P. v. Diaz
Filed 1/24/13 P. v. Diaz CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
NOE H. DIAZ,
Defendant and Appellant.
B237929
(Los Angeles
County
Super. Ct.
No. BA381482)
APPEAL from
a judgment of the Superior Court
of
County, Craig Richman, Judge.
Affirmed.
Vanessa
Place, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance
E. Winters, Assistant Attorney General, Linda C. Johnson and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
>
Defendant and appellant
Noe H. Diaz appeals his convictions for oral copulation with a child under
the age of 10 and commission of a lewd act upon a child. The trial court sentenced Diaz to a term of
15 years to life in prison. Diaz
contends the evidence was insufficient to sustain the verdicts. We affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
1.
Facts.
a.
In September 2010, Diaz and the victim’s mother, C.H., had
been romantically involved for three years.
For six months, C.H., her seven-year-old daughter Y.H., and her son
lived with appellant and his brother in a one-bedroom apartment in Los Angeles. Diaz, C.H., and the children slept in the
living room, with the children on a bunk bed and Diaz and C.H. on a sofa
bed. Diaz’s brother slept in the
bedroom.
On September
26, 2010, C.H. gave her children a bath and put them to bed in the bunk bed; Y.H.
was wearing a blouse, underwear, and pants.
C.H. went to bed at 10:00 p.m. Diaz was out at the time. Diaz returned to the apartment and went to
bed between 11:00 and 11:30 p.m., wearing his street
clothes, and laid down next to C.H., who was still awake. Diaz and C.H. did not have intercourse that
night, or on the preceding day.
C.H. awoke sometime after that
because she felt movement on the side of the bed. Y.H. was in the sofa bed, and Diaz, wearing
only boxer shorts, was lying in between C.H. and Y.H.
performing oral copulation on her. She
was still wearing her blouse but no pants or underwear. Y.H. was “between asleep and awake†and
“wasn’t totally awake.†C.H. slapped
Diaz and asked what he was doing. They
argued and he told her, “ ‘If you want to, [C.H.], kill me.’ †Both children woke up.
C.H. told the children to change
their clothes and began packing their belongings. Diaz and C.H. argued about some photographs
that Diaz wanted; C.H. tore them up.
C.H. telephoned a taxicab and she and the children went to stay at a
friend’s residence where C.H. worked as a housekeeper. The friend telephoned police at 12:40
a.m. Police arrested Diaz at 3:00
a.m.
C.H. and Diaz had not argued on the
day of the offense, and everything was “normal†between them.
Y.H. was examined at a rape
treatment center at 6:00 a.m. She did not tell the nurse Diaz had molested
her. The nurse swabbed her external
genitalia, but not her vagina. C.H. told
the nurse Y.H. had not bathed or otherwise used the toilet before the
examination. However, before genital
swabs were taken, Y.H. provided a urine sample.
A scan of Y.H.’s body with a Woods lamp
examination was normal, which was not unusual given the nature of the alleged
molestation.
A nurse practitioner examined Diaz
at approximately 4:30 a.m. and took penile and scrotal swabs. A scan with a Woods lamp did not reveal any
bodily fluids on Diaz. Diaz told the
nurse that he had had something to eat or drink before the examination.
At the time of trial, Y.H. was eight
years old. She did not remember the
molestation and did not know what had happened to cause her mother to move out
of Diaz’s apartment. Diaz had never
touched her inappropriately prior to that night. When she woke up that night, her mother and
Diaz were arguing and she was not wearing clothes, although she usually wore
pajamas and underwear to bed. She did
not recall going to the hospital for an examination. She did recall her mother ripping photographs
the last night they lived with Diaz. She
did not recall any other arguments between her mother and Diaz prior to the
night they moved.
(i)
DNA evidence.
Analysis of genital swabs taken from
Y.H. did not reveal the presence of any male DNA. According to the People’s DNA expert, Diaz’s
penile sample contained DNA consistent with a mixture of his and Y.H.’s
DNA. Y.H.’s DNA profile would have been
present in only one in 110 trillion members of the United States Hispanic
population. It was highly unlikely the
DNA was C.H.’s. It was also highly
unlikely that DNA could be transferred from one person to another through a
third person, or via a towel or sheet (“secondary transferâ€). A variety of circumstances could cause the
degradation or removal of DNA, rendering it unrecoverable, including urination,
wiping the area, showering or washing, and heat or humidity. DNA is not as prevalent on the surface of the
skin as it is in bodily fluids.
b.
Defense evidence.
A defense DNA expert testified as follows. She would expect to find saliva and the
perpetrator’s DNA on a child’s vagina and genital area if oral copulation had
occurred. Diaz’s DNA was not found on
Y.H. Nothing in the medical reports
indicated that Y.H.’s genital area had been screened for the presence of
saliva. Urination would not likely wash
away all DNA present on the genital area, but wiping could. If a subject is wearing underwear, the DNA
can be wiped off onto the clothing. DNA
can also be removed by simply washing with water, or by wiping off the area
with a tissue or towel. The prosecution
expert’s calculations were incorrect and one out of every 44 million Hispanic
persons, not one out of every 110 trillion, could have contributed to the mixed
DNA sample found on Diaz. Based on the
testing done, it was not certain whether a third person, or additional persons,
contributed to the DNA mixture. The
possibility C.H. was the source of the foreign DNA found in Diaz’s sample could
not be excluded, because C.H.’s DNA had not been tested. DNA is present in sweat. “[S]econdary transfer†of DNA is in fact a
common occurrence. DNA can be
transferred from person to person via inanimate objects, such as towels or
blankets; however, this theory is not universally accepted in the scientific
community. The amount of Y.H.’s DNA
found on Diaz’s penile swab was relatively small. The expert conceded it was possible Y.H.’s
DNA ended up on Diaz’s penis because Diaz touched Y.H.’s vaginal area and then
touched his penis.
The high temperature in downtown Los
Angeles on September 26, 2010, was 102.9 degrees. At 11:47 p.m., the temperature was 80.1
degrees.
2.
Procedure.
Trial was by jury.
Diaz was convicted of oral copulation with a child under 10 (Pen. Code,
§ 288.7, subd. (b))
name="_ftnref3" title="">[3] and commission of a lewd act upon a child
(§ 288, subd. (a)). The trial
court denied Diaz’s motions for a new trial, to unseal juror information, and
to modify the verdict. It sentenced him
to a term of 15 years to life in prison and imposed a restitution fine, a
suspended parole restitution fine, a court security assessment, and a criminal
conviction assessment. Diaz appeals.
DISCUSSION
The
evidence was sufficient to sustain the verdicts.
Diaz contends the evidence was insufficient to support his
convictions because it was “too contradictory to be credible, too incredible to
be cogent.†He urges that Y.H. did not
recall the molestation, and the DNA evidence did not support the charges and
was inconsistent with C.H.’s account. We
disagree.
When determining whether the
evidence was sufficient to sustain a criminal conviction, “we review the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence––that is, evidence that is reasonable,
credible and of solid value––from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
[Citations.]†(
43, 66; People v. Carrington (2009) 47
Cal.4th 145, 186-187.) We presume in
support of the judgment the existence of every fact the trier of fact could
reasonably deduce from the evidence. (
919.) Reversal is not warranted unless
it appears “ ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’
[Citation.]†(
297, 331; People v. Zamudio (2008) 43
Cal.4th 327, 357.)
Here, the evidence was clearly sufficient. The victim’s mother testified that she
observed appellant orally copulating her seven-year-old daughter. The testimony of a single witness,
unless physically impossible or inherently improbable, is sufficient to
establish a fact and support a conviction.
(Evid. Code, § 411; People v.
Young (2005) 34 Cal.4th 1149, 1181; People v. Hampton (1999) 73 Cal.App.4th 710, 722.) Thus, C.H.’s testimony was, by itself, sufficient to support the
verdicts. In addition, DNA analysis
disclosed the presence of Y.H.’s DNA on Diaz’s penis, an unusual circumstance
which corroborated C.H.’s account.
Contrary to Diaz’s arguments, C.H.’s testimony was
neither demonstrably false, nor physically impossible. Although Diaz insinuates that C.H.’s
testimony was fabricated to retaliate against him after the couple argued,
there was no evidence supporting this theory.
There was no evidence the couple had been fighting prior to the
molestation, or were estranged. There
was no showing C.H. had any motive to falsely implicate Diaz. Nor did the fact Y.H. had no memory of the
event render the evidence insufficient.
Y.H., who was seven years old at the time, was not fully awake when Diaz
molested her. It is therefore not
particularly surprising that she did not recall the event. As to the purported weaknesses in the DNA
evidence, Diaz’s DNA was not obtained until hours after the molestation
occurred, and he ate or drank something in the interim. Therefore the absence of Y.H.’s DNA in his
oral sample was not dispositive. Nor was
the absence of Diaz’s saliva or DNA in Y.H.’s genital samples conclusive. Both experts agreed that DNA could be removed
in a variety of ways, including wiping.
Given that after the molestation Y.H. donned underclothing, travelled to
a residence and then to the rape treatment center, provided a urine sample, and
was not swabbed until 6:00 a.m.––approximately six hours after the
molestation––the jury could reasonably have inferred any DNA deposited by Diaz
was removed during the intervening time.
Diaz’s arguments that the evidence
was insufficient amount to a request that this court reweigh the evidence,
which is not a proper appellate function.
(People v. Friend (2009) 47
Cal.4th 1, 41; People v. Cortes
(1999) 71 Cal.App.4th 62, 81.) The
purported weaknesses in the People’s case, and the contradictions between the
defense and prosecution DNA experts’ testimony, did not make C.H.’s testimony
impossible to believe or obviously false, but “merely presented the jury with a
credibility determination that is not reviewable on appeal.†(People
v. Mejia (2007) 155 Cal.App.4th 86, 99.)
We resolve neither credibility issues nor evidentiary conflicts. (People
v. Maury (2003) 30 Cal.4th 342, 403; Mejia, at
p. 98.) Because substantial
evidence supported the verdicts, the fact the evidence might conceivably have
been reconciled with a contrary finding does not warrant a reversal. (People
v. Livingston (2012) 53 Cal.4th 1145, 1170; People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.)
Diaz laments that allegations of
sexual offenses are no longer viewed as “ ‘easily . . .
made and . . . harder to be defended by the party accused, though never so
innocent.’ †(People v. Huston (1941) 45 Cal.App.2d 596, 597.) He relies on, inter alia,
United States v. Chancey (11th Cir.
1983) 715 F.2d 543, in support of his contention that the evidence against him
was inherently incredible and improbable.
The facts in the cited cases, however, are readily distinguishable from
the evidence presented in the case at bar.
Moreover, People v. Ennis (2010)
190 Cal.App.4th 721, rejected arguments similar to Diaz’s, made in a similar
case. In Ennis, a defendant was convicted of molesting his two
daughters. On appeal he acknowledged
that testimony presented at trial was sufficient to establish the crimes, but
argued that the evidence “was inherently improbable––by which he mean[t] full
of contradictions, inconsistencies and implausibilities––and thus no rational
jury could have relied upon it as a basis to convict.†(Id. at
p. 725.) Ennis rejected these arguments, explaining: “The ‘inherently improbable’ standard
for rejecting testimony on appeal is not merely an enhanced version of
implausibility, as Ennis seems to be asserting.
‘Highly implausible’ is still
an argument reserved for the trier of fact.
Inherently improbable, by contrast, means that the challenged evidence
is ‘unbelievable per se’ . . . such that ‘the things testified
to would not seem possible.’ [Citation.]†(Ibid.) “While an appellate court can overturn a
judgment when it concludes the evidence supporting it was ‘inherently
improbable,’ such a finding is so rare as to be almost nonexistent. ‘ “To warrant the rejection of the
statements given by a witness who has been believed by a trial court, there
must exist either a physical impossibility that they are true, or their falsity
must be apparent without resorting to inferences or deductions.†[Citations.] . . .’ †(Id.
at pp. 728-729.) “The inherently
improbable standard addresses the basic content of the testimony itself—i.e.,
could that have happened?—rather than the apparent credibility of the person
testifying.†(Id. at p. 729.)
“Consequently, ‘[c]onflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts upon which a determination
depends. [Citation.]’ [Citation.]â€
(Ibid.)
As in
C.H.’s account of the molestation was neither physically impossible nor
facially improbable. The evidence was
sufficient.
DISPOSITION
The judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING,
J.
name="_ftn1" title="">[1] C.H.
did not know whether Y.H. got in the sofa bed on her own, as she sometimes did,
or whether Diaz moved her there.
name="_ftn2" title="">[2] A Woods lamp is a device that illuminates
blood and bodily fluid smears.
