the fact of the making of the complaint and other circumstances material to this limited purpose." (Brown, supra, 8 Cal.4th at p. 763.) This limit is intended to minimize or eliminate the risk the jury will rely on the evidence for the impermissible hearsay purpose of proving the truth of the underlying charge. (Ibid.)

We believe M.H.'s testimony concerning her conversation with the victim fell within the admissible boundaries of the fresh complaint doctrine. The details in M.H.'s testimony did not exceed what has been found acceptable in other cases. (See, e.g., People v. Butler (1967) 249 Cal.App.2d 799, 804 ["`the man was sucking his thing'"]; People v. Cordray (1963) 221 Cal.App.2d 589, 594 ["`he had pulled her pants down and he had kissed her between the legs'"].)

We have examined the substance of M.H.'s testimony and do not find it subject to exclusion under Evidence Code section 352. The testimony was relevant and its probative value was not substantially outweighed by the risk of unfair prejudice. This testimony did not create a danger of undue prejudice and did not mislead or confuse the jury. (Brown, supra, 8 Cal.4th at p. 763.) Therefore, we hold M.H.'s testimony was properly admitted under the fresh complaint doctrine; abuse of discretion has not been shown. (People v. Alvarez (1996) 14 Cal.4th 155, 203 [abuse of discretion standard applicable].) It is unnecessary to determine if M.H.'s testimony was admissible on any additional basis.

C. There is no sua sponte instructional obligation.

Appellant further contends the trial court failed to give a limiting instruction concerning use of M.H.'s testimony. "On request, the trial court must instruct the jury as to the limited purpose for which the fresh complaint evidence was admitted. [Citation.] However, the trial court has no duty to give such an instruction in the absence of a request. [Citation.]" (People v. Manning (2008) 165 Cal.App.4th 870, 880.) Since appellant did not request a limiting instruction, he cannot now complain about the trial court's failure to provide one. (Ibid; Brown, supra, 8 Cal.4th at p. 757.)

D. The confrontation clause challenge to M.H.'s testimony was forfeited.

Appellant argues the trial court did not adequately consider the reliability of M.H.'s testimony under the federal constitutional confrontation clause. As will be explained, this point was not preserved for appellate review.

Evidence Code section 353, subdivision (a) provides that a verdict shall not be set aside by reason of the erroneous admission of evidence unless a motion to exclude or strike the evidence on that specific ground was timely made. "Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence. [Citations.]" (People v. Mattson (1990) 50 Cal.3d 826, 854.) The contemporaneous objection rule applies to claims of state and federal constitutional error. (People v. Daniels (2009) 176 Cal.App.4th 304, 320, fn. 10.) "`No procedural principle is more familiar to [the United States Supreme Court] than that a constitutional right,' or a right of any other sort, `may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' [Citation.]" (United States v. Olano (1993) 507 U.S. 725, 731.)

A claim that the introduction of evidence violated the defendant's rights under the confrontation clause must be presented to the trial court for decision or it is forfeited on direct appeal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19 (Lewis); People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14.) In Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527] (Melendez-Diaz), the United States Supreme Court wrote that "[t]he defendant always has the burden of raising his Confrontation Clause objection ...." (Id. at p. __ [129 S.Ct. at p. 2541].) Further, "[t]he right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections." (Id. at p. __ [129 S.Ct. at p. 2534, fn. 3].)7

Examination of the record shows defense counsel did not argue M.H.'s testimony was unreliable or contend admission of this evidence infringed appellant's confrontation right. Defense counsel only argued that M.H.'s testimony was not admissible under the fresh complaint doctrine or as a prior consistent statement. Consequently, appellant forfeited direct review of the unreliability and confrontation clause claims that are presented for the first time on appeal. (Lewis, supra, 39 Cal.4th at p. 1028, fn. 19.)

II. Denial of the new trial motion was not an abuse of discretion.

A. Facts.

Appellant filed a new trial motion on the ground of newly discovered evidence supported by declarations authored by J.R., E.O., Autry and Yadira Lua.

J.R. declared the sibling told her that he/she did not see appellant touch the victim. J.R. also averred that both children told her they lied about appellant during the trial. J.R. declared the sibling told her that G.H. threatened to take him/her to jail if he/she did not testify against appellant. J.R. averred the victim said M.H. pressured her to lie in court. Also, J.R. averred she was arrested on May 16, 2009. She had one supervised visit with the children between May 2009 and September 2009, and she was not permitted to mention appellant or the case. Finally, J.R. averred the children told her that on November 11, 2009, they overheard A.H. and G.H. say they worked so hard to get the children to lie in court "for nothing because [J.R.] still gets to visit them."

E.O. is the children's great-aunt. She declared that on October 7, 2009, the children told her they lied about appellant during the trial. The children said A.H. and G.H. told them to lie during the trial. E.O. also declared the victim told her G.H. threatened to take her to jail if she did not claim appellant touched her vagina. Also, the victim said M.H. pressured her to lie.

Autry declared he attempted to interview the children on two occasions prior to trial but family members would not permit it. Autry averred he interviewed the children on October 20, 2009, during a supervised visit with their mother. The victim said she lied in court and that appellant had not touched her vagina. The victim said M.H. pressured her to lie and G.H. threatened to take her to jail if she did not say appellant touched her vagina. Autry averred the sibling said he/she did not see appellant touch the victim. The sibling said G.H. told him/her what to say in court.

Yadira Lua is a legal assistant and translator employed by defense counsel. Lua declared that she was present during the October 20, 2009, interview between Autry and the children. Lua averred she heard the victim tell Autry she had lied about appellant during the trial. Also, she heard the victim say G.H. threatened to take the victim to jail if she did not claim appellant had touched her. Lua declared she heard both children tell Autry that A.H. and G.H. told them to lie in court.

The People opposed the new trial motion. They filed a declaration and report by the People's investigator, Nicole Lucero. Lucero wrote that she separately interviewed the victim and the sibling on December 17, 2009. The victim said appellant touched her and, when given an anatomical drawing, circled the vaginal area. The victim said she did not remember telling her mother that the touching did not occur. The sibling told Lucero that he/she did not see anything and appellant did not do anything. The sibling said he/she did not like G.H. because she is mean and the sibling said that he/she was afraid of A.H. because he hit him/her. The sibling said J.R. is seeking custody.

Lucero interviewed A.H., G.H. and E.O. Supervised visits between the children and J.R. occur at E.O.'s house. Lucero wrote that E.O. told A.H. that during these visits J.R separates the children and asks them a lot of questions in English, "which seems like she is trying to get a certain answer." Lucero wrote that A.H. said neither he, G.H. nor M.H. ever told the children what to say in court. Also, G.H. denied threatening to take the children to jail or telling them what to say about the incident.

The People filed a supplemental response containing a declaration and status report by Dr. Margarita Prado-Borrego, who treats both children. Dr. Prado-Borrego wrote the victim has consistently said appellant touched her. Also, both children said they told their mother about the molestation. Both said that their mother interrogates them about the molestation during their visits. The victim said her mother asks her why she lied and she replies to her mother that she did not lie.

The new trial motion was heard and denied on February 4, 2010. The court gave a detailed explanation for its ruling. First, the court stated:

Then the court stated there is "nothing in the law that makes me subject a child to defense inquiry." This is why "we put children on the witness stand so that we do have a chance to discuss and talk with them and see what they have to say in this matter." The court continued:

B. The applicable legal principles are uncontroverted.

Section 1118 authorizes grant of a new trial based upon newly discovered evidence. The applicable standard is well-established:

"`The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.' [Citations.]" (People v. Williams (1988) 45 Cal.3d 1268, 1318.) The appellate court may base its affirmance of the trial court's decision solely on the unlikeliness of a different result on retrial. When it does so, it need not address the remainder of the listed factors. (See, e.g., People v. Delgado (1993) 5 Cal.4th 312, 329, fn. 7 (Delgado).)

The credibility, as well as the materiality, of the newly discovered evidence is relevant. (Delgado, supra, 5 Cal.4th at p. 329.) "In this state, it is settled that the offer of a witness, after trial, to retract his sworn testimony is to be viewed with suspicion." (In re Weber (1974) 11 Cal.3d 703, 722; People v. Langlois (1963) 220 Cal.App.2d 831, 834.) Evidence that impeaches a witness rarely will make a different result probable. (People v. Huskins (1966) 245 Cal.App.2d 859, 862.)

C. Denial of the new trial motion was not an abuse of discretion.

Appellant argues the trial court's ruling constitutes an abuse of discretion because the children's recantation of their trial testimony and the evidence of improper pressure to lie could not have been discovered prior to trial. In appellant's view, "this evidence could have made a huge difference to the jury which likely would have resulted in a different verdict." We are not convinced.

In this case, the victim and her sibling did not submit declarations retracting their testimony. Rather, it was J.R. and Autry who each submitted a declaration averring the children admitted to them they had lied at trial. Thus, the credibility of J.R. and Autry is at issue, as well as the credibility of the children.

J.R.'s bias in favor of the defense was clearly demonstrated at trial. J.R. does not work. She views appellant as her husband and depends on his family for financial assistance. Appellant might be deported after he has served his sentence and J.R. testified that this concerns her. J.R. lost custody of the children after the molestation allegation. She testified A.H. owes her back child support; her animus against A.H. was evident during her testimony.

Also, the People produced evidence in response to the new trial motion showing J.R. pressured the children to recant their trial testimony. The children's therapist reported that they were "interrogated" during visits with their mother "regarding the victimization and current home environment." Autry's interview with the children occurred during a visit with their mother. In this setting, they would have been under great pressure to tell Autry what J.R. wanted them to say. The trial court cogently observed, that the children "don't want to be put in the middle and they want to please whichever parent they're with, and that's just the unfortunate nature of the charges like these that come about."

In addition, the People proffered evidence countering the defense's proof that the victim recanted her testimony about the molestation. The children's therapist reported the victim consistently maintained that appellant touched her vagina. Lucero interviewed the victim after the new trial motion was filed. Lucero reported that the victim indicated to her that appellant touched her vagina. Accordingly, it can reasonably be concluded that averments by J.R. and Autry about the victim's recantation are not particularly believable.

Lucero reported the sibling denied seeing anything. This supports the averments by J.R. and Autry that the sibling recanted his/her trial testimony. Yet, the sibling also does not like G.H. and is afraid of A.H. The sibling made a statement to Lucero indicating that J.R. is attempting to obtain custody of the children. In light of the pressure J.R. placed on the children to recant their testimony and the sibling's expressed dislike of G.H. and fear of A.H., it can reasonably be found that the sibling's alleged recantation of his/her trial testimony is the product of complicated interpersonal relationships and is not highly credible.

Further, we are persuaded by respondent's argument that evidence about pressure by family members on the children to convince them to lie could have been discovered at trial. The victim and her sibling both testified. Defense counsel could have asked the victim and her sibling if they were pressured by anyone to invent a story against appellant. He could have asked if anyone threatened them or told them to lie. A.H. and M.H. testified. During direct examination, A.H. said he did not tell the victim to lie about appellant touching her inappropriately. Defense counsel could have cross-examined A.H. on this point and asked A.H. if he talked to his children about their testimony or the trial. He could have examined M.H. on this topic. Also, defense counsel could have brought out the fact that after the molestation allegation, A.H. obtained custody of the children. Since G.H. lived with A.H. and was present when the victim was questioned at the hospital, defense counsel could have called G.H. as a witness and asked her if she talked to the children about their testimony or the trial. Thus, we conclude evidence concerning pressure on the victim to lie could have been produced at trial through "diligent use of cross-examination." (People v. Green (1982) 130 Cal.App.3d 1, 11.)

Finally, we agree with the trial court that it is not reasonably probable admission of the evidence proffered in support of the new trial motion would result in a more favorable result on retrial. At a new trial, evidence of the victim's alleged recantation would be rebutted by Lucero's testimony that the victim said she was molested by appellant and that she was being coerced by her mother to recant. Also, the People would seek to introduce expert testimony regarding child sexual abuse accommodation syndrome to show that recantation by the victim is not necessarily inconsistent with molestation. Evidence that the sibling recanted would be rebutted with evidence about the custody dispute, the sibling's hostility towards G.H. and A.H., and J.R.'s disbelief of the molestation allegation and her persistent questioning. Testimony about the alleged threat and the pressure placed on the children to lie by A.H., M.H. and G.H. would be rebutted by testimony from these witnesses denying these allegations. Also, the People would proffer testimony about J.R.'s efforts to persuade the children to recant their testimony. Since there is not a reasonable probability of a different verdict, we conclude the trial court acted well within its discretion in denying the new trial motion.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

KANE, J.

VORTMANN, J.*