P. v. Palomo
Filed 9/16/13 P.
v. Palomo CA2/6
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROBERT PALOMO,
Defendant and
Appellant.
2d Crim.
No. B238060
(Super. Ct. No.
F461608)
(San
Luis Obispo County)
Robert Palomo appeals a
judgment following conviction of three counts of oral copulation of a child
less than 10 years old, and three counts of committing a lewd act on a child,
with a finding that he committed the criminal
offenses on more than one victim.
(Pen. Code, §§ 288.7, subd. (b), 288, subd. (a), 667.61, subd.
(e).)
FACTS
AND PROCEDURAL HISTORY
In 2011, the
Obispo County prosecutor filed a second amended information charging Palomo
with three counts of child molestation committed against I. Doe in 2007,
two counts of child molestation committed against Elizabeth Doe in 2010, and
one count of child molestation committed against Emily Doe in 2010. At trial, the prosecutor also presented
evidence of an uncharged act of child molestation committed in 1995 against
C.O.
Against I.
(§§ 288.7,
subd. (b) & 288, subd. (a).)
Palomo is the father of
I. Doe, and T.C. is her mother. In 2007,
I. lived with her mother but not her father.
When I. was five or six years old, Palomo touched her "private
part" with his "private" as well as his hand. He also placed his "private" in her
mouth. I. felt "uncomfortable"
and thought that Palomo's acts were "gross." I. also testified that when she was five
years old, another man in the household touched her "private part."
When interviewed in
2007, I. stated that her father touched her inappropriately. On March 2, 2011, I. was interviewed
again. She stated that her father put
his "private" in her mouth when she was in her bedroom during a
"time-out." I. described
another occasion where Palomo placed his mouth on her genitals. She also stated that Palomo's brother
Benjamin touched her inappropriately.
The interviews of I. were recorded and at trial, played for the jury.
A physical examination
of I. performed on April 30, 2007, revealed inflammation of her genitals
consistent with sexual abuse. A DNA
analysis performed in 2011 on secretions deposited on I.'s underwear revealed
semen consistent with the DNA profile of Palomo's brother Benjamin.
Sexual
Offenses Committed Against Elizabeth and Emily Doe
(§§ 288.7,
subd. (b) [Elizabeth only] & 288, subd. (a).)
Elizabeth and Emily Doe
are sisters who live with their great aunt and adoptive mother Debbie M. The M. family and Palomo's family became
close friends. Occasionally, Palomo, his
wife Anita, and their children would spend the night at the M. home in Oceano when
Debbie M. was away.
On one occasion when
Emily was 9 or 10 years old, the Palomo family was staying in the M. home. Emily awoke when Palomo "was sticking
his finger in [her] private." Emily
"rolled over" to avoid him.
Thereafter, she felt "uncomfortable" whenever Palomo was
present.
During June 2-4, 2010,
the Palomo family again stayed in the M. home when Debbie M. attended an
out-of-town graduation ceremony. While
five-year-old Elizabeth was lying on Debbie M.'s bed, Palomo removed her
underwear and "licked [her] private."
After the Palomo family left and Debbie M. returned, Elizabeth informed
her that Palomo "licked her pee-pee."
Debbie M. then informed her social services counselor who reported the
incident to law enforcement.
Approximately one week
following Elizabeth's complaint of molestation, Emily also revealed to a social
worker that Palomo had molested her.
1995
Molestation of C.O.
In 1995, the O. family
lived in Santa Maria, including C.O., who was then three years old. Palomo, then 13 years old, lived in the
neighborhood and played with the older O. children.
In May 1995, Mrs. O.
entered the living room of her home and saw Palomo's hand inside C.O.'s pants,
touching C.O.'s buttocks. Mrs. O.
informed law enforcement and Palomo was arrested. After advisement and waiver of his rights
pursuant to Miranda v. Arizona (1966)
384 U.S. 436, Palomo stated that he "molested" C.O. as they played
video games. He stated that he
"just put his hand down her pants," because "it just came to his
head." Later, in a juvenile
adjudication hearing, Palomo admitted that he molested C.O.
Palomo's
Trial Testimony
Palomo testified at
trial and denied molesting any of the children, including his daughter. Concerning C.O, he explained that he
"reached [his] hand inside" her sweatpants to remove "a
foxtail." Palomo denied that he
admitted to law enforcement that he molested C.O.
Palomo and his wife
testified and accounted for their whereabouts and activities during the June
2010 weekend that Elizabeth had been molested.
Palomo also testified
that he had used methamphetamine and marijuana for many years. He confirmed that he behaved in inappropriate
ways when he was under the influence of drugs.
The jury convicted
Palomo of three counts of oral copulation of a child less than 10 years old,
and three counts of committing a lewd act on a child. (§§ 288.7, subd. (b), 288, subd.
(a).) It also found that he committed
the criminal offenses on more than one
victim, pursuant to section 667.61, subdivision (e). The trial court sentenced Palomo to four
consecutive 15-year-to-life terms for counts 1, 3, 5 and 6, and stayed sentence
for counts 2 and 4 pursuant to section 654.
It imposed a $10,000 restitution fine and a $10,000 parole revocation
restitution fine (stayed), ordered victim restitution, and awarded Palomo 611
days of presentence custody credit.
(§§ 1202.4, subd. (b), 1202.45, 1202.4, subd. (f).)
Palomo appeals and
contends that the trial court erred by:
1) not dismissing the counts regarding I. due to pre-accusation delay;
2) improperly permitting evidence of the 1995 molestation; 3) instructing with
CALCRIM No. 1191; and 4) instructing with CALCRIM Nos. 1190 and 301.
DISCUSSION
I.
Palomo argues that the
trial court erred by not dismissing the three counts involving I. due to
pre-accusation delay. He contends that
witnesses, including I.'s mother, T.C., were unavailable at the 2011
trial. Palomo asserts that the pre-accusation
delay denied him due process of law pursuant to the federal and California
Constitutions.
Prior to trial, Palomo
sought to dismiss the counts involving I.'s 2007 molestation because T.C. could
not be located.
title="">[2] Palomo asserted that T.C. ("the
lynchpin" of his defense) would have testified that I. reported that
Benjamin Palomo molested her, and that drug users and parolees frequented the
C. home. The prosecutor responded that
he received corroboration of I.'s allegations in 2010 when Elizabeth and Emily
complained of molestation, and I. was later reinterviewed. Also in 2011, DNA analysis revealed that
Benjamin Palomo was the likely donor of secretions deposited on I.'s
underwear. The prosecutor stated that
prior to 2010-2011, he could not establish beyond a reasonable doubt that Palomo
molested I. The trial court denied the
motion to dismiss, stating that I. accused Palomo and his brother of molesting her, and that defense claims as to
missing witnesses were speculative.
Constitutional
principles of due process of law safeguard a defendant's interest in fair
adjudication by preventing unjustified charging delays that weaken the defense
through the dimming of memories, the death or disappearance of witnesses, and
the loss of material physical evidence.
(People v. Abel (2012) 53
Cal.4th 891, 908.) A defendant seeking
relief for undue delay in filing charges must establish prejudice from the
delay, such as the loss of material witnesses or evidence, or fading
memories. (Ibid.) We do not presume
prejudice from precharging delay. (
prosecution may offer justification for the delay. (Id.
at p. 909.) The court then balances
the harm to defendant against the justification for the delay. (Ibid.) If defendant does not establish prejudice,
the court need not determine whether the delay was justified. (Ibid.) We review the court's ruling regarding
charging delay for an abuse of discretion.
(People v. Cowan (2010) 50
Cal.4th 401, 431.)
The trial court did not
abuse its discretion because Palomo did not establish sufficient prejudice from
the four-year delay. Evidence from other
trial witnesses established that I. initially accused only Benjamin Palomo of
molesting her. During her later
interview with a social worker, she also implicated her father. Claims of prejudice from other unavailable
witnesses were speculative and Palomo did not suggest what testimony they might
provide. Indeed, the prosecutor stated
that he intended to impeach T.C. with a statement that T.C. "wouldn't be
surprised if [Palomo] did molest [I.] if he was using
methamphetamine." Moreover, the
prosecutor explained the delay as necessary to obtain additional evidence to
prove the matter beyond a reasonable doubt.
"A court should not second-guess the prosecution's decision
regarding whether sufficient evidence exists to warrant bringing
charges." (People v. Nelson (2008) 43 Cal.4th 1242, 1256.) Thus even if Palomo established minimal
prejudice, the prosecutor presented sufficient justification for the
delay. (Ibid. [further investigation may provide strong justification for
delay].)
Palomo contends that the
trial court improperly admitted evidence of his 1995 sexual offense against
C.O. because the prior offense was remote in time, too dissimilar from the
charged offenses, and inflammatory.
(Evid. Code, §§ 1108, subd. (a) ["In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant's
commission of another sexual offense or offenses is not made inadmissible by
Section 1101, if the evidence is not inadmissible pursuant to Section
352"]; 1101, subd. (b), 352.)
name="_ftnref3" title="">[3] He argues that admission of the evidence
denied him due process of law pursuant to the federal and California
Constitutions. Palomo also claims that
section 1108 is unconstitutional, facially and as applied, asserting that the
court did not perform a sufficient section 352 analysis.
In exercising its
discretion to admit evidence of a prior sexual offense pursuant to sections
1108 and 352, the trial court must consider such factors as the nature,
relevance, and possible remoteness of the prior offense; the degree of
certainty of its commission; the likelihood of confusing, misleading, or
distracting jurors from their main inquiry; similarity to the charged offenses;
any likely prejudicial effect upon the jurors; the burden on defendant to
defend against the prior offense; and the availability of less prejudicial
alternatives to its outright admission, such as defendant admitting that he
committed the prior offense or the exclusion of irrelevant, inflammatory
details regarding the prior offense. (
61.) Our Legislature has determined that
prior sexual offense evidence is particularly probative, and there is a
presumption in favor of its admission. (
sections 352 and 1108 for an abuse of discretion. (Id. at
p. 61.)
The trial court did not
abuse its discretion in permitting evidence of the C.O. molestation because it
was relevant to the credibility of the complaints of I., Elizabeth, and Emily
that Palomo molested them. Section 1108
permits the factfinder to consider evidence of prior offenses for any relevant
purpose, subject to the weighing process of section 352. (People
v. Loy, supra, 52 Cal.4th 46,
63.) Palomo's defense concerned
suggestions that the girls were mistaken or had been led by a social worker to
accuse him.
The molestation of C.O.
occurred 12 years before the molestation of I.
Decisions have countenanced the admission of prior sex offenses that
were similarly remote in time. (
405 [12-year gap]; People v.
284-285 [30-year gap balanced out by substantial similarities between the prior
and the charged offense].)
Moreover, the
molestation of C.O. and Emily involved similar acts of touching young girls
under their clothing. C.O. and Emily
also were unaware of Palomo's acts or sleeping at the time. The acts against I. and Elizabeth involved
oral copulation. All of the children
were in the general age range of three years old (C.O.) to nine years old
(Emily) at the time of the acts.
Importantly, the 12-year
time difference between the molestation of C.O. and the M. family victims
permits the reasonable inference that Palomo engaged in molesting young girls
from his adolescence continuing into young adulthood. Although Palomo grew older, the age of his
victims remained nearly the same.
Palomo's reliance on
727 does not assist him. There, the
prior offense was a violent sex offense and evidence of it was
"inflammatory in the extreme." (Id.
at p. 738.) The charged sexual offenses
were not forcible but involved breaches of trust. (Ibid.) These circumstances do not exist here. (People
v. Loy, supra, 52 Cal.4th 46, 64
[distinguishing Harris].)
The jury also was not
likely to convict Palomo of the charged crimes to punish him for the crime
against C.O. He admitted molesting C.O.
in a juvenile adjudication hearing and his commission of that crime was certain
and established. (People v. Loy, supra, 52
Cal.4th 46, 60-61.) He "bore no new
burden of defending against the [prior] charges." (Id.
at p. 61.)
In People v. Falsetta (1999) 21 Cal.4th 903, 916-922, our Supreme
Court rejected a due process challenge to section 1108. In People
v. Loy, supra, 52 Cal.4th 46, 60,
our Supreme Court declined to reconsider its holding in Falsetta. (
155, 183.) We are bound by these
decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) Moreover, the trial court did not
abuse its discretion in admitting evidence of the molestation of C.O. following
the arguments of counsel and application of the weighing process and
evidentiary considerations of section 352.
Thus, as applied to Palomo, evidence of the earlier molestation did not
impair his constitutional rights to a fair trial and to
III.
Palomo argues that the
trial court erred by instructing with CALCRIM No. 1191 ("Evidence of
Uncharged Sex Offense"), asserting that the instruction is
unconstitutional. He concedes that our
Supreme Court held that a predecessor instruction (CALJIC No. 2.50.01) is constitutional,
but raises the constitutionality argument to preserve the point for federal
court review. (People v. Reliford (2003) 29 Cal.4th 1007, 1011-1016 [CALJIC No.
2.50.01 is a correct statement of the law].)
People v. Reliford,
instruction similar to CALCRIM No. 1191, and concluded that it: properly reflected the law set forth in
section 1108, permitted the factfinder to consider prior sex offenses to prove
criminal disposition, allowed for permissible and appropriate inferences, and
did not violate due process of law. (
different version of CALJIC No. 2.50.01, and concluded that instruction also
was constitutional, relying upon Reliford. (People
v. Loy, supra, 52 Cal.4th 46,
71-76.) We are bound by the decisions of
our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455.)
Accordingly, we reject Palomo's contention.
IV.
Palomo contends that the
trial court erred by instructing with CALCRIM No. 1190 ("Other Evidence
Not Required to Support Testimony in Sex Offense Case") because it is a
pinpoint instruction on a subject already addressed by the neutral CALCRIM No.
301 ("Single Witness's Testimony").
He asserts that CALCRIM No. 1190 improperly lightened the prosecution's
burden of proof and constitutes reversible error.
The trial court
instructed with CALCRIM No. 1190 that, "Conviction of a sexual assault
crime may be based on the testimony of a complaining witness alone." It also instructed with CALCRIM No. 301 that,
"The testimony of only one witness can prove any fact. Before you conclude that the testimony of one
witness proves a fact, you should carefully review all the evidence."
In People v. Gammage (1992) 2 Cal.4th 693, 700, our Supreme Court
concluded that the predecessor versions of CALCRIM No. 1190 (CALJIC No. 10.60)
and CALCRIM No. 301 (CALJIC No. 2.27) "considered separately, correctly
state the law." Although the two
instructions "overlap to some extent, each has a different
focus." (Ibid.) The former version of
CALCRIM No. 301 concerns the evaluation of a fact proved solely by the
testimony of a single witness. (
The former version of CALCRIM No. 1190 declares a rule of substantive law,
that the testimony of the complaining witness need not be corroborated. (Id.
at pp. 700-701.) Gammage decided that the instructions in combination did not create
a preferential credibility standard for the complaining witness in a sexual
assault prosecution. (
modifies the other. . . . The
instructions in combination are no less correct, and no less fair to both
sides, than either is individually."
(Ibid.) Gammage
also rejected the argument that jurors are generally aware that there is no
legal requirement of corroboration. (
continuing vitality in instructing juries that there is no legal requirement of
corroboration"].)
Accordingly, we reject
Palomo's contention. (
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
>
John A. Trice, Judge
Superior Court County
of San Luis Obispo
______________________________
Julie
Sullwold, 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, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Zee Rodriguez, Deputy Attorney
General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless stated otherwise.
name="_ftn2" title="">[2] An arrest warrant existed
for T.C.'s arrest. The trial court found
that she likely made herself unavailable by evading service.
