P. v. Carranza

Filed 2/11/10 P. v. Carranza CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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At a court trial, defendant Marco Carranza was convicted of continuous sexual abuse and one count of lewd conduct, and acquitted of another count of lewd conduct. (Pen. Code, 288, subd. (a), 288.5, subd. (a).) The trial court sentenced defendant to prison for 18 years. Defendant timely appealed.

On appeal, defendant contends no substantial evidence supports the continuous sexual abuse count, specifically challenging whether the evidence shows that at least a three-month separation occurred between the first incident of abuse and the last incident of abuse. We shall affirm.

FACTS

Y.L. testified she met defendant at work, and after a period of dating moved into a house with him in Woodland, where she lived with him for four years, beginning around 2002. Her daughter, F.L., was about eight years old then. Y.L. and defendant slept in the master bedroom, F.L. had her own bedroom, and the third bedroom was defendants office, his private room.

On May 7, 2006, after returning home from evening church services, Y.L. went outside to call her sister, and F.L., who was then 12, was in the office with defendant. Y.L. was outside 25 to 30 minutes, and when she returned, my daughter moved over to the wall because she was kneeling. F.L. seemed tense and nervous, which worried Y.L. The next morning, Y.L. found her daughters panties in a desk drawer in defendants office, which he had locked. When F.L. returned from school, Y.L. asked if defendant had been abusing her, and although F.L. said no, she acted nervous; when Y.L. then showed F.L. the panties, F.L. admitted defendant had abused her, and she seemed ashamed.

F.L. testified that the night before she told her mother about the abuse, she was in the office with defendant while her mother was outside. Defendant made her take off her panties, and he put his mouth on her vagina. He looked out the window to see if my mom was still outside and then he refused to give F.L. back her panties. F.L. testified she felt ashamed.

F.L. testified defendant first touched her in a bad way about a year before this incident, when she was about 11. She could not remember exactly, because it has been a long time. Incidents occurred all over the house when he would touch her breasts and vagina with his hands and mouth. Once he put a condom on his penis, and touched the outside of her private parts. Abuse happened many times, but not for two to three months before the last time. Her explanation for the gap was that her mother had been out of work and at home, and there was no time for Marco and me to be alone together and I think he got desperate. However, Y.L. testified she had only been off work for six days preceding the last incident.

F.L. testified she was abused about a thousand times. She remembered more each time she described what happened, and when asked if these things happened thousands of times, she said Yes. Later she said, Well, I dont know exactly, but Im one hundred percent sure that it was more than a thousand. The trial court later stated it interpreted F.L.s testimony of a thousand incidents to mean many times.

By stipulation of the parties, the trial court watched three DVDs, consisting of the victims interview by a counselor and defendants interview with the police.

The DVD of F.L.s interview was largely consistent with her trial testimony. Although she said repeatedly that she did not remember when the first incident of abuse took place, later in the interview, after the interviewer ascertained that the victims mother and defendant had known each other for about seven years but lived together for four years, the following took place:

Q. So, did this start happening like, right after you moved in all together?

A. Yeah, I think so.

The parties stipulated that the preliminary hearing testimony of an unavailable officer could be used as evidence. That officer testified that he responded to a sexual assault center on May 8, 2006, to speak to the victim, who had been born in 1994. The victim told the officer that defendant made her take off her underwear if she wanted to play games on the computer, and then he put his mouth and hand on her vagina.

Defendant testified he did not abuse F.L.

DISCUSSION

Penal Code section 288.5, subdivision (a) provides, in relevant part: Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in . . . three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child[.]

[T]he prosecution must prove defendant committed the minimum number of proscribed acts within the specified time period. Section 288.5 relates to continuous sexual abuse and accordingly requires at least three acts of sexual misconduct with the child victim over at least three months to qualify for prosecution of persons who are either residing with, or have recurring access to, the child. [Citations.] (People v. Mejia (2007) 155 Cal.App.4th 86, 94.) [T]he prosecution need not prove the exact dates of the predicate sexual offenses in order to satisfy the three-month element. Rather, it must adduce sufficient evidence to support a reasonable inference that at least three months elapsed between the first and last sexual acts. Generic testimony is certainly capable of satisfying that requirement[.] (Id. at p. 97.)

In assessing whether the record supports the implied finding of abuse over a three-month period, we apply the familiar rules regarding substantial evidence.

We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304; People v. Johnson (1980) 26 Cal.3d 557, 576.) A reasonable inference . . . may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence. [Citation.] [] Evidence is sufficient to support a conviction only if . . . it reasonably inspires confidence [citation], and is credible and of solid value. [Citations.] (People v. Raley (1992) 2 Cal.4th 870, 891.)

It is said that [t]o warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear[.] (People v. Ozene (1972) 27 Cal.App.3d 905, 910, disapproved on another point in People v. Gainer (1977) 19 Cal.3d 835, 844, 851-852; see People v. Swanson (1962) 204 Cal.App.2d 169, 172-173.) Contradictions and inconsistencies alone will not necessarily constitute inherent improbability. (Swanson, supra, 204 Cal.App.2d at p. 172.) The trial judge and not this court resolves the inconsistencies and contradictions. The judge under the circumstances of this case could have believed part of the testimony of a witness and disbelieved the remainder thereof. (Id. at p. 173.)

It is clear, as defendant emphasizes, that the victim gave inconsistent accounts of her abuse at defendants hands. But confusion in recollection is common in molestation victims, and the fact a child does not provide a consistent narrative does not render her or his testimony speculative or improbable. The victim here was ashamed when her mother confronted her with the panties and testified the abuse happened so many times that she could no longer recall many details, although she was able to remember more each time she was asked to describe what happened. Her shame about what defendant did to her and the large number of incidents adequately explain her inability to remember exactly what happened and when it happened.

Although F.L. was not consistent, she made a pretrial statement that the abuse began soon after she and her mother moved in with defendant, which was several years before the last incident. She also testified the abuse started when she was about 11, which suggested a shorter period, but that presented an inconsistency in her testimony, not an impossibility. Although she turned 12 just days before the last incident, she testified defendant had not abused her for two to three months before the last incident, and before that gap, he had abused her many times. Therefore her testimony that the abuse started when she was about 11 did not show the abuse started shortly before the last incident. Although F.L.s testimony about the gap was partly contradicted by her mothers testimony that she had been out of work for only six days, that does not make F.L.s testimony implausible. A rational trier of fact could conclude there was at least a three-month span between the first and last instances of abuse. Accordingly, substantial evidence supports the conviction for continuous sexual abuse.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

SIMS , Acting P. J.

NICHOLSON , J.

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