P. v.
Culajay

 

 

Filed 1/30/14  P.
v. Culajay CA4/3

 

 

 

 

>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

 

 

 

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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

FOURTH APPELLATE DISTRICT

 

DIVISION THREE

 

 
>

THE PEOPLE,         Plaintiff and Respondent,               v.   DIMAS RENE CULAJAY,         Defendant and Appellant.

G047560            (Super. Ct. No. 09NF2063)            O P I N I O N

 

                        Appeal
from a judgment of the Superior Court of
Orange County, Patrick Donahue, Judge. 
Affirmed.

                        Rodger
Paul Curnow, 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, William M. Wood, Meagan J. Beale and Felicity Senoski, Deputy
Attorneys General, for Plaintiff and Respondent.

*                    *                    *

                        A jury found defendant
Dimas Rene Culajay guilty of four counts of lewd act on a child under 14 years
of age (Pen. Code, § 288, subd. (a)), involving three different victims, and
found the offenses involved multiple victims (Pen. Code, § 667.61, subd. (b), former
subd. (e)(5); Stats. 1998, ch. 936, § 9).href="#_ftn1" name="_ftnref1" title="">[1]  The court sentenced
defendant to two consecutive terms of 15 years to life.  Defendant contends the trial court violated
his right to confrontation and to
present a defense, erred in instructing the jury, and abused its discretion in
imposing a consecutive sentence.  We
affirm.

I

FACTS

                        This case involves three
related girls.  M.D. and L.C. are sisters
and Maria D.’s (Maria) nieces.  A.C. is
the daughter of Maria and is defendant’s stepdaughter.

 

Incidents Involving M.D. and L.C.

                        The trial was held in
2012.  M.D. was 17 years old at the time,
in the 11th grade, and living in Los Angeles County.  M.D. and L.C. lived in Mexico
until M.D. was in the fourth grade, at which time they moved to the United States and lived with their grandmother in Los Angeles County.

                        While they lived with
their grandmother, they would occasionally visit Maria and her children, M.D.
and L.C.’s cousins, in Maria and defendant’s apartment in Anaheim.  M.D. described two incidents that occurred in
the apartment and involved defendant.  One
occurred while she was in the fourth grade and the other when she was in the
fourth or fifth grade.  On one occasion she
was at the apartment for a sleepover and was asleep next to her cousin A.C.
when defendant entered the room.  He
touched her vagina on top of her clothing. 
When M.D. moved closer to her cousin, defendant stopped touching her.

                        Another incident
occurred while she was at the apartment for a “family night.”  The children played and watched movies.  She fell asleep in the living room and felt someone
touching her.  The touching was on her
thighs and was moving up her legs.  She
woke up to find defendant lying next to her, touching her “private part” below
her navel, underneath her clothing, and rubbing her with his hand and fingers.  Defendant told her not to worry, he was not
going to hurt her.  M.D. did not remember
whether defendant’s fingers penetrated her, but the incident frightened her and,
not knowing what to do, she got up and went to the restroom.  When she left the restroom, she went into Maria’s
bedroom and crawled into bed with her.  The
next morning, Maria asked M.D. why she was in her (Maria’s) bed.  M.D. said it was because she had a bad dream.  She did not tell Maria what happened because
she was frightened and she did not want Maria to have any problems.

                        L.C. was 16 years old at
the time of the trial.  She was seven
years old when she and M.D. came to the United States to live with their grandmother. 
While she still lived with her grandmother, she spent a night at Maria’s
apartment.  M.D. was not there that night
because it was a school night, but L.C.’s school was on a break.  L.C. woke up in the morning and went into the
living room to watch television.  Three
of her cousins had already gone to school and Maria was asleep in her
bedroom.  L.C. sat down on the
couch.  Defendant entered the room and
sat down next to L.C.  He put an arm
around L.C.’s shoulder and put his other hand inside her shirt and bra and
touched her breasts for
about a minute.  He then put his hand
inside her pajama pants and started touching her “bottom private part.”  The touching lasted more than two minutes.  He stopped when L.C.’s youngest cousin
started crying.

                        M.D. and L.C. lived with
their grandmother until M.D. was in seventh grade.  They were taken out of their grandmother’s
house after a physical
altercation between L.C. and the grandmother.  M.D. and L.C. lived in a foster home after
leaving their grandmother’s home and later went to live with another aunt and
uncle.

                        On September 17, 2008, Los Angeles County Deputy Sheriff Dawn Maher responded to the
residence of L.C. and M.D.’s foster parents regarding a report of child abuse.  Maher responded to the residence because
someone M.D. told about the molestations reported it to law enforcement.

                        Maher first spoke with
L.C.  L.C.’s description of the
molestation was consistent with her testimony at trial.  She said she had not seen defendant since she
was molested.

                        When Maher was finished
speaking with L.C., she spoke with M.D. 
M.D. was 13 years old at the time. 
Maher asked M.D. if she had been touched in an inappropriate way.  M.D. said she had on two different occasions in
defendant’s residence in Anaheim.  During the first incident, she
had been asleep and woke up to defendant touching her under her clothes “on the
top and on the bottom.”  M.D. said defendant
touched her “in between her legs,” digitally penetrated her, and “it hurt.”  She said defendant told her something to the
effect of, “don’t worry, I won’t hurt you.”

                        Maher prepared a police
report after speaking with M.D. and L.C. 
She immediately sent the report to the Anaheim Police Department because
the incidents occurred in Anaheim.

 

>Incidents Involving A.C.
and Detective Alvarez’s Interviews of M.D. and L.C.

                        On July 20, 2009, Detective German Alvarez of the Anaheim Police Department was
working as a sexual assault detective at the Anaheim Family Justice Center when he
received a report from a patrol officer. 
As a result of that report, Alvarez spoke with Maria, who reported an
incident involving defendant and her oldest daughter, A.C.  Maria also provided Alvarez information about
defendant and her two nieces, L.C. and M.D.

                        Alvarez had Maria make a
covert “pretext” telephone call to defendant to see if he would make any admissions.  During the telephone call, Maria told
defendant she had seen him on top of A.C. in the middle of the night.  Defendant denied it.  She also accused him of molesting her two
nieces.  Defendant denied that as well.

                        Alvarez had Anaheim Detective
Omar Adham speak to A.C. that same day. 
Defendant, who was born in 1972, was arrested the same day Adham spoke
with A.C. 

                        During his
investigation, Alvarez learned of Maher’s September 17, 2008 report involving M.D.
and L.C.  He reviewed the report and decided
to interview M.D. and L.C.  He arranged
with their foster mother to have them transported to the href="http://www.fearnotlaw.com/">family justice center on July 23,
2009. 

                        Alvarez first spoke with
M.D. and recorded the interview.  M.D. was 14 years old at the time and going
into the ninth grade.  M.D. said the
incidents with defendant occurred about five years before the interview, about
the same time she arrived in the United States from Mexico.  She said there were two
incidents that occurred in defendant and Maria’s residence in Anaheim.  Her statement was consistent with her
testimony.

                        L.C. described an
incident in which defendant touched her inappropriately while she was in the
living room in Anaheim.  She said it occurred during
the period of time she lived with her grandmother.  L.C.’s statement was also consistent with her
testimony.

                        Maria contacted Alvarez
again on January
12, 2010. 
She gave him a handful of letters defendant wrote to her and her
children from the Orange County jail,href="#_ftn2"
name="_ftnref2" title="">[2] as well as a camcorder containing
a videotape.  She said she found the
videotape hidden in defendant’s toolbox. 
In one of the letters, defendant instructed Maria to “get rid of” the
video and promised he was going to change because he was training himself to
act “like a human being.”  He asked her
not to make him out to be a bad guy, “like I am.”  He added, “The recent was just a moment of
craziness.  Everything that has happened
is possibly what they are saying.” 
Another of the letters was addressed to A.C.  It instructed her to speak with L.C. and
M.D., and tell them they must say they lied, or A.C. and the rest of the family
will never forgive them.

                        The video was played for
the jury.  Two events were recorded.  The first part shows a child square dancing
at school.  The second part shows A.C.
sleeping and defendant’s hand.  The left
thumb in the video is deformed and defendant has the same deformity.  Maria said that prior to watching the video
she had hoped defendant had not molested A.C. 
Although the videotape was not made part of the record on appeal, it
apparently showed defendant molesting A.C.href="#_ftn3" name="_ftnref3" title="">[3]

                        A.C. said that on more
than one occasion when she was asleep she woke up to find defendant, her
stepfather, touching her vagina under her clothing.  She said he also touched her inappropriately while
at the auto shop where he worked.  A.C.
explained that she did not tell Alvarez what defendant had done to her because
she was afraid, but that after the interview she told her mother what defendant
had done.

                        At her interview by the Child
Abuse Services Team, A.C. told the interviewer the last time defendant touched
her was when she was 12 years old.  She said
defendant told her she would be taken out of the home and placed in foster care
if she ever told her mother about the incidents.

 

 

II

DISCUSSION

A.  Evidence
of Prior Sexual Conduct

                        Defendant first contends
the trial court erred in prohibiting him from introducing evidence of alleged prior
sexual experiences of L.C. and M.D.  We
may find a trial court erred in excluding evidence of prior sexual conduct if
we find the court abused its discretion. 
(People v. Bautista (2008) 163
Cal.App.4th 762, 782.)  A trial court
abuses its discretion when its decision “exceeds the bounds of reason, all of
the circumstances being considered.”  (>People v. Giminez (1975) 14 Cal.3d 68,
72.)

                        An alleged victim’s past
sexual experience is generally inadmissible. 
(Evid. Code, §§ 782, 1103, subd. (c)(1); all undesignated statutory
references are to the Evidence Code unless otherwise stated.)  When admissible, the defendant must have
complied with the strict requirements of section 782.  (People
v. Fontana (2010) 49 Cal.4th 351,
362.)  The Legislature enacted section
782 “to protect victims of molestation from ‘embarrassing personal disclosures’
unless the defense is able to show in advance that the victim’s sexual conduct
is relevant to the victim’s credibility. 
[Citation.]”  (>People v. Bautista, supra, 163 Cal.App.4th at p. 782.)

                        Section 782 permits the
admission of prior sexual conduct when the evidence is relevant for purposes of
attacking a victim’s credibility under section 780.

(§ 782,
subd. (a).)  Section 780 authorizes
relevant evidence tending to prove or disprove the truthfulness of the witness’s
testimony including evidence relevant to: 
“(a) [Her] demeanor while testifying and the manner in which [she]
testifies.  [¶] (b) The character of [her]
testimony.  [¶] (c) The extent of [her]
capacity to perceive, to recollect, or to communicate any matter about which [she]
testifies.  [¶] (d) The extent of [her]
opportunity to perceive any matter about which [she] testifies.  [¶] (e) [Her] character for honesty or
veracity or their opposites.  [¶] (f) The
existence or nonexistence of a bias, interest, or other motive.  [¶] (g) A statement previously made by [her]
that is consistent with [her] testimony at the hearing.  [¶] (h) A statement made by [her] that is
inconsistent with any part of [her] testimony at the hearing.  [¶] (i) The existence or nonexistence of any
fact testified to by [her].  [¶] (j) [Her]
attitude toward the action in which [she] testifies or toward the giving of
testimony.  [¶] (k) [Her] admission of
untruthfulness.”

(§
780, subds. (a)-(k).)

                        Defense counsel complied
with section 782’s requirement of a written motion and an offer of proof as to
the relevancy of the evidence of sexual conduct. 

(§
782, subd. (a)(1).)  A sealed declaration
was filed in support of the motion.  (§
782, subd. (a)(2).)  A hearing wherein
the complaining witness may be asked questions regarding the defendant’s offer
of proof is required only if the court finds the offer of proof
sufficient.  (§ 782, subd. (a)(3).)  The trial court denied defendant’s motion
without an evidentiary hearing. 

                        There was no reason for
the court to hold an evidentiary hearing. 
Whether the proffered evidence existed or not, the bald assertion that
prior sexual experience would make the alleged victims more amenable to lying is
not supported by any authority or reason.

                        In the present case,
where the alleged victims testified to relatively generic activity on defendant’s
part—he put his hand under their clothing and touched their vaginas—is distinguishable
from People v. Daggett (1990) 225
Cal.App.3d 751.  In Daggett the alleged prior sexual acts were purportedly committed on
the alleged victim were similar to the oral copulation and sodomy alleged to
have been committed by the defendant, and the prosecutor argued the victim
learned of the behavior because he had been molested by the defendant.  (Id.
at pp. 754, 757.)  Not only was there no showing
in the offer of proof that the purported sexual experiences of M.D. and L.C.
were similar to the acts they said defendant committed, the prosecutor did not
argue the victims must have learned of this particular behavior from defendant.
 Even if the proffered evidence

 

had
some minimal relevance, and it does not, that relevance would have been
outweighed by it prejudicial effect.  (§
352.)

                        The trial court did not
err in precluding defendant from offering evidence of prior sexual experience
without an evidentiary hearing.  The
offer of proof did not trigger the need for such a hearing.  We also reject defendant’s argument that
excluding such evidence denied him the right to present a defense, a fair
trial, and confrontation.  (U.S.
Const., 5th, 6th, & 14th Amends.; Cal. Const. art.
I, §§ 7, 15.)  As the evidence was not
relevant, no constitutional violation occurred.

 

B.  Instructional
Issues

                        Defendant argues the
trial court violated his right to due process, a fair trial, and the
presumption of innocence when it instructed the jury pursuant to CALCRIM No.
362, and a fair trial and due process when it instructed the jury pursuant to
CALCRIM No. 1190.  We disagree.

                        1.  CALCRIM
No. 362

                        The court went over
potential jury instructions with counsel.  Without stating any grounds, defense counsel
objected to the court instructing the jury with CALCRIM No. 362.  The court stated its belief that it had a sua
sponte duty to give the instruction and instructed the jury as follows:  “If the defendant made a false or deliberately
misleading statement before the trial relating to the charged crimes, knowing
the statement was false or intending to mislead, that conduct may show that he
was aware of his guilt of the crime and you may consider it in determining his
guilt . . . .  [¶] If you conclude that
the defendant made the statement, it is up to you to decide its meaning and
importance.  However, evidence that the
defendant made such a statement cannot prove guilt by itself.”  The issue of whether the court had a sua
sponte duty to instruct on this issue aside (compare People v. Najera (2008) 43 Cal.4th 1132, 1139 [no sua sponte duty
to instruct on consciousness of guilt instruction] with People v. Edwards (1992) 8 Cal.App.4th 1092, 1103-1104 [where there
is evidence from which an inference of “consciousness of guilt may be drawn, the
court has a duty to instruct on the proper method to analyze the testimony”]),
we review de novo whether a jury instruction properly states the law.  (People
v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)

                        Contrary to defendant’s
contention, CALCRIM No. 362 does not violate due process.  (People
v. McGowan (2008) 160 Cal.App.4th 1099, 1104; cf. People v. Nakahara  (2003) 30
Cal.4th 705, 713 and cases cited therein, [upholding challenges to CALJIC No.
2.03, the precursor to CALCRIM No. 362].) 
The fact that all suspects are motivated to exculpate themselves does
not make it irrational to infer consciousness of guilt from a lie concerning a
charged offense.

                        In addition, even if the
instruction was flawed, and we do not so find, its use in this matter was
harmless.  Although the defendant argues
the trial court concluded the instruction was appropriate based on statements
defendant made to his wife, Maria, in the monitored pretext telephone call, the
court did not mention to the jury any statement made by defendant.  The jury could have used the instruction in
connection with another statement of defendant’s. 

                        In fact, the prosecutor
did not argue defendant made any false statements.  Rather, the prosecutor referred to statements
defendant made in an effort to get his nieces to say they lied.  (See CALCRIM No. 371 [suppression and
fabrication of evidence].)  Additionally,
the jury was instructed that some of the instructions may not apply, depending
upon the facts found by the jury.  There
is no reason to believe the jury was confused by CALCRIM No. 362. 

                        What is more, the
evidence of defendant’s guilt was substantial. 
There was a video of his sexual assault on his sleeping stepdaughter.  Not only did M.D. and L.C. report defendant
having molested them a year before
Maria went to the police with the video of defendant molesting A.C.,
defendant’s act of molesting M.D. while she slept is the same conduct defendant filmed himself engaging in with A.C.  Any error would be harmless under any
standard of review.  (>Chapman v. California (1967) 386 U.S.
18, 24; People v. Watson (1956) 46
Cal.2d 818, 836.)

                        2.  CALCRIM
No. 1190

                        In addition to
instructing the jury that the testimony of a single witness can prove any fact
(CALCRIM No. 301), the court also instructed the jury pursuant to CALCRIM No.
1190, an instruction specifically tailored for use in cases involving a sex
offense:  “Conviction of a sexual assault
crime may be based on the testimony of a complaining witness alone.”  Defendant argues the court erred in giving
both instructions.  Specifically, he
contends CALCRIM No. 1190 “is outmoded,” and that since CALCRIM No. 301 covers
the possible impact of a single witness’s testimony, the giving of CALCRIM 1190
in this case operated as “an unauthorized prosecution pinpoint instruction.”

                        Defendant’s argument
must fail due to the California Supreme Court’s decision in >People v. Gammage (1992) 2 Cal.4th 693.  There the trial court instructed the jury
pursuant to CALJIC Nos. 2.27 and 10.21, the respective predecessors to CALCRIM
Nos. 301 and 1190.  (People v. Gammage, supra,
2 Cal.4th at pp. 696-697.)  Considered
separately, both instructions correctly state the law.  (Id. at
p. 700.)  And while the instructions “overlap
to some extent” (ibid.), if the court
were to only instruct pursuant to CALCRIM No. 1190, the jury would be correctly
instructed that a complaining witness’s testimony need not be corroborated,
leaving the question of whether the testimony of a noncomplaining witness needs
corroboration in order to establish facts testified to by that witness.  Nor must the court instruct only in terms of
CALCRIM No. 301.  “Neither [instruction]
eviscerates or modifies the other.”  (>People v. Gammage, supra, 2 Cal.4th at p. 701.) 
In fact, “[t]he instructions in combination are no less correct, and no
less fair to both sides, than either is individually.”  (Ibid.)  We are bound by this precedent.  (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)  Accordingly, we reject

 

defendant’s
contention that the trial court erred in instructing the jury with CALCRIM No. 1190.

 

C.  Sentencing

                        The jury found true
allegations that defendant committed sex offenses against more than one victim in
connection with each of the four counts. 
(Pen. Code, § 667.61, former subd. (e)(5) [multiple victims].)  At sentencing, the prosecutor requested the
court to impose consecutive sentences, pointing out the molestations not only
involved multiple victims but also occurred over a period of years and
defendant took advantage of a position of trust in committing the offenses
against family members.  Defense counsel’s
argument was limited to simply requesting that the court exercise its
discretion and impose concurrent sentences for an aggregate sentence of 15
years to life.  Of the four 15 years to
life terms imposed, the court ordered consecutive sentences on but two, the count
involving L.C. and a count involving M.D. 
The court stated it ordered a consecutive sentence because the crimes
involved separate victims.  The court
then imposed concurrent sentences on the other count involving M.D. and the
count involving A.C.

                        When a court exercises
its discretion to impose consecutive sentences, it must state the reasons for its
sentencing choice.  (Pen. Code, § 1170,
subd. (c); People v. Neal (1993) 19
Cal.App.4th 1114, 1117.)  Defendant
claims the trial court erred in ordering consecutive sentences, because the
only reason cited for the sentencing choice—the crimes involved separate
victims—was necessary to trigger Penal Code section 667.61’s 15 years to life
terms.href="#_ftn4" name="_ftnref4"
title="">[4]  California Rules of Court,
rule 4.425(b)(2) precludes a court from using a “fact used to otherwise enhance
the defendant’s prison sentence” as the basis for imposing a consecutive
sentence.  Defendant does not seek a
remand for resentencing based on this purported error.  Instead, he asks that we modify the judgment
and order the sentences on the four counts to all be served concurrently.  We reject the invitation.

                        The court had discretion
to impose concurrent or consecutive sentences on the four convictions for
committing lewd acts on a child under 14 years of age.  (People
v. Valdez (2011)
193 Cal.App.4th 1515, 1524.)  The trial
court was well aware of its discretion. 

                        Apparently recognizing
the offenses in this case not only involved separate victims, but also separate
occasions, defendant argues the fact that the crimes occurred on separate >occasions was necessary for purposes of
imposing multiple 15 years to life terms under Penal Code section 667.61 and
therefore, “separate occasions” could not be used to justify consecutive
sentences.  He is mistaken.  Penal Code section 667.61, former subdivision
(e)(5) authorized a sentence of 15 years to life when a defendant stands
convicted of a violation of Penal Code section 288, subdivision (a) “against
more than one victim.”  (Pen. Code, §
667.61, former subd. (e)(5).)  There was
no requirement that the molestations occurred on separate occasions.  “If there are multiple victims >during a single occasion, the term
specified in subdivision (a) or (b) shall be imposed on the defendant once >for each separate victim.”  (Pen. Code, § 667.61, former subd. (g),
italics added.)  Thus, the fact that the
molestations in this case occurred on separate occasions was not necessary to
the application of Penal Code section 667.61 and was sufficient to justify
consecutive sentences.

                        Moreover, even if “multiple> victims” could not be used as a basis
for imposing consecutive 15 years to life terms under Penal Code section 667.61
in a case involving but two victims, the present case involved three
victims.  As it took only two victims to
qualify for enhanced sentencing under Penal Code section 667.61, former subdivision
(e)(5), imposition of a consecutive sentence based on the existence of an

 

additional victim does not
run afoul of the dual use of facts prohibition of rule 4.425(b)(2) of the
California Rules of Court.

III

DISPOSITION

                        The judgment is
affirmed.

 

 

                                                                                   

                                                                                    MOORE,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P. J.

 

 

 

RYLAARSDAM, J.