P. v. Cruz
Filed 5/28/13 P. v. Cruz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JAIME ROSA CRUZ,
Defendant
and Appellant.
E054478
(Super.Ct.No.
RIF131575)
APPEAL from the Superior
Court of
County. Elisabeth
Sichel, Judge. Affirmed.
Robert E. Boyce, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and Lilia E. Garcia and Felicity Senoski, Deputy Attorneys
General, for Plaintiff and Respondent.
A. and D. were repeatedly molested
while they were staying with their grandmother (Grandmother). Both A. and D. identified defendant as a
perpetrator of the molestations and testified that he showed them pornographic
movies. Defendant was convicted of
exhibiting pornography to A. and D., two forcible lewd and lascivious acts upon
a minor, two forcible oral copulation charges, and a multiple-victim of sexual
assault enhancement.
Defendant claims on appeal that his
Constitution were violated by the trial court allowing the prosecutor to
question him about a restraining order
that had been granted by another court based on accusations of his ex-wife that
he threatened acts of violence against her.
I
PROCEDURAL BACKGROUND
Defendant was found guilty by a
Riverside County Superior Court jury of two counts of forcible oral copulation
on a child under the age of 14 (Pen. Code, § 269, subd. (a)(4))
two counts of committing a lewd and lascivious act on a child under the age of
14 by the use of force or fear (§ 288, subd. (b)(1)); and two counts of
exhibiting pornography to a minor (§ 288.2, subd. (a)). The jury also found true the special
allegation that defendant committed an offense against more than one victim (§
667.61, subd. (e)(5)). Defendant
received a determinate sentence of 3 years 8 months, plus an indeterminate
sentence of 60 years to life in state
prison.
title="">[2]
II
FACTUAL BACKGROUND
A.
was born in September 1995 and was 15 years old at the time of trial. A. was 13 years old at the time of
trial. They were sisters. D. lived with her mother, Jamie, until she
was eight years old (2004) and then was placed in foster care.
1. D.’s
testimony
D. was taken from Jamie because D.
was left to care for her younger siblings for days at a time when she was only
seven years old. D. and A. were
eventually adopted by a woman named Michelle, who also had a daughter, P. When A. was five years old, she lived with
Grandmother in a room that Grandmother rented in a house located in
Riverside. D. visited Grandmother and A.
at that house. Defendant was one of
Grandmother’s friends or her boyfriend.
Grandmother and defendant did “nasty
stuff†to D. and A. When D. was eight
years old, Grandmother told D. to touch defendant’s penis while defendant was
naked. D. felt that she had to do it
because she was little. She recalled
touching his penis for five minutes.
D. also indicated that, around the
same time, Grandmother would put “stuff on [Grandmother’s] boobs†and make D.
lick it off. A. was also in the
room. D. had to do this three or four
times.
Grandmother made D. and A. shower
with her. Grandmother would touch their
chests and vaginas. Grandmother and
defendant also made D. and A. watch “nasty†movies showing people naked; D.
believed they were pornographic movies where people had sex. Grandmother had a back massager that she
would turn on and place on the vaginas of D. and A. She would hold it there for several minutes
while defendant watched.
While the pornographic movies were
playing, defendant would take off his clothes.
Grandmother made D. and A. sit on defendant’s lap. Nothing happened while they sat on his lap.
D. observed Grandmother take off her
clothes and make A. touch her vagina. A.
was only five years old. Before D. would
leave for school, Grandmother would put her fingers inside D.’s vagina for five
or 10 minutes.
When D. was eight years old, on
three or four occasions, defendant tried to stick his penis in her vagina. He tried to force it, but he could not get it
inside her. It hurt her. Defendant put his tongue on her vagina. Grandmother was present and watched. A. was also in the room. D. complied because defendant was older and
bigger than she.
At some point after Michelle adopted
D., P. took D. to a restaurant. D. saw
someone whom she identified as defendant and started to cry. She was afraid he was going to do something
to her. D. did not immediately tell P. what
defendant had done to her in the past.
Up until this time, she had told no one what defendant and Grandmother
had done to her. D. finally told P. what
they had done to her, and P. told Michelle.
When D. was taken away from her
mother in 2004, she never told anyone what was happening with Grandmother and
defendant because she was embarrassed.
D. had seen Grandmother smoke some kind of drug between 2003 and 2004;
she never saw defendant smoke drugs.
Prior to defendant living with Grandmother, and after he left,
Grandmother never touched D.
name="_ftnref3" title="">[3]
2. A.’s
testimony
While A. was living with
Grandmother, defendant touched her on her vagina with his hands. He did it “[a]ll the time.†He touched her inside and outside her vagina. He also would lick her vagina. A. would have her clothes off. He licked her vagina “a lot.†Defendant also would put his penis against
her vagina. He did not put it inside
her. He would also touch her “all
over.†He did this many times.
Defendant forced A. to watch “porn.†While they were watching these movies, he
would put his hand on her vagina. He
would also lick her vagina.
Most of the time, Grandmother was in
the room when these things happened.
Grandmother would just sit and watch or “join him.†Grandmother would touch A.’s vagina. Grandmother also licked A.’s vagina. They would take turns. Grandmother sometimes did these things when
defendant was not there.
A. had observed defendant touch D.’s
vagina with his hand. On occasion,
Grandmother would touch A. at the same time defendant was touching D.
A. indicated that defendant would
use a vibrator on D., which she described as a thing that “a girl sticks up
her†and looks like a penis. He would
stick it in D.’s vagina and move it around.
A. saw Grandmother touch D.’s vagina with her hands.
Sometimes A. would refuse to allow
defendant to take off her underwear, and he would either stop or keep
trying. He was able to touch A. even
though she said no.
Grandmother made A. lick
Grandmother’s vagina. She almost threw
up. Grandmother also made A. put her
hand inside Grandmother’s vagina, and she thought it was “gross.â€
Defendant also touched A.’s vagina
with the vibrator. It was not true when
she told an interviewer prior to trial that he never touched anyone with
it. Defendant had masturbated and
ejaculated in front of her.
A. was interviewed when she was sent
to foster care in 2004 and did not disclose the abuse. A. did not recall telling an interviewer
prior to trial that defendant had a tattoo with cursive writing on his
chest. A. recalled Grandmother had a
cursive-writing tattoo on her chest. A.
had seen Grandmother and defendant having sex.
3. Grandmother’s
testimony
During Grandmother’s testimony, the
jury was informed that she had been charged with defendant in this case, that
she pleaded guilty to a lewd act upon a minor under the age of 14, and that she
was serving 16 years in prison.
Grandmother had custody of A. from 1999 until 2006. D. came to her home off and on in 2003 and
2004.
Grandmother met defendant in
2003. Defendant stayed with her while
she lived in Riverside. They had a
sexual relationship. Defendant stayed
with Grandmother at least three times per week until the girls were taken away
from her in 2004.
Defendant licked A.’s vagina in
front of Grandmother. Grandmother
claimed she was in the room, and defendant threatened her if she said
anything. D. was also in the room. Defendant took off A.’s pants. Grandmother told him to stop, but he
refused.
Grandmother had seen defendant cut
up, and he said he had “busted out†the window on his brother’s van. She had also witnessed defendant fight with
his brother, and defendant had bit him.
Grandmother was afraid of the violence.
Defendant never touched her, but he verbally threatened her.
In January 2004, defendant licked
D.’s vagina. Defendant had taken off her
pants and underwear. He did this on
several occasions and would on occasion not have any clothes on. Grandmother recalled that he licked A.’s
vagina two times; he did this to D. two or three times. Grandmother had seen defendant touch D.’s
chest as she started to develop.
Grandmother admitted that she
touched D. and A. on their vaginas and that it was sexually exciting to do
it. She touched them in front of
defendant. He would masturbate while she
touched them. Prior to her relationship
with defendant, she had not touched them.
Grandmother admitted that she and
defendant watched pornography and watched it in front of D. and A. on one
occasion. She admitted that they had sex
in the room but that D. and A. were asleep.
Grandmother had a vibrator and a
back massager. The vibrator was
white. There was a black light in the
bedroom which could have caused it to glow.
D. and A. had seen the vibrator when Grandmother used it on
herself. They were only six and eight
years old, but Grandmother found it exciting to show them how it worked. She denied she had A. put her hand in her
vagina.
Grandmother initially told the
police that she did not see anything sexual between defendant and the girls,
and she denied touching them.
Grandmother had D.’s and A.’s names tattooed on her chest in cursive
writing. She denied that avoiding a
46-year-to-life sentence was the reason she was testifying.
4. Other
testimony
P. was 18 years old at the time of
trial. D. and A. started living with P.
and Michelle in 2006. P. was with D. at
a restaurant when they saw defendant. D.
started crying hysterically and just told P. that he was really mean. Defendant had long hair pulled back in a
ponytail. A few weeks later, D. told P.
more about why she was scared of defendant.
A. also talked to her. A. talked
the most at first, but then D. told her more things later.
Riverside Police Detective Roberta Hopewell
interviewed Grandmother in May 2006. She
did not initially admit any sexual molestation of A. and D. In April 2011, she was interviewed again. By the end of the second interview, she
admitted that she and defendant had molested D. and A.
B.
Carmen Mendoza was defendant’s
sister. Mendoza considered Grandmother
to be “trash†and a drug addict. Mendoza
had seen defendant around children, including her nieces and nephews. She had never seen him act strange or do
anything sexual with children. Mendoza
had observed that defendant had a drug problem in 2004, but he started
treatment in 2005. Defendant had a
reputation for being honest.
Leonardo Govea-Cruz was defendant’s
nephew. Govea-Cruz spent a lot of time
with defendant when he was growing up.
Defendant helped him with his homework.
Defendant never showed him any pornographic material. He also stated that defendant had a
reputation for being honest. He was also
aware that defendant had a drug problem.
Luis Alberto Ayala was defendant’s
brother. At one time, he was in a
relationship with Jamie, the mother of D. and A. In 2003, he had argued with Jamie and
defendant when he found them at a hotel and had broken the windshield on
defendant’s car. A month later he and
defendant got into a fistfight. They bit
each other.
Ayala met Grandmother through
Jamie. In 2004, when she lived in
Riverside, Ayala bought methamphetamine from her. Ayala went with defendant to Grandmother’s
house to either buy drugs or get high.
In 2005, Ayala had sex with Grandmother.
Defendant testified on his own
behalf. Defendant met Grandmother at the
end of April 2004 because he bought drugs from her. Defendant returned several times to buy more
drugs. He claimed he was selling them
for a profit. Defendant only bought
drugs from Grandmother; he never had sexual relations with her. At some point, defendant started selling
drugs to Grandmother because she lost her supplier. Defendant and Grandmother got in a fight over
payment.
Defendant had seen A. and D. at the
house. He was friendly with them. Defendant had been married to a woman named
Chelsea, from whom he separated in 2003.
She had obtained a restraining order against him for threats of violence
he made against her.
In 2006, when he was at the
restaurant where D. saw him, he had a shaved head. Defendant denied ever having a
cursive-writing tattoo on his chest, and he showed his chest to the jury. Defendant denied any sexual relationship with
A. or D. He never watched pornographic
movies with the girls or with Grandmother.
The parties stipulated that Michelle
stated prior to trial to investigating officers and to the prosecutor that A.
had told her that other men came to the house and had sex with
Grandmother. They also would touch
A. D. said that no one else touched
her. D. also told Michelle that she
shaved her pubic hair because defendant told her to. He wanted to lick her on her vagina and did
not want her to have any hair.
III
GRANT OF RESTRAINING ORDER
Defendant contends that the trial
court erred by allowing the prosecutor to question him whether a restraining
order that was filed by Chelsea, his ex-wife, was granted. Although he concedes that the details of the
restraining order were admissible, he claims that the judgment granting the
restraining order by another judge was improperly admitted evidence. As a result, he was denied his fundamental
right to a fair trial under the federal
Constitution.
A.
During Ayala’s testimony, he was
asked on direct examination by defense counsel if he had ever seen defendant
yell at Grandmother and if he ever saw defendant yell at Chelsea. He responded no to both questions. Ayala also said he had never seen him be
violent or physical toward any woman.
At the break, defendant’s counsel
informed the trial court that he had just received a copy of the restraining
order that had been issued in defendant’s divorce proceedings. He anticipated that the People would be
asking Ayala if he was aware of the document.
The restraining order was granted in July 2003.
The prosecutor stated that she
intended to ask Ayala if he was aware of the circumstances surrounding a
restraining order. According to the restraining
order, defendant had threatened to “beat the hell†out of Chelsea. The restraining order also stated that
defendant had pushed her down on a couch and hit her with his hands.
The trial court noted that since the
defense had proffered evidence regarding any propensity for violence on
defendant’s part, the fact that a restraining order was issued was relevant to
test the witnesses’ knowledge of defendant.
The trial court would allow the People to ask Ayala if he was aware of a
restraining order that had been issued for domestic violence against
defendant. The trial court did not think
any further testimony was appropriate, “[b]ecause I don’t see that issue as
being terribly relevant to the issues at hand.â€
The People further argued that if
defendant testified, it would be relevant to the force issue. It showed defendant’s character as a violent
individual. The People additionally
argued that by offering three witnesses as to defendant’s character, he had put
his character in issue. The trial court
then stated that the evidence was relevant under Evidence Code section
1102. Once the good character of
defendant was introduced, the People could rebut the evidence.
Defendant’s counsel conceded the
accusations were admissible but was concerned about showing the document that
was written by a third party for which there was no foundation. Defense counsel stated, “Whether some
magistrate somewhere found a probable cause to issue an injunction is
not . . . judicial notice that this was true.†The People argued that they could ask
defendant specific questions about what was said in the restraining order. The prosecutor stated, “And I don’t think
that I can then admit the document as proof that it somehow did.†The trial court then ruled, “Okay. So you may ask him questions based on the
allegations, and you can ask him if the order was issued.â€
Ayala testified that he had no
knowledge that Chelsea obtained a restraining order against defendant.
Defendant stated during
cross-examination that he and Chelsea had separated in July 2003. When they separated, Chelsea filed a
restraining order against him. The
following exchange occurred:
“[PROSECUTOR]: Okay, she said that
on July 4th of 2003, you had told her that you were going to beat the hell out
of her if she didn’t change her attitude?
[DEFENDANT]: That’s what she said.
[PROSECUTOR] Okay.
Did she also say that you had told her that if she tried to leave that
your drug dealer was going to retaliate against her because she was your wife and
the drug dealer was jealous?
[DEFENDANT]: That’s what she wrote.
[PROSECUTOR]: Okay.
Now in July of 2003, you hadn’t started using drugs yet; right?
[DEFENDANT]: No.
[PROSECUTOR]: And you hadn’t started selling drugs yet?
[DEFENDANT]: No.
[PROSECUTOR]: So you didn’t have a drug dealer?
[DEFENDANT]: No.
[PROSECUTOR]: You certainly didn’t have a jealous female
drug dealer?
[DEFENDANT]: No.
[PROSECUTOR]: But that’s what she said?
[DEFENDANT]: That’s what she implied because my brother
was hanging around.
[PROSECUTOR]: Okay.
It’s not what she implied. She
said really specifically, ‘He also told me if I tried to leave, that his drug
dealer was going to retaliate against me because I was his wife, and she was
jealous.’
[DEFENDANT]: That’s what she said.
[PROSECUTOR]: So it wasn’t implied. It was pretty darn specific.
[DEFENDANT]: Yes. But - -
[PROSECUTOR]: Okay.
Now, did she also allege that you were going to take her to a motel and
tie her up, and you were going to bring the drug delaer there to hurt her?
[DEFENDANT]: That’s what she said.
[PROSECUTOR]: In addition to that, did she allege that on
July 7th of 2003 that you had threatened her life and the lives of her
children?
[DEFENDANT]: That’s what she said.
[PROSECUTOR]: And did she say that a week prior to that in
June of 2003 you had held her down on the couch and hit her several times in
the head with your hands and a pillow from the sofa?
[DEFENDANT]: That’s what she says.
[PROSECUTOR]: And did she talk about the reason why she
wanted this restraining order in addition to all that was all the drug use in
the home?
[DEFENDANT]: That’s what she says.
[PROSECUTOR]: Okay.
Now, much like the allegations in this case, none of that is true?
[DEFENDANT]: No.
[PROSECUTOR]: Was that restraining order granted against
you?
[DEFENDANT]: Yes, it was.â€
Defense counsel’s objection was
overruled.
On redirect, defendant denied that
any of the accusations were true. Based
on the declarations, Chelsea was able to gain custody of their children. He never beat her up. After Chelsea received custody of the
children, she dropped the litigation.
They reconciled until he was arrested in this case.
B.
Restraining Order
“‘The rules pertaining to the
admissibility of . . . evidence are well-settled. Only relevant evidence is admissible
[citations], and all relevant evidence is admissible unless excluded under the
federal or California Constitution or by statute. [Citations.]
Relevant evidence is defined in Evidence Code section 210 as evidence
“having any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.†The test of relevance is whether the evidence
tends “‘logically, naturally, and by reasonable inference’ to establish
material facts such as identity, intent, or motive. [Citations.]†[Citation.]
The trial court has broad discretion in determining the relevance of
evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations.]’ [Citation.]†(People
v. Heard (2003) 31 Cal.4th 946, 972-973; see also Evid.Code, §§ 350,
351.) “‘As with all relevant evidence, .
. . the trial court retains discretion to admit or exclude evidence offered for
impeachment.’†(People v. Brown (2003) 31 Cal.4th 518, 534.)
“Broadly speaking, an appellate
court reviews any ruling by a trial court as to the admissibility of evidence
for abuse of discretion.†(
201.)
Defendant relies exclusively upon
People v. Barker (1938) 29 Cal.App.2d
Supp. 766 to support his claim that the People could not ask defendant if the
restraining order was granted despite his claims the accusations were not true
on the grounds that a judgment in a civil action is not admissible in a
criminal proceeding.
In People v. Beevers, supra, 99 Cal.286, the defendant was being
prosecuted for bigamy. (
evidence that an action for divorce had been filed against the defendant, and a
default against him was taken. (
reversible error and concluded, “At the time the judgment roll was offered in
evidence the case was upon appeal to this court, and it follows necessarily
that the findings of fact and other recitals therein contained were
inadmissible as evidence upon any question involved in this prosecution. [Citations.]
The adjudication of the superior court that these parties were husband
and wife, and a decree being entered dissolving the bonds of matrimony, were
matters which probably had great weight with the jury. The question as to the marriage was the
contested issue, and this evidence pointed directly to that element of the
case.†(Ibid.)
In People v. Barker, supra, 29 Cal.App.Supp. 766, the trial court
addressed whether evidence of an award by the Industrial Accident Commission (a
predecessor to the Workers Compensation Appeals Board
to an employee against the defendant could be used as conclusive proof or prima
facie evidence that the defendant was
an employer and criminally liable in another proceeding. (Id.
at p. 769.) The court found that the
action of the commission was a civil action that involved different
parties. The court held that “[a]
judgment in a civil action is not
admissible in a subsequent criminal prosecution, although exactly the same
questions are in dispute in both cases, for the reason that the parties are not
the same, and different rules as to the weight of the evidence prevail.†(Id. at
p. 771.) It found it could not be
admitted as either conclusive or prima facie evidence of guilt. (Id. at
p. 770.)
Defendant did not properly raise the
issue he now raises in this court in the trial court. The People sought to admit the specific
instances of misconduct committed in order to rebut the character witnesses
proffered by defendant and ask whether the restraining order was granted as
impeachment of defendant. During
discussion of the restraining order, defendant’s counsel’s stated, “Whether
some magistrate somewhere found a probable cause to issue an injunction is
not . . . judicial notice that this was true.†The People agreed that it could not submit
the document, and the trial court found that the People could only ask
questions based on the allegations and whether the order was issued. When defendant’s counsel objected to the
question by the prosecutor regarding the restraining order, there was no reason
stated for the objection.
It is undisputed that a defendant
must object to evidence on the same grounds raised in the trial court. (People
v. Homick (2012) 55 Cal.4th 816, 867.)
In deciding whether to introduce the evidence of the restraining order,
the trial court was not informed of the above cases and the rule that a
judgment in a civil action could not be admitted in a criminal prosecution to
prove an element of the crime or as prima facie evidence. Although defendant alluded to the fact that
the granting of the restraining order did not make the accusations true, he
never argued to the trial court that this type of evidence had be excluded on
that basis because it was a separate proceeding involving a different burden of
proof. The trial court was not given an
opportunity to address this issue and consider whether it was grounds for
excluding the evidence. As such, the
issue has been waived on appeal.
Moreover, the question to defendant
as to whether the restraining order was granted did not go to proving an
element of this case or as prima facie evidence of defendant’s guilt; it was
introduced for impeachment. The same
circumstances that occurred in the cases cited by defendant were not present in
the instant case. Defendant has provided
no further argument or reason for excluding the prosecutor’s question to him as
to whether the temporary restraining order was granted. As such, we will not consider whether the
evidence was admissible as impeachment evidence or under Evidence Code section
1102
defendant.
court erred by allowing questioning of him regarding the granting of the
restraining order.
C.
Prejudice
Even if defendant has not waived the
issue, and the question and defendant’s response should have been excluded, any
conceivable error was harmless.
The erroneous admission of the type
of evidence at issue here “does not compel reversal unless a result more
favorable to the defendant would have been reasonably probable if such evidence
were excluded. [Citations.]†(People
v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019; see also
836.) Defendant contends that the jury’s
role as a fact finder was usurped, rendering his trial fundamentally
unfair. He claims that he is entitled to
the more stringent beyond-a-reasonable-doubt standard of review under
18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].
Defendant has failed to establish his trial was fundamentally
unfair. We will review the claim under
Defendant contends that if the jury
found that he was lying about the incident with his wife, it necessarily
concluded that all of his testimony was called into doubt. He refers to CALCRIM No. 226, which
instructed the jury, “If you decide that a witness deliberately lied about
something significant in this case, you should consider not believing anything
that witness says. Or, if you think the
witness lied about some things but told the truth about others, you may simply
accept the part that you think is true and ignore the rest.†We do not agree that the jury necessarily
disregarded all of his testimony based on the instruction. Based on the language of the instruction, the
jury could have considered that he lied about the restraining order but found
his testimony about the molestations credible.
The instruction does not necessarily lead to the conclusion that jury
had to find all of defendant’s testimony untrue if they found he lied about the
restraining order.
Moreover, during closing argument,
defendant’s counsel warned the jury about the impact of the restraining
order. He argued, “But this idea that my
client, his ex-wife or wife filed for some type of restraining order and the
Court admonished. That isn’t introduced
to prove he really did anything to his ex-wife.
It’s a limited admissibility.
There’s a limiting instruction in the jury instruction packet.[
like unringing a bell. You tell a person
you can only consider it for this purpose.
Don’t consider it for any other purpose.
But really what it does is it causes you to say, hey, that guy,
[defendant] is a maniac. He threatened
to do this to his wife. He threatened to
do that. There’s no evidence that he did
that. That only came in because of his
reputation, whether he had a good reputation or not. So be careful with those. Those are loaded. That’s like a land mine. It’s like a bouncing Betty. That is a type of thing that can sway jurors
when it’s not what it’s admissible for.
So I’m asking you to be very careful with that.†The prosecutor made no rebuttal argument on
this issue. In fact, the prosecutor
never mentioned the restraining order in his closing argument.
Further, whether or not the
restraining order was granted, the jury still heard evidence that defendant was
violent. Grandmother and Ayala testified
to acts of violence committed by defendant.
Even if the trial court had excluded testimony on whether the
restraining order was granted, the jury certainly was given an impression of
defendant as a violent person. Evidence
of the restraining order being granted did not cast him in such a different
light as to be prejudicial. The fact the
restraining order was granted was not material to the already strong evidence
present attacking defendant’s credibility.
Finally, the evidence of defendant’s
guilt was overwhelming. A. and D.
separately testified to similar acts committed by Grandmother and
defendant. They both clearly identified
defendant in court. Their testimony was
corroborated by Grandmother. Although
she certainly had a motive to testify against defendant, she testified to acts
similar to those testified to by A. and D., and there was no indication that
Grandmother had influenced either girl.
These girls graphically testified to acts that were beyond their
years. It was evident they had been
molested and the jury could reasonably believe their identification of
defendant as the molester.
This was not a case where this
occurred on one occasion and where they only briefly saw defendant. A. lived with Grandmother and saw defendant
repeatedly. D. visited on several
occasions and also saw defendant on several occasions. Moreover, the record reveals absolutely no
evidence of a motive possessed by the girls that caused them to falsely accuse
defendant.
Defendant points to the
shaved head when D. saw him at the restaurant (despite P. describing him with
long hair), that he did not have a tattoo on his chest (as A. indicated), and
that other persons were present in the home who molested A. This evidence does not undermine the
compelling testimony of A. and D. that defendant had molested them. The prosecutor admitted it might not have
been defendant at the restaurant, but that the person D. saw resembled him and
brought up these horrific acts in D.’s mind.
Even if defendant did not have the tattoo described by A., the jury
could reasonably conclude that defendant was the perpetrator of these acts
based on D.’s testimony, who saw defendant molest A. Based on the foregoing, even if the trial
court erred by allowing the People to question defendant whether the
restraining order had been granted against him, such error was harmless in this
case.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RICHLI
Acting
P. J.
We concur:
KING
J.
MILLER
J.
name="_ftn1" title=""> [1] All
further statutory references are to the Penal Code unless otherwise indicated.
was charged with Defendant. She pleaded
guilty to one count of a lewd act with a minor under the age of 14 prior to
trial. She received a sentence of 16
years in state prison.
