P. v. Figueroa
Filed 1/22/13 P.
v. Figueroa CA4/1
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
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certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE FIGUEROA,
Defendant and Appellant.
D060466
(Super. Ct. No.
SCD230164)
APPEAL
from a judgment of the Superior Court of
County, Laura W. Halgren, Judge. Affirmed.
The
People charged Jose Figueroa with 22 counts of
children, B.M. and R.R. At the
conclusion of evidence at trial, the court granted the People's motion to
dismiss six of the original 22 counts (counts 6 & 8 involving B.M.; counts
16, 18, 20 & 22 involving R.R.).
The
jury subsequently convicted Figueroa of six counts of sexual misconduct
involving B.M. including count 1, sodomy with a child 10 years old or younger
(Pen. Code,
title="">[1] § 288.7, subd. (a));
counts 4 and 5, oral copulation with a child 10 years old or younger (§ 288.7,
subd. (b)); counts 7 and 9, lewd act upon a child (§ 288, subd. (a)); and count
12, forcible lewd act upon a child (§ 288, subd. (b)(1)). As to counts 7, 9 and 12, the jury also found
true the allegations that Figueroa had engaged in substantial sexual contact
with B.M. (§ 1203.66, subd. (a)(8).)
The
jury found Figueroa not guilty on count 14, lewd act upon a child (§ 288, subd.
(a)) against B.M. The jury could not
reach a decision on the remaining five counts charging Figueroa with sexual
misconduct against B.M., specifically counts 2 and 3, sodomy with a child 10
years or younger (§ 288.7, subd. (a)); counts 10, 11, and 13, lewd act upon a
child (§ 288, subd. (a)).
With
regard to the four counts involving R.R., the jury found Figueroa not guilty on
count 19, lewd act upon a child (§ 288, subd. (a)). The jury was unable to come to a decision on
the remaining three counts involving R.R., specifically, count 15, oral
copulation with a child 10 years or younger (§ 288.7, subd. (b)); and counts 17
and 21, lewd act upon a child (§ 288, subd. (a)). At sentencing, the court dismissed each
count, without prejudice, on which the jury could not reach a verdict. The court then sentenced Figueroa to prison
for an indeterminate term of 55 years to life and a determinate term of 16
years.
Figueroa
appeals, contending the court deprived him of a fair trial by: (1) finding R.R. competent at the preliminary
hearing; (2) finding R.R. competent at the competency hearing prior to trial;
and (3) admitting R.R.'s preliminary hearing testimony at trial after the court
found R.R. unavailable at trial.
FACTUAL AND PROCEDURAL HISTORY
In
October 2010, Maria R. lived in a three-bedroom apartment in San Diego with
several of her children including Beatrice, 25; Cindy, 19; S., 15; M., 12; and
nine-year-old B.M. Beatrice also has
three children who live with Maria R..
In addition to Maria R.'s own children and Beatrice's children, Maria
R.'s granddaughter, R.R., also lived with Maria R. in October 2010. R.R.'s biological mother, E., is one of Maria
R.'s older daughters who presently resides in Mexico. Maria R. has raised R.R. since her birth, and
R.R. believes Maria R. is her actual mother.
Maria
R. and Figueroa had been dating for approximately six years prior to October
2010. Figueroa is not the father of any
of Maria R.'s children. Figueroa lived a
few blocks away from Maria R.'s apartment, but Figueroa slept over almost every
night in Maria R.'s bedroom with her.
However, Maria R. did not allow Figueroa to be at the apartment when
Maria R. was not there.
On
October 11,
2010, B.M. went with Figueroa to his house
to care for a rabbit and get water before dinner. When B.M. returned to her home with Figueroa,
B.M. acted very frightened. Maria R.
asked B.M. why the trip with Figueroa had taken so long. B.M. did not answer and played with her hands
as if she were scared. Figueroa told
Maria R. that B.M. might be scared because when we were going "to get the
water, there were two black people there."
Maria R. continued asking B.M. to answer her question and B.M. began to
cry. Maria R. asked B.M. what was
wrong. B.M. then told Maria R. that her
stomach hurt. Maria R. had never seen
B.M. act in such a way. Maria R.
continued to ask B.M. what was wrong and if Figueroa had done something to her.
Olivia
C., Cindy's girlfriend who also lived with Maria R. and the other children,
offered to take B.M. with her to pick Cindy up from work. After Olivia picked up Cindy, Cindy
confronted B.M. B.M. told Cindy that
Figueroa had touched her and pointed to her crotch area. Olivia subsequently called the police. After arriving back at Maria R.'s apartment,
Cindy talked with Stephanie and Beatrice about what B.M. had told her. Beatrice subsequently told Maria R. that B.M.
said Figueroa touched her. Later that night,
B.M. told Maria R. herself what had happened with Figueroa earlier that
evening. When Maria R. asked where
Figueroa touched her, B.M. said Figueroa had pulled her pants down and touched
her "private part." B.M. was
shaking and crying.
After
the police arrived, an officer took B.M.'s statement privately at the
scene. B.M. told the officer that
Figueroa pulled her pants down and started rubbing her private part. She also told the officers that Figueroa said
it was a secret between him and her. B.M.
did not mention any other sex acts to the officer. After speaking with the police, officers
escorted B.M. and Maria R. to the hospital so B.M. could undergo a medical
examination.
At
Rady Children's Hospital in the Chadwick Center,
pediatrician Marilyn Kaufhold performed a sexual assault examination on B.M. on
October 11,
2010 which lasted into the early morning
hours of October
12, 2010.
Dr. Kaufhold retrieved swabs from B.M.'s mouth, genital area, and inside
of her anal canal to test for the presence of semen and sperm. Additionally, on October 12, 2010 around 3:45
a.m., a sexual assault nurse performed a
sexual assault examination on Figueroa at the San Diego Police Department,
which included collecting a DNA swab sample from Figueroa's mouth.
On
October 12, 2010, Laurie Fortin, clinical coordinator for the forensic interviewing
program at the Chadwick Center at Rady Children's Hospital, interviewed
B.M. B.M.'s interview with Fortin was
recorded and played for the jury. In the
interview, B.M. told Fortin that she was watching television when Figueroa
called her into his room and said "you wanna fuck?" B.M. knew "fuck" meant sex and
became scared. Figueroa told B.M. to lie
down on the bed. After B.M. laid on the
bed, Figueroa pulled her pants and underwear down. Figueroa pulled down his own pants and then
started touching B.M.'s vagina. B.M. saw
Figueroa's penis, describing it as brownish with hairs. Figueroa touched B.M.'s vagina with his
penis. Figueroa asked B.M. if she wanted
to touch his penis. B.M. told Figueroa
she did not want to touch him. Figueroa
then grabbed B.M.'s hand and made her touch his penis. After Figueroa put B.M.'s hands on his penis,
Figueroa ejaculated onto the floor.
Figueroa told B.M. not to tell anyone what had happened and that it was
a secret between them.
Later
the same day B.M. spoke with Fortin.
Maria R. was crying in her room when R.R. approached her and told her
not to cry. R.R. then told B.M. to tell
Maria R. the truth about how B.M. and Figueroa used to kiss in Maria R.'s
bedroom. B.M. told Maria R. that R.R.
was lying. On one occasion over the next
month, Maria R. asked B.M. more about the incident with Figueroa on October 11,
2010 but B.M. did not want to talk more about it and changed the subject. Maria R. never heard B.M. talking to R.R. or
the other children about the incident with Figueroa.
On
December 3, 2010, Walter Escobar, an investigator for the district attorney's
office, interviewed B.M. Escobar tape
recorded the interview. B.M. said
Figueroa did not put his penis in her vagina but that Figueroa did put his
penis in her "butt."
B.M.
testified during trial consistent with her prior interviews with Fortin and
Escobar. In addition, B.M. testified at
trial that on October 10, 2011, after Figueroa touched the outside of her
vagina, Figueroa then inserted his penis inside her butt and "moved"
his penis in and out. B.M. stated that
Figueroa subsequently put his mouth on B.M.'s vagina and B.M.'s lips touched
his penis. B.M. testified that after she
put her clothes on and washed her hands, Figueroa showed her a pornographic
movie.
B.M.
also testified that Figueroa had touched her another time before October 10,
2011. B.M. had been alone with Figueroa
in Maria R.'s bedroom when Maria R. was not home. B.M. testified that Figueroa's penis touched
the inside of her butt, B.M. touched Figueroa's penis, Figueroa put his penis
in her mouth, and Figueroa put his mouth on B.M.'s vagina. B.M. testified that she did not disclose all
of what happened during her previous interviews "because it was a
lot."
A
criminalist from the San Diego Police Department Crime Lab testified B.M.'s
external genital swabs tested positive for the presence of semen and
sperm. The criminalist also testified
that B.M.'s rectal swabs had a weak positive result for semen and sperm and her
oral swab had a weak positive result for semen and a negative result for
sperm. Another criminalist from the
crime lab testified she compared the DNA from the sperm cells found on B.M.'s
external genitalia and rectal swabs to the DNA from the mouth swabs taken from
Figueroa. The DNA from B.M.'s swabs
matched Figueroa's DNA.
Fortin
testified about her interview with B.M. on October 12, 2010. Fortin has specialized in the area of child
sexual abuse for 21 years, completed over 2,200 forensic interviews, and
testified as an expert witness in approximately 30 child sexual abuse
cases. Fortin testified that forensic
interviews are videotaped to record a child's demeanor, affect, and responses
as well as the questions asked by the interviewer. Fortin also testified about the research and
her experiences with the incremental disclosure pattern of children who have
been sexually abused. Fortin opined
B.M.'s incremental and delayed disclosure of all the details of the events with
Figueroa on and before October 11, 2010 was normal considering her age and the
circumstances.
R.R.
attempted to testify at the trial several times, but shut down and refused to
answer the prosecutor's questions, especially questions regarding
Figueroa. As a result, the court found R.R.
unavailable to testify and entertained argument on whether R.R.'s preliminary
hearing testimony could properly be admitted into evidence. As discussed below, the court ultimately
concluded R.R. was competent at the preliminary hearing and R.R.'s preliminary
hearing testimony was admissible under Evidence Code section 1291. The court then struck R.R.'s minimal
testimony at trial, admonished the jury, and R.R.'s
the jury.
DISCUSSION
I
Figueroa
contends the trial court erred in finding R.R. competent at the preliminary
hearing six months before trial because R.R. did not understand her duty to
tell the truth. Figueroa additionally
contends the trial court erred in finding R.R. competent at the Evidence Code
section 402 hearing prior to trial because R.R. did not understand her duty to
tell the truth. We reject both
contentions.
A. Preliminary Hearing
As
a general rule, " 'every person, irrespective of age, is qualified to
be a witness [and may] testify to any matter.' " (People
v. Montoya (2007) 149 Cal.App.4th 1139, 1149-1150, citing Evid. Code, §
700.) A person is incompetent and
disqualified to be a witness if he or she is:
(1) incapable of expressing himself or herself concerning the matter so
as to be understood; or (2) incapable of understanding the duty of a witness to
tell the truth. (Evid. Code, § 701,
subds. (a)(1) & (2); Montoya, supra, at
p. 1150.)
While
Figueroa did not object to R.R.'s competency at the
reach the merits of the issue since it would be unfair to affirm a conviction
because of a defendant's failure to make the proper objection at the preliminary
hearing. (See People v. Burton (1961) 55 Cal.2d 328, 341.) However, we are limited to the record before
us in reviewing an appeal. (
Cal.App.3d 991, 1001.) " 'We
review a cold record and, unlike a trial court, have no opportunity to observe
the appearance and demeanor of the witnesses.' " (In re
Rubisela E. (2000) 85 Cal.App.4th 177, 194.)
Our
review of the record before us limits our ability to evaluate whether R.R. was
competent to testify at the preliminary hearing. R.R. was just five years old when she
testified at the preliminary hearing and admitted to being scared to talk in
court about what Figueroa had done to her.
Although she did not know what the words "truth" or
"lie" meant, she correctly stated that it was "wrong" to
say that the prosecutor was wearing a pink shirt because his shirt was
blue. Additionally, when the prosecutor
asked R.R. to not use her imagination and say something that did not really
happen, R.R. responded "okay."
After further questioning by the prosecutor, R.R. testified that
Figueroa touched her "private part" more than once in her mother's
bedroom. R.R. also testified Figueroa
touched her "back private part."
On a drawing of a nude boy, R.R. circled the hands, mouth, and groin
area to exemplify what parts of Figueroa's body touched her.
While
defense counsel alluded to a potential competency issue during argument at the
preliminary hearing, defense counsel
did not explicitly request the court to make a competency finding. Thus, we do not have the benefit of the
court's evaluation of R.R.'s competency at the preliminary hearing. Further, it is not our role to substitute our
views of credibility on a cold record such as the record before us here. R.R.'s testimony indicated that she knew she
was supposed to tell the truth. She also
appeared capable to testify as to what she claimed occurred with Figueroa. Therefore, we find nothing in the record to
indicate that R.R. was incompetent at the preliminary
hearing.
B. Evidence Code Section 402
Hearing
Figueroa
also contends the trial court abused its discretion when the court found R.R.
competent at the Evidence Code section 402 hearing prior to trial because R.R.
did not understand her duty to tell the truth.
We disagree.
The
party challenging a witness's competency at trial has the burden of
establishing the witness's incompetency by a
trial court's finding of competency will be upheld in the absence of a clear
abuse of discretion. (
589.) A witness is not disqualified if
some of the witness's statements are merely inconsistent. (People
v. Mincey (1992) 2 Cal.4th 408, 444-445.)
Inconsistent testimony and failure to remember particular facts present
questions of credibility for the trier of fact to resolve. (Ibid.)
a witness's personal knowledge, the trial court exclusively determines a
witness's competency to testify. (
360.) We defer to the trial court,
having no power to judge the effect, value or weight of the evidence, consider
the credibility of witnesses or resolve conflicts in the evidence. (In re
Rubisela, supra, 85 Cal.App.4th at p. 194.)
The
record indicates the court carefully considered whether R.R. understood her
duty to tell the truth. During the
explain the meaning of the words "truth" and "lie." However, R.R. correctly testified that the
prosecutor wore a white shirt and that it would be a lie to say the shirt was
blue. R.R. testified that she knew that
when she was asked a question in court, all she was supposed to tell was the
truth.
requested R.R.'s sister, Beatrice, to testify about how R.R. understood the
difference between a truth and a lie.
Beatrice testified that she and Maria R. had spoken to R.R. about the
importance of telling the truth and that R.R. could get in trouble if she lied.
The
court took the matter under submission and ultimately found that R.R.
demonstrated she understood the concept of "truth" and
"lie" through her answers to the prosecutor's color questions. The court further noted that R.R. understood
that there are consequences for not telling the truth based on Beatrice's
testimony. Additionally, the court
relied on the fact that R.R. promised to not use her imagination and only tell
what happened when she took the oath.
On
the record, which shows the court's extensive review of this issue, we
determine the court did not abuse its discretion in finding the defense had not
met its burden to prove by a preponderance of the evidence that R.R. was
incompetent at the Evidence Code section 402 hearing.
II
R.R.'S
UNAVAILABILITY AT TRIAL AND ADMISSION OF
R.R.'S
PRELIMINARY HEARING TESTIMONY
Figueroa contends the trial court violated
his right to "confront" a witness (U.S. Const., 6th Amend. & Cal.
Const., art. I, § 15) and engage in effective cross-examination by allowing
R.R.'s preliminary hearing testimony to be read into the record at trial
because R.R. was incompetent at the preliminary hearing. We disagree.
Evidence Code
section 1291, subdivision (a)(2) provides a hearsay exception for former
testimony when the witness is unavailable
and "[t]he party against whom the former testimony is offered was a party
to the action or proceeding in which the testimony was given and had the right
and opportunity to cross-examine the declarant with an interest and motive
similar to that which he has at the hearing." When former testimony is offered at trial
after an unavailability finding under Evidence Code section 1291, the former
testimony remains subject to the same objections and limitations as if the
witness was testifying at trial. (
Cal.App.3d 512, 514-515.) The objecting
party has the burden of establishing, by a preponderance of the evidence, that
the witness lacked the ability to tell the truth at the preliminary
hearing. (Id. at p. 515.)
The record
here indicates the trial court, after finding R.R. unavailable under Evidence
Code section 240, subdivision (a)(6),
and striking her trial testimony from the record, heard extensive argument by
counsel regarding whether R.R. was competent at the preliminary hearing such
that her testimony could be admitted under Evidence Code section 1291. The court stated that while anyone reading
the first few pages of the preliminary hearing transcript might wonder if R.R.
understood the question, a review of the transcript in its entirety did not
indicate that R.R. was incompetent at the preliminary hearing.
While
the court had concerns about the contradictory answers R.R. gave, the court
determined that R.R.'s inconsistent answers in her testimony were not a basis
to conclude R.R. did not understand her duty to tell the truth but rather
presented questions of her credibility to be solved by the trier of fact. As discussed above, Figueroa's contention
that R.R. was incompetent at the preliminary hearing is without merit. Thus, when the trial court reviewed the
preliminary hearing testimony during the trial itself, the court did not abuse
its discretion in determining that the defense had not established, by a
preponderance of the evidence, that R.R. was incapable of understanding her
duty to tell the truth at the preliminary hearing based on the transcript in
its entirety.
Additionally,
the record indicates that defense counsel
had the opportunity to confront R.R. at the preliminary hearing and engaged in
a lengthy cross-examination of R.R. there.
Additionally, the record shows that defense counsel had the similar
motive and interest in cross-examining R.R. at the preliminary hearing as he
had at trial. Several pages of R.R.'s
preliminary hearing transcript were devoted to cross-examination that inquired
about Figueroa touching R.R. and the specifics of the incidents R.R.
claimed. Based on this evidence, the
court did not abuse its discretion in finding that the defense had the
opportunity to cross-examine with an interest and motive similar to trial, and
subsequently, admitting R.R.'s preliminary hearing testimony under Evidence
Code section 1291.
III
Assuming
competent witness at the preliminary hearing, the Evidence Code section 402
hearing, and in subsequently admitting her preliminary hearing testimony at
trial, Figueroa contends he was prejudiced by the admission of R.R.'s
preliminary hearing testimony because R.R.'s testimony corroborated B.M.'s
testimony. We disagree.
It
does not matter whether we treat the issue as involving the "harmless
beyond a reasonable doubt" standard applied to deprivation of federal
constitutional rights (Chapman v.
under the less stringent "reasonably probable that a result more favorable
to the [defendant] would have been reached in the absence of the error"
standard. (People v.
either standard.
Figueroa
failed to develop a record of, or a finding supporting, prejudice resulting
from the admission of R.R.'s preliminary hearing testimony. First, the jury did not convict Figueroa on
any of the four counts involving R.R.
Thus, the admission of R.R.'s preliminary hearing testimony did not
prejudice him in any way with regard to the counts pertaining to R.R.
herself. This is indicative of how much
weight the jury gave to R.R.'s testimony.
Figueroa
contends admitting R.R.'s preliminary hearing testimony prejudiced him in the
crimes he was convicted of against B.M.
To support his contention, Figueroa asserts R.R. corroborated B.M.'s
testimony since the jury did not reach a verdict on three counts involving R.R.
and that the jury requested a read back of R.R.'s testimony. We are mindful that R.R.'s testimony
regarding Figueroa's touching may have given more credence to B.M.'s
testimony. However, even if R.R.'s
testimony had some corroborative effect, Figueroa's argument ignores the extent
of physical evidence linking him to his crimes against B.M.
Namely,
the DNA evidence provided overwhelming corroboration to B.M.'s testimony that
Figueroa had engaged in substantial sexual contact beyond touching. The DNA results showed the presence of
Figueroa's sperm and semen on B.M.'s external genital area and inside her
rectal cavity. Additionally, the DNA
results from B.M.'s oral swab tested positive for Figueroa's semen. Therefore, there was a multitude of evidence
from which a rational jury could find Figueroa guilty of counts 1, 4, 5, 7, 9,
and 12.
In
light of the physical evidence, we are satisfied that, even if the court erred
in admitting R.R.'s preliminary hearing testimony, the error was harmless
beyond a reasonable doubt. Accordingly,
since Figueroa was not prejudiced under the more stringent Chapman standard, he was also not prejudiced under the less
stringent Watson standard.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL,
P. J.
BENKE,
J.
name="_ftn1" title="">[1] All statutory
references are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] The prosecutor asked,
"R.R., do you understand that when you come to court, that when we ask you
questions, all we want you to do is tell the truth?" R.R. answered, "Yes."
