P. v. >Galicia>























Filed 2/7/13 P. v. Galicia CA2/8

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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opinion has not been certified for publication or ordered published for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.





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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT






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THE PEOPLE, Plaintiff and Respondent, v. MIGUEL GALICIA, Defendant and Appellant.

B239665 (Los Angeles County Super. Ct. No. VA119552)

APPEAL from the
judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Robert J. Higa,
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
Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.



* * * * * *

Defendant and
appellant Miguel Galicia was charged by information with three counts of
forcible lewd act upon a child (Pen. Code, § 288, subd. (b)(1)), one count of
assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)),
one count of corporal injury to cohabitant (§ 273.5, subd. (a)), and one count
of making criminal threats (§ 422). A
jury convicted defendant of one count of forcible lewd act on a child, assault,
and corporal injury to a cohabitant.
Defendant was sentenced to seven years in state prison. Defendant’s sole contention on appeal is that
his conviction on count 3 (forcible lewd act on a child) must be reversed
because the trial court improperly admitted prejudicial hearsay evidence under
the “fresh-complaint” doctrine. We find
no evidentiary error and affirm.

FACTUAL AND PROCEDURAL
BACKGROUND

In 2010, Maria P.
and her four children were living with defendant on 89th
Street in the City of Los
Angeles. They
rented a bedroom in a home they shared with another family. Maria’s three older children, J.M.F, E.F.,
and J.R.F. were from her former marriage with Roberto F. Defendant was the father of her youngest
child, M.G. Maria and defendant had been
in a relationship for about four years.
E.F. was the only female child.

In their rented
bedroom, defendant and Maria had a bunk bed and a double bed. The oldest boy, J.M.F, slept in the top
bunk. E.F. and her two younger brothers
slept in the bottom bunk. Defendant and
Maria slept in the bed.

During the summer
of 2010, J.M.F, E.F. and J.R.F. were in the bedroom with defendant watching
television. Maria had gone to the
store. Defendant told the boys to go
outside. The boys obeyed, but shortly
thereafter, J.M.F. went back inside and tried to get into their bedroom but the
door was locked. When his mother came
home from the store, he told her the door was locked. Maria unlocked the door and J.M.F. saw that
his sister, E.F., was crying. His mother
started crying, and closed the door. J.M.F.
then heard arguing.

Several months
later, on the evening of April 20,
2011, defendant and Maria got into an argument. Defendant grabbed her, even though she was
holding their young son, and pushed her against the wall. Defendant choked her, and then punched her in
the mouth. Defendant also threatened
Maria multiple times, telling her he would kill her and take their son
away. J.M.F witnessed the argument.

J.M.F. took his
mother’s cell phone, went outside and called 911. He told the operator that defendant had been
arguing with his mother, had punched her in the face, and her lip was bleeding. J.M.F said he had seen defendant hit his
mother on other occasions as well.

Deputy Victor
Lemus of the Los Angeles County Sheriff’s Department was dispatched to the home
on 89th Street in response
to J.M.F’s 911 call. Deputy Lemus and
his partner went into the home and found defendant and Maria in one of the
bedrooms. She was crying, had red marks
on her neck, and blood on her bottom lip.
Deputy Lemus took statements from Maria and J.M.F. He contacted the href="http://www.fearnotlaw.com/">Department of Children and Family Services
(DCFS) because the domestic violence incident occurred in front of minor
children. Deputy Lemus then placed
defendant under arrest.

Ana Vargas, a
social worker with DCFS, reported to the home the following morning. Ms. Vargas interviewed each of the children
in private, as well as Maria. During her
interview of E.F, E.F. disclosed that defendant had touched her inappropriately
on three separate occasions. Ms. Vargas
spoke to Maria about it and she began crying, acknowledging she had walked in
on an incident several months earlier and had not reported it because she was
scared of defendant.

Deputy Adam Borges
arrived at the home and re-interviewed the children. E.F. confirmed the sexual abuse during a
private interview with Deputy Borges.
The children were then removed from the home. J.M.F, E.F., and J.R.F. were placed with
their biological father, Roberto F. M.G.
was placed in foster care.

Defendant was charged with three
counts of forcible lewd acts against E.F., a child under the age of 14, as well
as assault, corporal injury to a cohabitant, and criminal threats against
Maria. Defendant pled not guilty to all
six charges.

Trial by jury proceeded in August
2011. During pretrial argument, the
prosecutor moved to have E.F.’s statement to the social worker, Ms. Vargas,
admitted under the “fresh-complaint” doctrine.
Defense counsel argued it was not relevant if E.F. was going to
testify. The court ruled the testimony
admissible.

During his opening statement,
defense counsel stated that Maria was “instigating a conspiracy against”
defendant through the children.

The prosecutor presented the
testimony of Deputy Lemus and then called the oldest boy, J.M.F., who described
the domestic violence incident on April
20, 2011. An audio recording
of his 911 call was played for the jury.
J.M.F. also described the day in the summer of 2010 when he found the
door to their bedroom locked with defendant and his sister inside.

Maria testified to her relationship
with defendant, the domestic violence incident, and the time when she came home
from the store and found defendant and E.F. locked in the bedroom. She said she unlocked the door with the key,
and when she went into the room she saw E.F. lying on the bed with her pants
and underwear pulled down to her knees, and defendant was on top of her. E.F. looked frightened and eventually started
crying. Defendant said nothing was going
on and threatened Maria that he would take their son away if she told anyone
what she had seen. She did not report
the abuse to any authorities because she was frightened.

Maria further stated that she
continued living with defendant after the incident because she had nowhere to
go, she had no family in the United States,
and she was financially dependent on him.
She slept with her daughter and did not let defendant near her. Defendant continued to hit her and threaten
her, but she never made any report to law enforcement because she believed his
threats.

After Maria’s testimony, the
prosecutor told the court she planned to call Deputy Borges and Ms. Vargas as
witnesses. Defense counsel objected and
requested an offer of proof. The
prosecutor argued that because the defense had put forward the theory in
opening statement that Maria was conspiring with her children about the charges
against defendant, the testimony was necessary to show how and when the sexual
abuse of E.F. was reported to authorities.
The court ruled the testimony admissible.

Thereafter, Deputy Borges
testified. He reported to the home on 89th
Street to investigate the report of a possible
lewd act on a child. Upon arriving, he
interviewed E.F. privately. She cried a
lot during the interview. Deputy Borges
also interviewed J.M.F. and Maria. After
completing those interviews, he contacted the Special Victims Bureau because he
believed E.F. was a victim of a sex crime.
Defense counsel did not raise any objections to any specific question
asked of Deputy Borges, and did not cross-examine the deputy.

Ms. Vargas testified that she was
referred to the home on 89th Street in April 2011 because of an incident of
domestic violence between the mother and her boyfriend which took place in
front of minor children. She said she
interviewed Maria and the three older children individually and in
private. The youngest boy was too young
to give a statement.

Before Ms. Vargas testified about
her interview of E.F., the court instructed the jury that any statements made
by E.F. to Ms. Vargas “are admitted for a limited purpose, the fact that [E.F.]
did make a complaint or this complaint to Ms. Vargas, it’s not offered for the
truth of the statements that were made, the truth of the facts included in the
statement.”href="#_ftn1" name="_ftnref1"
title="">^[1]

Ms. Vargas then explained that she
assessed all children for all possible forms of neglect and abuse. When she asked E.F. if anyone had ever
inappropriately touched her, E.F. looked nervous, and looked away from
her. She repeated the question, and E.F.
stated that defendant had touched her “ ‘down there’ ” three
different times. Ms. Vargas clarified
that E.F. indicated her vagina was where the touching occurred. When Ms. Vargas asked her specifically what
happened, E.F. told her that defendant would make sure no one else was in their
bedroom, he would lock the door, and then push her on the bed, and touch her,
either while lying next to her or on top of her.

E.F. told Ms. Vargas that defendant
would put his hand over her mouth and tell her not to tell her mother. E.F. said that the last time, her mother
walked in and saw defendant trying to pull her underwear and pants back
up. E.F. told Ms. Vargas that she was
too scared to explain to her mother what happened. Defense counsel only raised a couple of
objections to specific questions posed to Ms. Vargas, none of which are material
to the issue raised on appeal.

E.F. testified to the three
incidents of sexual abuse, including the last incident in which her mother came
into the room and discovered what was happening. She explained defendant’s pattern of waiting
for the boys to leave the room to go play, then locking the door and pushing
her on the bed. Defendant would pull her
pants and underwear down and touch her private parts. E.F. said she tried to scratch and push him,
and even tried to bite him, but she could not make him stop. She said defendant would put one of his hands
over her mouth to prevent her from screaming.
E.F. said defendant stopped touching her after the last incident when
her mother came into the room and saw what he was doing. E.F. said she was telling the truth, and
denied that her mother told her what to say or that it was made up.

Defendant took the stand in his own
defense. He denied any sexual abuse of
E.F. and denied ever hitting Maria. He
said that during the argument with Maria on April 20, 2011, she was trying to
hit him and he put up his hand to block her and may have cut her lip with his
fingers. He testified that everything
she said was a lie. Defendant explained that he treated all four of the children
as his own, took care of them financially, made sure they did their homework,
and would never hurt them.

Defendant also called Roberto F.,
the biological father of the three older children. Roberto said he asked E.F. once about what
happened, and that she verified there were incidents of domestic violence, but
said that defendant had not touched her.


The jury was
unable to reach a verdict as to counts 1 and 2 (forcible lewd act on a
child). Those counts were
dismissed. The jury found defendant
guilty of count 3 (forcible lewd act on a child), count 4 (assault), and count
5 (corporal injury of cohabitant). The
jury found defendant not guilty on count 6 (criminal threats). The court sentenced defendant to an aggregate
state prison term of seven years. This appeal followed.

DISCUSSION

Defendant’s sole
contention on appeal is that the court committed prejudicial error in admitting
the hearsay statement of E.F. to the social worker, Ms. Vargas, and that even
if the statement was admissible, Ms. Vargas’s testimony went beyond the
permissible scope of “fresh-complaint” evidence. “A trial court’s exercise of discretion in
admitting or excluding evidence is reviewable for abuse [citation] and will not
be disturbed except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice [citation].” (>People v. Rodriguez (1999) 20 Cal.4th 1,
9-10.) We find no abuse of discretion or
error in the trial court’s admission of the testimony.href="#_ftn2" name="_ftnref2" title="">^[2]

The
“fresh-complaint” doctrine was explained in People
v. Brown (1994) 8 Cal.4th 746 (Brown),
in which the Supreme Court concluded that “under
principles generally applicable to the determination of evidentiary relevance and
admissibility, proof of an extrajudicial complaint, made by the victim of a
sexual offense, disclosing the alleged assault, may be admissible for a
limited, nonhearsay purpose—namely, to establish the fact of, and the
circumstances surrounding, the victim’s disclosure of the assault to
others—whenever the fact that the disclosure was made and the circumstances
under which it was made are relevant to the trier of fact’s determination as to
whether the offense occurred.” (>Brown, at pp. 749-750.) Under the doctrine, the timing of the report
of abuse and the voluntariness of the report are “not necessarily determinative
of the admissibility of the evidence of the complaint. Thus, the ‘freshness’ of a complaint, and the
‘volunteered’ nature of the complaint, should not be viewed as essential
prerequisites to the admissibility of such evidence.” (Id.
at p. 750.)

Here,
defense counsel told the jury in his opening statement that Maria was
“instigating a conspiracy” against defendant through her children—a plain
challenge to the veracity of the report of sexual abuse by E.F. As such, the trial court properly allowed the
prosecutor to rebut the claimed fabrication by offering evidence of the
circumstances surrounding the reporting of the sexual abuse to the authorities.

As
for the scope of the testimony admitted, we also find no error. Defendant correctly argues the specific
details surrounding the nature of a complaint reported to a third party are not
properly admitted. “[O]nly the fact that
a complaint was made, and the circumstances surrounding its making, ordinarily
are admissible; admission of evidence concerning details of the statements
themselves, to prove the truth of the matter asserted, would violate the
hearsay rule.” (Brown, supra,> 8 Cal.4th at p. 760.) “But limiting the testimony to the ‘bare
fact’ of the complaint is unwarranted.”
(1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 169, p. 884.)

Evidence may be
properly admitted “ ‘that the complaint related to the matter being
inquired into, and not a complaint wholly foreign to the subject’ [citation];
that is, the alleged victim’s statement of the nature of the offense and the
identity of the asserted offender, without details, is proper.” (People
v. Burton (1961) 55 Cal.2d 328, 351 (Burton),
italics omitted; see also People v.
Meacham (1984) 152 Cal.App.3d 142, 159-160.)

The testimony
elicited from Ms. Vargas did not exceed these acceptable parameters. Given the manner in which E.F. struggled to
relay the information to Ms. Vargas, some explication of the circumstances
surrounding her statement was necessary for context. The testimony received into evidence
consisted only of such facts necessary to show that E.F.’s disclosure to Ms.
Vargas “related to the matter being inquired into,” identified the “nature of
the offense” and was “not a complaint wholly foreign to the subject.” (Burton,
supra, 55 Cal.2d at p. 351, italics
omitted.) And, Ms. Vargas, Deputy
Borges, Maria and E.F. all testified at trial.
The jury was able to judge their credibility based on their firsthand
direct testimony about how and when the sexual abuse was reported (a fact put
in issue by the defense theory), with defense counsel having a full and fair
opportunity to cross-examine all four witnesses on the details of their
testimony.

Defendant argues
it was prejudicial error and Ms. Vargas’s testimony necessarily affected the
jury’s verdict unfairly because the fresh-complaint testimony served to
reinforce E.F.’s version of events.
Defendant contends the fact the jury could not reach a verdict on counts
1 and 2 suggests the hearsay testimony was the “tipping point” for the jury on
count 3. We are not persuaded. Ms. Vargas’s testimony was relevant to all
three counts under Penal Code section 288.
The fact the jury did not reach a verdict on counts 1 and 2 shows the
jury was not unduly prejudiced by Ms. Vargas’s testimony, but rather, weighed
the evidence pertaining to each count separately and fairly. Ms. Vargas and E.F. testified in person and
were available for cross-examination.
The jury was not left to rely solely on the extrajudicial statements
concerning the occurrence of the abuse.
Moreover, the jury was properly instructed regarding the limited purpose
of the evidence, both before the testimony was received, and at the close of
evidence. The evidence was not unfairly
prejudicial.

DISPOSITION

The judgment of conviction is
affirmed.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS







GRIMES,
J.



WE CONCUR:







RUBIN, Acting P. J.







FLIER, J.